Petition — Massachusetts v. Hughes

80 j ‘TILED

“156 Aue2 1980

MICHAEL RODAK, JR. ae:

No. ;

In the

Supreme Court of the United States.

Ocroser TERM, 1980.

COMMONWEALTH OF MASSACHUSETTS,

PETITIONER,

v.

EDWARD H. HUGHES,

RESPONDENT.

Petition for Writ of Certiorari.

Francis X. BELLOTTI,

Attorney General,

BarBARA A.H. SMITH,

Assistant Attorney General,

Chief Criminal Appellate Division,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Question Presented.

Whether a court order requiring a defendant to produce a

registered weapon for the purpose of a ballistics examination

violates the Fifth Amendment privilege against self-incrimina-

tion?

1 The Commonwealth and the respondent are the sole parties to the instant

action.

Table of Contents.

Question presented

Opinion below

Jurisdiction

Constitutional provision invoked

Fifth Amendment

Fourteenth Amendment

Statement of the case

Reasons for the allowance of the writ

I. The Supreme Judicial Court has decided an

important question of federal law in a manner

inconsistent with prior applicable decisions of

this Court 6

A. The court below has improperly extended

the fifth amendment privilege against com-

pelled testimonial evidence to compulsion of

Ow wns ndD NY ND =

real, non-testimonial evidence 6

Conclusion i)

Appendix A ll

Appendix B 24

Table of Authorities Cited.

CASES.

Beecher v. Alabama, 389 U.S. 35 (1967) 5

Commonwealth v. Hughes, Mass. Adv. Sh. (1980)

1161, 404 N.E.2d 1239 2,4,5

ii TABLE OF AUTHORITIES CITED.

Couch v. United States, 409 U.S. 322 (1973) 5

Emery’s Case, 107 Mass. 172 (1871) 5

Fisher v. United States, 425 U.S. 391 (1976) 6, 7,8

Gilbert v. California, 388 U.S. 263 (1967) 6

Holt v. United States, 218 U.S. 245 (1910) 6

Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964) 5

Oregon v. Hass, 420 U.S. 714 (1975) 5

Schmerber v. California, 384 U.S. 757 (1966) 6,7,8

State v. Alexander, ___. Minn. __, 281 N.W.2d 349

(1979) (decided May 18, 1979) 8

State v. Dennis, 16 Wash. App. 417, 558 P.2d 297

(1976) 8

United Air Lines, Inc. v. Mahin, 410 U.S. 623 (1973) 5

United States v. Authement, 607 F.2d 1129 (5th Cir.

1979) 8

United States v. Bridges, 499 F.2d 179 (7th Cir. 1974) 8

United States v. Campos-Serrano, 430 F.2d 173 (7th

Cir. 1970) 8

United States v. Dionisio, 410 U.S. 1 (1973) 6

United States v. Euge, ___. U.S. ___., 100 S.Ct. 874

(1980) (decided Feb. 20, 1980) 6

United States v. Palmer, 536 F.2d 1278 (9th Cir. 1976) 7

CONSTITUTIONAL AND STATUTORY PROVISIONS.

_Jnited States Constitution

Fifth Amendment 2,4, 5,8

Fourteenth Amendment 3

TABLE OF AUTHORITIES CITED.

28 U.S.C. § 1257(3)

Mass. General Laws c. 140, § 129C

MISCELLANEOUS.

8 Wigmore, Evidence (McNaughton rev., 1961)

~

iii

No. ‘

In the

Supreme Court of the United States.

Ocroser Term, 1980.

COMMONWEALTH OF MASSACHUSETTS,

PETITIONER,

v.

EDWARD H. HUGHES,'

RESPONDENT.

Petition for Writ of Certiorari.

Question Presented.

Whether a court order requiring a defendant to produce a

registered weapon for the purpose of a ballistics examination

violates the Fifth Amendment privilege against self-incrimina-

tion?

' The Commonwealth and the respondent are the sole parties to the instant

action.

2

Opinion Below.

The Opinion of the Supreme Judicial Court, Common-

wealth v. Hughes is reported at Mass. Adv. Sh. (1980) 1161,

404 N.E.2d 1239.

Jurisdiction.

The judgment of the court below was entered on May 5,

1980. An application for an extension of time to and including

August 3, 1980 in which to petition for a Writ of Certiorari

was allowed on June 19, 1980 (Brennan, J.). The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(3).

Constitutional Provision Invoked.

FirrH AMENDMENT.

“No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indictment of

a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War

or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due pro-

cess of law; nor shall private property be taken for public use,

without just compensation.”

3

FOURTEENTH AMENDMENT.

“Section 1. . . nor shall any state deprive any person of life,

liberty, or property, without due process of law... .”

Statement of the Case.

On October 4, 1978, the respondent was indicted on two

counts of assault by means of a dangerous weapon, to wit, a

. pistol. The police recovered a .38 caliber spent projectile from

the vehicle in which the two victims of the assault were riding.

On March 28, 1979, the Commonwealth filed a Motion to

Order Defendant to Produce Weapon, specifically to produce

a Smith and Wesson .38 caliber revolver Serial Number

J354354 for ballistics examination. In support thereof the

Commonwealth filed an affidavit stating that it had been in-

formed by the Firearms Identification Division of the Massa-

chusetts Department of Public Safety that the defendant had

registered to him one .38 caliber revolver. In allowing the

motion the court noted,

Commonwealth to furnish Defendant with report of any

ballistic tests within 10 days of its receipt. This motion

is ordered sealed. Any question concerning the admissi-

bility of evidence emanating from the allowance of this

motion is deferred to the trial justice, if appropriately

raised. Defendant’s exception noted.

The respondent failed to comply and on August 30, 1979,

after hearing, he was held in contempt and ordered incarcer-

4

ated until purging himself of such contempt. The trial court

made Findings, Rulings and Order including the following:

3. I further find that the defendant purchased a revolver

bearing the same description as that which he was

ordered to produce on March 23, 1976, and I further find

that no report was mace to the Department of Public

Safety Firearms Bureau subsequent to that date of pur-

chase of any sale, loss, transfer or other event concerning

the ownership of said firearm.?

