Admonishment in Court: Legal Statutory Implications and Procedure

Definition of an Admonishment

Admonishment is a concept that refers to an admonitory remark or warning that a judge gives to defendants and witnesses during court proceedings. Admonishment has legal definitions, but they are not specific to any case or circumstance. The courts typically define admonishment simply as a warning, however judicial discretion allows for greater differentiation based on the context of the adjudication. Courts may issue admonishment before the taking of testimony, a witness who is believed to be untrustworthy, and/or to drive a point home to a defendant. Regardless of why admonishment is being issued it serves to inform the parties of the importance of candor to the court, the potential effects of evasion or ignoring the admonishment, and consequences of perjury and willful evasion.
Admonishment serves as a deterrent to witnesses who may be considering offering testimony that is misleading , inaccurate, dishonest, or otherwise unacceptable in the eyes of the legal system. Witnesses who fail to abide by admonishment may be held in contempt of court, and jurors who do the same risk forfeiting their seats on the jury.
Admonishment is aimed primarily at two types of individuals, i.e., witnesses in a trial or hearing and defendants in a criminal case. Judges often feel compelled to issue admonishments to defendants who are acting out in the courtroom, such as talking over the judge, arguing and otherwise refusing to recognize court decorum. In severe situations, judges may even cite defendants for contempt of court and remove them to an enclosed area away from the courtroom – the "wood shed," or the holding cell beneath the courtroom.

Admonishment in Historical Context of Court

Admonishment has a storied history within judicial proceedings, and its application and penalties have morphed over time to better meet the needs of a growing society. Defining admonishment is not difficult, but understanding its application is not as simple.
English Common Law adopted the practice of admonishment close to 800 years ago. In fact, the roots of admonishment as an acceptable judicial punishment were set down, according to the book The Origins and Development of the English Law, 1066-1215 by Christopher W. Brooks, in the latter part of the 12th Century.
As he notes, "Amidst all his references to wrongdoers, Bracton, writing about 1250, recommended the admonition of wealthy offenders especially for petty theft, claims on another man’s land, fraud, trespasses in the woods or meadow or on the highway, and possibly for assault, riot and abduction."
The concept of admonishment as a judicial remedy came to the American colonies, naturally, as the outcome of court proceedings in England was carried forward to the New World.
Two decades before independence, the Colonial Courts relied on the admonishment system for corporate malfeasance and offenses that were deemed to be representative of the perils of the old ruling class from which they escaped as 1776 approached. Indeed, the practices of The King and the Old Rule proved a threat in a new land as Jacob’s Complaint recounted.
"Wherefore, we, the People of the Colonies,… do think ourselves, and the other Like People in the World, come to the full Age of Government, and think it right, in Us, to hold such Government; using our Persons and Powers there, according to that Liberty, wherein God hath made Us Free."
Admonishment, of course, continues to be an important part of the judicial system. One must take special care, however, as the admonishment alone will not save a court or the parties from the consequences of the circumstances.
To use an old idiom, be careful what you ask for, you just may get it.

Types of Court Admonishments

Various admonishments in court can be broken down into two different distinctions: formal and informal admonishments. Formal admonitions take place during a court hearing with the judge presiding directly over the defendant. Informal admonitions are warnings that occur outside of the courtroom, usually by an officer, the prosecutor or the judge. The two types of warnings can also happen in two different ways:
Because there are two specific ways that admonishments are given, it’s important to note the various types used throughout the judicial system.
The initial type of admonishment exists to give the defendant a warning. The warning is usually a written notice that details the infraction and consequences if this behavior continues in the future. The written notice may or may not require the signature of the defendant, and the document is then filed with the court. Admonishments may also be given verbally to the person for a future action.
A second form of admonishment prohibits the defendant from performing a specific action. Verbal admonishments are common, but written notices may be given to the person as well.
A third type of admonishment extends serious consequences to the defendant. This warning is usually given when the defendant has repeatedly violated a rule. Admonish offenders face the risk of jail time or other significant consequences.
Admonishment is meant to provide offenders with a warning that encourages them to change their behavior. Continuing to break the law could result in more severe consequences for those who choose not to heed these warnings.

