(Applicable to District Court and Superior Court)

(a) When Warranted. A criminal contempt may be punished summarily when

(1) summary punishment is necessary to maintain order in the courtroom;

(2) the contemptuous conduct occurred in the presence of, and was witnessed by, the presiding judge;

(3) the presiding judge enters a preliminary finding at the time of the contemptuous conduct that a criminal contempt occurred; and

(4) the punishment for each contempt does not exceed three months imprisonment and a fine of $2,000.

(b) Procedure.

(1) Upon making a preliminary finding that a criminal contempt occurred, the presiding judge shall give the alleged contemnor notice of the charges and shall hold a hearing to provide at least a summary opportunity for the alleged contemnor to produce evidence and argument relevant to guilt or punishment. For good cause shown, the presiding judge may continue the hearing to enable the contemnor to obtain counsel or evidence.

(2) The presiding judge may order the alleged contemnor held, subject to bail and/or conditions of release, pending the hearing provided for in subsection (b)(1) if the judge finds it necessary to maintain order in the courtroom or to assure the alleged contemnor's appearance.

(3)

(i) If, after the hearing provided for in subsection (b)(1), the presiding judge determines that summary contempt is not appropriate because the appropriate punishment for the alleged contempt exceeds three months imprisonment and a fine of $2,000, the judge shall refer the alleged contemnor for prosecution under Rule 44 . If necessary to maintain order in the courtroom or to assure the alleged contemnor's appearance, the judge may order the alleged contemnor held, subject to bail and/or conditions of release, for a reasonable period of time, not to exceed 15 days absent good cause shown, pending the issuance of a complaint or indictment under Rule 44(a) .

(ii) If, after the hearing, the presiding judge determines that summary contempt is not appropriate because one or more of the requirements in subsection (a)(1), (a)(2), or (a)(3) is not satisfied, or for another reason, the judge shall discharge the alleged contemnor. The judge, in his or her discretion, may refer the matter to the government for investigation and possible prosecution, and nothing in this subsection shall preclude such investigation or prosecution, whether undertaken in response to the judge's referral or independently.

(iii) If, after the hearing, the presiding judge determines that summary contempt is appropriate, the judge shall make a finding on the record of summary contempt, setting forth the facts upon which that finding is based. The court shall further announce a judgment of summary contempt in open court, enter that judgment on the court's docket, and notify the contemnor of the right to appeal. The judge may defer sentencing, or the execution of any sentence, where the interests of orderly courtroom procedure and substantial justice require. If necessary to maintain order in the courtroom or to assure the contemnor's appearance, the judge may order the contemnor held, subject to bail and/or conditions of release, pending sentencing.

(c) Appeal. A contemnor may appeal a judgment of summary contempt to the Appeals Court.

As amended October 30, 2013, effective January 1, 2014.

Reporter's Notes

(2014) This amendment to Rule 43 is intended to clarify the procedures by which a judge can impose summary punishment for criminal contempt or, alternatively, refer an alleged contemnor for prosecution by complaint or indictment under  Rule 44 . See Vizcaino v. Commonwealth, 462 Mass. 266 , 279 n. 11 (2012) (suggesting a need for clarification in the operation of Rule 43). Amended Rule 43 resolves ambiguities concerning the prerequisites for summary punishment of contempt and the procedural steps in a summary-contempt proceeding. Further, amended Rule 43(b) explicitly recognizes discretionary authority that judges have presumably enjoyed in summary contempt proceedings, principally the common-law authority to hold an accused contemnor if necessary to maintain courtroom order or to assure his or her appearance at any subsequent proceeding. The amended rule also increases the maximum fine permitted from $500 to $2,000.

Rule 43(a) When Warranted

Amended Rule 43(a), like its predecessor, provides for the four conditions necessary to warrant summary punishment for contempt. Such punishment must be necessary to maintain courtroom order; the contemptuous conduct must occur in the presence of and be witnessed by the judge; the judge must enter a finding of contempt at the time it occurs; and the punishment cannot exceed three months' imprisonment and a fine of $2,000. As discussed below, amended Rule 43(a)(3) clarifies an ambiguity in former Rule 43(a), the amended rule expressly providing that this threshold, contemporaneous finding of contempt be preliminary. As such, it gives notice to the alleged contemnor of the charges, but it is subject to reconsideration after affording the alleged contemnor an opportunity to be heard as required under Rule 43(b)(1).