Incarceration was stayed pending appeal.

On May 5, 1980, the Supreme Judicial Court held that the

order directing the respondent to produce and the subsequent

order adjudging him in contempt, were in error and were

vacated. The Joint Application for Direct Appellate Review

had presented the issue as follows: “Does the Order of the

lower court violate the Defendant’s privilege against self-

incrimination?” In the Statement of Reasons for Direct Ap-

pellate Review the parties stated “The sole issue of law on this

appeal concerns the Constitution of the United States.”

In posing the issue the Supreme Judicial Court stated:

The upshot is that we have to say here whether the de-

fendants producing the revolver would have sufficient

testimonial aspects to initiate Fifth Amendment con-

sideration and whether in those aspects there can be

found a tendency to incriminate him. Commonwealth v.

Hughes, Mass. Adv. Sh. (1980) at 1166 (App. A, p. 16).

*Mass. Gen. Laws c. 140, § 129C requires such a report of all transfers,

sales, losses and thefts of firearms (App. B, p. 24).

The court concluded

The conclusion we reach in this case follows from basic

policies supporting the constitutional guaranty. As was

said in Couch v. United States, 409 U.S. 322, 328 (1973),

“[i]t is extortion of information from the accused himself

that offends our sense of justice.” And again: “our sense

of fair play . . . dictates ‘a fair state-individual balance

by requiring the government to leave the individual alone

until good cause is shown for disturbing him and by re-

quiring the government in its contest with the individual

to shoulder the entire load,’ 8 Wigmore, Evidence (Mc-

Naughton rev., 1961), 317.” Murphy v. Waterfront

Comm’n, 378 U.S. 52, 55 (1964). Our result, were it not

dictated, as we think it is, by the Fifth Amendment,

would in our view be required by the rather clearer terms

of the Constitution of the Commonwealth (see note 3).

See especially Emery’s Case, 107 Mass. 172, 182 (1871).°

Commonwealth v. Hughes, Mass. Adv. Sh. (1980) at

1173 (App. A. p. 23).

See also Oregon v. Hass, 420 U.S. 714, 719-720 (1975);

Beecher v. Alabama, 389 U.S. 35, 37 n.3 (1967).

* The reference to the Commonwealth’s Constitution does not establish an

independent state ground for the decision. The possibility that the state

court might have reached the same conclusion if it had decided the question

purely as a matter of state law does not create an adequate and independent

state ground that relieves this Court of the necessity of considering the federal

question. United Air Lines, Inc. v. Mahin, 410 U.S. 623, 630-631 (1973).

6

Reasons for the Allowance of the Writ.

I, THe SuprReME Jupic1aAL Court HAS DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW IN A MANNER INCONSISTENT

Wir Prior APPLICABLE DECISIONS OF THIS CouRT.

A. The Court Below has Improperly Extended the Fifth

Amendment Privilege Against Compelled Testimonial

Evidence to Compulsion of Real, Non-Testimonial Evi-

dence.

This Court has consistently held that the protection of the

privilege against self-incrimination does not extend to the com-

pelled production of non-testimonal evidence. The privilege

does not extend to the giving of blood samples, Schmerber v.

California, 384 U.S. 757, 763-764 (1966); to the creation of

handwriting exemplars, United States v. Euge, _. U.S.

___., 100 S. Ct. 874 (1980) (decided Feb. 20, 1980). Gilbert

v. California, 388 U.S. 263 (1967); voice exemplars, United

States v. Dionisio, 410 U.S. 1 (1973); or to compelling a de-

fendant to don a blouse worn by the perpetrator, Holt v.

United States, 218 U.S. 245 (1910).

The court below rejects the authority of these cases ap-

parently on the ground that the act of producing the weapon

constitutes tacit admission of the existence and location of the

weapon and impliedly serves to authenticate the weapon. In

so doing, the court has applied the analysis developed by this

Court in Fisher v. United States, 425 U.S. 391 (1976). It is

suggested that certiorari should be granted to resolve two im-

portant questions raised by such application.

First, whether the analysis appropriate to the compulsion of

documents containing matter of a communicative nature is

appropriate to the compulsion of real evidence, in itself,

neither testimonial nor communicative. At least one federal

7

court of appeal, in conflict with the court below, has rejected

such application. United States v. Palmer, 536 F.2d 1278 (9th

Cir. 1976). Although Mr. Justice Marshall, concurring in

Fisher, noted in a footnote that the court’s theory “would ap-

pear to apply to real evidence as well” (Fisher, at 430 n.1) the

issue was not before the court, and, it is suggested, is a ques-

tion of great importance to law enforcement deserving of

resolution, particularly in light of the substantial conflict such

analysis raises with the Schmerber line of cases.

Second, the Fisher analysis, concerning itself with the im-

plicit communicative aspects of the act of production of a

document is inappropriate to the production of real evidence.

The basic concern in Fisher, whether the act of production

might serve to authenticate the document in question and its

contents, has no application to the instant case. Here the de-

fendant has been compelled to produce the weapon for a

ballistics examination. Authentication of the weapon is ac-

complished, not by the defendant’s production, but by the

fact that it bears the serial number contained in the registra-

tion. There is no compulsion that the defendant himself sup-

ply such information. The evidence developed through the

ballistics analysis will be produced through expert testimony

exactly as in Schmerber.

The court below distinquished Schmerber by determining

that the location of the blood was a foregone conclusion, while

here the location of the gun is not. It is suggested that this is

not the controlling criterion for application of the privilege.

First, the prosecution has evidence, at least inferentially

through the registration of the weapon and absence of any

notice of loss, sale or transfer, that the weapon is in the posses-

sion of the defendant. Production of the weapon could only

constitute testimonial evidence of its location if indeed the pro-

secution sought at trial to offer testimony that the gun was

produced by the defendant. However, the order in the instant

case specifically deferred any ruling on the admissibility of

such testimony and it is suggested the issue was not properly

before the court below.