The Law Finally Speaks – Consequences of Admonishment

An admonishment by the judge comes with some legal consequences. For instance, the judge may set a bond. Any bond set will be forfeited if the person is found guilty by the jury of either the charged offense or a lesser included offense. Such a bond is posted in cash at the beginning of the trial and is returned if a not guilty verdict follows.
A more serious consequence of the admonition is that the defendant is now subject to a "Stupid Criminals" statute. The first time a defendant violates his admonition, he does so at the risk of having the court order additional punishment on any punishment range count. A second violation will bear even greater consequences. On the first offense, there is a presumption that additional punishment shall be assessed; however, on the second offense, the presumption becomes that double the maximum punishment shall be assessed. Of course, there are arguments that can be made on behalf of the defendant that the Stupid Criminals’ statute should not apply.

The Admonishment Procedure in Court Proceedings

Before a trial judge makes any findings of contempt against any party, the judge must issue an order or warning directed to that party. In re Nosek, 247 Mich App 1, 16; 634 NW2d 739 (2001). As such admonishment is required by MCL 600.1701. To comply with MCL 600.1701, the admonishment must: (i) be issued in writing or orally by the court in compliance with the supreme court administrative order 1988-2, and (ii) must inform the offender of the specific conduct considered to be contemptuous and warn him that he will be held in contempt for that conduct if it is repeated in the future, that he will be punished if he disobeys the order and that punishment may include jail time… . However, an admonishment is not an element that a trial court must consider before such a court can hold a party in contempt . Ludema v Bureau of Social Servs, 214 Mich App 1, 14; 542 NW2d 710 (1995)(emphasis added). Where the contemptuous conduct occurs outside the presence of the court (and is not compelled by the trial court), the admonishment must inform the alleged offender of the specific wrongdoing, and must threaten punishment for failing or refusing to cease the offending conduct. An admonishment is not required where the contemptuous conduct occurs in the presence of the court and is compelled by the trial court. Id. For example, the trial court need not give an admonition when it has faulted a party for being disruptive in the courtroom, or when it has given an order to stop an offending party from yelling at or threatening witnesses during a court proceeding. Id at 15-16.

Types of Admonishments in Various Jurisdictions

Admonishment can be handled differently in different jurisdictions. For example, in some jurisdictions, the admonishment process is more formal or structured than in other jurisdictions. In some jurisdictions, the admonishment process may be used as a precursor to a more formal disciplinary process.
For example, in California, the admonishment process is not a formal part of the disciplinary process. However, the California State Bar has an informal process whereby a member may be informally admonished by a senior deputy trial counsel. This informal process may occur when there are not enough facts to establish a violation of the California Rules of Professional Conduct, but such a violation may have occurred [a de minimus violation]. The California State Bar does not keep records of such informal admonishments.
In addition, in some jurisdictions, an admonishment may be used as part of a plea agreement in a disciplinary matter. For example, a Respondent may admit to a violation of the California Rules of Professional Conduct in exchange for an admonishment, rather than the imposition of a public reproval. The Respondent may receive a private reproval.
Moreover, in some jurisdictions, a reprimand may be a severe sanction, or something other than a severe sanction. For example, in New Jersey, a reprimand is used under the rules as the maximum sanction unless the decision is appealed or there are aggravating circumstances. See. Gibbs v. Keller 299 N.J. Super. 565 (App. Div. 1997); Rosenman v. Office of Attorney Ethics, 196 N.J. 37 (2008).
Conversely, the reprimand decision may be more akin to a warning in another jurisdiction. For example, in Delaware, the authorities do not view a reprimand as a serious sanction and distribute the reprimand as a warning. See, e.g., email correspondence dated 3/19/17 to the author from Executive Director of the Office of Disciplinary Counsel, stating in part "…[A reprimand is] essentially a warning. It indicates that, for future transgressions, more serious discipline will be on the table." See also, internet search terms "delaware ethical reprimand warning" for additional evidence that a reprimand may be viewed as a warning.
It should be noted, however, that sanctions determinations are made on a case by case basis and the same definite determination of a reprimand in one case may or may not be the definite determination of a reprimand in another case.

