Some examples of when a party may use an SDT include:
- In a murder case, brought under Penal Code 187, the defendant wants a lab to produce DNA samples so he may show he was not at the scene of the crime.
- A prosecutor wants a third party to submit a defendant’s income tax returns to help prove the defendant committed embezzlement, per Penal Code 503.
- A defendant wants an accuser to provide her employee records so that the defendant can deny accusations of workplace harassment.
A party that receives a subpoena duces tecum must give the requested documents/evidence to the judge presiding over the case. The judge then conducts an in-camera hearing to determine whether the party requesting the materials may, in fact, receive them.
An SDT is typically given, or served, to a person by:
- E-mail, or
- Certified mail.
- Up to six months in county jail; and/or,
- A maximum fine of $1,000.
There are limited situations when a witness is authorized to not comply with a subpoena duces tecum. One example is when the documents being requested are privileged.
In contrast to an SDT is a “subpoena ad testificandum,” (or “subpoena) which requests that a person testify in court, rather than produce documents or evidence.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a Subpoena Duces Tecum?
- 2. How Does the In-Camera Hearing Work?
- 3. How Can the Subpoena be Served?
- 4. What Happens if the SDT is Not Complied With?
- 5. A Subpoena Ad Testificandum
1. What is a Subpoena Duces Tecum?
A subpoena duces tecum comes into play in a criminal case when a party (either the prosecutor or the defendant) needs documents or other evidence from another person or entity (non-party).
Sometimes these documents/evidence can be obtained if the person or entity, in possession of them, signs an authorization form that releases the materials to an attorney.1
If authorization is not given, then the attorney requesting the information issues an SDT, which requires a witness to produce the records/evidence being sought.2
Some examples of documents and evidence that are sought after in a criminal case include:
- Blood test information,
- DNA samples,
- Income tax returns,
- Consumer records,
- Employment records,
- Production of business records,
- Personal records,
- Employee records, and
These documents may be in paper form or electronically stored information.
An SDT must set forth three key bits of information in relation to the above materials. These are:
- The specific documents/evidence that a party wants to be produced;
- A showing of why these materials are important to the case at hand; and,
- A statement that the witness has these materials in his possession or control.
2. How Does the In-Camera Hearing Work?
Once a subpoena duces tecum is issued, the witness does not deliver the documents to the attorney that requested them.
Rather, the documents and/or evidence are sent to the superior court judge presiding over the case. The judge then reviews them and decides if the defense or the prosecutor is entitled to them.3 This process is referred to as an “in-camera hearing.”
A similar type of hearing is held in California Pitchess motions.
If the judge finds that a party should receive the materials, then they are sent to the attorney of record. However, the materials are sent back to the witness if the judge finds that they are not “relevant” to the case.
3. How Can the Subpoena be Served?
An attorney requests an SDT. The clerk of the court then typically issues the subpoena. Following issuance, the SDT must then be given, or served, to the witness in possession of the requested materials (“custodian of records”) using the proper judicial council forms.
Service of a subpoena duces tecum is commonly done in the following ways by the subpoenaing party:
- Hand-delivered (also known as personal service);
- E-mailed to the last known e-mail address of the witness; or,
- Certified mail to the witness’s last known address.4
No matter how an SDT is served with a copy of the subpoena, it must be given to a witness in a timely manner. Here, a timely manner means in such time so as to give the witness a “reasonable time” to collect the materials and bring them to a judge. There must also be proof of service of the place and time of service.
4. What Happens if the SDT is Not Complied With?
An SDT is an official California court document and a person receiving one should comply with it by the required date of production.
However, there are instances in which a witness
- ignores the subpoena or
- refuses to obey or comply with it.
In these situations, the attorney sending the SDT may ask the judge to issue an arrest warrant, which orders the sheriff to bring the witness before the court.
A judge can also punish a person’s refusal of an SDT 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
Please note that there are a few circumstances in which a person might be authorized to not comply with a subpoena duces tecum’s demand for the production of documents. These are when the information requested is:
- Lost, and/or,
- A violation of the person’s Fifth Amendment right against self-incrimination.
The subpoenaed person may also file written objections / a motion to quash the subpoena. And a judge or deposition officer can, for good cause, quash the subpoena.
5. A Subpoena Ad Testificandum
A subpoena ad testificandum is typically just referred to as a civil subpoena or subp. While an SDT requests documents or evidence from a party, a subpoena requests a personal appearance to give testimony at
- a hearing, or
- a deposition (deposition subpoena).
This means a subpoena is a formal demand, by either a prosecutor or the defendant, for a person to testify in court.
Note that some witnesses may be entitled to witness fees.
Please note again that both a prosecutor and a defendant may request witnesses in a criminal case. Defendants do so under the Confrontation Clause of the United States Constitution’s Sixth Amendment. Prosecutors also have the right to require witnesses to provide testimony in California criminal matters.
- 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.“).
- 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.
- California Penal Code 1326(c) PC.
- California Penal Code 1328 PC.
- California Penal Code 1331 PC.
- California Penal Code 19 PC.