Most importantly, contrary to the cases relied upon by the

court below, the act of producing itself, or the implicit

acknowledgement of possession of the gun, is not in itself in-

criminating. It is not illegal to possess a registered gun. Coni-

pare, United States v. Campos-Serrano, 430 F.2d 173 (7th Cir.

1970) (possession of altered alien registration, a criminal of-

fense itself); State v. Dennis, 16 Wash. App. 417, 558 P.2d 297

(1976) (possession of illegal drugs); State v. Alexander, ___

Minn. ____, 281 N.W.2d 349 (1979) (decided May 18, 1979)

(possession of an obscene film).

The weapon would conscitute incriminating, although non-

testimonial evidence only if the ballistics examination indi-

cates or establishes that it was the weapon that fired the shell

found in the victim’s automobile. This testimony would re-

quire no communication from the defendant. Therefore, the

Commonwealth submits that the decision of the court below

conflicts with this court’s decisions dealing with the extention

of the Fifth Amendment privilege to the compulsion of real

evidence as evidenced in Schmerber and its progeny and the

decisions of certain of the circuit court’s of appeal. See United

Svutes v. Authement, 607 F.2d 1129 (5th Cir. 1979) (com-

pelled production of brass knuckles); United States v. Bridges,

499 F.2d 179 (7th Cir. 1974) (hand swabbing for chemical

analysis).

Moreover, even if the Fisher analysis is applicable to the

compulsion of real evidence, here the three elements which

must be shown to simultaneously exist before the Fifth

Amendment is violated do not exist. True, there is compul-

sion, but it is not of a testimonial communication that is in-

criminating. The testimonial and possibly incriminating evi-

9

dence will emanate from the ballistics examination and not

from any communication or act of the defendant.

Conclusion.

For the reasons stated above, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

BARBARA A.H. SMITH,

Assistant Attorney General,

Chief Criminal Appellate Division,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

11

Appendix A.

Mass. Adv. Sh. (1980) 1161

Commonwealth v. Hughes.

COMMONWEALTH vs. Epwarp H. HuGHEs.

Berkshire. February 5, 1980. — May 5, 1980.

Present: Hennessey, C.J., BraucHen, KapLan, Liacos, JJ.

Constitutional Law, Search and seizure, Self-incrimination. Firearms.

Evidence, Firearm. Practice, Criminal, Discovery.

INDICTMENT found and returned in the Superior Court on

October 4, 1978.

A proceeding for contempt, commenced on August 21,

1979, was heard by Simons, J.

The Supreme Judicial Court granted requests for direct

appellate review.

Leonard H. Cohen (David O. Burbank with him) for the

defendant.

Daniel A. Ford, Assistant District Attorney (Anthony J.

Ruberto, Jr. District Attorney, with him) for the Common-

wealth.

KaPLaN, J. A Berkshire County grand jury on October 4,

1978, indicted the defendant Edward H. Hughes on two

counts of assault by means of a dangerous weapon, to wit, a

pistol (G. L. c. 265, § 15B). The charges arose from an inci-

dent in Otis, Massachusetts, on June 21, 1978, when the

defendant allegedly assaulted John Joyner and Leonard Ter-

ranova by firing two rounds through the front windshield of

a truck in which the men were sitting.'! Inspection of a

recovered bullet suggested that it came from either a .38

caliber or .357 magnum handgun. On June 22, 1978, the

' These circumstances appear from an affidavit supporting an applica-

tion for a search warrant which is added to the appellate record by con-

sent of the parties.

PREVIOUS PAGE WAS BLANK

12

1162 Mass. Adv. Sh. (1980)

Commonwealth v. Hughes.

Otis chief of police asked the defendant whether he owned

either kind of gun and, if so, whether he would surrender it

voluntarily for examination. The defendant produced a

.357 magnum pistol. Tests showed it had not been recently

fired. The defendant refused consent to a search of his car,

which was impounded at the time, for any additional weap-

on. However, the police on June 22 obtained a warrant for

search of the car for “[e]ither a 38 calibre or 357 Magnum

pistol and spent shells from either.” Police executed the

warrant that day and made the return: “Nothing pertaining

to warrant found.”

The defendant pleaded not guilty on October 10, 1978,

and was released on personal recognizance. Customary

defense motions followed. On March 28, 1979, the Com-

monwealth filed a “Motion to Order Defendant to Produce

Weapon” for ballistics examination. The weapon was de-

scribed in the motion as a “Smith and Wesson .38 Caliber

Revolver Serial Number J354354.” An accompanying affi-

davit stated that the defendant had registered the revolver

with the firearms identification division of the Department

of Public Safety. This was apparently under G. L. c. 140,

§ 128B; and we note that pursuant to § 129C such a regis-

trant must report to the division any sale, gift, or other

transfer of possession of the weapon; failure to do so is crim-

inally punishable (G. L. c. 269, § 10[h]). The motion was

allowed after hearing: the defendant was ordered to produce

the described revolver within ten days; the Commonwealth

was ordered to give the defendant a copy of any ballistics

test results within ten days of receiving them; and “[a]ny

question concerning the admissibility of evidence emanat-

ing from the allowance of this motion is deferred to the trial

justice, if appropriately raised.”

The defendant attempted to secure immediate review of

the order by applying to a single justice of this court to exer-

cise our supervisory power, G. L. c. 211, §§ 3 and 4A,

claiming that the judge’s order, if enforced, would violate

his constitutional privilege against self-incrimination.? The

*The Commonwealth has not argued that the defendant’s voluntary

surrender of one gun waived any Fifth Amendment rights he might have

13

Mass. Adv. Sh. (1980) 1163

Commonwealth vo. Hughes.

single justice denied the application on July 6, 1979, observ-

ing that regular review could be had on an appeal from an

adjudication of contempt for failure to comply with the

order, or, if the indictments went to trial, then on appeal

from a judgment of conviction, with error claimed in the

trial judge’s refusal to exclude the gun “and all evidence

derived from the production thereof.”

