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How To Put A Subpoenaed Document Into Evidence In A California Criminal Case

Posted by Ronald D. Hedding, ESQ. | Dec 12, 2018

It's a common myth for people to believe that any document can go into evidence and there's not a problem with it.  All they have to do is put it in there and the judge will let it in.  But the reality is, judges are not just going to let any documents in.  They're not going to just let any witness testify.  If you want to get an official document into evidence, then you're going to have to do it the right and you're going to be talking about it in this context — and I've been battling getting documents in and trying to keep them out for twenty-five years now practicing criminal defense in Los Angeles.

Chain of Custody

But the process really has to do with being able to establish what is called a “chain of custody.”  In other words, where did that document start from?  Did it start from a reliable place?

For example, did it start with a custodian of records getting the document and then either bringing it into court or mailing it to court and then the court receiving it in an official envelope, and then the two parties in the litigation — in a criminal case, the Los Angeles County prosecutor and the defense attorney — open it together, look at it, make sure of exactly what's in there and then a copy is made for both parties and then the prosecutor typically, and even the defense attorney sometimes will then put that document back into the court file.

Now, if you ever want to use that document in a preliminary hearing in a case in Los Angeles or at a trial, you will be able to establish a chain of custody because you have one person saying, I got this document.  Here's what's in it.  I then mail it to the court.

Both parties will stipulate that it was received in court and then you can put the document into evidence.  But once that document goes away from the chain of custody, now you have a problem because now you're not able to show exactly where the document went and whether the document was tampered with in any way.  In other words, in order to let a document in that obviously can't be cross-examined, we'd better make sure that that document actually is a legitimate document that hasn't been fooled around with.  Nothing's been taken away from it; nothing's been added to it.  So, establishing a chain of custody is crucial.

Most of the time in a criminal case, from what I've seen, the prosecutors and defense attorneys are just stipulating to the chain of custody, meaning they're agreeing, I saw what that document looked like when it came in.  I'm not going to make the other person show exactly where it went, who got it, that it was in a court file.

I've seen the document.  I know it's a legitimate document so I'm going to agree to the chain of custody.  I'll stipulate to it and then you can just get the document in and deal with it.  Sometimes it's good for the defense; sometimes it's bad for the defense.  Sometimes it really doesn't matter.  It's irrelevant.

Delivering an Official Subpoena

So, if you want to subpoena a document, you have to deliver an official subpoena.  It has to be related to the case.  It has to be ordered to come into court.  Most of the time, the subpoena in a Los Angeles case says that the person who is receiving the subpoena needs to put the documents in a sealed envelope and send them to the court by a certain date, and if they do that, then they don't have to come to court.  But if they're not going to do that — if they're going to cause any problems about it — they need to come into court and explain to the judge and the attorneys why they're not

The whole point of establishing a chain of custody in a criminal case related to subpoenaed documents is so you can use those documents later on in the proceedings without the other side objecting and saying, you know what, we're objecting to those documents.  We don't know where those documents have been.  We don't know if those are legitimate documents.

The other side has not established that they are documents that are kept in the normal course of business and that the custodian of records actually got those particular documents and verified that they were legitimate documents related to the subpoena.

You Need an Experienced Criminal Defense Lawyer

So, if this gives you an idea of what is necessary if you want to get a document in in a criminal case in Los Angeles, you have to do it the right way and the best way to do that is go through a criminal defense attorney who has done it before, knows how to establish a chain of custody, knows how to get a document in, knows what documents are relevant and what documents are not relevant.  We haven't even talked about that yet.  You can subpoena all the documents you want, if they're not relevant the judge is not going to let them in when the prosecutor objects to them. Contact our Los Angeles criminal defense lawyers to review your case.

Related Resources:
Getting Evidence for Court – California Courts
What Is a Subpoena?

About the Author

Ronald D. Hedding, ESQ.

Ronald D. Hedding, Esq., is the founding member of the Hedding Law Firm. Mr. Hedding has an extensive well-rounded legal background in the area of Criminal Law. He has worked for the District Attorney's Office, a Superior Court Judge, and as the guiding force behind the Hedding Law Firm. His multi-faceted experience sets Mr. Hedding apart and puts him in an elite group of the best Criminal Defense Attorneys in Southern California.