Contempt is “an offense at common law, a specific and substantive offense” that is separate and distinct from the matter in litigation out of which the contempt arose. Town of Nottingham v. Cedar Waters, 118 N.H. 282, 285 (1978) (quoting State v. Towle, 42 N.H. 540, 544 (1861)). The character and purpose of the punishment distinguishes the two classes of contempt. Id. In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant. Id. Civil contempt proceedings may result in money fines payable to the complainant or an indeterminate jail sentence until the contemnor complies with the court order. Id. Upon compliance with the court’s order, the contemnor is released. State v. Wallace, 136 N.H. 267, 269 (1992). Thus, “the contemnor is said to carry the keys to the jail in his pocket and stands committed until he performs the affirmative act required by the court.” Nottingham, 118 N.H. at 282. (quoting Gompers v. Buck Stove & Range Co., 221 U.S. 418 (1911)). In contrast, the purpose for punishing for criminal contempt is to vindicate the dignity of the court. Id. The sentence is punitive and determinate, and no amount of repentance will remit it. Id. (citing Stern v. Chandler, 134 A.2d 550 (Me. 1957)).
Contempt is also either direct or indirect. A direct contempt is one committed in the presence of the court and in its immediate view, all elements of the contempt being clearly observable by the court. Nottingham, 118 N.H. at 285 (citing Ex parte Terry, 128 U.S. 289 (1888)). Indirect contempt is one committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt. Establishment of the contempt thus depends on proof of facts of which the court could not take judicial notice. Id. (citing Charles Cushman Co. v. Mackesy, 200 A.2d 505 (Me. 1938)).
When using civil contempt in order to coerce someone to testify, courts are routinely reminded of the “well established doctrine that only the least possible power adequate to the end proposed should be used in contempt cases.” Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 895 (3rd Cir. 1992) (quoting Shillitani v. United States, 384 U.S. 364, 371 (1966); citing Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 231 (1821)). Additionally, criminal contempt is clearly regarded as a more serious and drastic form of contempt as compared to civil contempt. United States v. Wilson, 421 U.S. 309, 321 n.2 (1975) (“Although the use of civil contempt, as opposed to the more drastic criminal contempt…”); see also Young v. United States, 481 U.S. 787, 801 (1987) (“We have suggested, for instance, that when confronted with a witness who refuses to testify, a trial judge should first consider the feasibility of prompting testimony through the imposition of civil contempt, utilizing criminal contempt only if the civil remedy is deemed inadequate.”).
Also, a person’s state (Part I, Articles 15 and 35) and federal (Fifth and Fourteenth Amendments) due process rights are put at risk when a court incarcerates that person pursuant to a finding of civil or criminal contempt, and such a person is entitled to due process protections. Mason Furniture Corp., 116 N.H. at 451; State v. Martina, 135 N.H. 111, 117 (1991); United States v. Powers, 629 F.2d 619, (9th Cir. 1980).
Here, the trial court violated Matthew Nugent’s right to due process by illegally incarcerating him in ‘anticipatory contempt.’ The court found Mr. Nugent in direct civil contempt for stating to the court that if he were called as a witness in the trial of Luis Carvalho, he would not testify. This ‘anticipatory’ finding of civil contempt is illegal, and the Court should not have incarcerated him for this reason and because he could not have complied with the Court’s order to testify as there was no trial then occurring. The proper procedure should have been to begin the trial, have the State call Mr. Nugent as a witness, and if he refused to testify despite the Court’s order, and likely warning that it would do so, then find him in direct civil contempt. The court could have then incarcerated him until the end of the trial to see if he changed his mind about testifying. If he did not change his mind about testifying at the end of the trial, the Ccourt could then have found him in direct criminal contempt and sentenced him as such. However, the court illegally ordered him incarcerated before he was called to testify, and it illegally ordered him held on this finding of direct civil contempt when there was no trial currently occurring. The case law discussed herein plainly demonstrates this.
