Melvin Pate is seen blinking to identify his shooter in a video image. Pate was shot and left paralyzed but was able to ID his shooter by blinking his eyes during a police lineup. (Office of the State's Attorney)

Video of a paralyzed man blinking to point out his alleged assailant can be used as evidence in a Prince George’s County murder trial, according to a decision issued by Maryland’s highest court on Friday.

Attorneys for the defendant in the case argued that the video of the victim, who died before the case went to court, should be banned from the trial because it denies his Sixth Amendment right to confront his accuser.

But the Maryland Court of Appeals ruled that the blink should be considered a “dying declaration” that is exempt from the confrontation clause.

The case against Jermaine Hailes, 24, will now go to trial in Prince George’s County Circuit Court unless his attorneys decide to take the matter to the U.S. Supreme Court. The issue of whether the video of the blink can be used in Hailes’s case has been closely watched, as prosecutors in Maryland believe it would be only the fourth time in U.S. history that a dead victim’s nonverbal identification could be used as evidence in a murder trial.

Jermaine Hailes is suspected of killing Mevlin Pate during a 2010 robbery. (Prince George County Police)

The case stems from the 2010 shooting of Melvin Pate, who was left paralyzed during a drug robbery. Pate, who was shot in the face, was asked from his hospital bed to identify who fired the gun. Unable to speak because of his injuries, Pate blinked at a photo of Hailes during a photo lineup to accuse him of the shooting. But Pate died before Hailes’s case went to court, so prosecutors requested that video of his blink be used in the trial.

At issue has been whether Pate’s blink can be considered a “dying declaration.” Pate identified the man who allegedly shot him shortly after doctors told him and his family that he probably had only about 24 hours to live. But Pate, 29, survived for two years as a quadriplegic.

The Court of Appeals ruled that the length of time between Pate’s statement and his death did not matter in this instance.

“Obviously, no one can predict the future with absolute certainty; thus, a declarant can genuinely believe, but cannot know for certain, that his or her death is imminent when the declarant makes a statement,” the court’s ruling stated. “The genuineness of the declarant’s belief in imminent death is not diminished by the circumstance that that belief is, in hindsight, inaccurate. Indeed, it would lead to illogical results to consider the length of time between a statement and the declarant’s death in determining whether the statement is a dying declaration.”

Hailes’s attorneys also argued that dying declarations should not be exempt from the confrontation clause, saying that they are unreliable and that someone could be lying on his deathbed.

But the Court of Appeals disagreed, saying that the exception for dying declarations existed long before the Constitution and that denying them “for lack of cross-examination would result in a failure of justice.”

Brian Zavin, the assistant public defender who represents Hailes, said that he had no comment on the court’s decision and that Hailes’s legal team has not decided whether it will petition the U.S. Supreme Court to hear the case.

In 2013, a Prince George’s County Circuit Court judge would not allow the video as evidence, but appeals to the Maryland Court of Special Appeals and the Court of Appeals both found in favor of prosecutors.

“We think that is a tremendous ruling in our favor,” Prince George’s County State’s Attorney Angela Alsobrooks said of the recent decision. “It is precedent setting, and it also says to bad guys that we will go as far as we need to to be firm in these cases.”