PROSECUTORS CAN'T GET DEFENSE DISCOVERY FROM SUBPOENAS
DA NOT A PARTY TO 3RD PARTY DISCOVERY AND CAN'T GET WHAT THE DEFENSE GETS FROM AN SDT (Smith v. Superior Court; 2007 DJ DAR 9151; DJ, 6/21/07; C/A 4th)
In yet another of the many Appellate reversals of San Diego Superior Court Judge Peter Deddeh, the San Diego Fourth District Court of Appeal held - again - that prosecutors have no right to discovery subpoenaed by the defense.
In this case, the San Diego Public Defender issued a subpoena duces tecum for records of the jury commissioner for a jury draw challenge. The Court of Appeal held that the DA does not have the right to participate in the litigation on the discovery of the jury commissioner records.
This is third party discovery and the People aren't a party to such discovery. The Court of Appeal also says that the DA isn't entitled to copies of whatever the defense gets from the jury commissioner, unless the defense uses the information to make a motion. Then, and only then, the only appropriate discovery is limited by Penal Code section. They cite Teal (117 CA4th 488) and the recently amended PC 1326(c), which both say that information obtained by the defense from a subpoena can't be ordered disclosed to the DA except as required by 1054.
