Kling

Under Penal Code section 1326, subdivision (c), a person or entity responding to a third party subpoena duces tecum 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, as here, the defendant is the requesting party, the court may conduct that hearing in camera. (Pen. Code, § 1326, subd. (c).)

What is the People’s role at such a hearing? The Court of Appeal held that the People were entitled to notice of, and to be present at, the hearing once the responsive documents have been produced, but were not permitted to learn the identity of the subpoenaed party or the nature of the documents requested. The Court of Appeal further held that, unless the prosecutor has been requested by a crime victim to enforce his or her rights under Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law” (Cal. Const., art. I, § 28), the prosecutor is not authorized to argue at or otherwise participate in the in camera hearing, except to answer any questions the trial court may have, and, furthermore, that the entire hearing may be held ex…