204.2Criminal Contempt

Grounds for Criminal Contempt

The only grounds which will support a finding of criminal contempt are those specifically enumerated in G.S. 5A-11(a)(1) – (10). The listed grounds include acts such as willful behavior to disrupt court proceedings, grossly negligent failure to comply with a court schedule, willful communication with a juror, or willful refusal to comply with probation conditions. Id. For a full list of these grounds, see the summary chart at the end of this entry. 

To impose punishment for criminal contempt, the court must find that the act or omission was willfully contemptuous, or that it was preceded by a clear warning from the court that the conduct was improper. G.S. 5A-12(b). There is an exception to this requirement for contemptuous conduct covered by G.S. 5A-11(a)(5) (willful publication of court proceedings that are grossly inaccurate and create danger/threat to the administration of justice) or G.S. 5A-11(a)(9) (willful communication with a juror).

Direct or Indirect Criminal Contempt?

Whether criminal contempt is direct, see G.S. 5A-13(a), or indirect, see G.S. 5A-13(b), determines whether the resulting contempt proceeding may be summary or plenary.

1. Direct Contempt 

Direct criminal contempt means the act was (i) committed within sight or hearing of the judicial official; (ii) committed in, or in immediate proximity to, the room where court proceedings are being held, and (iii) was likely to interrupt or interfere with matters before the court. G.S. 5A-13(a); see, e.g., State v. Randell, 152 N.C. App. 469 (2002) (defendant’s repeated refusal to stand up in court or give his name when ordered by the judge was direct criminal contempt). Direct criminal contempt may be immediately addressed in a summary proceeding according to the notice and response requirements described in G.S. 5A-14, or the judicial official may choose to only cite the defendant for contempt and have the adjudication deferred to a subsequent plenary proceeding conducted under the same provisions as indirect contempt.

2. Indirect Contempt

Indirect contempt is any other criminal contempt which is not direct in nature. G.S. 5A-13(b); see, e.g., Cox v. Cox, 92 N.C. App. 702 (1989) (defendant’s failure to appear at show cause hearing was indirect criminal contempt). Proceedings for indirect contempt must follow the notice and plenary hearing requirements set forth in G.S. 5A-15. 

Direct Contempt: Summary Proceedings

If conduct qualifies as both direct, see G.S. 5A-13(a), and contemptuous, see G.S. 5A-11, then the judicial official may punish the conduct summarily, after giving the contemnor (defendant-respondent) summary notice of the charge and a summary opportunity to respond. See G.S. 5A-14. There are five requirements for proceeding summarily:

1. Substantially Contemporaneously

The judicial official may respond to direct contempt through summary proceedings when it is necessary to restore order or maintain the dignity and authority of the court, and if the measures are imposed “substantially contemporaneously” with the contemptuous conduct. G.S. 5A-14(a). Factors relevant in evaluating whether the proceedings were undertaken “substantially contemporaneously” with the conduct include the respondent’s knowledge or notice of the conduct, the nature of the proceeding, and the nature of the conduct itself. See, e.g., State v. Johnson, 52 N.C. App. 592 (1981) (delay of contempt proceedings until the next day when bond hearing concluded did not trigger due process requirements for notice and hearing provided by G.S. 5A-15); In re Nakell, 104 N.C. App. 638 (1991) (two-day delay from conduct to summary hearing was still substantially contemporaneously, based on facts in this case); Nakell v. Attorney General, 15 F.3d 319 (4th Cir. 1994) (no due process violation).

2. Notice

Summary verbal notice by judge that defendant is charged with criminal contempt and a description of defendant’s actions that may be found contemptuous satisfy the requirements of G.S. 5A-14(b). State v. Johnson, 52 N.C. App. 592 (1981) (summary notice sufficient and written order to appear and show cause not required for summary proceeding for direct criminal contempt); but see Pierce v. Pierce, 58 N.C. App. 815 (1982) (error to hold defendant in contempt since defendant was not given notice of or an opportunity to respond to contempt charges at hearing held later in afternoon for defendant’s tardiness at 1:20 p.m. the same afternoon). 

