In Print: Volume 88: Number 5
By Paul A. Grote
88 Wash. U. L. Rev. 1247 (2011)
The specter of contempt hangs over the head of anyone who enters a courtroom. Movies and television may show an unwilling witness, an unruly defendant, or an overzealous attorney being threatened with contempt for disobeying the judge. Other movies portray the contempt power in a different light:
JUDGE CHAMBERLAIN HALLER: If I hear anything other than “guilty” or “not guilty,” you’ll be in contempt. I don’t even want to hear you clear your throat. I hope I’ve been clear. Now, how do your clients plead?
VINNY GAMBINI: [slowly] I think I get the point.
JUDGE CHAMBERLAIN HALLER: No, I don’t think you do. You’re now in contempt of court! Would you like to go for two counts of contempt?
VINNY GAMBINI: Not guilty.
JUDGE CHAMBERLAIN HALLER: Thank you. Bail will be set at $200,000. . . . Bailiff, please take Mr. Gambini into custody.
Humor aside, this exchange effectively emphasizes the judge’s broad power of contempt. By merely speaking in a manner of which the judge disapproves, an attorney may find himself in contempt of court. What may not be so obvious is that one can commit contempt of court when one is far away from the courtroom; merely by disobeying a court order, one may be fined or ordered to spend some quality time on a prison cot.
Contempt is defined in general terms. For example, federal law describes contempt of court as “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice” or “[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” Common contemptuous acts include violations of court orders, courtroom disruptions, and refusals to testify. The potential for abuse of the contempt power is readily apparent, and the broad definition, coupled with the fact that there is often no limit on the sanctions a judge can impose for contempt of court, does little to comfort attorneys or litigants.
To curb this potential for abuse, the common law developed a system of classifying contempts that determines how much procedural protection a contemnor receives. Contempts of court are classified according to two criteria. An act of contempt is either direct or indirect. Furthermore, a contempt proceeding is either civil or criminal. This creates four types of contempt: direct civil contempt, direct criminal contempt, indirect civil contempt, and indirect criminal contempt. Whether a contempt is civil or criminal has nothing to do with whether the underlying litigation is civil or criminal—a criminal defendant could be held in civil contempt, and likewise, a civil plaintiff could be held in criminal contempt. More procedural rights are granted in cases of indirect contempts than in direct contempts. Similarly, criminal contemnors receive more protection than civil contemnors. This Note will examine the current state of the law of contempt, focusing on both federal and state law. In particular, it will focus on the distinction drawn between civil contempt of court and criminal contempt of court. After examining some criticisms of the distinction and its underlying rationale, ultimately the Note will argue that the distinction between civil and criminal contempt should be eliminated.