“Subpoena Duces Tecums” in California Criminal Cases

A subpoena duces tecum (or “SDT”) is a court order that requires you to produce certain documents or pieces of evidence at a hearing or trial in a criminal case. Under California law, either a prosecutor or the defendant may request evidence by means of an SDT.

Here are four key things to know:

1. An SDT must set forth the specific materials sought, a statement that you possess them, and a “probable cause” showing of their relevance.
2. Materials sought in SDTs can include everything from emails, photos, and phone records to DNA results, bank statements, and voicemails.
3. You do not have to produce requested materials that are privileged, inaccessible, or violative of your Fifth Amendment rights.
4. Failing to comply with an SDT may cause the judge to issue a warrant for your arrest and hold you in contempt.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Purpose
• 2. Service requirement
• 3. What you have to do
• 4. Consequences for not complying
• 5. Exclusions
• 6. Subpoenas ad testificandum
• Additional reading

Subpoena duces tecum is Latin for “you shall bring it with you.”

1. Purpose

A subpoena duces tecum (SDT) typically comes into play when the prosecutor needs documents or other evidence from you.

First the prosecutor may ask you to sign an authorization form that releases the requested materials to them without getting the court involved. 1 If you refuse, then the prosecutor will ask the court to issue an SDT forcing you to produce the materials. 2

Note that you can also have an SDT served on the prosecutor (or any third-parties) requesting materials for your defense. In our experience, we can usually persuade the prosecutor to turn over all relevant evidence without having to resort to an SDT.

Examples

Some examples of documents and evidence prosecutors seek through SDTs include:

• Blood test information,
• DNA samples (typical in rape (PC 261) cases),
• Income tax returns,
• Consumer records,
• Employment records,
• Production of business records,
• Bank statements,
• Personal records,
• Emails, text messages, voicemails, etc.,
• Phone records,
• Employee records, and
• Photographs.

A common scenario of when we use an SDT includes when a state witness is lying, and we want to “refresh their recollection” or impeach their testimony by showing them their prior inconsistent statements in old emails, voicemails, etc.

2. Service requirement

After the court clerk issues a subpoena duces tecum, it must then be served on you with proper judicial council forms by way of:

• Hand-delivery (also known as personal service);
• E-mail to your last known e-mail address; or,
• Certified mail to a last known address. 3

Service must occur in a timely manner to give you “reasonable time” to collect the materials and bring them to a judge. The court must also receive proof of service of when and where you were served.

3. What you have to do

As someone receiving a subpoena duces tecum, you are considered the “custodian of records.” Once you are served, you send the requested materials to the superior court judge presiding over the case.

In a process called an “in-camera hearing,” the judge then reviews the evidence and decides if the prosecutor is entitled to it. 4 The materials will go back to you if the judge finds that they are not “relevant” to the case.

SDT documents may be in paper form or electronically stored information.

4. Consequences for not complying

If you ignore a subpoena duces tecum, the prosecutor may ask the judge to issue a warrant for your arrest. In our experience, judges also punish refusals with contempt. According to California Penal Code 1331 PC:

Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magistrate as a contempt. 5

For the most part, contempt of court is a misdemeanor, punishable by:

• Up to six months in county jail; and/or,
• A maximum fine of $1,000. 6

5. Exclusions

You should not have to comply with an SDT in the following three situations:

1. Privilege. If the information the D.A. is seeking falls under a legal privilege – such as the attorney-client privilege – then you do not have to reveal it.
2. Inaccessibility. If you do not know where to find the documents – or if they no longer exist – then you do not have to produce them.
3. Fifth Amendment. If revealing the information would violate your Fifth Amendment rights against self-incrimination, then you can lawfully refuse to produce them.

We also can file written objections and a motion to quash the subpoena duces tecum. The judge or deposition officer should grant our request if we can show “good cause.” 7

6. Subpoenas ad testificandum

Whereas a subpoena duces tecum requests documents or evidence from you, a subpoena ad testificandum requests your personal appearance to give testimony at a:

• trial,
• hearing, or
• deposition.

It also goes by “civil subpoena”, subp., or just “subpoena.” You also may be able to recover witness fees.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Toward a Safety Valve for Sharing Documents Obtained by Grand Jury Subpoena in Parallel Investigations – Dep’t of Just. J. Fed. L. & Prac.
• Responding to subpoenas: Written objections – Professional Psychology: Research and Practice.
• Subpoena of an Expert Witness – The Expert in Litigation and Arbitration.
• Ethical Considerations for Arbitrators Issuing Third-Party Subpoenas – Dispute Resolution Journal.
• State Criminal Subpoena Enforcement – Wisconsin Law Enforcement.

Legal References:

1. California Penal Code 1326(d) PC; also see California Code of Civil Procedure section 1985.3 CCP for civil actions/civil cases; see also Evidence Code Sections 1560 and 1561; see also Government Code 7465. See also Kling v. Superior Court (California Supreme Court, 2010), 50 Cal. 4th 1068, case number S176171 (“[T] he rules concerning subpoenas duces tecum in criminal cases are not asymmetrical or nonreciprocal, at least not in any way that disadvantages a criminal defendant. “). See also, for example, Facebook, Inc. v. Superior Court (Touchstone) (Supreme Court of California, 2020) 10 Cal. 5th 329; Shrewsbury Management, Inc. v. Superior Court (Court of Appeal of California, Sixth Appellate District, 2019) 32 Cal. App. 5th 1213.
2. California Penal Code 1326(b)-(c) PC. Note that if an attorney is seeking evidence, then the SDT is sometimes used as an alternative to a search warrant.
3. California Penal Code 1328 PC.
4. California Penal Code 1326(c) PC. A similar type of hearing is held in California Pitchess motions.
5. California Penal Code 1331 PC.
6. California Penal Code 19 PC.
7. For example, Department of Corrections v. Superior Court (Court of Appeal of California, Fourth Appellate District, Division One, 1988)199 Cal. App. 3d 1087; Inabnit v. Berkson (Court of Appeal of California, Fifth Appellate District, 1988) 199 Cal. App. 3d 1230; Pelton Motors, Inc. v. Superior Court of Los Angeles County, Court of Appeal of California, Second Appellate District, Division One, 1953) 120 Cal. App. 2d 565.