A dying man who had been paralyzed by a gunshot wound used eye-blinks to identify the shooter, but defense attorneys argue that the testimony shouldn’t hold up in an Ohio court.

David Chandler was shown a photo of a man police believed had wielded the gun, was asked if he was indeed the shooter, and was told to blink twice for no and three times for yes. He died a short time later from his wounds. Authorities videotaped the questioning an submitted it as evidence against Ricardo Woods, who has now been charged with murder, felony assault, and at least one weapons charge.

But defense attorneys say the video shouldn’t be admitted as a testimony because Chandler’s blinks were erratic, and because he was only shown one photo rather than given a choice when it came time to identify his shooter.

“They planted the idea in his mind, and then asked him to respond,” attorney Kory Jackson said. “It is improperly suggestive. That causes false identifications more often than not.”

But a doctor who examined Chandler said that he was perfectly capable of communicating with blinks before he died. And though his testimony wasn’t the sole evidence entered–an informant testified that Woods said he’d shot Chandler because Chandler caught him buying drugs from someone while he owed Chandler money–Jackson says he believes the charges are unfair.

“We’re disappointed in the verdict,” he said. “We have said since the beginning that the video should not have been allowed into evidence.”