concurring in part and dissenting in part.
The appellant was convicted of three contempts of court. The first arose from his affidavit filed in open court as part of a pleading concerning the contempt of one Skolnick. - The second was his refusal to answer a question while on the witness stand. The third arose from the contents of a pleading he filed in response to his own contempt charges. Under Indiana law these offenses, if established, are all direct *1047contempts. Kerr v. State (1923), 194 Ind. 147, 141 N.E. 308; Coons v. State (1922), 191 Ind. 580, 134 N.E. 194; Matter of May (1976), Ind.App., 358 N.E.2d 138 (pleadings); IC 34-4-7-2 (refusal to testify). Thus, appellant’s arguments premised upon the failure of the court to follow the statutory requirements applicable to indirect con-tempts avail him nothing. For the same reason his jurisdictional argument which attempts to urge that jurisdiction to punish indirect contempt follows the case in which it occurs is without merit. See Matter of May, supra.
Secondly, while I agree with Judge Staton that there was no basis for intervention by attorney Ruman, I believe it was proper to treat him as amicus curiae. Certainly the most familiar example of service as friend of the court is that of advising the court through presentation of some pertinent legal analysis. However, the term is not restricted to that usage. As stated in 4 Am.Jur.2d, Amicus Curiae § 1, p. 109,
“. . . [T]he term includes persons, whether attorneys or laymen, who interpose in a judicial proceeding to assist the court by giving information, or otherwise, or who conduct an investigation or other proceeding on request or appointment therefor by the court." (Emphasis added)
See also State ex rel. Reichert v. Youngblood (1947), 225 Ind. 129, 73 N.E.2d 174.
It appears to me that only one issue of substance appears in this case. Even though the acts involved constituted direct criminal contempt of court, were they properly punished through a summary proceeding conducted by the judge before whom they were committed?
Our ordinary notions of due process dictate that before someone is punished ■through the operation of pur legal system he is entitled to a trial, and a trial conducted by someone other than his accuser. Yet an exception has always been recognized concerning the commission of direct criminal contempts. As the Supreme Court stated in 1821 in Anderson v. Dunn, 6 Wheat. 204, 226, 19 U.S. 204, 5 L.Ed. 242:
“But if there is one maxim which necessarily rides over all others, in the practical application of government, it is, that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them . The unreasonable murmurs of individuals against the restraints of society, have a direct tendency to produce that worst of all despotisms, which makes every individual the tyrant over his neighbor’s rights. That ‘the safety of the people is the supreme law ’not only comports with, but is indispensable to, the exercise of those powers in their public functionaries without which that safety cannot be guarded.” (Emphasis added)
The balance for this principle arises from our recognition that in exercising the power of self preservation the extent of the power assumed must be “the least possible power adequate to the end proposed.” 6 Wheat, at 230.
Within this context two principal themes have emerged concerning direct contempt of court.
In order to justify summary disposition the contemptuous conduct must have occurred within the presence and knowledge of the court. The reason is obvious. Only then can we be assured that no factual issue exists as to what occurred. Admittedly, indistinct or troublesome aspects of this requirement may occasionally arise. They are to be met, however, through our recognition that despite the personal knowledge held by the court, the contemner will be afforded notice necessary to due process, the opportunity to be heard in explanation or mitigation and the right to appellate review. See, e. g., Taylor v. Hayes (1974), 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897. (Although some decisions, notably Sacher v. United States (1952), 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, indicate this requirement alone may justify summary treatment, the more recent decisions clearly demonstrate this is not so. Taylor, supra; Mayberry v. Pennsylvania (1971), 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532.
*1048The other justification necessary to summary punishment imposed by the judge before whom the conduct occurred is generally referred to as the self preservation function. That is to say, in order to justify summary treatment there must be .a rational basis for a reviewing court to conclude that there is a legitimate nexus between the court’s action and the preservation of the respect and orderly administration which the judicial system must maintain to fulfill its role in government. See Mayberry, supra; Cooke v. United States (1925), 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767.
While Mr. Chief Justice Taft, writing for the majority in Cooke, spoke of the delicate balance necessary to insure that the court’s actions were indeed preserving rather than destructive,1 until the last quarter century little scrutiny was given to reviewing the particular circumstances of the case against the need for preservation. In my view, Cooke spoke to the propriety of a judge permitting another to hear the charge when he could do so without impairing the proceedings or the respect necessary to sustain the judicial branch of government. The more recent cases have considered when he must do so.
Several considerations have emerged, and it should be borne in mind that the essence of the scrutiny is not whether contumacious conduct must go unpunished or that all deterrent effect of the punishment must be foregone. It must be equally recalled that the boundaries of due process are designedly vague and that flexibility exists as to means and procedures to affect its substance. See, e. g., Bute v. Illinois (1948), 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986.