On July 27, 1979, the Commonwealth demanded by reg-

istered letter that the defendant turn over the gun within

twenty-four hours or face contempt charges. On the de-

fendant’s failure to reply, the Commonwealth on August

21, 1979, instituted proceedings for contempt which were

brought to hearing on August 30. A representative of the

firearms identification division testified that on March 23,

1976 (twenty-seven months before the alleged assault) the

defendant had registered the gun described, and had not

since then filed any report of transfer of the gun. In his

findings, ruling, and order of August 30, 1979, the judge

found that the defendant had purchased the revolver on

March 23, 1976, and had not filed any further report. The

defendant was held in contempt but given until 3 p.m. that

day to produce the weapon or show present inability to do

so, otherwise he would be incarcerated until purgation or

further order of the court. Sentence being stayed by the

judge, the parties applied jointly for direct appellate review,

which we allowed. We reverse.

1. The Fourth Amendment question. The defendant’s

contention, as expressed in the court below and in the joint

application to this court, rested on the Fifth Amendment.

to refuse surrender of another. Cf. Rogers v. United States, 340 U.S. 367,

373 (1951). See generally Note, Testimonial Waiver of the Privilege

Against Self-Incrimination, 92 Harv. L. Rev. 1752 (1979). Nor is it

argued that the defendant's alleged possession of the gun is other than per-

sonal. Cf. Bellis v. United States, 417 U.S. 85 (1974) (no Fifth Amend-

ment privilege available to person holding records of dissolved three-per-

son partnership); United States v. White, 322 U.S. 694 (1944) (same for

assistant supervisor subpoenaed by grand jury to produce union records);

Dreier v. United States, 221 U.S. 394 (1911) (same for subpoena issued to

officer of corporation demanding production of corporate records in his

custody).

14

1164 Mass. Adv. Sh. (1980)

Commonwealth v. Hughes.

But he now ventures to say in a footnote in his brief that the

order “may... have . . . violated” his right under the

Fourth Amendment® to be free of unreasonable searches

and seizures, for it sought, he suggests, “to probe the De-

fendant’s mind” which is “per se unreasonable.” (Defend-

ant’s emphasis.) There are no supporting citations. We

deal with the Fourth Amendment only to indicate that it

may be put to one side in the present case.

A person may complain of a search warrant, and thus of

the seizure of material obtained by the search, on the

ground that the warrant was issued without probable cause

or was indefinite, obscure, or overly broad in its description

of the things to be taken or the place to be searched. A war-

rant defective in any such respect would lead to a search or

seizure unreasonable in the sense of entailing an undue in-

vasion of personal privacy by government agents. This is

the familiar terrain of the Fourth Amendment. Of course,

if objections of this order fail, material may be brought in

and used that may be, and usually is, of an incriminating

character, but the person involved has not been required to

assist in the production.

In the present case of a motion addressed to a person to

produce a physical object (similar to a subpoena duces

tecum) the objection is not that there is lack of cause for

seeking the production — i.e., that the investigatory effort

is illegal — or that the object sought is irrelevant to the in-

quiry or is insufficiently described.‘ Rather the objection is,

precisely, that the defendant’s assistance is demanded —

*Of course these Amendments bear on the States through the Four-

teenth Amendment. See Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth

Amendment); Mapp v. Ohio, 367 U.S. 643 (1961) (Fourth Amendment

exclusionary rule). Also involved are the corresponding provisions of the

Constitution of the Commonwealth, art. 12 of the Declaration of Rights.

As to self-incrimination: “No subject shall . . . be compelled to accuse, or

furnish evidence against himself.”

‘A claim of indefiniteness or the like would invoke protections deriving

from the Fourth Amendment. See Fisher v. United States, 425 U.S. 391,

401 (1976); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186,

208-209 (1946).

15

Mass. Adv. Sh. (1980) 1165

Commonwealth v. Hughes.

assistance in a testimonial sense. That is what the defend-

ant means by “mind probe.” He is required under the order

himself to produce the gun and thereby, he argues, make a

series of important avowals with an incriminating tendency

(discussed particularly in our point 2 below), or to explain

his inability to comply. So the grievance, if there is one, fits

under the Fifth Amendment, not the Fourth.

There are situations of subtle interaction between the

Fourth and Fifth Amendments, for example, where the

very object sought is a “speaking” object, say a statement,

voluntarily written, which tends by its internal content to

incriminate the writer, who is the person ordered to pro-

duce the writing. See generally Couch v. United States, 409

U.S. 322, 338-339 (1973) (Douglas, J., dissenting); Note,

Papers, Privacy and the Fourth and Fifth Amendments: A

Constitutional Analysis, 69 Nw. U. L. Rev. 626 (1974). A

consideration of the exact bearing of the two Amendments

on such problems would involve us in an analysis of difficult

authority from Boyd v. United States, 116 U.S. 616 (1886),

through Andresen v. Maryland, 427 U.S. 463 (1976).5 We

are confronted with no such problem here.

2. Fifth Amendment analysis. So the defendant must

justify what would otherwise be contumacy by reference to

his privilege not to be “compelled . . . to be a witness against

himself” (or the counterpart State constitutional provision).

But in the present case we do not have the prototypical com-

pelled oral testimony. Under compulsion of the order the

defendant could produce the weapon without uttering a

word,

In one sense the distinction between the two forms of pro-

duction — a statement in audible prose and an implicit state-

ment — appears to be of no consequence because the protec-

‘For a summary of the case law and suggested interpretations, see

Note, Formalism, Legal Realism and Constitutionally Protected Privacy

Under the Fourth and Fifth Amendments, 90 Harv. L. Rev. 945 (1977);

Note, The Life and Times of Boyd v. United States (1886-1976), 76 Mich.

L. Rev. 184 (1977); Ritchie, Compulsion that Violates the Fifth Amend-

ment: The Burger Court’s Definition, 61 Minn. L. Rev. 383 (1977).

16

1166 Mass. Adv. Sh. (1980)

Commonwealth ov. Hughes.

tion of the privilege extends to “an accused’s communica-

tions, whatever form they might take.” Schmerber v. Cali-

fornia, 384 U.S. 757, 763-764 (1966). See United States v.

