MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part IV. Enforcement Of Orders During Trial - Part IV(E)  Recalcitrant Witness

        Part IV(E)     Recalcitrant Witness: General Principles
        Part IV(E) 1  Court Must Order Recalcitrant Witness To Respond
        Part IV(E) 2  Recalcitrant Witness Must Be Warned And Accorded Opportunity To Explain
        Part IV(E) 3  Recalcitrant Witness Should First Be Cited In Civil Contempt
        Part IV(E) 4  Recalcitrant Witness Cited For Civil Contempt Should Be Advised Of Possibility Of Purging The Contempt
        Part IV(E) 5  Recalcitrant Witness Cited For Civil Contempt May Be Subject To Punishment For Criminal Contempt, And Should Be So Advised
        Part IV(E) 6  Procedure If Recalcitrant Witness Is Confined For Civil Contempt But Fails To Purge The Contempt
        Part IV(E) 7  Procedure Upon Refusal By Recalcitrant Witness To Respond To Question Before Grand Jury
        Part IV(E) 8  Procedure If Recalcitrant Witness Claims Inability To Remember Or Gives Evasive Or Equivocal Answers
        Part IV(E) 9  Confinement For Civil Contempt
        Part IV(E) 10 Recalcitrant Witness Serving Sentence Is Not Entitled To Credit For Time Served On Contempt Citation

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part IV(E)    Recalcitrant Witness: General Principles

CAVEAT: See Publication Preface and Caveats. 

FORECITE National™ Materials Related To This Issue:

11.1.4 Refusal To Testify Before Grand Jury As Contempt/Obstruction Of Justice

25.16 Exercise Of Privilege By Witness

25.16.7 Unprivileged Refusal Of Witness To Answer Questions: Consideration As To Credibility

Section 1826(a), Title 28 of the U.S. Code provides that whenever a witness refuses without just cause to comply with an order of the court to testify, the court may summarily order the witness confined until such time as he or she is willing to comply with the court's order.

Confinement shall not exceed the life of

1. the court proceeding, or

2. the term of the grand jury.

In no event may the confinement last longer than eighteen months.

Confinement under 28 USC 1826(a) is coercive, not punitive. Its sole purpose is to compel the contemnor to provide the requested testimony.

In re Grand Jury Proceedings, 862 F.2d 430 (2d Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

The court must give the witness an explicit, unambiguous order to answer the question.

United States v. Wilson, 421 U.S. 309 (1975)
United States v. Chandler, 380 F.2d 993 (2d Cir. 1967)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

The trial court must explicitly warn the witness of the consequences of continued refusal to answer a proper question.

United States v. Chandler, 380 F.2d 993 (2d Cir. 1967)
United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

The witness must be accorded the opportunity to present his or her reasons for refusing to testify.

United States v. Powers, 629 F.2d 619 (9th Cir. 1980)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part IV(E) 3    Recalcitrant Witness: Recalcitrant Witness Should First Be Cited In Civil Contempt

CAVEAT: See Publication Preface and Caveats. 

The court should first apply coercive pressure by means of civil contempt and make use of the more drastic criminal sanctions only if the disobedience continues.

Yates v. United States, 355 U.S. 66 (1957)
Shillitani v. United States, 384 U.S. 364 (1966)

If there is a compelling reason for immediate, strong action, a trial court may hold in criminal contempt a witness who has refused to comply with the court's order to testify at trial (as contrasted with refusing to testify before a grand jury) and may summarily order his or her imprisonment pursuant to Rule 42(a) of the FRCRP.

United States v. Wilson, 421 U.S. 309 (1975)
Baker v. Eisenstadt, 456 F.2d 382 (1st Cir. 1972)
In re Scott, 605 F.2d 736 (4th Cir. 1979)
In re Boyden, 675 F.2d 643 (5th Cir. 1982)

It is improper to coerce a recalcitrant witness into testifying at the trial of a codefendant by imposing a harsh sentence on charges to which the witness has pled guilty and indicating that the sentence may later be reduced the witness cooperates.

United, States v. Giraldo, 822 F.2d 205 (2d Cir. 1987)

The witness is not entitled to a trial before a jury in a civil contempt proceeding.

Andretta v. United States, 530 F.2d 681 (6th Cir. 1976)
In re Grand Jury Investigation, 600 F.2d 420 (3d Cir. 1979)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

When a recalcitrant witness is committed in civil contempt, he or she should be advised that the contempt can be purged if he or she answers the question at issue. The witness should also be advised to inform the court immediately if he or she decides to answer the question.

United States v. Hughey, 571 F.2d 111 (2d Cir. 1978)

After a recalcitrant witness has been committed, he or she may be brought back into the courtroom and given a chance to purge the civil contempt and thereby avoid prosecution for criminal contempt.

United States v. Patrick, 542 F.2d 381 (7th Cir. 1976)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

A recalcitrant witness committed in civil contempt should be advised that if he or she does not purge that contempt, he or she may be prosecuted for criminal contempt and thereafter punished by a fine or commitment for that criminal contempt.

Yates v. United States, 227 F.2d 848 (9th Cir. 1955)

There must be a forthright positive notification to the witness that he or she is subject to an additional punitive sanction if the court chooses to invoke it and that the coercive restraint for civil contempt does not relieve the witness of a possible penal sentence.

