## Facts

- A grand jury indicted Edward H. Hughes on two counts of assault by means of a dangerous weapon (a pistol) arising from a June 21, 1978 shooting in Otis, Massachusetts, in which two rounds were fired through a truck’s windshield at two men.
- A recovered bullet suggested use of either a .38 caliber or .357 magnum handgun.
- The police asked Hughes whether he owned such a gun and to surrender it voluntarily; Hughes produced a .357 magnum pistol, and testing indicated it had not been recently fired.
- Hughes refused consent to search his impounded car; police obtained and executed a warrant to search the car for a .38 or .357 handgun and spent shells, but found nothing.
- The Commonwealth later learned Hughes had registered a different firearm: a specifically identified Smith & Wesson .38 caliber revolver with a particular serial number under state firearms-registration laws.
- The Commonwealth moved for an order requiring Hughes to produce that revolver for ballistics testing; the trial judge allowed the motion, required production within ten days, required disclosure of test results to Hughes, and deferred admissibility questions to the trial judge if later raised.

## Issues

1. Whether a pretrial order compelling a defendant to produce a specifically identified, registered firearm violates the privilege against self-incrimination under the Fifth Amendment and the Massachusetts Declaration of Rights when the Commonwealth already knows of the weapon’s existence and ownership from registration records.

## Decision

- The Supreme Judicial Court affirmed the pretrial order compelling production of the identified .38 revolver.
- The court held that, on these facts, the compelled act of production did not violate the privilege against self-incrimination because any implied assertions from compliance were already known to the Commonwealth.
- The court left questions about the admissibility at trial of evidence or test results derived from the compelled production for later determination.

## Legal Principles

- The privilege against self-incrimination protects against compelled testimonial communications; compelling production of physical evidence can be testimonial only if the act of production itself communicates incriminating facts not already known to the government.
- Under the “foregone conclusion” doctrine, when the government can identify the sought item with reasonable particularity and already knows of its existence and the defendant’s connection to it, compelling production does not add meaningful testimonial information.
- A production order directed at a specifically identified item known to the government differs from compelling a defendant to provide oral testimony about what items exist or where they are located.
- The validity of a pretrial production order may be resolved separately from later trial questions concerning the admissibility and use of evidence obtained as a result of compliance.

## Conclusion

The court held that ordering Hughes to produce a particular registered revolver for ballistics testing did not compel testimonial self-incrimination because the Commonwealth’s prior knowledge from registration records made any implicit admissions from production a foregone conclusion, while reserving for trial any challenges to the admissibility or use of resulting evidence.


Commonwealth v. Hughes, 404 N.E.2d 1239 (Mass. 1980)