Loughner will end up "testifying" even if he never takes the stand

The Fifth Amendment protects us against self-incrimination. But it doesn't shield Loughner from having to provide handwriting samples,as I noted in an earlier posting. Nor will it prevent the prosecutors from showing the jury his YouTube videos and other on-line appearances.

Even if Loughner Doesn’t Testify, Jurors Could See Videos, Officials Say
JOSEPH GOLDSTEIN and MARC LACEY
Published: Thursday, February 10, 2011 at 6:30 a.m.
Last Modified: Thursday, February 10, 2011 at 5:16 a.m.

TUCSON — Videotaped messages recovered from a computer at the home of Jared L. Loughner, the man accused of opening fire at a congresswoman’s public event in Tucson last month, could mean that a jury will hear from Mr. Loughner in his own words even though he is unlikely to testify at trial, law enforcement officials said.

In addition to written statements by Mr. Loughner found at his residence, investigators have retrieved a cache of video recordings in which he expounds on a variety of topics and mentions assassination, a law enforcement official close to the investigation said.

“There are a lot of face-in-the-camera videos,” said the official, who was not authorized to speak publicly on the case. “In some, he’s talking about assassinations, but I don’t think he mentions her,” the official said, referring to Representative Gabrielle Giffords, who was critically wounded in the deadly attack and is considered its main target.

Evidence from email and the Internet is fast becoming as important as DNA in criminal cases. I recall the case of Capano v. State [781 A. 2d 556 (Del. Supreme Ct. 2001)], because the defendant had been a partner in the Wilmington (DE) office of the law form where I worked and I had met him a time or two. Accused of killing his lover, chopping her up, and dumping the body parts in the ocean, his motive was established in part from email messages. This is an excerpt from the 2001 Delaware Supreme Court decision, which affirms his conviction and approves the imposition of the death penalty (later commuted to life without parole):

Fifth, the State presented evidence that Fahey sought to end her romantic involvement with Capano in January and February of 1996. FN113 The State also presented evidence that Capano did *605 not want the relationship to end and that he was upset about Fahey's attempts to break things off between them.FN114 This evidence supports the State's theory that Capano had a motive to kill Fahey because she rejected him and started to date another man.FN115

FN113. Email message of 2/4/96 from Fahey to Capano (indicating that she had told Capano that she wanted to pursue only a platonic relationship with him); email message of 2/7/96 from Fahey to Capano (“I meant what I said on Sunday night about right now only being able to offer you my friendship....”); Tr. of 11/3/98, at 34-35, 40 (Dr. Sullivan); Tr. of 10/29/98, at 10-12 (Dr. Johnson). The admission of these emails into evidence was stipulated to by the parties.


FN114. Email message of 2/14/96 from Fahey to Capano (“Tommy, you scared me this weekend, starting with Friday and all the calls you placed. It really freaks me out when you call every half hour.”).