White, 322 U.S. 694, 699 (1944); McCormick, Evidence

§ 126 at 268 n.73 (2d ed. 1972). In another sense the dis-

tinction may be crucial since “the Fifth Amendment does

not independently proscribe the compelled production of

every sort of incriminating evidence but applies only when

the accused is compelled to make a testimonial communica-

tion that is incriminating.” Fisher v. United States, 425

U.S. 391, 408 (1976) (emphasis in original). See United

States v. Wade, 388 U.S. 218, 222 (1967).

The upshot is that we have to say here whether the de-

fendant’s producing the revolver would have sufficient tes-

timonial aspects to initiate Fifth Amendment consideration

and whether in those aspects there can be found a tendency

to incriminate him. “These questions perhaps do not lend

themselves to categorical answers; their resolution may in-

stead depend on the facts and circumstances of particular

cases or classes thereof.” Fisher v. United States, supra at

410. But for guidance we look primarily to Schmerber and

Fisher.

In Schmerber the Supreme Court upheld against consti-

tutional attack the use as evidence, in a prosecution for

drunken driving, of laboratory analysis of a blood sample

taken from the defendant against his will. Although the

submission to the physical act was involuntary, and the test

results incriminating, there was, according to the Court,

“[n]ot even a shadow of testimonial compulsion upon or en-

forced communication by the accused.” 384 U.S. at 765.

Rather the defendant was merely “the source of ‘real or

physical evidence’”; “his participation, except as a donor,

was irrelevant to the results of the test.” Id. at 764-765.

Later cases applied the Schmerber reasoning to uphold

the forcing of voice exemplars (United States v. Wade, 388

U.S. 218 [1967]), handwriting samples (Gilbert v. Califor-

nia, 388 U.S. 263 [1967]), fingerprints (Snow v. Oklahoma,

489 F.2d 278 [10th Cir. 1973]), and other things. These

17

Mass. Adv. Sh. (1980) 1167

Commonwealth v. Hughes.

cases conceived that in each instance the accused was used

as an object on which various tests were performed; he was

not required “to disclose any knowledge he might have.”

United States v. Wade, supra at 222. See 8 J. Wigmore,

Evidence § 2264 (McNaughton rev. 1961). Cf. United

States v. Mara, 410 U.S. 19, 37 (1973) (Marshall, J., dissent-

ing).

Fisher took up the Schmerber analysis to see where it led

in a case of production of documents compelled from one

other than the writer. The I.R.S., after interviewing cer-

tain taxpayers regarding possible civil or criminal infrac-

tions of the tax laws, learned that these persons had retrieved

some of their accountants’ work papers (which laid out

analyses of the taxpayers’ income and disbursements related

to the years under investigation), and had passed the papers

to their attorneys. Summons was then served on the attor-

neys to produce the work sheets. The issue reduced to

whether the taxpayers themselves had a Fifth Amendment

privilege to refuse production of the papers.” On the partic-

ular facts, the Court held against the taxpayers.

The Court recognized that two kinds of testimonial asser-

tions were implied in the production. First, “producing the

documents tacitly admits their existence and their location

in the hands of their possessor.” Fisher, 425 U.S. at 411-412.

Second, the production implicitly authenticated the papers

as being those requested in the summons. Id. See People v.

Defore, 242 N.Y. 13, 27 (1926) (Cardozo, J.). Why, then,

was the claim of privilege denied? The elements of exist-

ence, location, and control of the papers were “not in is-

*Hence the “speaking document” problem earlier mentioned did not

arise. See Fisher v. United States, supra at 409, 414.

7™The Court first stated that the attorney could not assert the client's

(taxpayer's) Fifth Amendment privilege; but as the client had passed the

documents to the attorney in a privileged transaction, it was disposed to

analyze the case as if the client had never made the transfer. See Fisher v.

United States, supra at 396-405. (The Court analyzed two cases present-

ing essentially identical facts, one from the Third Circuit, the other from

the Fifth Circuit.)

18

1168 Mass. Adv. Sh. (1980)

Commonwealth v. Hughes.

sue”; “[t]he existence and location of the papers are a fore-

gone conclusion and the taxpayer adds little or nothing to

the sum total of the Government’s information by conced-

ing that he in fact has the papers.” 425 U.S. at 411. The

information added was trivial. In the circumstances, exist-

en: . and location of the papers were comparable to the ex-

istence and location of the blood extracted in Schmerber.

Coming to the element of authentication, the Court said

that, while testimonial, it did not incriminate the taxpayer:

the implicit assertion that the papers produced conformed

to the summons would not serve to authenticate them at

trial; it was the testimony of the accountants that would do

that. Nor was the government using the taxpayer’s “au-

thentication” to prove that the figures were accurate. Id. at

413.

The converse inference from Fisher, as indicated by the

Court,® is that assertions implied from production of things

(whether or not documents) are within the Fifth Amend-

ment, and thus justify the refusal to produce, when they are

nontrivial and incriminating. Remitting to a footnote cases

that do not directly test this inference — cases like Fisher on

their facts, and so requiring the production? — we cite re-

cent decisions which verify the inference and illustrate it. As

for the implicit admission of existence, location, or control,

even before Fisher the Seventh Circuit in United States v.

Campos-Serrano, 430 F.2d 173 (7th Cir. 1970), reversed a

conviction for knowing possession of a forged alien registra-

tion receipt card where the defendant had been coerced into

producing it during a custodial interrogation: “An individu-

al should not be compelled to produce the crime itself.” Id.

at 176. In State v. Dennis, 16 Wash. App. 417 (1976),

’“ The act of producing evidence in response to a subpoena nevertheless

has communicative aspects of its own, wholly aside from the contents of

the paper produced. Compliance with the subpoena tacitly concedes the

existence of the papers demanded and their possession or control by the

taxpayer. It also would indicate the taxpayer's belief that the papers are

those described in the subpoena.” Fisher v. United States, supra at 410.

