PROSECUTION HAS THE RIGHT TO DISCOVERY OF NONTESTIMONIAL INFORMATION
The prosecution discovery statutes enacted by Prop. 115, Penal Code sec. 1054 et seq., limit discovery to the items listed. But Penal Code sec. 1054.4 provides that nothing in these provisions is to be construed to limit the prosecution from getting nontestimonial evidence. The criminal defendant here is a corporation. The DA issued a subpoena for internal corporate records about the structure of the corporation. The California Court of Appeal rules that this
information is nontestimonial, since it was voluntarily created by the corporation as part of its business. Since it is nontestimonial and since corporations have no 5th Amendment rights, there's no ban against the DA getting it.
Of course, we always thought that nontestimonial information was stuff like being required to stand in a lineup or display tattoos. If this gets thrown in your face, focus on your client
HAVING a 5th Amendment right, unlike this corporation. Incidentally, the California Court of Appeal brushes aside the defense claim of lack of reciprocity. The Court of Appeal says that due process doesn't really require reciprocity, it just requires that the defense not be surprised. Wow.
People v. Appellate Division (World Wide Rush); 2011 DJ DAR 11095;
DJ, 7/25/11; C/A 2nd, Div. 1
