Civil Contempt vs. Criminal Contempt: What is the Difference?

“Take three deep breaths,” the judge told the assistant district attorney as tempers were flaring. It was one of the last few sessions of the O.J. Simpson murder trial, and the prosecution was quite outspoken on their discontent with the cross-examination by the defense lawyers.  So, the judge cited the assistant D.A. in contempt of court. Apologies were made, the judge accepted, and the notorious “trial of the century” continued.

Contempt is defined by law, under Title 18 § 401 of the United States Code as:

  1. Misbehavior of any person in [the court’s] presence or so near thereto as to obstruct the administration of justice;
  2. Misbehavior of any of [the court’s] officers in their official transactions;
  3. Disobedience or resistance to [the court’s] lawful writ, process, order, rule, decree, or command.

Justice Field sums up the inherent contempt powers of federal and state courts, as well as their vital role in preserving justice and the integrity of the courts in the case of Ex parte Robinson: The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.” 

Contempt may be civil or criminal, and each has different consequences. In this article, we’ll break down these differences, so you know how to deal with each scenario.

Also read:Civil Case vs. Criminal Case: What’s the Difference?

According to U.S. law, there are two different types of legal cases: civil cases and criminal cases. But how is a civil case different...

Definitions of criminal contempt vs. civil contempt

What is civil contempt?

When a person fails to follow an order of the court or judge, which would benefit the opposing party, this is usually cited as civil contempt. Failure to pay child support or to produce documents despite a court order are just a few examples of omissions that may cause someone to be cited for civil contempt. 

What is criminal contempt?

On the other hand, criminal contempt is an offense against the court or judge’s authority and dignity. Insulting the judge, communicating with jurors, or disrupting court proceedings are common examples of acts that may be cited for criminal contempt.

This distinction, however, is not always cut-and-dry. Judges may exercise broad discretion as to how to classify certain acts, depending on various factors.

Similarities between criminal and civil contempt

Similarities between criminal and civil contempt

Criminal and civil contempt also have similarities. Both types may arise in civil and criminal proceedings. Both civil and criminal contempt cases may proceed independently of the proceedings from which the contempt charge arose.

Contempt may also be direct or indirect. Direct contempt is committed in the presence of the court or judge, or in close proximity to it, while indirect contempt is committed outside the court. 

One common misconception is the belief that criminal contempt involves the imposition of a penalty, while civil contempt does not. However, both civil and criminal contempt may involve the imposition of a fine, as well as some form of detention or imprisonment. 

Civil contempt vs. criminal contempt

Civil and criminal contempt differ in terms of their objectives, consequences, burden of proof required, defenses, and presidential pardons.

  1. Objectives. When the contempt charge aims to coerce or force a person to comply with a court order, then it is civil contempt. On the other hand, holding someone in criminal contempt aims to punish the contemnor for disrespecting the authority or dignity of the court. This distinction may also relate to monetary fines and/or penalties imposed. If the penalty or fine is intended to compensate another party, then it is civil. If it is intended to punish the person who committed the contemptuous act, then it is criminal.
  2. Consequences. A punishment in criminal contempt is usually final, and it cannot be lifted by correcting or promising not to repeat the contemptuous act. On the other hand, civil contempt may be conditional. In many cases, the judge may lift the charges and the punishment upon compliance with the court order. For instance, if a person gets detained for withholding evidence in their custody, they may be released as soon as they produce it. In some cases, an apology to the judge may even suffice.
  3. Burden of proof required. Civil contempt can be proven by the standard of clear and convincing evidence. This means the evidence presented is likely to prove that contempt was indeed committed. Criminal contempt, meanwhile, requires a higher standard, which is proof beyond a reasonable doubt. 
  4. Defenses. A person charged with civil contempt may avail of the “impossibility defense,” when they are totally unable to comply with the court order. This defense is not available in criminal contempt simply because the latter involves an overt act, and not a failure to act.
  5. Due process rights. Unlike civil contempt, criminal contempt is a criminal offense, and courts try and decide these as a criminal proceeding. It follows, therefore, that one charged with a criminal contempt is entitled to the constitutional due process protections guaranteed to persons accused of a crime. These include the right to be presumed innocent until proven guilty, the right to a trial by jury, the right to confront one’s accuser, and the right to counsel (and for the court to appoint an attorney if the accused cannot afford one).
  6. Presidential pardon. A person charged with criminal contempt may be pardoned by the president. This remedy is usually not available in civil contempt cases. 


Civil contempt vs. criminal contempt

With the current advances in technology, it’s much easier to commit acts that may be cited in contempt. Tweeting or contacting a witness online while on jury duty, are not only causes for contempt; they can also result in miscarriages of justice.

Whether you’re an attorney, plaintiff, defendant, witness, member of the jury, or a court officer, it helps to know the difference between civil and criminal contempt. These will determine the best legal course of action in the unfortunate event that you or your client gets cited for contempt. In any case, it would be best to avoid contempt charges, whether civil or criminal, in order to avoid contempt sanctions, as well as lengthy, or expensive litigation.

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