*See, e.g., United States v. Osborn, 561 F.2d 1334 (9th Cir. 1977);

United States v. Friedman, 593 F.2d 109 (9th Cir. 1979).

19

Mass. Adv. Sh. (1980) 1169

Commonwealth v. Hughes.

decided after Fisher, the court reversed a conviction of

possession of cocaine where a policeman had harassed the

defendant into producing bags of the drug from his refriger-

ator, thus virtually admitting control. Id. at 423. In both

Campos-Serrano and Dennis the testimonial propositions

were not “foregone conclusions” although the investigating

officers had some reason to think they were true; and the

element of incrimination was present.'° Similarly in In re

Grand Jury Subpoena Duces Tecum, 466 F. Supp. 325

(S.D.N.Y. 1979), the government, having ground to suspect

that the accused had made illegal payments to some union

officials, tried to have the accused condemn himself by an-

swering to a subpoena for records of his financial transac-

tions with these people. The subpoena was ordered quashed.

And in State v. Alexander, 281 N.W.2d 349, 352 (Minn.

1979), the court reversed a contempt adjudication which

had been based on the defendant’s failure to produce film,

supposed to be in his possession, and claimed to be in viola-

tion of the obsenity statute. Here production “would, in ef-

fect, be an admission of [defendant’s] control or possession

of the film.”

In In re Bernstein, 425 F. Supp. 37 (S.D. Fla. 1977), the

court spoke in terms of “authentication” through compelled

production offensive to the principle drawn from Fisher:

the accused was being subpoenaed to produce self-incrimin-

ating tape recordings. On the same ground, United States

v. Plesons, 560 F.2d 890, 892 (8th Cir. 1977), recognized the

Fifth Amendment privilege of 2 doctor under grand jury in-

vestigation to refuse to produce patient records that might

assist the government in convicting him of illegally dispens-

ing narcotics (it was finally held, however, that the surren-

der of the records had been voluntary).

The present case is consonant with those just cited. If the

defendant should produce the revolver, he would be making

© We would see no distinction of constitutional dimension between pro-

duction of what might be called the corpus delicti and production of a

thing which was a step or two distant but was nevertheless incriminating.

Cf. Murphy v. Commonwealth, 354 Mass. 81, 83-84 (1968).

20

1170 Mass. Adv. Sh. (1980)

Commonwealth o. Hughes.

implicitly a statement about its existence, location, and con-

trol to which the Commonwealth says it would allude at

trial to show he had possession and control at some point

after the alleged crime. The implied statement would also

function as an authentication. See Curcio v. United States,

354 U.S. 118, 125 (1957); 8 J. Wigmore, supra at § 2264,

p. 380. But see Friendly, The Fifth Amendment Tomor-

row: The Case for Constitutional Change, 37 U. Cin. L.

Rev. 671, 702 (1968) (criticizing implicit authentication ra-

tionale). Nor would the statement amount to a “foregone

conclusion” conveying merely trivial new knowledge. On

the contrary, it would deal with just those matters about

which the Commonwealth desires but does not have solid

information. A search warrant has proved futile. Appar-

ently the Commonwealth does not know whether the gun

exists or, if it does, where it is being kept; it has only some

evidence to base a suspicion that the defendant may be able

to produce it, if he will. In the language of the cases, the

Commonwealth is seeking to be relieved of its ignorance or

uncertainty by trying to get itself “informed of knowledge

the defendant possesses.” People ex rel. Bowman v. Under-

wood, 63 Ill. 2d 382, 387 (1976)."!

"Our analysis is consistent with Williams v. Florida, 399 U.S. 78

(1970), which upheld against Fifth Amendment attack a Florida rule re-

quiring disclosure by the defendant of the identity of alibi witnesses he in-

tends to call (the government then reciprocally discloses the names of its

rebuttal witnesses). The Court said: “Nothing in [the] rule requires the

defendant to rely on an alibi or prevents him from abandoning the defense;

these matters are left to his unfettered choice,” and that “[a]t most, the

rule only compelled petitioner to accelerate the timing of his disclosure.”

Id, at 84-85. We upheld a similar notice-of-alibi rule in Commonwealth

v. Edgerly, 372 Mass. 337 (1977) (reserving the question of permissible

sanctions for failure to give notice of alibi defense). Under Blaisdell v.

Commonwealth, 372 Mass. 753 (1977), a defendant claiming lack of

criminal responsibility may be compelled to undergo psychiatric examina-

tion but this may be required only where on his part he intends to present

expert testimony depending in whole or part on voluntary interview be-

tween the psychiatrist and himself; a concept of waiver is involved. In

the present case the defendant has no plan to introduce the gun at trial in

his own defense; there is not a mere acceleration of disclosure, or a ques-

tion of waiver.

21

Mass. Adv. Sh. (1980) 1171

Commonwealth o. Hughes.

The avowals sought from the defendant are not only sig-

nificant but must be taken to be incriminating. The revolv-

er is the supposed instrumentality of the crime, and control

or possession after the event, taken together with the earlier

ownership attested by the registration, would tend to estab-

lish possession at the critical time. It is partially on this

declared theory that the Commonwealth has pursued the

defendant with its motion to produce. The Commonwealth

states that once it has the revolver in hand, it will run ballis-

tics tests, and these may lead to expert testimony, of what-

ever strength, tying the revolver to the actual assault. This is

a step beyond the production sought, but the constitutional

privilege “does not merely encompass evidence which may

lead to criminal conviction, but includes information which

would furnish a link in the chain of evidence that could lead

to prosecution... .” Maness v. Meyers, 419 U.S. 449, 461

(1975). See Taylor v. Commonwealth, 369 Mass. 183, 187-

188 (1975); Hoffman v. United States, 341 U.S. 479, 488

(1951). In reviewing the contempt adjudication, it is right

to assume, as the defendant does arguendo in his brief, that

he has present possession of the registered gun, which makes

very real the factor of self-incrimination that is involved.'*

Cf. Commonwealth v. Kreplick, Mass. (1980) .*

By way of rebuttal the Commonwealth appears to be

making the argument that the defendant may properly be

ordered to produce the gun because — so it claims —

enough independent evidence already is available against

him to prove beyond a reasonable doubt that he had the gun

on the date of the alleged offense. The Commonwealth

does not simply assert that the evidence to be gained by pro-

duction is here inconsequential or nonincriminating; rather

it says that the evidence is unworthy of Fifth Amendment

protection because it merely enhances other persuasive evi-

dence obtained without the defendant’s help. The Com-

‘2 We also note that if Hughes failed to produce the gun on request, he

might be criminally liable under G. L. c. 269, § 10 (h).