3. Opportunity to Respond

A defendant must be given a chance to respond to the contempt charge. See State v. Randell, 152 N.C. App. 469 (2002) (trial court failed to comply with statutory requirement that defendant be given summary opportunity to respond); Pierce  v. Pierce, 58 N.C. App. 815 (1982); State v. Verbal, 41 N.C. App. 306 (1979); State v. Newson, 230 N.C. App. 599 (2013)(unpublished) (error to hold defendant in contempt without giving him an adequate opportunity to respond). However, the court is not required to appoint counsel when considering whether to impose summary measures for direct contempt. See In re Williams, 269 N.C. 68 (1967) (summary punishment for direct contempt does not contemplate a trial at which person charged with contempt must have counsel).

4. Burden of Proof

Direct criminal contempt must be established beyond a reasonable doubt. G.S. 5A-14(b); see, e.g., State v. Ford, 164 N.C. App. 566 (2004); Pounders v. Watson, 521 U.S. 982 (1997); In re Paul, 84 N.C. App. 491 (1987).

5. Finding of Facts and Order Required

The judicial official must find facts supporting the summary imposition of measures in response to the contempt. G.S. 5A-14(b); see also AOC-CR-390 (“Direct Criminal Contempt – Summary Proceedings – Findings and Order); AOC-J-305 (Direct Contempt by Juvenile – Summary Proceeding). 

Indirect Contempt: Plenary Proceedings

If the contempt was not direct (or if it was direct but the judicial official chose not to act summarily), then plenary proceedings must be held in accordance with G.S. 5A-15.

1. Order to Show Cause

An order to appear and show cause must be served on the defendant. An order for arrest may be issued if there is probable cause, based on an affidavit or a sworn statement, to believe that the person will not obey the order. See G.S. 5A-16(b); see also AOC-CR-219 (Show Cause Order). 

2. Notice Requirements

The order to show cause must include reasonable notice to the defendant of the specific actions of contempt charged against him or her. See O’Briant v. O’Briant, 313 N.C. 432 (1985). 

3. Appointment of Prosecutor 

The judge may appoint a prosecutor to represent the court. G.S. 5A-15(g). If a regular prosecutor has an apparent conflict of interest, the judge may appoint another attorney. 

4. Right to Counsel

Unlike summary contempt proceedings, the right to counsel does apply in plenary contempt proceedings if imprisonment, a suspended sentence, or a fine over $500 is likely to be imposed.  See G.S. 7A-451(a)(1); Richmond Black Police Officers Ass’n v. City of Richmond, Va., 548 F.2d 123 (1977); Hammock v. Bencini, 98 N.C. App. 510 (1990); compare In re Williams, 269 N.C. 68 (1967) (summary punishment for direct contempt “does not contemplate a trial at which the person charged with contempt is represented by counsel”).

5. Burden of Proof

Indirect criminal contempt must be established beyond a reasonable doubt, and the judge must enter a verdict of guilty or not guilty. G.S. 5A-15(f).

6. Finding of Facts Required

The judicial official must find facts supporting the verdict of contempt, and enter an order specifying the punishment imposed. G.S. 5A-15(f); see also AOC-CR-219 (Findings and Judgment – Contempt); AOC-CV-309 (Contempt Order – Domestic Violence Protective Order); AOC-CV-529 (Contempt – No-Contact Order for Stalking, Nonconsensual Sexual Conduct); AOC-CV-545 (Contempt Order – Permanent Civil No-contact Order Against Sex Offender); AOC-J-156 (Contempt Order – Parent/Guardian/Caretaker in Abuse/Neglect/Dependency case); AOC-J-345 (Contempt Order – Parent/Guardian/Custodian of Undisciplined/Delinquent Juvenile).

