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780. Direct Contempt—Witness's Refusal to Obey Court Order to Testify at Trial Versus Witness's Refusal to Obey Court Order to Testify Before a Grand Jury

A witness who refuses to testify at trial after having been granted immunity from prosecution may be summarily convicted of direct criminal contempt under Rule 42(a), Federal Rules of Criminal Procedure. "Rule 42(a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he "saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.'" See United States v. Wilson, 421 U.S. 309, 315 (1975); Howell v. Jones, 516 F.2d 53 (5th Cir.), cert. denied, 424 U.S. 916 (1976).

By contrast, a witness who refuses to testify before a grand jury on the ground of the privilege against self-incrimination after having been granted immunity from prosecution and ordered to testify by a court, may only be prosecuted for criminal contempt according to the procedures applicable to indirect contempts under Rule 42(b) of the Federal Rules of Criminal Procedure. The witness may not be brought before the court, asked the same questions as were asked by the grand jury and then found in summary criminal contempt for refusing to answer these questions. See Harris v. United States, 382 U.S. 162 (1965); United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971). According to the majority view, when a witness is to be held in civil, as opposed to criminal, contempt for refusing to testify or to produce evidence before a grand jury, the procedures of Rule 42(b) must likewise be followed. In re Vigil, 524 F.2d 202, 218-219, cert. dismissed, 425 U.S. 927 (1976); In re Mintzer, 511 F.2d 471, 472 n. 1 (1st Cir. 1974); In re Sadin, 509 F.2d 1252 (2d Cir. 1975); United States v. Hawkins, 501 F.2d 1029, 1031 (9th Cir. 1974), cert. denied, 419 U.S. 1079 (1974).

[cited in JM 9-39.000]

Updated January 21, 2020