"Mass. Adv. Sh. (1980) 99.

22

1172 Mass. Adv. Sh. (1980)

Commonwealth o. Hughes.

monwealth’s argument is indeed curious. It is as if we were

asked to rule that a confession could be coerced from an ac-

cused as soon as the government announced (or was able to

show) that at a future trial it could produce enough inde-

pendent evidence to get past a motion for a directed verdict

of acquittal. This would be to encourage present infringe-

ments of the Constitution on the excuse that they might or

would be held “harmless” after trial and conviction.

The Commonwealth has not attempted to eliminate, as

far as it could, the testimonial aspects of the defendant’s

producing the gun, by the expedient of undertaking that at

trial it would authenticate the gun simply by the serial

number (if that number appears), and would make no tend-

er in the court room of the fact that it was the defendant

who produced the gun. We go no further than to express

doubt whether the case would have been materially altered

by an offer of such an undertaking in the court below. Com-

pare United States v. Authement, 607 F.2d 1129 (5th Cir.

1979) (per curiam), with In re Grand Jury Subpoena Duces

Tecum, 466 F. Supp. 325, 327 (S.D.N.Y. 1979); Berger,

The Unprivileged Status of the Fifth Amendment Privilege,

15 Am. Crim. L. Rev. 191, 219-220, 222 (1978); Note, For-

malism, Legal Realism, and Constitutionally Protected Pri-

vacy Under the Fourth and Fifth Amendments, 90 Harv. L.

Rev. 945, 979, 987-988 (1977). Implicit statements as to ex-

istence, location, and control would nevertheless have been

compelled and the information would have been delivered

over to the Commonwealth. The Commonwealth could

use such information, mediately, to secure other incriminat-

ing evidence to put before the jury, and it can be assumed

that the testimonial statement as to the location of the gun

would be used, mediately, to lead to ballistics tests and bal-

listics evidence and an opinion thereon. There is no resem-

blance here to Schmerber where location was a foregone

conclusion. More generally, we express doubt whether a

defendant may be compelled to deliver the corpus delicti,

which may then be introduced by the government at trial, if

only it is understood that the facts as to the source of the

thing are withheld from the jury.

23

Mass. Adv. Sh. (1980) 1173

Commonwealth o. Hughes.

The conclusion we reach in this case follows from basic

policies supporting the constitutional guaranty. As was said

in Couch v. United States, 409 U.S. 322, 328 (1973), “[iJt is

extortion of information from the accused himself that of-

fends our sense of justice.” And again: “our sense of fair

play . . . dictates ‘a fair state-individual balance by requir-

ing the government to leave the individual alone until good

cause is shown for disturbing him and by requiring the gov-

ernment in its contest with the individual to shoulder the

entire load,’ 8 Wigmore, Evidence (McNaughton rev.,

1961), 317.” Murphy v. Waterfront Comm'n, 378 U.S. 52,

55 (1964). Our result, were it not dictated, as we think it is,

by the Fifth Amendment, would in our view be required by

the rather clearer terms of the Constitution of the Common-

wealth (see note 3). See especially Emery’s Case, 107 Mass.

172, 182 (1871).

The order directing the defendant to produce, and the

subsequent order adjudging him in contempt, were in error

and are vacated.

So ordered.

24

Appendix B.

§ 129C. Application of section 129B; ownership or posses-

sion of firearms or ammunition; transfers; re-

port to commissioner; exemptions; exhibiting

license to carry, etc. on demand.

No person, other than a licensed dealer or one who has been

issued a license to carry a pistol or revolver or an exempt per-

son as hereinafter described, shall own or possess any firearm,

rifle, shotgun or ammunition unless he has been issued a fire-

arm identification card by the licensing authority pursuant to

the provisions of section one hundred and twenty-nine B.

No person shall sell, give away, loan or otherwise transfer a

rifle or shotgun or ammunition other than (a\ by operation of

law, or (b) to an exempt person as hereinafter described, or (c)

to a licensed dealer, or (d) to a person who displays his firearm

identification card, or license to carry a pistol or revolver.

A seller shall, within seven days, report all such transfers to

the commissioner of public safety according to the provisions

set forth in section one hundred and twenty-eight A, and in

the case of loss, theft or recovery of any firearm, rifle or

shotgun, a similar report shall be made forthwith to both the

commissioner and the licensing authority in the city or town

where the owner resides.

The provisions of this section shall not apply to the following

exempted persons and uses:

(a) Any device used exclusively for signalling or distress use

and required or recommended by the United States Coast

Guard or the Interstate Commerce Commission, or for the fir-

ing of stud cartridges, explosive rivets or similar industrial am-

munition;

(b) Federally licensed firearms manufacturers or wholesale

dealers, or persons employed by them or by licensed dealers, or

25

on their behalf, when possession of firearms, rifles or shotguns

is necessary for manufacture, display, storage, transport, in-

stallation, inspection or testing;

(c) To a person voluntarily surrendering a firearm, rifle or

shotgun and ammunition therefor to a licensing authority, the

commissioner of his designee if prior written notice has been

given by said person to the licensing authority or the commis-

sioner, stating the place and approximate time of said sur-

render;

(d) The regular and ordinary transport of firearms, rifles or

shotguns as merchandise by any common carrier;

(e) Possession by retail customers for the purpose of firing at

duly licensed target concessions at amusement parks, piers and

similar locations, provided that the firearms, rifles or shotguns

to be so used are firmly chained or affixed to the counter and

that the proprietor is in possession of a firearm identification

card or license to carry firearms;

