Contempt and Cellphones

A couple of this blog’s recent Friday News Roundups have linked offbeat stories about contempt and cellphones. In the first a Michigan judge held himself in contempt and ordered a $25 fine when his cellphone rang in court. The second story was the federal Sixth Circuit upholding a 30-day contempt sentence for a courtroom spectator caught texting in federal district court. Actually it was more than that, as he later admitted to also using his phone to photograph his friend being sentenced. After all, what are friends for?

Some readers might be wondering about contempt and cellphones in North Carolina courtrooms. In the Tar Heel state you might be held in contempt if your phone goes off, though not necessarily. Here is a brief primer on contempt and some observations about cellphones.

There are two kinds of contempt, civil and criminal. Civil contempt is used only when a person is currently disobeying a court order, and its only sanction is to lock up the person until they comply with the order. The most common example is the deadbeat father not paying child support. He does not get a set sentence; he stays in jail until he pays, and he gets out just as soon as he catches up on the support.

Criminal contempt can be for any of a number of behaviors listed in the statute. The most common are disrupting or showing disrespect for the court, not following the court schedule, refusing to testify. It’s shouting at the judge, cursing, refusing to sit down, coming late to court — the stuff people usually think about when they hear the word “contempt.” Refusing to obey a court order also may be criminal contempt, just as it may be civil contempt. But it can’t be both, the judge has to choose one, either civil or criminal contempt. The difference between the two is that criminal contempt is used to punish the person for past behavior; civil contempt is used to get the person to comply. Criminal contempt carries a set punishment which can be a fine of up to $500 and/or jail for up to 30 days; civil contempt is jail until the order is complied with.

The ringing cellphone in court, or texting or taking photos, would be criminal contempt, not civil. Contempt is being used to punish the person for something they’ve already done wrong, not to get them to obey a court order. The ringing phone could be contemptuous either because it disrupts the court or because it is disobedience of a court order to not bring a phone into the courtroom or to turn it off. Using a phone to take photographs or record what’s happening in court also would violate the rules about cameras in the courtroom.

Before using criminal contempt, the first question a judge would need to ask is whether a warning is required. Some behavior, like shouting and cursing, is inherently contemptuous and needs no warning from the judge. Everyone knows it is wrong and it may be punished the first time a person does it. For much other conduct, though, a newcomer to court might not know the rules. So, before someone can be held in contempt for that revealing dress or reading a newspaper, they have to be warned.

Given the unfortunate world in which we live in which loudmouths feel free to talk on their phones everywhere, not everyone will know that a cellphone is not allowed in court. And they may not know the rules for that particular courtroom because practices on cellphones vary from judge to judge. Some allow no electronic devices in court at all; others say it’s okay but they have to be turned off; some allow texting while others do not. Consequently, before someone can be held in contempt for cellphone use in the courtroom they have to be told it is wrong. Usually that is accomplished by a sign prominently displayed at the entrance to the courtroom or by an announcement by the bailiff.

The next question a judge would need to ask about criminal contempt is whether the act was willful. An action cannot be criminal contempt unless it is done willfully, and the court has to find the willfulness beyond a reasonable doubt. If the cellphone owner thought it was turned off, is surprised when it rings, then the act is not willful and contempt is not appropriate.

That is what happened in State v. Phair, 193 N.C. App. 591 (2008). During a criminal trial in Lee County a lawyer’s cellphone started ringing. A notice on the courtroom door and an announcement by the bailiff had said to turn off cellphones. The ringing phone interrupted the trial and the judge found the lawyer in criminal contempt. The evidence, though, was that the lawyer thought she had turned off her phone and was apologetic when it happened. As the Court of Appeals said, “Although defendant admits that she knew from years of practicing law the she should turn her cell phone off while court is in session, it seems clear that defendant merely made a mistake in not turning her cell phone off before entering the courtroom.” Based on that record, the Court of Appeals reversed the contempt, saying the act was not willful.

The other point to keep in mind about criminal contempt is the difference between direct and indirect contempt. Almost always a cellphone violation in the courtroom will be direct criminal contempt. Direct criminal contempt is contempt that occurs in the judge’s presence, in the judge’s sight or hearing. When contempt is direct, the judge may act summarily to punish the offender right then and there. There is no need to issue a show cause order and schedule a hearing because the judge already has witnessed the conduct and does not need to hear from witnesses, as would be the case if the contempt was indirect, not in the judge’s presence.

What trips up judges sometimes is that the offender has to be given a chance to be heard even when it is direct criminal contempt. Although no witnesses are needed, both the contempt statute and due process require that the judge tell the cellphone user that the judge is considering contempt and give the user a chance to explain why contempt is not appropriate. In State v. Randell, 152 N.C. App. 469 (2002), for example, the Court of Appeals reversed the direct criminal contempt conviction of a spectator for refusing to stand at the call of the bailiff, because the judge failed to give the person a chance to explain.

A Winston-Salem police officer drew attention several months ago when he attempted to text a message to the prosecutor while on the stand testifying. A local newspaper columnist took the judge to task for not immediately confiscating the phone and holding the cop in contempt, as you can read here. Newspaper columnists generally are not experts on contempt, though, and this one was wrong in thinking the judge could act on the spot. Although the officer was texting while on the stand, the judge did not see it and did not learn about it until told later. Thus the texting was not in the judge’s sight or hearing and he could not use the summary procedure available for direct contempt, he had to issue a show cause order and schedule a hearing as in any other case of indirect criminal contempt. The key was that the judge needed witnesses to testify to what happened.

The punishment for criminal contempt is censure (rarely used), a fine or up to $500 or jail for up to 30 days, or any combination of those. Typically judges have the bailiff take the offending cellphone and hold it for a while. That is probably okay as part of the court’s authority to stop the interruption of the proceeding and bring the contempt to an end. But the phone ought to be returned to the owner when court is over, if not earlier, unless it is the very rare case where the cellphone is needed as evidence of the contempt. There is no statutory authority for forfeiture of the phone and the sheriff won’t be able to figure out how to dispose of it if ordered to keep it. Although it is clearly wrong and beyond their authority, there still are a few judges who will order the cellphone held until the owner contributes $50 or so to a local charity.

In sum, a ringing cellphone — or texting or taking photographs — is not automatically contempt, but can be criminal contempt if proper warning has been given. The violation has to be willful and the judge may punish the person on the spot if the judge saw or heard the phone. Still, the person has to first be given a chance to explain. The maximum punishment is $500 and 30 days in jail, but the offense seldom would seem to justify anything more than a minimal fine.

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