In United States v. Johnson, 736 F.2d 358 (6th Cir. 1984), witness Neal was called to testify in a criminal trial. At a pre-trial hearing, Neal asserted his Fifth Amendment privilege, and the Court ultimately granted him immunity to testify. At that same pre-trial hearing, Neal maintained his refusal to testify. The district court found him in direct civil contempt and ordered him incarcerated until he decided to testify. The district court also continued the trial for an indefinite period of time at the government’s request because it believed Neal was a necessary witness for the government. For the reasons discussed presently, The United States Sixth Circuit Court of Appeals found this procedure to be illegal.
The court framed the issue it came to call ‘anticipatory contempt’ thus: “The issue we decide in this case is whether a district court has the authority to hold a person who will be called as a witness in civil contempt before the trial starts, before the witness is called to testify, and before any present refusal to testify is made because the witness states an intention not to testify in the future.” Johnson, 736 F.2d at 360. It began its by specifically describing what it described as the “normal procedure.” The government would proceed to trial and call Neal as a witness. If Neal then refused to answer questions, he could be adjudged in contempt and incarcerated until he either agreed to testify or the trial ended. Id. If at the end of the trial Neal had still refused to testify, he could then be held in criminal contempt. Id.
Of primary note, although federal civil and criminal contempt proceedings are described by statute, those statutes merely codified the common law practice surrounding contempt. Johnson, 736 F.2d at 362 (indicating Congress expressed its intent to codify present practice); see United States v. Wilson, 421 U.S. 309, 317 (1975) (Rule 42 of the Federal Rules of Criminal Procedure addressing contempt “is no more than a restatement of the law existing when the rule was adopted”). More directly, the court expressed two concerns at the outset. The first was whether a statement of an intent not to comply in the future with an order is enough of a ‘refusal’ to hold someone in contempt. Id. The second was whether such a refusal occurred at a ‘proceeding’ at which a contempt finding could be made. Id.
The court began its analysis be recognizing that one of the most fundamental principles of the law of contempt is that a court must exercise only the least possible power adequate to the end proposed. Id. (citing Shillitani, 384 U.S. at 371). The court stated that in this view, imposing a coercive imprisonment upon the statement that testimony will not be given in the future is “certainly a greater exercise of power than imposing a similar sanction upon an actual demand for, and refusal of, testimony.” Id. The court reasoned that although the coercive impact may be equivalent in both procedures, the former rests not upon the inherent power of a court to enforce its lawful orders in proceedings which must necessarily be heard by it, but instead upon a special proceeding, apart from the trial, in which a potential witness is brought into court for the very purpose of determining if he will be found in contempt. Id. at 363. An inquiry by the court as to whether the witness will testify at a future date is itself an exercise of power not normally used in contempt proceedings. Id. “Second, the natural limit upon a sanction for civil contempt, the duration of the trial, is removed because there is no ongoing trial.” Id. (emphasis added).
Having found that ‘anticipatory contempt’ is an exercise of greater power than what would otherwise be considered the normal process, the court then considered whether the normal process would be “adequate to the end proposed.” Id. The court there found that imposing contempt only at trial and after an actual refusal to testify is an adequate procedure. Id.
In support of this conclusion, the court noted that ‘anticipatory contempt’ is not insurance that Neal would not still refuse to testify at trial after jeopardy attached (the government had asserted concern that if it were forced to go to trial before Neal refused jeopardy would have attached). Id. The court went on to say that ‘anticipatory contempt’ does not guarantee that Neal would testify, and that it did no more than the usual procedure to advance the government’s ultimate purpose of obtaining a conviction. Id. To the extent the government was concerned that if it waited until trial to have Neal refuse it could lose the trial, “logic dictates that the risk is not decreased by using anticipatory contempt.” Id. This is because no matter when Neal was incarcerated, whether he testifies is solely up to him. Id. The court could not perceive how holding Neal in contempt before an actual refusal to testify occurs is more likely to remove the recalcitrance than waiting until he actually disobeys a present order to testify. Id.
