Not just because therapy might contain useful information. California protects qualifying confidential communications between a patient and psychotherapist, and the patient may claim that privilege even when not a party to the criminal case. A subpoena does not by itself override the privilege. The defense must identify a specific, legally relevant reason for the request, and a judge—not the defense or provider—decides the privilege and any permitted review. (Evidence Code § 1014; Penal Code § 1326.)

A subpoena is not automatic access

Penal Code section 1326 provides a process for a defense attorney to subpoena records held by a third party. For records involving a complaining witness’s private therapy, however, section 1326 does not erase the patient’s privilege. The court may order an in-camera hearing in the circumstances covered by the statute; it is not mandatory just because the defense requests one. Valid patient consent or waiver and statutory exceptions can affect the analysis, but they must be assessed from the actual record. (Penal Code § 1326.)

In People v. Hammon, the California Supreme Court held that a defendant does not obtain automatic pretrial review or disclosure of privileged therapy records by invoking confrontation or suggesting the records could show the witness is unreliable. That decision rejected an automatic route to private records; it does not make every conceivable later trial-stage issue identical. (People v. Hammon.)

In People v. Wandrey, the court upheld quashing a trial subpoena where the defense offered only the possibility that therapy notes might contain consistent or inconsistent statements. The opinion emphasized a specific plausible justification. It does not promise in-camera review or disclosure whenever a defense request uses the label “good cause.” The court must evaluate the particular record and privilege claim. (People v. Wandrey.)

Identify the actual source and issue

First distinguish private communications held by an outside therapist from police or agency records, forensic laboratory materials, or statements already in the prosecution’s possession; different disclosure rules may apply. Then identify the concrete trial issue, the particular information sought, and any nonprivileged basis for believing it exists. A witness’s decision to seek therapy is not, by itself, evidence of unreliability.

Work through counsel and court process. Do not contact or pressure the witness or treatment provider directly. Preserve the narrow request, privilege objection, supporting basis, and court ruling. Even a permitted subpoena does not guarantee access to privileged communications or usable impeachment material.

For California sex-crime defense, the Law Offices of David S. Chesley can review the proposed request and record. Call (800) 755-5174, or visit the Los Angeles sex-crimes defense page.