Criminal Contempt

JurisdictionColorado,United States
CitationVol. 51 No. 11 Pg. 34
Publication year2022
51 Colo.Law. 34
Criminal Contempt for the Civil Practitioner
No. Vol. 51, No. 11 [Page 34]
Colorado Bar Journal
December, 2022


This article describes the unique substantive and procedural components of criminal (punitive) contempt and offers advice for civil practitioners who are asked to defend a criminal contempt allegation arising from a civil case.


Despite the name, criminal contempt allegations most commonly arise in civil cases. For that reason, a civil practitioner may be called upon to a defend a client accused of criminal contempt (the alleged contemnor), or the civil practitioner may be the alleged contemnor. In either case, practitioners are cautioned against treating a criminal contempt case as an adjunct to the civil proceeding in which it arose. A contempt conviction can result in steep penalties, including fines and incarceration, so a strong defense by a knowledgeable practitioner is essential.

This article outlines the unique substantive and procedural aspects of criminal contempt proceedings, focusing on the constitutional rights of alleged contemnors. It also offers practical advice for attorneys defending criminal contempt charges.

Contempt Generally

Every court has the inherent power to protect its "efficient function, dignity, independence, and integrity."[1] That inherent power includes the authority to hold a person in contempt of court for conduct that interferes with the administration of justice.[2]

Colorado contempt proceedings are governed by Rule 107 of the Colorado Rules of Civil Procedure.[3] The rule defines contempt as [d]isorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbances toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.[4]

In turn, the rule distinguishes between two types of contempt: direct and indirect.[5]

"Unlike the allegations in most legal proceedings, direct contempt, by nature, is personally observed by a judge. For this reason, direct contempt may be punished summarily, and there is no prescribed burden of proof for summary punishment."

Direct Contempt

Direct (or summary) contempt is that which "the court has seen or heard."[6] In other words, it is disobedient conduct performed under a court's metaphorical nose, usually in a physical courtroom. For example, an attorney's purposeful introduction of evidence that a court has found inadmissible may constitute direct contempt.[7]

Most direct contempt findings follow repeated court warnings to desist from the contumacious conduct.[8] Sometimes, however, the conduct is so extreme that no advance warning is necessary.[9] A trial court has the power to impose direct contempt punishment immediately for courtroom behavior that obstructs justice, offends the court, or otherwise disturbs the peace.[10] The rationale behind this instantaneous authority is that courts must be able to properly administer justice at all times, which is possible only if courtroom disturbances can be addressed, punished, and dispensed with immediately.[11]

Unlike the allegations in most legal proceedings, direct contempt, by nature, is personally observed by a judge. For this reason, direct contempt may be punished summarily,[12] and there is no prescribed burden of proof for summary punishment. In other words, the only evidence required for a judge to impose summary punishment on a direct contemnor is the judge's own personal, impartial observations.[13] Due to this departure from traditional due process, courts have been cautioned to use summary punishment for direct contempt sparingly and only when necessary.[14]

" For example, in People v. Aleem, the trial court purported to hold Aleem in direct contempt after he refused to remove his Stanley Tookie Williams T-shirt, arrived 37 minutes late to court, yelled and called the court names such as "˜demonocracy,' and orchestrated his supporters to stand and chant. "

For example, in People v. Aleem, the trial court purported to hold Aleem in direct contempt after he refused to remove his Stanley Tookie Williams T-shirt, arrived 37 minutes late to court, yelled and called the court names such as "demonocracy," and orchestrated his supporters to stand and chant.[15] At first, the court warned Aleem that it would hold him in contempt if he did not remove his T-shirt, but it did not issue any specific warnings to cease the other conduct.[16] The court then had a change of heart, subsequently withdrawing its T-shirt removal order and permitting Aleem to wear the T-shirt for the rest of the day.[17] But following this withdrawal, the court reversed course again, ultimately holding Aleem in direct (summary) contempt for all his conduct. The court refused to permit Aleem to offer any defense to the contempt allegations.[18] Instead, it allowed Aleem and his attorney to speak only about what sentence the court should impose.[19]

