IX. SUPPLEMENTAL AND SPECIAL PROCEEDINGS

217

Rule 42: Criminal Contempt.

(a) Summary Disposition. A judge may summarily punish a person who commits criminal contempt in the judge’s presence if the judge certifies that he or she saw or heard the conduct constituting the contempt. The contempt order shall recite the facts, be signed by the judge, and entered in the record.

(b) Disposition on Notice and Hearing. A criminal contempt shall be initiated on notice, except as provided in subdivision (a) of this rule.

(1) Content of Notice. The criminal contempt notice shall:

(A) state the time and place of the hearing;

(B) allow the alleged contemner a reasonable time to prepare a defense; and

(C) state the essential facts constituting the criminal contempt charged and describe it as such.

(2) Form of Notice. The judge shall give the notice orally in open court in the presence of the alleged contemner or by written order, including an arrest order if warranted. The notice and order may also issue on application of the district attorney general, an attorney appointed by the court for that purpose, or an attorney representing a party in the case.

(3) Release on Bail. The alleged contemner is entitled to admission to bail as provided in these rules.

(4) Disqualification of Judge. When the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the hearing, except with the alleged contemner's consent.

(5) Punishment Order. If the court finds the alleged contemner to be in contempt, the court shall enter an order setting the punishment.

Advisory Commission Comment.

Rule 42 tracks some of the language of the federal rule. No right to a jury trial exists upon a state charge of criminal contempt under present law establishing the penalties for the offense.

Advisory Commission Comment. [2014]

The reference in Rule 42(b)(2) to "a show cause order" was deleted. The burden of proff in a criminal contempt proceeding governed by subdivision (b) of the rule is on the district attorney or other attorney prosecuting the allegation of criminal contempt, and requiring an alleged contemner to "show cause" why he or she should not be held in contempt impermissibly placed the burden of proof on the alleged contemner.

Subdivision (b)(2) also was amended to add "an attorney representing a party in the case" in order to conform the rule to current practice. This rule also guides criminal contempt proceedings arising in civil cases that involve attorneys for the parties. See, e.g., Wilson v. Wilson, 984 S.W.2d 898 (Tenn. 1998).

Subdivision (b) also was amended to use the term "alleged contemner" throughout the subdivision, instead of only the word "defendant," to prevent confusion by distinguishing the person charged with criminal contempt from a named defendant in a particiular case. The new term conforms the language of the rule to the terminology in Baker v. State, ___ W.W.3d___, ___, 2013 WL 4768309, at *6-7 (Tenn.2013).

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