The Supreme Court of Virginia Rejects Summary Contempt for Witness’s Alleged Intoxication in Orndoff Case
Orndoff v. Commonwealth, Record No. 240394 (Va. Sept. 25, 2025)
In today’s sole opinion, a fractured Supreme Court of Virginia discusses under what circumstances a trial court has the power of summary contempt.
Majority Opinion. Katie Orndoff testified as the complaining witness in a domestic violence trial. During her testimony, she displayed unusual behavior (rocking in her chair, gesturing with her arms), gave testimony the trial court characterized as sometimes “incoherent,” and repeatedly referenced the defendant’s arrest and incarceration despite court instructions not to.
After several violations of the court’s instruction, defense counsel requested a sidebar. During the sidebar, the trial court remarked that Orndoff appeared to “be under the influence of narcotics or another type of substance” and asked her if she had taken anything that could impair her. Orndoff first responded that she had stopped taking her antidepressant and mood stabilizer—medications she had taken for over 10 years—and that without them she felt very stressed and anxious “with this whole situation.” Under further questioning, she also admitted that she had smoked marijuana before driving to court. The trial judge held her in summary contempt for “testifying while voluntarily intoxicated” and sentenced her to ten days in jail. Despite several post-conviction motions, the trial court held firm in its ruling, concluding that a witness who voluntarily consumes intoxicating substances and testifies in an impaired state causing a mistrial is guilty of contempt.
A divided panel of the Court of Appeals reversed the contempt conviction. But on a rehearing en banc, the full Court of Appeals was equally divided, so the trial court’s decision was affirmed. The Supreme Court of Virginia, however, reversed the contempt conviction, finding insufficient evidence to support it for several reasons.
The Supreme Court emphasized that direct, or summary, contempt—which, unlike indirect contempt, allows immediate punishment without a hearing—is reserved for exceptional circumstances where misconduct occurs directly before the judge. If the judge must rely on evidence beyond personal observation, full due process protections are required (notice, hearing, counsel). The Supreme Court concluded that the evidence the judge personally observed didn’t establish beyond a reasonable doubt that Orndoff’s behavior was caused by voluntary intoxication, making summary contempt inappropriate.
Importantly, the Supreme Court found that the trial court fundamentally contradicted itself regarding its reliance on Orndoff’s admission to smoking marijuana. While the trial court’s post-conviction letter opinion stated that its decision did not “in any way” depend on knowing either “how, when or where” Orndoff became intoxicated or the substance ingested, the Supreme Court found this to be “in clear contradiction” to its contemporaneous statements during the contempt proceeding, statements to counsel and the jury, and its prior orders. The trial court also stated that Orndoff’s admission was “largely unreliable,” and the Supreme Court found that it was bound by this credibility determination.
The Supreme Court found “numerous inconsistencies” between the trial court’s factual findings and what was reflected in the video, audio, and transcript of the proceeding. It found that there were no physical signs typically associated with intoxication, such as slurred speech or bloodshot eyes, and that there were alternative explanations for Orndoff’s behavior, such as medication withdrawal and the proffered testimony of two detectives that this was her typical non-intoxicated behavior. In the end, the Supreme Court concluded that summary contempt was inappropriate and that if the trial court believed contempt was warranted, it should have proceeded on an indirect contempt hearing.
Concurrence. Justice Mann pens a concurrence that provides practical guidance for trial judges on handling courtroom disruptions without immediately resorting to incarceration. He first notes the importance of understanding a witness’s perspective. Unlike lawyers and judges who are familiar with the courtroom and its procedures, many witnesses “feel anxiously adrift and become lost in the courthouse,” experience “fear and overwhelming intimidation,” don’t speak the “awkward language of the law,” and find testifying “a chilling, disorienting, intimidating, and overwhelming process.” This was especially true for Orndoff, who was a domestic violence complainant testifying to brutal abuse “within feet of her alleged abuser.”
Though recognizing the challenges of being a trial judge, Justice Mann counsels a graduated approach to courtroom management. Educate and explain expectations and procedures in plain English. Request that the attorney who called the witness or a victim witness advocate explain privately how to answer questions without revealing objectionable testimony. Warn of contempt. Impose a suspended fine, then a fine, then suspended jail time, and only when these numerous steps do not work, then impose actual jail time. Though this may seem time-consuming, Justice Mann points out that if conduct persists after these many steps are followed, summary contempt becomes appropriate because the conduct has now clearly occurred before the judge in the courtroom. He concludes: “The law says what it says. But upholding the law with the restraint described in this concurrence adheres to the emphasis we place on decorum and courtesy in Virginia courtrooms. It also has the salutary benefit of cultivating efficiency and decency.”
Dissent. Justice Chafin, joined by Justices Kelsey and Russell, argued that the majority improperly reweighed evidence rather than applying the required deferential standard of review, which presumes the circuit court’s findings are correct and asks only whether any rational factfinder could have found contempt beyond a reasonable doubt. The dissent contended that the trial court directly observed all essential elements of the contempt—Orndoff’s progressively deteriorating testimony, erratic physical behavior, repeated violations of instructions not to reference the defendant’s incarceration, and overall disruptive conduct that caused a mistrial—and that these firsthand observations, even without Orndoff’s marijuana admission, were sufficient to establish voluntary intoxication. While acknowledging some inconsistencies between the circuit court’s written orders and the video record were “troubling,” the dissent deemed them “inconsequential” because summary contempt depends on what the judge witnessed in the courtroom, not the precision of later written descriptions, and the brief questioning of Orndoff constituted permissible clarification rather than impermissible fact-finding. The dissent warned that the majority opinion “needlessly limits the ability of trial courts to manage courtroom misconduct as it occurs” by effectively curtailing judges’ authority to summarily punish disruptive behavior observed directly in their presence, which is essential to maintaining courtroom order and the administration of justice.