Aleem filed a CAR 21 petition for a rule to show cause, which the Colorado Supreme Court granted and made absolute, thus reversing the trial court's contempt finding.[20] The Court faulted the trial court for failing to warn Aleem before holding him in contempt for arriving late to court, yelling, and organizing a demonstration by his supporters.[21] And because the district court retracted its order to remove the T-shirt, its prior warning to Aleem about that conduct was ineffective.[22] Reasoned the Court:

When the trial court retracted its contempt finding and allowed Aleem to wear his shirt in front of the jury, it nullified any remedial or punitive justification for making him remove his shirt. If the court's initial purpose was remedial, then sanctioning Aleem after the trial for refusing to remove his T-shirt served no legitimate purpose because there was no immediate need to restore courtroom order at the show cause hearing. Likewise, if the court's purpose for sanctioning Aleem at trial was punitive, then allowing him to wear the shirt at trial undermined this purpose. The retraction of the contempt order followed by a finding of punitive contempt after the fact for conduct that the court expressly allowed appears fundamentally unfair.[23]

The Court concluded by warning district courts to use self-restraint when employing their contempt power.[24]

Indirect Contempt

Indirect contempt is "[c]ontempt that occurs out of the direct sight or hearing of the court."[25]Unlike direct contempt, which a court may summarily punish, indirect contempt proceedings require notice and a hearing at which the alleged contemnor has a chance to defend against the allegations.[26]

Indirect contempt includes, for example, failing to make child support payments, failing to appear in court,[27] or failing to adequately prepare for court proceedings.[28] Because the requirement that direct contempt occur in the presence of the court is narrowly construed,[29] any contumacious conduct that does not fall within that narrow in-presence category is considered indirect contempt.[30] Unlike the in-presence misconduct in direct contempt proceedings, in indirect contempt proceedings the judge has not "[seen] or heard the contumacious conduct."31] Thus, process is due to alleged indirect contemnors, and summary punishment is not permitted.[32]

The Colorado Court of Appeals' decision in In re Marriage of Johnson is illustrative.[33]There, an attorney in a divorce proceeding filed a motion for continuance and requested permission to appear by telephone from out-of-state.[34] Although the court had not ruled on her motion, the attorney telephoned the court on the day of the hearing.[35] The judge found that the attorney's conduct constituted direct contempt for failure to appear.[36]

The Court of Appeals disagreed, holding that the trial court erred in its finding of direct contempt.[37] The appellate court reasoned that although she was "heard" in court by telephone, the attorney's "allegedly contemptuous actions were committed outside the presence of the court."38] The court concluded that summary punishment for contempt is only appropriate where there is an immediate disturbance in the courtroom that obstructs the administration of justice—something that telephoning into a hearing is not.[39] As an indirect contempt defendant, the attorney had a right to notice of the contempt charge, a right to a hearing on that charge, and a right to have a different judge preside over the contempt proceeding.[40]

Civil (Remedial) Contempt versus Criminal (Punitive) Contempt

The indirect-direct contempt dichotomy distinguishes between types of contumacious conduct. A second dichotomy distinguishes between the types of sanctions that follow a finding of contempt: remedial or punitive.[41]

Remedial sanctions are those imposed to compel compliance with a court order or to compel an individual to act a certain way.[42]Remedial sanctions are civil in nature. True to their name, punitive sanctions are punitive—they serve to punish. Punitive sanctions are reserved for contempt that is particularly offensive to the dignity of the court, requiring punishment in the form of a fine, incarceration, or a combination of the two.[43] Punitive sanctions are criminal in nature, and they are designed to "vindicate the dignity of the court by punishing the contemnor."[44]

Whether a contempt sanction is civil or criminal depends on "the purpose and character of the sanctions imposed."[45] If the contemnor can simply do as the court says to avoid further sanction, then the sanction is remedial and civil.[46]But if the court imposes a penalty "without any provision...

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