Due Process Limitations on Contempt Power: Right to Notice and to a Hearing Versus Summary Punishment.

Misbehavior in the course of a trial may be punished summarily by the trial judge. In Ex parte Terry,219 the Court denied habeas corpus relief to a litigant who had been jailed for assaulting a United States marshal in the presence of the court. In Cooke v. United States,220 however, the Court remanded for further proceedings a judgment jailing an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction . . . is that this contempt was not in open court. . . . To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”221

As to the timeliness of summary punishment, the Court, in Sacher v. United States,222 at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, to allow “the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”223 Subsequently, however, interpreting the Due Process Clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding, he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a “full scale trial” is not contemplated.224

Curbing the judge’s power to consider conduct as occurring in his presence, the Court, in Harris v. United States,225 held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury’s questions in the presence of the judge, did not constitute contempt “in the actual presence of the court” for purposes of Rule 42(a); rather, the absence of a disturbance in the court’s proceedings or of the need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a hearing.226 Moreover, when it is not clear that the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact that it occurred during the trial, “a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.”227

Footnotes

219
128 U.S. 289 (1888). [Back to text]
220
267 U.S. 517 (1925). [Back to text]
221
267 U.S. at 535, 534. [Back to text]
222
343 U.S. 1 (1952). [Back to text]
223
343 U.S. at 11. [Back to text]
224
Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, the Court observed that, although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, “[s]ummary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review.” Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974). [Back to text]
225
382 U.S. 162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959). [Back to text]
226
But see Green v. United States, 356 U.S. 165 (1958) (noncompliance with order directing defendants to surrender to marshal for execution of their sentence is an offense punishable summarily as a criminal contempt); Reina v. United States, 364 U.S. 507 (1960). [Back to text]
227
Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333 U.S. 257, 275–276 (1948)). [Back to text]