Not All Subpoenaed Documents Need to be Turned Over to the Prosecution

By: Wallin & Klarich

A recent California Appeals court case (Kling v. Superior Court) held that the prosecution is not always entitled to view or even be present when the court is opening documents that have been subpoenaed by the defense. The court points to Penal Code Section 1326(c) in its opinion and then adds to it some relevant case law.

Penal Code Section 1326(c) provides, in relevant part, “When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The court may not order the documents disclosed to the prosecution except as required by Section 1054.3.” Section 1054.3 requires disclosure of “names, addresses of persons defendant intends to call at trial” and “any real evidence which the defendant intends to offer at trial.

Section 1326 does not require the trial court to conduct a hearing, in which the prosecution is present for review of the subpoenaed documents, every time it receives documents produced in response to third-party subpoenas issued by the defense. If a trial court chooses to conduct such a hearing under section 1326, the prosecution is entitled to notice of the hearing and to be present. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 755.) The prosecution’s role is limited. Unless the prosecutor has been requested by a victim to enforce rights guaranteed by Proposition 9 (Victim’ Bill of Rights Act 2008: Marcy’s Law), the prosecutor is not statutorily authorized to argue or otherwise participate in the in camera hearing, but may be available to answer any questions the trial court has.

The attorneys at Wallin & Klarich are well aware of the prosecution’s sometimes annoying tactic of pressing defense attorneys to turn over everything they have. The law does not require this and the experienced attorneys at Wallin & Klarich have the skill and expertise to recognize what is relevant and what is not. Our expertise will help us give you the best possible defense. The attorneys at Wallin & Klarich can be reached by phone at 1-888-280-6839 or through our website at

Check our blog tomorrow for more information on subpoenaed documents.

Posted In: Criminal Defense