Some examples of when you may use an SDT include:
- In a murder case under Penal Code 187, you want a lab to produce DNA samples so you may show you were not at the scene of the crime. (Defendants also frequently use DNA samples in cases of rape under Penal Code 261.)
- A prosecutor wants a third party to submit your income tax returns to help prove you committed embezzlement, per Penal Code 503.
- You want an accuser to provide their employee records so that you can deny accusations of workplace harassment.
- A witness is lying, and you want to “refresh their recollection” or impeach their testimony by showing them their prior inconsistent statements.
If you receive a subpoena duces tecum, you 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.
If you refuse to comply with an SDT, you face contempt of court. Contempt of court is a California misdemeanor (as opposed to a felony) that carries up to:
- six months in county jail; and/or,
There are limited situations when you may disobey a subpoena duces tecum. One example is when the specified documents are privileged.
In contrast to an SDT is a “subpoena ad testificandum,” (or “subpoena) which requests that you 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 people serve a subpoena?
- 4. What happens if I do not comply?
- 5. What are the exclusions to subpoenas duces tecum?
- 6. What is a subpoena ad testificandum?
1. What is a subpoena duces tecum?
A subpoena duces tecum comes into play in a criminal case when the prosecutor or the defendant needs documents or other evidence from you.
Sometimes parties can obtain these documents/evidence if you sign an authorization form that releases the materials to an attorney.1
If you do not give authorization, then the attorney requesting the information issues an SDT, which requires you to produce the records/evidence being sought.2
Some examples of documents and evidence parties seek in a criminal case include:
- Blood test information,
- DNA samples,
- 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
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 you must produce;
- A showing of probable cause that these materials are important and relevant to the case at hand; and,
- A statement that you have these materials in your possession or control.
The Latin translation for subpoena duces tecum is, “you shall bring it with you.”
2. How does the in-camera hearing work?
Once you receive a subpoena duces tecum, you do not deliver the documents to the attorney that requested them.
Rather, you send the documents and/or evidence 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, the court sends them to the attorney of record. However, the materials go back to you if the judge finds that they are not “relevant” to the case.
3. How can people serve a subpoena?
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 you (the “custodian of records”) using the proper judicial council forms.
Service of a subpoena duces tecum commonly occurs in the following ways by the subpoenaing party:
- Hand-delivered (also known as personal service);
- E-mailed to your last known e-mail address; or,
- Certified mail to your last known address.4
No matter how service occurs, you must receive it in a timely manner. Here, a timely manner means in such time so as to give you “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 I do not comply?
An SDT is an official California court document, and you should comply with it by the required date of production.
Otherwise, the attorney sending the SDT may ask the judge to issue an arrest warrant, which orders the sheriff to bring you before the court.
A judge can also punish your 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
5. What are the exclusions to subpoenas duces tecum?
You should not have to comply with an SDT in the following three situations:
- Privilege. If the information the party is seeking falls under a legal privilege – such as the attorney-client privilege – then you do not have to reveal it.
- 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.
- Fifth Amendment. If revealing the information would violate your Fifth Amendment rights against self-incrimination, then you can lawfully refuse to produce them.
You may also file written objections / a motion to quash the subpoena. A judge or deposition officer can, for good cause, quash the subpoena.7
6. What is a subpoena ad testificandum?
A subpoena ad testificandum typically goes by “civil subpoena” or subp. While an SDT requests documents or evidence from you, a subpoena requests your 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 you to testify in court.
Note that you may be able to recover witness fees.
Please note again that both a prosecutor and a defendant may request you serve as a witness 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 you 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.“). 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.
- 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.
- 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.