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Criminal Contempt and Trial by Jury

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Criminal Contempt and Trial by Jury William & Mary Law Review Volume 8 (1966-1967) Issue 1 Article 4 October 1966 Criminal Contempt and Trial by Jury Robert P. Wolf Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Law Commons Repository Citation Robert P. Wolf, Criminal Contempt and Trial by Jury, 8 Wm. & Mary L. Rev. 76 (1966), https://scholarship.law.wm.edu/wmlr/vol8/iss1/4 Copyright c 1966 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr NOTES CRIMINAL CONTEMPT AND TRIAL BY JURY INTRODUCTION The judicial power to punish for contempt has been well recognized as the principle method of vindicating the authority of the courts and assuring performance of their judgments and decrees. Extending from early days in the history of England,' the doctrine was immersed in the common law and adopted by the American colonies. At the time of the transplantation of the common law and ratification of the Con- stitution, the rights and procedures inherent in the common law con- tempt power were also assimilated including summary proceedings. This summary treatment, as opposed to trial by jury, has been a classic problem in the administration of contempt, arising as the result of the conflict of two basic American precepts; 1) the right of the individual against unlimited governmental power, and 2) the necessity of maintaining order and respect for our courts to insure their proper functioning. The situation becomes more perplexing when an exam- ination of the Constitution reveals neither provisions for the creation or exercise of the contempt power nor limitations upon it. Categorizations of the contempt power, which is essential in deter- mining the procedural rights available to the contemnor,2 are basically found in two uniformly accepted dichotomies;- the civil-criminal divi- sion and the direct-indirect distinction. The line of demarcation in the former is at best hazy since the same conduct may give rise to 4 either. In the leading case of Compers v. Bucks Stove and Range Co., 1. The power of the courts to act against disregard of their authority has been firmly established in Anglo-Saxon jurisprudence, having developed from the concept of contempt of the King's authority. See 17 F. R. D. 167 (1955). Originally, it was em- ployed as a means of vindicating the courts' position by punishing through fine or imprisonment. While the act was contemptuous of the court, it might also impair the rights of an adverse party. Thus developed the concept of using the contempt power to assist the adverse party in his remedy by conditional fine or imprisonment or by fines paid in whole or in part to the opposing party and thereby giving rise to the civil aspect of contempt. 2. Goldfarb, The Varieties of the Contempt Power, 13 SYRAcusE L. REv. 44 at 59 (1961). 3. GOLDFARB, THE CONTEMPT POWER 47 (1963). 4. 221 U.S. 418, 441 (1911). While this punishment and purpose indicia is most per- suasive it is not always determinative. Cf. Wakefield v. Housel, 228 Fed. 712 (8th Cir. 1923) (employed the title of the proceedings); Lamb v. Cramer, 285 U.S. 217 (1932) (the [ 76 1 1966] CRIMINAL CONTEMPT the Supreme Court of the United States stated that the distinction be- tween the two types could be found in the dominant character and purpose of the proceeding. That is, where the primary purpose is to preserve the court's authority and to punish for disobedience of its orders, the contempt is criminal, but where this purpose is to provide a remedy for an injury and to coerce compliance with an order, the contempt is civil. Criminal contempt is punitive in nature as a method of vindicating the dignity and authority of the court and to protect the interests of the general public.5 Due to its disciplinary character, penalizing past acts or a failure to act, punishment by fine or imprisonment is absolute and unconditional.6 The sanctions imposed in civil contempt differ because of the divergence of objectives. Civil contempt is essentially remedial, usually directed at compelling the defendant to act for the benefit of the complainant, and the ordinary mode is by coercive fine 7 or imprisonment which is remitted upon compliance. The other classification regularly applied to contempts is the direct and indirect distinction. The disparity is generally "based upon the immediacy and location of the contemptuous act." s Direct contempts consist of acts or words spoken in the presence of the court which tend to physically obstruct, subvert, or prevent the proper administra- tion of justice. Indirect, being the antithesis of direct, contempts are nature of the relief sought); Mitchell v. Dexter, 244 Fed. 926 (1st Cir. 1917) (fact that the contemnor had not testified); In re Kahn, 204 Fed. 581 (2d Cir. 1913) (person con- ducting the prosecution); Eastern Concrete Steel Co. v. Bricklayers' and Mason Plasters' International Union, 200 App. Div. 714, 193 N.Y. Supp. 368 (1922) (the party to whom the fine is paid). 