It’s also used to avoid statute of limitations, although usually they’re obstruction of justice charges.
Jojo: I’d respond to your points, but we’re getting out of GQ territory.
Jodi
But it doesn’t force compliance. It doesn’t directly do anything to effect compliance. The only efficacy it has lies in its deterrence power i.e. it is being used as a sanction.
Northern Piper:
So if the trial ends, you go home. If it’s appealed, do you go to jail again? Do they have to go through the whole process of supaening you, having you show up, demanding that you testify, warning that you’re in contempt of court, etc.?
So, what happens if you refuse to affirm to tell the truth. I mean, if da’ judge starts out with, “Do you swear to tell the truth–”
“No.”
What can happen? Are you, at that point, in contempt of court? And if you are, what’s the point of the affirmation in the first place? If you have to testify when subpoenaed (except in the self-incrimination examples as mentioned above), why bother going through the dog-and-pony show of an affirmation?
I think this thread is mixing up two different famous contempt cases. Susan MacDougal was Bill Clinton’s friend who went to jail for contempt rather than cooperate in the Whitewater investigation. I remember the child abuse/contempt situation as well but I can’t find reference to it through Google. I find it hard to believe that the two best-known contempt cases in recent years would both be of women named “Susan MacDougal.” Can someone please track down who the child abuse allegation woman was (she was a doctor IIRC) and post her name before I go mad?
I suppose I should have known better than to switch between speaking very specificcally and speaking somewhat generally. Of course there are exceptions to the First Amendment. But the point is that courts do not have power to restrict the speech of the general public because of the right of free speech. Under American law, furthermore, even if certain speech is punishable, the law disfavours prior restraint, especially regards the press. It’s considered too risky. Much better to let someone say what he or she wants to say and then punish him or her afterwards if it turns out to be actionable.
Under American law, that has a high risk of causing what’s known as a chilling effect, which is considered a serious danger to the right of free expression.
This has no relevance to American law. The general principle is that people are allowed to say anything they want about anything they please. The law can’t “protect” a subject of discussion that may be of interest to the public for whatever reason in this manner.
Jojo, obviously it is a balancing of considerations. Given the expressed opinion that it seemed unreasonable for a court not to have the authority to control the press, I was pointing out the arguments for the other side. Also, it is the bias of American law that it is always worse to suppress information than it is to give it free reign. And American jurisprudence works with the assumption that jurors will act with intelligence and integrity. If this is naive, then, well, how do you organise a free society based on the assumption that individuals are stupid and must be protected from information and ideas?
Obviously, the U.K. and Canadian justice systems have come to a different conclusion on this balancing act. I have to say, I would hate to be the Canadian or British newspaper subject to those countries’ laws regarding information about criminal proceedings (as well as defamation – frankly, I consider British and Canadian defamation law to be shockingly oppressive).
Yes, and in an earlier post I did state that the court has power over the participants in a trial.
Well, it’s not guaranteed to make you comply, but it certainly is intended to coerce you into doing so – by putting you in jail until you comply. I don’t really think you can argue that it is not coercive, and coercion is of course a tried and true method to attempt to “force compliance.” Its deterrence power – that is, the chance it will prevent you from doing it again, or prevent someone else from doing it at all – is another question, but then I never said it was intended principally as a deterrent – it’s not. Jail for civil contempt is intended to coerce compliance with whatever court order you are defying. It is not primarily intended to be either a specific “punishment” for having defied it, or a “deterrent” to future non-compliance, though both of those may reasonably be foreseeable potential effects of cooling your heels in jail.
OTTO, you are of course correct; the woman I was thinking of is not Susan MacDougal but Dr. Elizabeth Morgan.
Well, it’s not guaranteed to make you comply, but it certainly is intended to coerce you into doing so – by putting you in jail until you comply. I don’t really think you can argue that it is not coercive, and coercion is of course a tried and true method to attempt to “force compliance.” Its deterrence power – that is, the chance it will prevent you from doing it again, or prevent someone else from doing it at all – is another question, but then I never said it was intended principally as a deterrent – it’s not. Jail for civil contempt is intended to coerce compliance with whatever court order you are defying. It is not primarily intended to be either a specific “punishment” for having defied it, or a “deterrent” to future non-compliance, though both of those may reasonably be foreseeable potential effects of cooling your heels in jail.
OTTO, you are of course correct; the woman I was thinking of is not Susan MacDougal but Dr. Elizabeth Morgan.
I really don’t see what you’re saying. The point is to say “If you don’t testify, you will stay in jail”. There is no expectation that the jail will have some hypnotic effect on the witness and he will suddenly decide to testify. The expectation is that the witness will testify to avoid further time in jail. That is, it is a punishment.
Not to hijack, but this does bring up the fascinating subject of immunity.
A witness may refuse to incriminate himself. However, he may still be ordered to answer questions if he’s granted immunity from prosecution for anything he might say in response to the questioning. Being thus freed from the possibility of criminally implicating himself by his testimony, he can be required to give it.
There are two flavors of immunity: use and transactional. Transactional immunity is full and complete immunity from any prosecution for the acts about which you testify. Use immunity is a shady ploy based upon a case called Muprhy v. Waterfront Commission, and grants you immunity only as far as the government’s use of your testimony against you. If you refuse to testify to confirm Steve’s alibi that he was with you when Dr. Berger was killed, asserting your privilege against self-incrimination, and you are then granted use immunity, only to testify that you weren’t with Steve because you were killing Dr. Berger yourself, the government may not introduce your statement as evidence against you in a future trial, nor use any of the fruits of your testimony against you. That is, if they had no idea you were the killer, they cannot begin an investigation against you based on your testimony and discover other evidence. However, any independent evidence which comes their way is fair game.
Had you been granted transactional immunity, you’d be forever safe from a prosecution for the murder of Dr. Berger, no matter the source of the evidence.
Use immunity is sufficent, said the court in Murphy, to comply with the Constitution.
Potentially, yes. If the appeal court orders a re-trial, you can be subpoenaed again. If you turn up but refuse to testify, then the judge can jug you again until you do testify.
Well, yes, actually. It’s remarkable how sometimes a short time in the jug leads to self-introspection and a decision to purge one’s contempt. At least, that’s what I’ve observed on occasion.
Finally, the reason why lawyers don’t consider jailing for contempt to be a punishment, but an inducement to testify, is that unlike jailing for punishment, the length of time the individual spends in the cell is entirely in their own control. If you’re sentenced to incarceration as punishment, the amount of time you will spend in jail will depend on the initial sentence and the decisions of the correctional system. By contrast, if you’re jugged for contempt, you hold the key to your cell and can decide at any time to leave - by testifying.
As I said, the chief purpose of jailing a person for civil contempt is not to punish them for not having defied the court order, but rather to convince them (coerce them) to stop defying it and comply. Now it may be a fine line between punishing them for something they did in the past, and leaning on them to make them stop doing it in the present, but there is a line there. If you don’t see it, then we’ll leave it at that, because I can’t explain it any better than I have.
What reason would a person have for changing their mind?
Northern Piper
Each length of time which he spends in jail is punishment for the last opportunity he had to purge the contempt. If every day at noon the judge visits the jail cell and aks “Will you testify?” then every time he says no, he is punished for one day.
I don’t suppose your mind will be swayed by pointing out that ten minutes after the judge leaves, the reluctant witness may change his mind and be released?
In other words, it’s not a series of one-day sentences. It’s confinement narrowly tailored to force the reluctant witness to testify as the law requires.
