|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Hughes, 380
Supreme Judicial Court of Massachusetts,
Argued
Decided
Leonard H. Cohen,
Daniel A. Ford, Asst. Dist. Atty. (Anthony J. Ruberto,
Jr., Dist. Atty., with him), for the Commonwealth.
Before
HENNESSEY, C. J., and BRAUCHER, KAPLAN and LIACOS, JJ.
KAPLAN, Justice.
A
The
defendant pleaded not guilty on October 10, 1978, and was released on personal
recognizance. Customary defense motions
followed. On March 28, 1979, the
Commonwealth filed a "Motion to Order Defendant to Produce Weapon"
for ballistics examination. The weapon
was described in the motion as a "Smith and Wesson .38 Caliber Revolver
Serial Number J354354." An
accompanying affidavit 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, s 128B; and we note that pursuant to s 129C
such a registrant must report to the division any sale, gift, or other transfer
of possession of the weapon; failure to do so is criminally punishable (G.L. c. 269, s 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 emanating[380
Mass. 585] 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 exercise our supervisory power, G.L. c. 211, ss 3 and 4A,
claiming that the judge's order, if enforced, would violate his constitutional
privilege against self‑incrimination.
([FN2]) The single justice denied
the application on July 6, 1979, observing 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 registered letter that the defendant
turn over the gun within twenty‑four hours or face contempt charges. On the defendant'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 [380 Mass. 586]
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.
But he now ventures to say in a footnote in his brief that the order
"may . . . have . . . violated" his right under the Fourth
Amendment ([FN3]) to be free of unreasonable searches and seizures, for it
sought, he suggests, "to probe the Defendant's mind " which is
"per se unreasonable."
(Defendant'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.
(1) 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 warrant defective in any such respect would
lead to a search or seizure unreasonable in the sense of entailing an undue
invasion 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 [380 Mass. 587] tecum) the objection is not that there is lack of cause for
seeking the production i. e., that the investigatory
effort is legal or that the object sought is irrelevant to the inquiry or is
insufficiently described. ([FN4]) Rather the objection is, precisely, that the
defendant's assistance is demanded assistance in a testimonial sense. That is what the defendant 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 produce the writing. See generally Couch v. United States,
409 U.S. 322, 338‑339, 93 S.Ct. 611, 620‑621,
34 L.Ed.2d 548 (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, 6 S.Ct. 524, 29 L.Ed. 746 (1886),
through Andresen v. Maryland, 427 U.S. 463, 96 S.Ct.
2737, 49 L.Ed.2d 627 (1976).
([FN5]) 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 [380 Mass. 588] himself" (or the counterpart
State constitutional provision). But in
the present case we do not have the prototypical compelled oral testimony. Under compulsion of the order the defendant
could produce the weapon without uttering a word.
(2)(3) In
one sense the distinction between the two forms of production a statement in
audible prose and an implicit statement appears to be of no consequence because
the protection of the privilege extends to "an accused's
communications, whatever form they might take." Schmerber v.
California, 384 U.S. 757, 763‑764, 86 S.Ct.
1826, 1832, 16 L.Ed.2d 908 (1966). See
United States v. White, 322 U.S. 694, 699, 64 S.Ct.
1248, 1251, 88 L.Ed. 1542 (1944); McCormick, Evidence
s 126 at 268 n.73 (2d ed. 1972). In
another sense the distinction 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 communication that is incriminating." Fisher v. United States, 425 U.S. 391, 408,
96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis
in original). See United States v. Wade,
388 U.S. 218, 222, 87 S.Ct. 1926, 1929, 18 L.Ed.2d
1149 (1967).
The upshot
is that we have to say here whether the defendant's producing the revolver
would have sufficient testimonial 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
instead depend on the facts and circumstances of particular cases or classes
thereof." Fisher v. United States,
supra, 425 U.S. at 410, 96 S.Ct. at 1581. But for guidance we look primarily to Schmerber and Fisher.
In Schmerber the Supreme Court upheld against constitutional
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 the the Court, "(n)ot even a
shadow of testimonial compulsion upon or enforced communication by the
accused." 384 U.S. at 765, 86 S.Ct. at 1832.