5. United States v. United Mine Workers, 330 U.S. 258, 302-03 (1947); In re Nevitt, 117 Fed. 448, 458 (8th Cir. 1902). 6. Parker v. United States, 153 F.2d 66, 70 (1st Cir. 1946); State ex rel Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936); Ex parte Kottwitz, 117 Tex. 583, 8 S.W.2d 508 (1928). 7. In re Nevitt, supra note 5 at 461; Cf. United States v. United Mine Workers, supra note 5 at 303-04"; Thompson v. Pennsylvania Railroad, 48 N.J.Eq. 105, 21 Ad. 182 (1891). 8. Goldfarb, supra note 3 at 68. 9. Clark v. United States, 289 U.S. 1 (1932); Melton v. Commonwealth, 160 Ky. 642, 170 S.W. 37 (1914); Blodgett v. Superior Cr., 210 Cal. 1, 290 Pac. 293 (1930). For examples of acts constituting direct contempts see Ingles v. McMillan, 5 Okla. Crim. 130, 113 Pac. 998 (1911) (attempting to influence a judge); State v. Goff, 228 S.C. 17, 88 S.E.2d 788 (1955) (threats as to witnesses, jurors, or officers of the court); Young v. State, 275 P.2d 358 (1954) (fighting in or near the courtroom). WILLIAM AND MARY LAW REVIEW [Vol. 8:76 acts committed at a distance from the court in time or location tending to hamper the administration of justice.1 The discussion herein shall be directed toward the status of trial by jury in federal criminal contempt cases of a direct nature and those indirect contempts in which Congress has not provided for trial by jury. Exclusion of civil contempts and other indirect criminal contempts is justified in that the former has been considered unquestionably set- fled" and in the latter situation jury trials are granted by Rule 42 (b) of the Federal Rules of Criminal Procedure.12 The denial of this right in direct criminal contempts by the courts, however, has brought about a multitude of challenges to the summary procedures employed.'" TRADITIONAL TO CONTEMPORARY Although the summary treatment of criminal contempt has been "constitutionally" questioned and criticized, such contentions have been consistently rejected. Precedent alone has accounted for the majority of the Supreme Court denying the right to trial by jury until recently. Confronted by the proposition once more, the Court stated that "sen- tences exceeding six months for criminal contempt may not be imposed by federal courts unless a jury trial has been received or waived." 14 Yet, the abrupt declaration is all too vague as to the constitutional ground involved or the basis of such a sharp change of position. An examination of the "trend of decision" clearly illustrates the shift and 10. Ex parte Earman, 85 Fla. 297, 95 So. 755 (1923); State v. Jones, 111 Or. 295, 226 Pac. 433 (1924); Bender v. Young, 252 S.W. 691 (1923). 11. Shillanti v. United States, 86 S.Ct. 1531 (1966). See Cheff v. Schnackenberg, 86 S.Ct. 1523, 1524 (1966) wherein the Court states: Within the context of the question before us, however, the contention is ir- relevant, for a jury trial is not required in civil contempt proceedings.... 12. FED. R. CuM. P. 42 provides in pertinent part: (a) A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was corn- mited in the actual presence of the court.... (b) A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing allowing a reasonable time for the preparation of a defense, and shall state the es- sential facts constituting the criminal contempt charged and described it as such.... The defendant is entitied to a trial by jury in any case in which an act of Congress so provides.... 13. See Gompers v. United States, 233 U.S. 604 (1914); Patterson v. Colorado, 205 U.S. 454 (1906); In re Debs, 158 U.S. 564 (1894); Eilenbecker v. District Ct., 134 U.S. 31 (1890). 14. Cheff v. Schnackenberg, supra note 11 at 1526. 1966] CRIMINAL CONTEMPT may be considered as a three stage process: 1) the traditional view; 2) the transitional approach; and 3) the contemporary rule. Green v. United States,15 which does not present the issue clearly from a factual standpoint, is probably the most direct affirmation of the Court's long standing declarations as to the inapplicability of the constitutional guarantee of trial by jury in contempt cases. The peti- tioners, released on bond pending their appeal from their convictions in Dennis v.
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