Punishment for Criminal Contempt 

The general rule is that the contemnor can be punished by censure (a formal reprimand), imprisonment for up to 30 days, a fine not to exceed $500, or any combination of those three. G.S. 5A-12(a). A sentence for criminal contempt may be suspended with conditions, and the defendant placed on probation with conditions reasonably related to the contemnor’s rehabilitation. See In re Eldridge, 268 N.C. App. 491 (2019), aff'd per curiam, 376 N.C. 728 (2021) (affirming contempt judgment with conditions that included ordering defendant to write a 2000-word essay about respect for the court and post it online); State v. Key, 182 N.C. App. 624 (2007); Bishop v. Bishop, 90 N.C. App. 499 (1988). This potential punishment applies to each act of contempt, even if they are addressed together at a single hearing. See State v. Burrow, 248 N.C. App. 663 (2016) (upholding six consecutive 30-day sentences for contempt based on defendant’s repeated use of a curse word in court).

There are three exceptions which allow for greater punishment in certain types of cases. First, willful refusal to testify or produce as ordered by the court in G.S. 5A-11(a)(8)is punishable by up to six months imprisonment (plus censure and/or $500 fine). G.S. 5A-12(a)(1). Second, a person not under arrest who fails to comply with a properly issued nontestimonial identification order may be imprisoned for up to 90 days (plus censure and/or $500 fine). G.S. 5A-12(a)(2). Third, contempt for failure to pay child support may be punished by up to 120 days, if the sentence is suspended upon conditions reasonably related to payment of the child support (otherwise it’s punishable by censure, 30 days imprisonment, and/or $500 fine). G.S. 5A-12(a)(3). These punishments are summarized in the quick-reference chart at the end of this section.

After sentencing a defendant for criminal contempt, the judge may withdraw, terminate, or reduce the punishment at any time. G.S. 5A-12(c). And as noted in the preceding entry, a person found in criminal contempt may not also be found in civil contempt for the same conduct. G.S. 5A-12(d).

Limited Right to Jury Trial

There is no constitutional right to a jury trial unless the punishment for contempt exceeds six months’ imprisonment. Taylor v. Hayes, 481 U.S. 506 (1974); Codispoti v. Pennsylvania, 418 U.S. 506 (1974). This issue seldom arises since most instances of contempt are only punishable by up to 30 days imprisonment, but it could apply if the judicial official ordered numerous consecutive sentences which exceeded six months in total. See, e.g., Bloom v. Illinois, 391 U.S. 194 (1968) (error to deny defendant’s request for jury trial where he was sentenced to 24 months imprisonment); see also State v. Burrow, 248 N.C. App. 663 (2016) (defendant sentenced to six consecutive 30-day sentences).

Appeal of Criminal Contempt Finding

A finding of criminal contempt by a district court judge or magistrate may be appealed to superior court for a de novo hearing. G.S. 5A-17(a); Michael v. Michael, 77 N.C. App. 841 (1995). Otherwise, the appeal is handled in the same manner provided for appeals in other criminal actions. See G.S. 5A-17(a); G.S. 15A-1431-1432; G.S. 15A-1441-1453. Note that a person who appeals from a finding of contempt may not be held in custody for more than 24 hours before being given a bail hearing. See G.S. 5A-17(b), (c).

“Conviction” and Double Jeopardy Issues

The U.S. Supreme Court has held that “criminal contempt is a crime in every fundamental respect,” and yet contempt is also considered to be sui generis and distinct from other criminal law since it is neither a felony nor a misdemeanor, contains its own statutory sentencing scheme in Chapter 5A, and does not confer a right to a jury trial. See Bloom v. Illinois, 391 U.S. 194 (1968). Furthermore, convictions for contempt do not count for prior record level purposes in the sentencing of other crimes. See State v. Reaves, 142 N.C. App. 629 (2001).

Regardless how it’s classified, a finding of criminal contempt after a plenary hearing is considered a conviction for purposes the Double Jeopardy Clause. See United States v. Dixon, 509 U.S. 688 (1993). Therefore, a prosecutor should carefully consider whether to pursue criminal contempt if there may be a later prosecution for a criminal offense whose elements are included in the allegation of criminal contempt. See, e.g., State v. Gilley, 135 N.C. App. 519 (1999) (defendant’s contempt conviction for violating a protective order to not assault the complainant precluded his subsequent prosecution for assault on a female, but it did not bar prosecution for related offenses outside the scope of the protective order). For more information, see the related entry on Double Jeopardy - Punishment. 

Criminal Contempt: Quick Reference Chart