Tuck in Your Shirt! Criminal Contempt in NC District Courts

Judges in North Carolina, whether they are District Court or Superior Court judges, have the power to rule in contempt hearings pursuant to N.C.G.S. Chapter 5A.

Criminal contempt can be punished by censure, imprisonment up to 30 days, or a $500 fine, or any combination of the three. Criminal contempt can come in two forms: direct or indirect. Direct contempt is contempt that:

  1. Is committed within the sight or hearing of a presiding judicial official; and
  2. Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and
  3. Is likely to interrupt or interfere with matters then before the court.

Except for contempt under G.S. 5A?11(5) or 5A?11(9), fine or imprisonment may not be imposed for criminal contempt, whether direct or indirect, unless:

  1. The act or omission was willfully contemptuous; or
  2. The act or omission was preceded by a clear warning by the court that the conduct is improper.

Does having your shirt untucked interrupt or interfere with matters then before the court? Probably not, but that doesn’t stop judges from putting people in custody for having untucked shirts.

Direct criminal contempt can be punished in one of two ways: through a summary hearing, or through a non-summary hearing. A summary hearing is one that happens immediately upon judge believing something contemptuous has happened. A non-summary hearing is one in which the person is told that at a later time he will need to come back for a contempt hearing.

At a non-summary contempt hearing, a person has all the normal procedural rights that would be afforded in a regular criminal matter, although the person does not have a right to a jury trial. At a non-summary contempt hearing, the person has the right to counsel, for instance. And the right to remain silent.

More to the point, the Fourth Circuit Court of Appeals held in Brandt v. Gooding (2011) that:

Twenty-three years later in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), the Supreme Court clarified that the same due process rights apply, under the Fourteenth Amendment, to individuals accused of criminal contempt in state court. In re Oliver involved a Michigan state judge acting as a “‘one-man grand jury'” who disbelieved an individual’s testimony based, in part, on the testimony of another witness. See id. at 258, 68 S.Ct. 499. The state judge “immediately charged [the witness] with contempt, immediately convicted him, and immediately sentenced him to sixty days in jail.” Id. at 259, 68 S.Ct. 499. The Supreme Court held that the state court’s failure to afford the witness “a reasonable opportunity to defend himself against the charge of false and evasive swearing was a denial of due process of law.” Id. at 273, 68 S.Ct. 499.

The In re Oliver Court emphasized that summary criminal contempt proceedings are available only in limited circumstances where an individual’s misconduct not only occurs “within the ‘personal view’ of the judge, ‘under his own eye,'” id. at 274, 68 S.Ct. 499, but also “disturbs the court’s business.” Id. at 275, 68 S.Ct. 499. Unless “all of the essential elements of the misconduct . . . are actually observed by the court” and “immediate punishment is essential to prevent `demoralization of the court’s authority,'” id., an individual must be afforded “reasonable notice of [the] charge against him[ ] and an opportunity to be heard in his defense,” including “a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.”[5] Id. at 273, 68 S.Ct. 499. Because In re Oliver involved a factual scenario in which “essential elements” of the witness’ alleged “offense” were not within the personal knowledge of the judge, thus requiring the judge to “depend upon statements made by others for his knowledge,” id. at 275, 68 S.Ct. 499, the Supreme Court held that the witness should have been “accorded notice and a fair hearing.” Id. at 275-76, 68 S.Ct. 499.

While it’s completely appropriate for judges to enforce order in the court – prevent outbursts, even ask people to silence their phones – the practice of finding contempt simply as a way to lord over other human beings or as a way to enforce dress codes is abhorrent in a democratic system.

The state’s laws governing criminal contempt can be found here.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.