Admonishment Case Studies

Admonishment becomes particularly significant in the realm of trial court proceedings and appeals. The legislature is concerned about the potential for frivolity in the judicial system, which is why they specifically enacted California Code of Civil Procedure §§ 128.5 and 128.7, both of which deal with the power of the court and attorney to deter frivolous litigation. Section 128.5 makes provision for trial court admonishment for those that act in bad faith or without substantial justification in maintaining various types of proceedings. Section 128.7 deals with trial court discretion and attorney sanctions for frivolous litigation.
C.C.P. 128.5(a) states: "The court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." However, if a party is presenting a proposed statement of decision and does so based on a risk rationale, then remand may not be necessary if the appeal is ultimately held to be frivolous due to the other circumstances of the case.
In the case of Young v. El-Batrawi (2002) 112 CA4th 1410, the Court of Appeal discussed the possibility of remand as moot due to the frivolous nature of the appeal in the case. The trial court had made a statement of decision against the defendants on several issues. The defendants sent a proposed statement of decision which would have arguably created a different outcome. The court, however, found it prudent to address the issues within the statement of decision. However, on appeal, the defendants argued the contrary, causing the Court of Appeal to make the remarks above because they found the appeal to be frivolous. The court stated: "Although Defendants sent a proposed statement of decision to the trial court arguing that the prior rendition of the judgment in this case was error, they clearly acted contrary to that position in pursuing this appeal. It does not require much effort to perceive that the issue raised on appeal will be decided in the same manner as the trial court and that the appeal is frivolous."
The appeal in Jost v. Toothaker (1992) 11 CA4th 1922 was also considered to be frivolous. The Court stated: "We agree a statement of decision should be prepared to explain the basis for the award to appellants; however, we do not find remand is necessary…. The trial court stated its reasons for its award orally during trial. The trial court was under no obligation to prepare a statement of decision (see Code Civ. Proc., § 632). And, contrary to appellants’ argument that they had previously requested a statement of decision on the issue of damages, at no time did appellants request a statement of decision regarding the issues before us. Although it would have been preferable for the trial court to have set forth its reasoning in a written decision, "we will not penalize respondent by remanding in order to enable appellants to ‘have a second bite at the apple’ … "
The court concluded: "We find the appeal here is frivolous. We observe this as just another example of how appellants were attempting to raise yet another baseless issue as a ground for denying respondent his costs…. While defendant candidly admits he is simply taking any "shot" at plaintiffs seeking to set aside the judgment, Noll v. Carl, 192 Cal.App.3d 867, tells us a frivolous appeal is grounds for awarding sanctions."

Defending Against a Court Admonishment

It is important to remember that defendant’s lawyers can argue against an admonition at any time, and even prior to the case being called. When a lawyer learns that there are potential admonitions in a case, the lawyer should immediately speak with the prosecutor and see if there is a way to resolve the issue prior to court. When the judge calls the case in open court, a criminal defence lawyer can ask to speak with the prosecutor and the judge in advance of the case and again express concerns about an admonishment. In many instances, prosecutors will agree that an admonishment will not be in the interest of justice. If the prosecutor agrees, that should relieve the obligation of the judge in admonishing the defendant.
If the defendant believes that the admonition is of a significant nature, a motion may be warranted. A motion in limine may be filed with the court setting aside the Admonishment. In some instances, when the defendant enters a plea, the admonishments will be made on a single day or a plea in another state. If there are other proceedings, it is incumbent on the defence lawyer to try and avoid the admonishment by discussion with the prosecutor prior to the event.
It has been recommended that a record should be made of the scenarios that would cause a defendant to be indelibly prejudiced by an admonishment. In making the record , it should be noted whether the plea in the current case was made in reliance on the belief that the plea would not result in an admonishment. Each case is different and varies as to the ability of the defence to pursue relief in making the creation of a record. Some judges have been steadfast in admonishing whether specific objections are raised or not. In other cases, judges have been sensitive to the concerns expressed by the defence. It has been recommended that if the admonishment is provided and a record has not been made, that the appealary rights be preserved via speedy filing of a post-plea motion to reconsider the plea.
There are a number of points to be raised in front of the court if the admonition is not agreed to. The defence should argue that consideration should be given to whether the admonishment would result in an indelible prejudice to the defendant. If the defendant can argue specific facts that are to be relied upon the defence may better be able to convince the Court to withhold an admonition. The defence might argue that the defendant entered the plea in reliance on the belief that the plea would not result in an admonishment.