Former Rule 43(a)(2) referred to the threshold, contemporaneous finding as a "judgment of contempt," leading to possible confusion between it and the final "judgment of contempt" which, under former Rule 43(b), the judge could make only after "giv[ing] the contemnor notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment." Mass. R. Crim. P. 43, 378 Mass. 919 (1979). See  Vizcaino v. Commonwealth, 462 Mass. 266 , 276 (2012) (holding that an opportunity to be heard followed by entry of the judgment on docket are necessary predicates to a Rule 43 judgment of summary contempt); Commonwealth v. Segal, 401 Mass. 95 , 99-100 (1987) (same). Amended Rule 43(a)(3) makes it clear that the judge's threshold, contemporaneous finding of contempt is preliminary. While the Supreme Judicial Court had read former Rule 43(a)(2) to provide that this preliminary "judgment of contempt" be written, see   Vizcaino v. Commonwealth, 462 Mass. 266 , 272 & n. 7 (2012) (interpreting Rule 43(a)'s contemporaneity requirement to permit reasonable, minor delays in preparing Rule 43(a)(2)'s written judgment of contempt), amended Rule 43(a)(2) neither provides nor contemplates that the preliminary finding of contempt be written. Such a requirement seems unnecessary given that the judge's finding is in open court and presumably subject to transcription if necessary. Moreover, requiring a written finding could delay both the alleged contemnor's opportunity to be heard and the trial in which the contemptuous conduct occurred. Finally, as noted, the amended rule increases the maximum fine for summary contempt from $500 to $2,000, an increase that partially accounts for the inflation that has occurred since the rule's adoption in 1979. This maximum fine is well within the punishment that may be imposed without implicating the Sixth Amendment right to a jury trial. See Blanton v. City of N. Las Vegas, Nev., 489 U.S. 538 , 544-45 (1989) (holding no Sixth Amendment right to jury trial for offense the maximum punishment for which was six months imprisonment and $1,000 fine, noting the possible fine was "well below" the $5,000 federal benchmark utilized in identifying petty offenses that can be tried without a jury); Furtado v. Furtado, 380 Mass. 137 , 142 n. 5 (1980) (noting Supreme Judicial Court has not interpreted article 12 to impose a stricter jury-trial requirement).

Rule 43(b) Procedure

As did former Rule 43(b), amended Rule 43(b)(1) provides that, following the preliminary finding of contempt under Rule 43(a)(3), the judge must conduct a hearing, affording the accused contemnor at least a summary opportunity to produce evidence and/or argument relevant to guilt or punishment. The amended rule further gives the judge discretion, for good cause shown, to continue the hearing so that the accused contemnor can obtain evidence or counsel.

Rule 43(b)(2) authorizes the judge to hold the accused contemnor, subject to bail and/or conditions of release, pending the summary-contempt hearing if necessary to maintain courtroom order or to assure the contemnor's appearance. Judges presumably had such common-law authority under former Rule 43, see In re Terry, 128 U.S, 289 , 307-13 (1888) (recognizing longstanding judicial authority to apprehend, commit, and summarily punish one who engages in contemptuous conduct in the judge's presence); see also G.L. c. 276, § 57 (authorizing justices of the superior and district courts to admit a committed prisoner to bail upon finding that such release will reasonably assure the prisoner's future appearance before the court), but the amended rule makes it explicit.

Amended Rule 43(b)(3) sets out the respective procedures for the three possible results of the Rule 43(b)(1) hearing.

First, under Rule 43(b)(3)(i), if the judge determines that summary contempt is not appropriate because the accused contemnor deserves greater punishment than that permitted for summary contempt, the judge must refer the alleged contemnor for prosecution by complaint or indictment under  Rule 44 . In that event, if necessary to maintain courtroom order or the appearance of the accused, the rule recognizes the judge's common-law authority to hold the alleged contemnor subject to bail and/or conditions of release for up to 15 days, extendable for 3 good cause shown, pending issuance of the contempt complaint or indictment under  Rule 44(a) . Although the judge has wide discretion in determining what constitutes good cause to extend the 15-day limitation, it would ordinarily include a superior court referral in which there is no grand jury in session during that 15-day period.

Second, Rule 43(b)(3)(ii) covers the case in which, after considering the facts and arguments presented in the summary-contempt hearing, the judge decides for whatever reason that summary contempt is not appropriate. This possibility, although inferable under former Rule 43(b), is here explicit. Under Rule 43(b)(3)(ii), such a decision to forgo further proceedings and to discharge the alleged contemnor does not bar the alleged contemnor's prosecution for the alleged contempt. The rule explicitly provides that, in spite of this termination of summary-contempt proceedings, the judge has discretion to refer the matter to the government for investigation and possible prosecution, and that, even in the absence of such a judicial referral, the government may investigate and prosecute the alleged contempt. Cf. Vizcaino, 462 Mass. at 274-75 (holding that, where judge had not entered summary contempt judgment on the court's docket as required by Rule 43(b), further prosecution for nonsummary contempt under Rule 44 not barred by double jeopardy).

Third, Rule 43(b)(3)(iii) sets out the procedure if, after the hearing, the judge decides that summary punishment for the contempt is appropriate. The judge must make a finding of summary contempt on the record, setting out the facts on which it is based. Unlike former Rule 43(b), this finding need not be written; a transcript of the factual finding provides an adequate record for purposes of appeal. The rule further provides that, as in any criminal conviction, the court must announce the summary-contempt judgment in open court, enter the judgment on the docket, and notify the contemnor of the right to appeal. See Mass. R. Crim. P. 28(a) , 378 Mass. 898 (1979). As did former Rule 43(b), Rule 43(b)(3)(iii) allows the judge discretion to defer summary-contempt sentencing or its execution where orderly courtroom procedure and substantial justice require. Although the rule does not explicitly limit the purpose or length of such sentence deferral, as was so under former Rule 43(b), it ordinarily would be reserved for cases of summary contempt by one of the parties or lawyers in the trial, see Taylor v. Hayes, 418 U.S. 488 , 497-98 (1974), and imposition or execution of sentence would be deferred until after the trial is completed. The rule further permits the judge, if necessary, to order the contemnor held, subject to bail and/or conditions of release, pending sentencing.

Rule 43(c), providing for the right of appeal to the Appeals Court, remains in substance unchanged.