Falsification as Contempt

The last twenty years have been witness first to an expansion and then to a retrenchment of constitutionally protected civil liberties. The exercise of the contempt power is an area in which constitutional limitations on modes of procedure are inapplicable so long as the power is used to preserve the judiciary.\u27 Contempts are either direct or constructive. Direct contempts are committed in the presence of the court whereas constructive contempts are committed outside the presence of the court. This distinction is significant in that direct contempts are punishable without a formulated charge, hearing or formal judgment of guilt. Constructive contempts are less summarily punishable. Both negative and positive conduct may constitute a contempt of court. Examples of negative direct contempts are failure to produce a prisoner at a trial or hearing and refusal of a witness to testify. Acts punishable as positive direct contempts include assaults on judges, jurors, attorneys, witnesses, and officers of the court; interferences with the trial jury by invitation to the room of defendant\u27s counsel to drink liquor or discussion of the case by a litigant in the presence of jurors who may try it; and perjury or false swearing by a witness in court or before a grand jury. The problems raised by the positive direct contempt of perjury or false swearing are the subject of this note