Court Can Exempt Certain Subpoenaed Documents From Discovery, Leaving the Defense in a Better Position to Defend, Part 3

By: Wallin & Klarich

There may be cases in which the trial court determines it necessary to ask questions of the prosecution, in addition to questions it has posed to the defense, in camera to protect privacy rights of third parties. The court may solicit suggestions from the defense on how best to ask these questions without disclosing defense strategies. In many cases this goal may be difficult, if not impossible, to achieve. In that event, the defense may be forced to choose either to disclose the subpoenaed document to the prosecution or to forego receiving the document.

The trial court’s ruling on the question of the delivery of any documents to the defendant should be made in open court without identifying the third parties who produced the documents or the nature of the documents produced. Because section 1326 precludes the trial court from disclosing the records to the prosecution, the clerk’s public (or long form) docket notes should not identify the names of the third parties from whom documents have been received. Needless to say, the prosecution may not receive copies of transcripts of in camera hearings held pursuant to section 1326. Those transcripts shall remain sealed as provided by section 1054.7.

The Southern California criminal defense lawyers at Wallin & Klarich often subpoena records from third parties and “invite” the prosecution to be present when the documents are opened at the court. We provide notice to the prosecution that we have subpoenaed documents from a third party without disclosing the name of the third parties. If the prosecution shows up at the time the documents are opened, we request an in camera hearing with the judge and also request that the prosecution not be present. If the judge insists that the prosecution should be present, we remind the judge that the prosecution is to play a limited roll and should not be informed of the origin or identity of the documents we have subpoenaed.

This course of action helps our attorneys keep strategies where they belong: between attorney and client. It prevents the prosecution from unnecessarily prodding into documents that may or may not be used at trial. It enables us to continue to provide top notch defense to each of our clients. The attorneys at Wallin & Klarich can be reached by phone at 1-888-280-6839 or through our website at

Posted In: Criminal Defense