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Subpoena Duces Tecum

A subpoena duces tecum (SDT) is a legal court order that orders a person to appear in court during a hearing or trial and bring specific documents or records with them. The term duces tecum is a Latin phrase meaning “you shall bring it with you."

The subpoena duces tecum is most commonly used in criminal cases. It can be imposed by either the prosecution or defense, where either needs to prove its case by presenting evidence stored in another location.

Subpoena Duces Tecum in California Criminal Cases
A subpoena duces tecum is a court order requiring someone to bring documents or evidence to a hearing.

In other words, a subpoena duces tecum requires someone to produce certain documents or pieces of evidence at a hearing or trial in a criminal case. An SDT can be used by either a prosecutor or the defendant to request evidence or a witness. An SDT is usually given or served to someone through certified mail, email, or hand-delivery.

While this may seem to be an elementary idea, the fact is that SDT can be very useful if you are charged with a crime because it enables your attorney to require evidence to be submitted that supports your innocence--under penalty of law.

For example, suppose in a Penal Code 261 PC rape case, a defendant's lawyer seeks lab results from a DNA test to prove their client didn't commit the crime. In that case, they could issue an SDT to obtain the evidence.

Anyone who receives a subpoena duces tecum must give the requested documents or other evidence to the judge, who will then conduct a hearing to determine whether the person who requested the material can receive them.  In this article by our Los Angeles criminal defense lawyers, we will examine this topic in greater detail below.

How Does the Subpoena Duces Tecum Work?

Suppose your attorney needs certain documents or records that someone else has in their possession to build your case. In that case, they may be able to procure the information simply by asking the party to sign an authorization form and release the documentation.

If they can't gain authorization, the attorney files a motion requesting the SDT, and the court clerk serves on the party in question.

California Penal Code 1331 - Contempt of Court
If the person fails to bring the requested information to court, they could be charged with contempt of court.

The motion must state what types of documents or records are being requested and why they are needed as evidence in the case. An SDT may be served via certified mail, personal service, or in some cases, by email.

The party served with the subpoena duces tecum must then appear in court on the date and time specified with the requested information and turn it over directly to the presiding judge.

If they do not appear or appear without the information, they may be held in contempt of court, a misdemeanor crime that carries up to six months in county jail and a fine of up to $1,000.

Once the information has been produced, the judge will hold an in-camera hearing (meaning “in chambers”) to review the evidence and determine whether the party is requesting it is entitled to it, i.e., if it is relevant to the case.

If the judge finds it relevant, they will turn the documentation over to the attorney who requested it; if not, it will be returned to the person who initially held it.

What Are Some Examples?

Examples of information and documentation that SDT may request include, but are not limited to:

  • Income tax returns,
  • Emails,
  • Text messages,
  • Pictures,
  • Bank records,
  • Phone records,
  • Employment records,
  • DNA evidence,
  • Blood test records/lab results.

An SDT has to provide information related to the specific documents or evidence sought by requesting party. Further, the SDT has to show why these materials are essential to the case and a statement that the witness has these materials in their possession.

How is SDT different from a standard subpoena? A typical subpoena, which most people are familiar with, mandates a person to appear in court on a specific date or time and give testimony as a witness before the court.

This is called a subpoena ad testificandum or a witness subpoena, which requires personal attendance. A subpoena duces tecum is a mandate for documentation to be brought to court--and by extension, for the person or entity holding the documentation to bring it to court.

What Happens if the Party Served with the SDT Does Not Comply?

As noted, if the person served with a subpoena duces tecum does not appear in court, or if they appear without the requested information, they may be held in contempt of court under California Penal Code 1331 PC.

In some cases, a warrant may be issued for their arrest. Contempt of court is a misdemeanor offense punishable by up to $1000 in fines and six months in county jail.

Are There Exclusions to Subpoena Duces Tecum?

Yes. A handful of instances in which a party served with a subpoena duces tecum may be legally protected from penalties for not complying with it. These include:

  • If the information is lost. If the party doesn't have the requested evidence and can't obtain it because it was previously lost or destroyed, they can't be held criminally liable for failing to comply;
  • If the information is privileged. If the requested information falls under attorney-client privilege, it cannot be divulged;
  • If the information would violate their Fifth Amendment rights. The Constitution protects everyone against forced self-incrimination, including subpoenaed witnesses or documentation.

What are the Reasons to Request a Subpoena Duces Tecum?

You or your attorney might want to request an SDT in a criminal case, including but not limited to the following. Perhaps to obtain pertinent records that would otherwise be difficult or impossible to get or to compel the cooperation of the party holding necessary information or, in certain instances, withholding it.

An SDT could be requested to impeach the testimony of a witness by presenting prior inconsistent statements or to refresh the recollection of a witness by having them review documents before testifying.

Reasons to Request a Subpoena Duces Tecum
An SDT could be used to obtain relevant records that would normally be difficult to receive cooperation.

It's important to note that, for an SDT to be issued, there must be probable cause to believe that the information being sought is relevant and material to the case.

This means that your attorney will need to have a good reason for requesting the information and must be able to show that it is likely to be helpful in some way.

An attorney requests an SDT, and the court clerk will issue the subpoena. After it has been issued, the SDT has to be served to the witness in possession of the materials, the custodian of records, using judicial council forms. There must also be proof of service.

After the SDT is served, the witness must be given a reasonable amount of time to gather the requested material and bring them to court.

If you have received a subpoena from a criminal court in California, contact our office to review the details and options. Eisner Gorin LLP is located in Los Angeles County, and you can reach us for an initial consultation at (310) 328-3776 or by filling out the contact form.

Related Content: Subpoenas in Los Angeles Criminal Court Cases

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