Vol. 4, No. 2, Pg. 12. Direct Criminal Contempt.

• Author: By D. Garrison Hill

South Carolina Lawyer

1992.

Vol. 4, No. 2, Pg. 12.

Direct Criminal Contempt

12Direct Criminal ContemptBy D. Garrison HillThe power of a court to directly nd criminally punish contempt committed in its presence has existed, according to Blackstone, "as early as the annals of our law extend." This article discusses the sources, limits and characteristics of the direct criminal contempt power of state and federal trial courts. Neither indirect criminal contempt nor civil contempt are addressed.

Whether contempt is criminal or civil depends on whether the court's intention is coercive or punitive. The civil contemnor alone "holds the keys to the jailhouse in his pocket"; the criminal contemnor can generally gain freedom only by serving a sentence.

Contempt of court is viewed as a crime against the sovereign rather than an offense against the presiding judge, continuing a theory spawned in the King's Court defining the crime as one against the crown. Direct Criminal Contempt in Federal Court

* Elements of the Offense. Ironically, it was a federal judge's abuse of the contempt power that led Congress in 1831 to limit the expansive contempt authority provided by the Judiciary Act of 1789 and pass what is today 18 U.S.C. § 401. Missouri federal district Judge John Peck employed the then-existing plenary contempt power to jail and disbar a lawyer (who, unfortunately, was named Lawless) for publicly criticizing one of Peck's legal opinions. Wilson, Criminal Contempt in the Fedeml Courts, 55 F.R.D. 102 (1972).

A federal district court's power to punish direct criminal contempt is granted by 18 U.S.C. § 401, which provides in pertinent part:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice. . . .

Interpreting § 401, the United States Court of Appeals for the Fourth Circuit has held that:

In order for the conduct to be punishable under 18 U.S.C. § 401(1) four essential elements must be established beyond a reasonable doubt: (1) Misbehavior of a person, (2) which is in or near to the presence of the Court, (3) which obstructs the administration of justice, and (4) which is committed with the required degree of criminal intent.

13United States u. Warlick, 742 F.2d 113, 115 (4th Cir. 1984). The Court further defined the necessary criminal intent as "a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful?

Rule 42(a) of the Federal Rules of Criminal Procedure further requires that before direct criminal contempt power can be exercised, the judge must certify that he or she "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court." The order of contempt must recite the facts, be signed by the judge and entered of record.

Despite the sweeping language of § 401, Rule 42(a), and Warlick, the United States Supreme Court has held that courts may properly exercise their direct criminal contempt power only in exceptional circumstances where there is a compelling reason for an immediate remedy. Stated differently, time must be of the essence to maintain the order, dignity and authority of the Court. See, e.g., United States v. Wilson, 421 U.S. 309, 319, 95 S. Ct. 1802, 1808, 44 L. Ed. 186 (1975).

The Court has repeatedly stated that in considering contempt punishment a court should employ "the least possible power adequate to the end proposed," and resort to non-summary disposition under Rule 42(b) if possible. Thus, summary punishment is generally proper only when the contempt occurs in open court or otherwise disrupts an ongoing trial. Compare Wilson, 421 U.S. 309, 95 S. Ct. 1802 (direct contempt conviction affirmed where immunized witness refused to testify during ongoing trial) with Harris v. United States, 382 U.S. 162 (1965) (direct criminal contempt conviction reversed when immunized witness refused to testify before grand jury).

The Supreme Court has admonished that direct criminal contempt be used sparingly. A court that could properly hold one in direct criminal contempt during the trial but fails to immediately do so and reserves action until the end of the trial must generally give the alleged contemnor notice, hearing and other safeguards consistent with due process. If the presiding judge is "personally embroiled" in the contempt--such as when the judge has been attacked personally--it is generally held that recusal is warranted for the post-trial contempt adjudication. See generally Wright, Federal Practice and Procedure: Criminal, § 707 (1982).

Contempt is a public crime and...