California Criminal Trial Manual

Subpoena Service (PC 1328)

• Personal service is made by “personally” delivering a copy of the subpoena to the witness. (PC 1328(a).)
  • May be made by any person except the defendant. (Ibid.)
• Minor Witness. Subpoena service shall be made on the minor’s parent, guardian, etc. (PC 1328(b)(1).)
• Peace Officer Witness. For procedure see PC 1328(c)-(g).
• Subpoena Service via Email (PC 1328d.)
  • Must acknowledge receipt & identify themselves by reference to their DOB & CDL
  • Failure to comply w/ email subpoena may be punished as a contempt; but no body attachment if witness FTAs

Subpoena Duces Tecum (SDTs)

• PC 1326(c): person/entity responding to a third party SDT in a criminal case must deliver the subject materials to the clerk of court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them.
  • When the requesting party is defendant, the court may conduct that hearing in camera.
• Documents and records in the possession of nonparty witnesses and government agencies other than the agents/employees of the prosecutor are obtainable by SDT. (People v. Superior Court (Barrett) (2010) 80 Cal.App.4th 1305, 1318.)
• Trial courts are authorized, indeed obligated, to regulate the use of subpoenas to obtain privileged third-party discovery. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 751.)
• Court maintains control over the discovery process, for if the third party “objects to the disclosure of the information sought, the party seeking the information must make a plausible justification or a good cause showing of need therefor.” (Kling v. Superior Court (2010) 50 Cal.4th 1068.)
• Assuming the third party moved to quash a SDT, the burden would be the on the requesting party to demonstrate the materials he seeks are relevant. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1320.)
• Alhambra factors. (Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329.)
  • Trial court must consider these seven factors in considering whether good cause has been shown to enforce a subpoena that has been challenged by a motion to quash:
  • (1) Plausible justification
    • Has the D carried his burden of showing a plausible justification for acquiring documents from a third party?
    • Although the D does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial, he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime. (Ballard at p. 167.)
  • (2) Overly broad. Is the sought material adequately described and not overly broad?
  • (3) Reasonably available. Is the material reasonably available to the entity from which it is sought (and not readily available to the defendant from other sources)?
  • (4) Rights/Interests. Would production of requested materials violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”?
    • For crim defense SDT, protection of subject of a subpoena’s right to be free from unreasonable search and seizure constitutes a legitimate governmental interest.
  • (5) Timely. Is defendant’s request timely?
  • (6) Unreasonable Delay. Would the time required to produce the requested information necessitate an unreasonable delay of defendant’s trial?
  • (7) Unreasonable Burden. Would production of the records containing the requested information place an unreasonable burden on the third party?