Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 17, 2013

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It is not unusual for eyewitness testimony to prove critical in a murder conviction, however, prosecutors in Cincinnati put together an unusual case by relying extensively on the testimony of a paralyzed witness unable to speak.  Last week, Ricardo Woods was convicted of murder after a shooting victim communicated with a series of blinks to identify Mr. Woods as his attacker.  The victim, since deceased, was able to blink three times in response to a question of identification that contributed to Mr. Woods’ conviction.

Appeal Planned Following Paralyzed Witness Testimony

Woods, who maintained innocence throughout the trial, has already stated he intends to file an appeal after taking issue with testimony communicated by a series of blinks.  The victim/witness was interviewed by police in a room separate from the trial, and responded to questions and images of the defendant by blinking affirmative or negative.  Woods’ defense attorneys took issue with the way the interview with conducted, pointing out the following:

  • In the video, police had to repeat some questions when the witness failed to response
  • At times, the number of blinks appeared unclear
  • Police showed the victim only one photo – that of Woods – which may be suggestive

Whether or not these complaints are valid remains to be seen on appeal – the trial judge clearly did not find them to outweigh the value of a positive identification by an alleged victim.  Also helpful for prosecutors was supplemental testimony by a medical expert who stated the victim was able to respond to questions about his condition in a manner that indicated he was aware of his situation and could provide responses to high level inquiries.  It is also worth noting that there could be no mistaking the victim’s response to the image of Woods – an emphatic series of blinks ID’ing him – and that other witnesses, including a cellmate of Woods, contributed to the conviction. 

Although the video of the victim blinking through his testimony will make the headlines, and be a highlight of the appeal, jurors considered several pieces of evidence offered by either side before coming back with a conviction.  The inclusion of the video testimony raises eyebrows and questions of whether or not it was properly admitted, but the upcoming appeal will be forced to answer a variety of questions.

The Reliability of Eyewitness Testimony

Non-verbal testimony is unusual, but is not unheard of.  Witnesses for a variety of reasons may be unable to verbalize their communication, and this has not stopped courts from allowing the testimony.  Most commonly non-verbal testimony is in the form of a gesture – definitive and with a meaning not difficult to confuse – which makes the act of blinking in response to questions more questionable.

Attorneys throughout the criminal justice system are highly critical of eyewitness testimony – verbally communicated or otherwise.  For years, psychological studies have been discounting the ability of humans to accurately recall an event they witnessed by demonstrating that recollections of events are commonly filled in with half-truths and exaggerations.  Going further, experienced attorneys are able to manipulate witness testimony with savvy questions and select exhibits – leaving an image to jurors that may not accurately reflect the circumstances of the crime.

Despite the best efforts of attorneys, police, and psychologists to come up with ways to ensure honest and accurate testimony, the fact remains that individuals are, by and large, either bad at recalling past events or prone to exaggerate (or lie) when telling a story.  Whether they are speaking, pointing, or blinking, eyewitnesses will always raise the hackles of attorneys, defendants, and legal professionals.  Mr. Woods’ conviction after a rare non-verbal testimony will not necessarily raise any new questions about the reliability of witnesses – it will merely add another dimension to a long standing and ongoing debate.