“In conclusion, the procedure used below, anticipatory contempt, is improper under traditional notions of the law of contempt. It is an exercise of power more than ‘adequate to the end proposed.’ It also is inconsistent with related Supreme Court precedents.” Johnson, 736 F.3d at 365; see also State v. Matos, 640 A.2d 1176 (N.J. Super. A.D. 1994) (co-defendant refused to testify after given immunity, stated prior to trial at a hearing that he would not so testify, ruled that trial court illegally incarcerated him prior to trial and gave him credit for the days he was illegally incarcerated); Board of Educ. Of the Brunswick City School District v. Brunswick Educ. Assoc. 401 N.E.2d 440, 444 (Ohio 1980) (“Where a trial court has not adjudged parties to be in contempt for their past conduct, and where the time for a court-ordered performance of a certain act has not yet arrived, a trial court’s order of incarceration is premature and is not sustainable upon a theory of prospective contempt.”); In re Contempt of Dougherty, 413 N.W.2d 392, 402 (Mich. 1987). In Brunswick, the Ohio Supreme Court ruled:
It is a fundamental principle of our legal system that a person should not be incarcerated for the mere intention to commit an unlawful act. In the typical civil contempt case, the individual is ordered to perform an act, and if he refuses at a time when performance is due, his refusal is itself a contumacious act, and he may be imprisoned until he agrees to purge the contempt. See, e.g., Shillitani v. United States (1966), 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622. The refusal to perform an act ordered by the court, at a time when the obligation to perform has matured, concretely demonstrates the contemnor’s willingness to defy the law, and justifies his incarceration.
Where, however, the time for performance has not arrived, the intention not to perform is not an act in defiance of the court order; it remains, in legal effect, a state of mind. One may perform at the time performance is judicially mandated, notwithstanding a previous statement to the contrary.
Brunswick, 401 N.E.2d at 443-44).
In Shillitani v. United States, 384 U.S. 364 (1966), witnesses were given immunity and called to testify before a federal grand jury. The witnesses refused, and the court found them in contempt, ordering them incarcerated for two years or sooner if they agreed to testify. The grand jury before which they were called ended, and they remained incarcerated. They then challenged that incarceration.
The United States Supreme Court found the contempt at issue to be civil contempt because its goal was to coerce the witnesses to testify. Shillitani, 384 U.S. at 365. However, the Court also ruled that because the term of the grand jury before which they were called had expired, the contempt finding must be dismissed. Id.
The Court began its analysis by demonstrating that character and purpose of the subject contempt was civil, rather than criminal. Id. at 368 (citing Penfield Co. v. Securities & Exchange Comm’n, 330 U.S. 585, 590 (1947)). The act at issue was in refusing to do what had been ordered, as opposed doing what had been prohibited. Id. As well, the judgments had been imposed for the obvious purpose of compelling the witnesses to obey the orders to testify, and as such they carried “the keys of their prison in their own pockets.” Id. (quoting In re Nevitt, 117 F. 448, 461 (8th Cir. 1902)).
As for the legality of imprisoning the witnesses when the proceeding before which they were called to testify was not ongoing, the Supreme Court was just as clear that a court had no such power to hold someone in such contempt. “Where contempt consists of a refusal to obey a court order to testify at any state in judicial proceedings, the witness may be confined until compliance.” Id. at 370 (citing McCrone v. United States, 307 U.S. 61 (1939)). However, the justification for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the court’s order. Id. (citing Maggio v. Zeitz, 333 U.S. 56, 76 (1948)). When the proceeding before which the witness is called is not ongoing, a contumacious witness can no longer be confined, since he then has no present opportunity to purge himself of the contempt. Id. As such, the Court ruled that the district court’s civil contempt orders in Shillitani were improper in so far as they imposed sentences that extended beyond the proceeding before which the witnesses were called to testify, and the district court lacked the authority to imprison the witnesses for a period beyond the proceeding. Id. at 371. Once the proceeding has ceased, the ration for civil contempt has vanished. Id. at 372.