(f) Possession of rifles and shotguns and ammunition

therefor by nonresident hunters with valid nonresident hunt-

ing licenses during hunting season;

(g) Possession of rifles and shotguns and ammunition

therefor by nonresidents while on a firing or shooting range;

(h) Possession of rifles and shotguns and ammunition

therefor by nonresidents traveling in or through the common-

wealth, providing that any rifles or shotguns are unloaded and

enclosed in a case;

(#) Possession of rifles and shotguns and ammunition

therefor by nonresidents while at a firearm showing or display

organized by a regularly existing gun collectors’ club or associ-

ation;

(j) Any new resident moving into the commonwealth, or

any resident of the commonwealth upon being released from

active service with any of the armed services of the United

States with respect to any firearm, rifle or shotgun and ammu-

26

nition therefor then in his possession, for sixty days after such

release or after the time he moves into the commonwealth;

(k) Any person under the age of fifteen with respect to the

use of a rifle or shotgun by such person in hunting or target

shooting, provided that such use is otherwise permitted by law

and is under the immediate supervision of a person holding a

firearm identification card or a license to carry firearms, or a

duly commissioned officer, noncommissioned officer or en-

listed member of the United States Army, Navy, Marine

Corps, Air Force or Coast Guard, or the National Guard or

military service of the commonwealth or reserve components

thereof, while in the performance of his duty;

(1) The possession or utilization of any rifle or shotgun dur-

ing the course of any television, movie, stage or other similar

theatrical production, or by a professional photographer or

writer for examination purposes in the pursuit of his profes-

sion, providing such possession or utilization is under the im-

mediate supervision of a holder of a firearm identification card

or a license to carry firearms;

(m) The temporary holding, handling or firing of a firearm

for examination, trial or instruction in the presence of a holder

of a license to carry firearms, or the temporary holding, hand-

ling or firing of a rifle or shotgun for examination, trial or in-

struction in the presence of a holder of a firearm identification

card, or where such holding, handling or firing is for a lawful

purpose;

(n) The transfer of a firearm, rifle or shotgun upon the

death of an owner to his heir or legatee shall be subject to the

provisions of this section, provided that said heir or legatee

shail within one hundred and eighty days of such transfer, ob-

tain a firearm identification card or a license to carry firearms

if not otherwise an exempt person who is qualified to receive

such or apply to the licensing authority for such further

27

limited period as may be necessary for the disposition of such

firearm, rifle or shotgun;

(0) Persons in the military or other service of any state or of

the United States, and police officers and other peace officers

of any jurisdiction, in the performance of their official duty or

when duly authorized to possess them, provided, however,

that private or supporting use of such firearms, rifles or shot-

guns shall be subject to the provisions applicable to non-

exempt persons and uses;

(p) Possession of rifles and shotguns and ammunition there-

for by nonresidents bearing a current license, permit or iden-

tification card to possess any firearm, rifle or shotgun in the

state in which they reside;

(q) Any nonresident from a contiguous state, provided he is

eighteen years of age or over when acquiring a rifle or

shotgun, or ammunition, provided it is removed from the

commonwealth within fourteen days of such acquisition, and

provided that he is in compliance with his own state law and

has the proper firearms license if required, and provided, fur-

ther, that in the case of a rifle or shotgun the seller notifies the

chief of police where the purchaser resides of the transfer,

description and serial number of the rifle or shotgun and the

name, address and license number of the purchaser and seller;

(r) Possession by a veterans’ organization chartered by the -

Congress of the United States or included in clause (12) of sec-

tion five of chapter forty and possession by the members of any

such organizations when on official parade duty or ceremonial

occasions;

(s) Possession by federal, state and local historical societies,

museums, and institutional collections open to the public, pro-

vided such firearms, rifles or shotguns are unloaded, properly

housed and secured from unauthorized handling.

Any person, exempted by clauses (0), (p) and (q), purchas-

ing a rifle or shotgun or ammunition therefor shall submit to

28

the seller such full and clear proof of identification, including

shield number, serial number, military or governmental order

or authorization, military or other official identification, other

state firearms license, or proof of nonresidence, as may be ap-

plicable.

Nothing in this section shall permit the sale of rifles or shot-

guns or ammunition therefor to a minor under the age of eigh-

teen in violation of section one hundred and thirty nor may

any firearm be sold to a minor nor to any person who is not

licensed to carry firearms under section one hundred and

thirty-one unless he presents a valid firearm identification card

and a permit to purchase issued under section one hundred

and thirty-one A, or presents such permit to purchase and is a

properly documented exempt person as hereinbefore described.

Neither the provisions of section one hundred and twenty-

nine C nor the possession of a firearm identification card

issued under section one hundred and twenty-nine B shall enti-

tle any person to carry a firearm in violation of section ten of

chapter two hundred and sixty-nine.

Any person who, while not being within the limits of his

own property or residence, or such person whose property or

residence is under lawful search, and who is not exempt under

this section, shall on demand of a police officer or other law

enforcement officer, exhibit his license to carry firearms, or his

firearm identification card or receipt for fee paid for such

card, or, after January first, nineteen hundred and seventy,

exhibit a valid hunting license issued to him which shall bear

the number officially inscribed of such license to carry or card

if any. Upon failure to do so such person may be required to

surrender to such officer said firearm, rifle or shotgun which

shall be taken into custody as under the provisions e& section

one hundred and twenty-nine D, except that such firearm, ri-

fle or shotgun shall be returned forthwith upon presentation

within thirty days of said license to carry firearms, firearm

identification card or receipt for fee paid for such card or hun-

ting license as hereinbefore described. Any person subject to

the conditions of this paragraph may, even though no firearm,

rifle or shotgun was surrendered, be required to produce

within thirty days said license to carry firearms, firearm iden-

tification card or receipt for fee paid for such card, or said

hunting license, failing which the conditions of section one

hundred and twenty-nine D will apply. Nothing in this sec-

tion shall prevent any person from being prosecuted for any

violation of this chapter. v