Miss. R. Crim. P. 32.1

As amended through March 21, 2024

Rule 32.1 - Applicability; Indirect and Direct Contempt Defined; Criminal and Civil Contempt Defined

(a)Applicability. Rule 32 applies to both civil and criminal contempt arising in a criminal action.

(b)Indirect Contempt. "Indirect contempt," also known as "constructive contempt," means any contempt other than a direct contempt.

(c)Direct Contempt. "Direct contempt" means contempt committed:

(1) in the presence of the judge presiding in court; or

(2) so near to the judge as to interrupt the court's proceedings.

(d)Criminal Contempt. "Criminal contempt" means either:

(1) misconduct of a person that obstructs the administration of justice and that is committed either in the presence of the judge presiding in court or so near thereto as to interrupt its proceedings;

(2) willful disobedience or resistance of any person to a court's lawful writ, subpoena, process, order, rule, or command, where the primary purpose of the finding of contempt is to punish the contemnor; or

(3) any other willfully contumacious conduct which obstructs the administration of justice, or which lessens the dignity and authority of the court.

(e)Civil Contempt. "Civil contempt" means willful, continuing failure or refusal of any person to comply with a court's lawful writ, subpoena, process, order, rule or command that by its nature is still capable of being complied therewith.

Miss. R. Crim. P. 32.1

Adopted eff. 7/1/2017.

Comment

Section (a) provides that Rule 32 applies both to civil and criminal contempt proceedings, so long as they arise out of a criminal case. See Rule 1.1.

The distinction between indirect (or constructive) contempt, defined by section (b), and direct contempt, defined by section (c), is drawn as a basis for procedural differences in applying a remedy. In those limited cases of direct contempt, where the contempt is within the judge's actual sight or hearing so that further or extrinsic evidence is not needed to show the judge what in fact occurred, the judge may dispose of the matter summarily under Rule 32.2. In all other instances the contempt is "indirect," which implicates additional procedural due process safeguards, such as specification of charges, notice, and a hearing. See Rules 32.3 through 32.5. See In re Smith, 926 So. 2d 878, 888 (Miss. 2006); Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 868-69 (Miss. 2004) (addressing "procedural safeguards" in cases of "constructive criminal contempt"); Purvis v. Purvis, 657 So. 2d 794, 798 (Miss. 1994).

The general distinction between criminal contempt, defined by section (d), and civil contempt, defined by section (e), is the purpose for which the sanctions are imposed, although the ultimate sanction in either case is incarceration. See McGill, 890 So. 2d at 867-68 ("[i]n classifying a finding of contempt as civil or criminal, this Court focuses on the purpose for which the power was exercised. . . . [T]he determination should focus on the character of the sanction itself and not the intent of the court imposing the sanction"). Where the sanction operates prospectively to ensure compliance with a lawful order of the court, the contempt is civil. See Gutierrez v. Gutierrez, 153 So. 3d 703, 712 (Miss. 2014) (citing Jones v. Hargrove, 516 So. 2d 1354, 1357 (Miss. 1987)) ("[t]he purpose of civil contempt is to compel parties to obey the orders of the court"); Gaiennie v. McMillin, 138 So. 3d 131, 136 (Miss. 2014) (quoting Lahmann v. Hallmon, 722 So. 2d 614, 620 (Miss. 1998)) ("The purpose of civil contempt is to enforce or coerce obedience to the orders of the court"); Mingo v. State, 944 So. 2d 18, 32 (Miss. 2006) (quoting In re Williamson, 838 So. 2d 226, 237 (Miss. 2002)) ("If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil"); In re Smith, 926 So. 2d at 887. The person being punished holds the keys to the jail and can purge himself/herself of contempt and gain release at any time by complying with the order. See In re Smith, 926 So. 2d at 887 (quoting McGill, 890 So. 2d at 868) ("The contemnor may be jailed or fined for civil contempt; however, the contemnor must be relieved of the penalty when he performs the required act"); Jones, 516 So. 2d at 1357; Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966); Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911). On the other hand, a criminal contempt proceeding is intended to punish for past, not contemplated or ongoing, conduct. See Mingo, 944 So. 2d at 32 (quoting In re Williamson, 838 So. 2d at 237) ("Criminal contempt penalties . . . are designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order"); In re Smith, 926 So. 2d at 887-88. Its purpose is to vindicate the dignity of the court. Criminal contempt is a criminal offense for which a specific punishment is meted out, over which the defendant has no control. See In re Smith, 926 So. 2d at 887; McGill, 890 So. 2d at 868; United States v. Barnett, 376 U.S. 681, 84 S. Ct. 984, 12 L. Ed. 2d 23 (1964). If the conduct is extreme, contempt can be a serious crime entitling a defendant to certain constitutional safeguards (e.g., jury trial). See Miss. Code Ann. § 11-51-11(4); Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968).