Rather the defendant was merely "the source of 'real or [380 Mass. 589] physical evidence' "; "his participation, except as a
donor, was irrelevant to the results of the test." Id. at 764‑765, 86 S.Ct.
at 1832.
Later
cases applied the Schmerber reasoning to uphold the
forcing of voice exemplars (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)), handwriting samples
(Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951,
18 L.Ed.2d 478 (1967)), fingerprints (Snow v. Oklahoma, 489 F.2d 278 (10th Cir.
1973)), and other things. These 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, 388 U.S. at 222, 87 S.Ct. at 1930. See 8 J. Wigmore,
Evidence s 2264 (McNaughton rev. 1961). Cf. United States v. Mara, 410 U.S. 19, 37,
93 S.Ct. 774, 784, 35 L.Ed.2d 99 (1973) (Marshall,
J., dissenting).
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. ([FN6]) The I.R.S., after
interviewing certain taxpayers regarding possible civil or criminal infractions
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 attorneys to produce the work sheets. The issue reduced to whether the taxpayers
themselves had a Fifth Amendment privilege to refuse production of the
papers. ([FN7]) On the particular facts, the Court held
against the taxpayers.
The Court
recognized that two kinds of testimonial assertions were implied in the
production. First, "producing the documents
tacitly admits their existence and their location [380 Mass. 590] in the
hands of their possessor." Fisher,
425 U.S. at 411‑412, 96 S.Ct. at 1581. Second, the production implicitly
authenticated the papers as being those requested in the summons. Id.
See People v. Defore, 242 N.Y. 13, 27, 150
N.E. 585 (1926) (Cardozo, J.). Why, then, was the claim of privilege
denied? The elements of existence,
location, and control of the papers were "not in issue"; "(t)he
existence and location of the papers are a foregone conclusion and the taxpayer
adds little or nothing to the sum total of the Government's information by
conceding that he in fact has the papers."
425 U.S. at 411, 96 S.Ct. at 1581. The information added was trivial. In the circumstances, existence and location
of the papers were comparable to the existence 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 "authentication" to prove that the
figures were accurate. Id. at 413, 96 S.Ct. at 1582.
(4) The
converse inference from Fisher, as indicated by the Court, ([FN8]) is that
assertions implied from production of things (whether or not documents) are
within the Fifth Amendment, 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 ([FN9]) we cite recent 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[380
Mass. 591] for knowing possession of a forged alien
registration receipt card where the defendant had been coerced into producing
it during a custodial interrogation: "An individual should
not be compelled to produce the crime itself." Id. at 176.
In State v. Dennis, 16 Wash.App. 417, 558 P.2d
297 (1976), 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 refrigerator, thus virtually admitting control. Id. at 423, 558 P.2d 297. 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. ([FN10]) 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 answering to a
subpoena for records of his financial transactions 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 violation of the obscenity statute. Here production "would, in effect, 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‑incriminating tape recordings. On the same ground, United States v. Plesons, 560 F.2d 890, 892 (8th Cir. 1977), recognized the
Fifth Amendment privilege of a doctor under grand jury investigation to refuse
to produce patient records that might [380
Mass. 592] assist the government in
convicting him of illegally dispensing narcotics (it was finally held, however,
that the surrender of the records had been voluntary).
(5)(6) The
present case is consonant with those just cited. If the defendant should produce the revolver,
he would be making implicitly a statement about its existence, location and
control 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, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225 (1957); 8 J. Wigmore, supra at s 2264, p. 380. But see Friendly, The Fifth Amendment
Tomorrow: The Case for Constitutional Change, 37 U.Cin.L.Rev.
671, 702 (1968) (criticizing implicit authentication rationale). 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. Apparently 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. Woodward, 63 Ill.2d 382, 387, 349 N.E.2d 57,
60 (1976). ([FN11])
[380
Mass. 593] The avowals sought from
the defendant are not only significant but must be taken to be
incriminating. The revolver 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 establish 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 ballistics tests, and these may lead to expert
testimony, of whatever 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, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975). See Taylor v. Commonwealth, 369 Mass. 183,
187‑188, 338 N.E.2d 823 (1975); Hoffman v. United States, 341 U.S. 479,
488, 71 S.Ct. 814, 819, 95 L.Ed.