Yates v. United States, 227 F.2d 848 (9th Cir. 1955)
Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958)
But see United States v. Monteleone, 804 F.2d 1004 (7th Cir. 1986) (recommending, but not requiring, notification)

Like any other witness, a testifying defendant who refuses to answer a proper question, after being directed to do so by the court, is subject to sanctions for criminal contempt.

United States v. Martin, 525 F.2d 703 (2d Cir. 1975)
United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

If a witness refuses to answer a question, the trial judge should instruct the jury that it should not speculate as to what the testimony would have been.

United States v. Anderson, 509 F.2d 312 (D.C. Cir. 1974)

At the conclusion of the trial, a witness held in civil contempt should be released from custody, but thereafter a proceeding under FRCRP 42(b) may be commenced to cite the witness for criminal contempt.

Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958)

If the court acts to cite the witness summarily for criminal contempt during the progress of the trial, it may proceed under Rule 42(a). If the court proceeds after the termination of the trial, it must proceed under Rule 42(b), as the defendant's refusal to answer the question no longer obstructs the progress of the trial.

United States v. Wilson, 421 U.S. 309 (1975)
United States v. Brannon, 546 F.2d 1242 (5th Cir. 1977)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

A witness who refuses to answer a question before a grand jury may not be cited for criminal contempt under Rule 42(a) because the misbehavior is not in the actual presence of the court. The proper procedure is under Rule 42(b), according to which the witness is given notice and a reasonable time within which to prepare his or her defense.

Harris v. United States, 382 U.S. 162 (1965)
United States v. Alter, 482 F.2d 1016 (9th Cir. 1973)
In re Sadin, 509 F.2d 1252 (2d Cir. 1975)
In re Brummitt, 608 F.2d 640 (5th Cir. 1979)
In re Grand Jury Proceedings, 643 F.2d 226 (5th Cir. 1981)

A civil contempt order for refusal to testify before a grand jury is without further effect after expiration of the grand jury's term or the purging of the contempt.

In re Grand Jury Proceedings, 863 F.2d 667 (9th Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

A witness's equivocal response, evasive answer, or false disclaimer of knowledge or memory constitutes contemptuous conduct.

In re Weiss, 703 F.2d 653 (2d Cir. 1983)

A false assertion of memory loss constitutes a refusal to testify.

In re Battaglia, 653 F.2d 419 (9th Cir. 1981

A claimed inability to remember is the equivalent of a refusal to testify if it is both obviously, false and intentionally evasive and obstructive.

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983)

However, the government must prove these elements by clear and convincing evidence, either extrinsic or intrinsic.

In re Kitchen, 706 F.2d 1266 (2d Cir. 1983)

A civil contempt proceeding on an asserted memory loss requires a three step analysis:

1. The government must make out a prima facie showing of contempt.

2. The recalcitrant witness must provide some explanation, on the record, for failing to respond
    to a proper question.

3. If the recalcitrant witness meets his or her burden of production by claiming a loss of memory,
    the government must carry its burden of proof by demonstrating that the witness did in fact
    remember the events in question.

In re Battaglia, 653 F.2d 419 (9th Cir. 1981)

The government has the burden of proving by clear and convincing evidence the falsity of a recalcitrant witness's claim of loss of memory. That proof may include extrinsic proof, such as tape, recordings or documents, or it may be found in the witness's demeanor and answers.

In re Bongiorno 694 F.2d 917 (2d Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

A recalcitrant witness who refuses to answer a proper question at trial may not be confined for civil contempt beyond the duration of the trial itself.

Yates v. United States, 227 F.2d 844 (9th Cir. 1955)

A recalcitrant witness who refuses to answer a proper question before a grand jury may not be confined for civil contempt beyond the term of the grand jury and in no event longer than eighteen months.

28 USC 1826(a)

If the court determines that confinement for civil contempt has ceased to have a coercive effect upon a recalcitrant witness, the civil contempt remedy should be ended.

In re Grand Jury Proceedings, 862 F.2d 430 (2d Cir. 1988)

See Part IV(B) 6 [Procedure If Contemnor Persuades Court That Continuance Of Imprisonment Will Not Persuade Him Or Her To Comply].

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

If a recalcitrant witness is already serving a sentence, the court may order that sentence to be interrupted by imprisonment for civil contempt.

Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974)
In re Garmon, 572 F.2d 1373 (9th Cir. 1978)
In re Grand Jury Investigation, 865 F.2d 578 (3d Cir. 1989)

A federal prisoner is not entitled to credit for time spent in custody for a civil contempt unless the court expressly makes the contempt confinement concurrent with a prior criminal sentence.

Bruno v. Greelee, 569 F.2d 775 (3d Cir. 1978)

The circuits are in conflict as to whether a federal district court has authority under 28 USC 1826(a) to interrupt a contemnor's pre-existing state sentence for service of a federal civil contempt sentence.

In re Liberatore, 574 F.2d 78 (2d Cir. 1978) (federal tolling of state sentence intrudes on sovereignty of state court)
In re Grand Jury Investigation, 865 F.2d 578 (3d Cir. 1989) (federal tolling of state sentence permissible)