I have an evading/meth case set for trial next week. Defendant evaded with vehicle, co-defendant jumped out of car with 12 grams of meth, trooper can positively identify my defendant as the driver. Driver got away at time due to trooper going after co-defendant on foot. Defendant claims he was not there.

Yesterday, after looking up the defendant on myspace, I found a video of my defendant smoking meth.

Question #1 - What predicate is required when the defendant is the videographer and the other videographers cant be identified?

Question #2 - Any suggestions on getting this video in under 404b? I figure the video was made in 2007. I wanted to try under indentification, because my defendant was wearing the same clothing in my present case as we was wearing in his meth video.

Let me know if you need more facts. Any help would be appreciated.

Thanks.

Evidence is authenticated by one of two ways: (1) a person with knowledge or (2) through a process or system that establishes the item can reliably be established as what you purport it to be.

Sounds like you might need a combination. Someone has to identify the defendant in the video and that what he is doing looks very much like using a controlled substance. Someone also has to establish that the images were made in a way that reliably captured sight and sound (or just sight).

You could use a friend or relative or an investigator who knows defendant and his clothing for the first part. Then use an investigator with knowledge of meth and its use for some of it. Then, use a computer forensics person to establish how one would capture such video and post it.

You likely also need to trace the account to the defendant, although that really isn't all that important if you can indisputably establish that defendant is the person in the video. But such info might help with establishing a time and date for the video.

Of course, if the defendant or his mother gets on the witness stand, this gets very easy.

None of this guarantees that the evidence is admissible during guilt. How does this make it more probable that the defendant possessed the drugs you charged him for? How does that probability weigh against the obvious unfair prejudice?

Keep us posted. These new types of digital information will require some updating in the Predicate Manual. Also might be a good addition for the Predicate Bowl.