1118 (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. ([FN12])
Cf. Commonwealth v. Kreplick, ‑‑‑
Mass. ‑‑‑ ([FNA]), 399 N.E.2d 9
(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 production[380
Mass. 594] is here inconsequential or nonincriminating; rather it says that the evidence is
unworthy of Fifth Amendment protection because it merely enhances other
persuasive evidence obtained without the defendant's help. The Commonwealth's argument is indeed
curious. It is as if we were asked to
rule that a confession could be coerced from an accused as soon as the
government announced (or was able to show) that a future trial it could produce
enough independent evidence to get past a motion for a directed verdict of
acquittal. This would be to encourage
present infringements 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 tender 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. Compare
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, Formalism, Legal Realism, and
Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv.L.Rev. 945, 979, 987‑988 (1977). Implicit statements as to existence,
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 incriminating 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
ballistics evidence and an opinion thereon.
There is no resemblance here to Schmerber
where location was a foregone [380
Mass. 595] 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.
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, 93 S.Ct.
611, 616, 34 L.Ed.2d 548 (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 requiring
the government 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, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (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).
The order
directing the defendant to produce, and the subsequent order adjudging him in
concept, were in error and are vacated.
So
ordered.
(FN1.) These circumstances appear from an
affidavit supporting an application for a search warrant which is added to the
appellate record by consent of the parties.
(FN2.)
The Commonwealth has not argued that the defendant's voluntary surrender of one
gun waived any Fifth Amendment rights he might have to refuse surrender of
another. Cf. Rogers v. United States,
340 U.S. 367, 373, 71 S.Ct. 438, 442, 95 L.Ed. 344 (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 personal.
Cf. Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (no Fifth Amendment
privilege available to person holding records of dissolved three‑person
partnership); United States v. White, 322 U.S. 694, 64 S.Ct.
1248, 88 L.Ed. 1542 (1944) (same for assistant
supervisor subpoenaed by grand jury to produce union records); Dreier v. United
States, 221 U.S. 394, 31 S.Ct. 550, 55 L.Ed. 784 (1911) (same for subpoena issued to officer of
corporation demanding production of corporate records in his custody).
(FN3.)
Of course these Amendments bear on the States through the Fourteenth
Amendment. See Malloy v. Hogan, 378 U.S.
1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (Fifth
Amendment); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (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."
(FN4.)
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, 96 S.Ct. 1569,
1576, 48 L.Ed.2d 39 (1976); Oklahoma Press Publishing Co. v. Walling, 327 U.S.
186, 208‑209, 66 S.Ct. 494, 505‑506, 90 L.Ed. 614 (1946).
(FN5.)
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 Amendment: The Burger Court's Definition, 61 Minn.L.Rev. 383 (1977).
(FN6.)
Hence the "speaking document" problem earlier mentioned did not
arise. See Fisher v. United States,
supra, 425 U.S. at 409, 414, 96 S.Ct. at 1580, 1582.
(FN7.)
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,
96 S.Ct. at 1573‑1578. (The Court analyzed two cases presenting
essentially identical facts, one from the Third Circuit, the other from the
Fifth Circuit.)
(FN8.)
"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, 96 S.Ct. at 1581.
(FN9.) 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).
(FN10.) We would see no distinction of
constitutional dimension between production 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, 235 N.E.2d 552
(1968).
(FN11.) Our analysis is consistent with
Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26
L.Ed.2d 446 (1970), which upheld against Fifth Amendment attack a Florida rule
requiring disclosure by the defendant of the identity of alibi witnesses he
intends 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, 90 S.Ct.
at 1898. We upheld a similar notice‑of‑alibi
rule in Commonwealth v. Edgerly, 372 Mass. 337, 361
N.E.2d 1289 (1977) (reserving the question of permissible sanctions for failure
to give notice of alibi defense). Under Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191
(1977), a defendant claiming lack of criminal responsibility may be compelled
to undergo psychiatric examination but this may be required only where on his
part he intends to present expert testimony depending in whole or part on
voluntary interviews between 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 question of waiver.
(FN12.) We also note that if Hughes failed to
produce the gun on request, he might be criminally liable under G.L. c. 269, s 10(h ).
(FNA.) Mass.Adv.Sh. (1980)
99.