Following Mr. Chief Justice Taft’s comment some distinction has been drawn as to whether the conduct is of a type calculated to personally affront the judge, Ungar v. Sarafite (1964), 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, or whether the judge had actively engaged in combat with the con-temner so that his own misconduct was a necessary consideration.2 Offutt v. United States (1954) 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11.
The determination that Sixth Amendment rights to trial by jury exist in some criminal contempts has a necessary impact, but it is one we need .not consider herein since it is fixed upon the basis of. the severity of punishment. See Bloom v. Illinois (1968), 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522.
Of great significance, however, are the cases which attempt to resolve the question of why the court may act summarily upon the basis of when it acts. Mayberry, supra; Taylor, supra. Their basic thrust appears to be that when the court waits until the conclusion of several days or weeks of trial to adjudicate the contempt, the need for preservation is so diminished that it is outweighed by the need that “justice must satisfy the appearance of justice.” 91 S.Ct. at 505.
*1049In this context it is relatively easy to transpose from other cases language employed to scrutinize whether the allegedly contemptuous conduct was of a variety that might not demonstrate the necessary nexus between preservation and summary treatment. See, e. g., In re Michael (1945), 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30 (perjury); In re McConnell (1962), 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (attorney’s argument) and the discussion in United States v. Seale (7th Cir. 1972), 461 F.2d 345, 369.
The logical extension of these concerns is to conclude, as Judge Staton’s opinion herein appears to me to do, that summary punishment adjudicated by the judge before whom the conduct occurred can no longer be permitted except where it is employed at the moment the conduct occurs. This follows from the notion that such punishment is permissible only to prevent immediate interruption and obstruction of the proceeding at hand. That only then can it be said that the nexus to preservation appears. Seale, supra.
The basic problems with such reasoning were carefully examined by Judge Frank in his concurring opinion to the Court of Appeals’ decision in United States v. Sacher (2nd Cir. 1950), 182 F.2d 416.
Because it addresses conduct which has already occurred, the preservation function served by summary punishment is wholly prospective and “must be justified solely by the fact that it will tend to prevent future misconduct — either (1) in the future course of the same case or (2) in other future cases.” 182 F.2d 456. In other words, even for the sole purpose of maintaining the continuity of a proceeding, summary punishment can have no more than a future effect; it acts to maintain control only to the extent it serves as a deterrent.3
It is urged that in any event summary punishment cannot be justified simply to deter interruptions of future cases.4 Yet demoralization of the court’s authority before the public clearly appears to have previously been recognized as a proper justification in prior decisions. See In re Oliver (1948), 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
While criminologists still disagree as to the extent punishing one deters others, I agree with Judge Frank that, at least in some cases, punishment of an offender may be both a direct and an indirect deterrent to others. It may directly deter others from engaging in similar conduct. Its indirect effect occurs through creating or strengthening broad social habit and perception as to how justice should be administered. It fosters a public attitude of respect. 182 F.2d at 458.
In this latter regard another point bears mention. In Mayberry the Court stressed the need vis-a-vis the defendant that we must be concerned not only with justice, but with the appearance of justice. See also Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (pro sé representation). I agree with this concern. However, its root must lie not with the individual accused (who is rarely likely to thank his prosecutor) but with a broader base of which he is merely a part. How does society in general perceive the appearance of justice? I suggest that on this basis there is a counter-balancing consideration. On the one hand society will not perceive the appearance of justice in the image of a vindictive heavy-handed judge meting out punishments for minor breaches of decorum or merely “spirited advocacy.”
*1050On the other hand I believe society perceives justice as more than the image of an effete system of courtroom proceedings to be conducted without respect by men and women lacking in honor and unable to quell disturbance.
The power to not only punish for contempt, but to do so summarily, does enforce the perception of justice at least where the right of appeal is protected. Just as the most valuable weapon to organized labor in the collective bargaining process is most probably not the strike, but what may be accomplished under its threat, so the effect of summary punishment for contempt may have its real nexus to preservation simply in knowledge of the court’s proper power to act. From this it may be deduced that in the recognized absence of such power it would indeed be difficult to maintain not merely order, but the very acceptance necessary for the success of the judicial system. Even with the ability to punish instanter, but not otherwise in summary fashion, the recalcitrant might elect the disruptions of that process to the trial-in-chief.
As a practical consideration, then, a party could disrupt the proceedings and under-mine the role of the courts if the power to punish summarily is limited to instant adjudication. If the court passes the opportunity, the disrupter may proceed secure in the knowledge that only at some later date will he be called to answer. Yet if the court proceeds with citation at once and conducts the necessary hearing, by repetition, the citation hearings themselves become the disruption.
In addition, to the extent that either justice or its perception are marred by the chance that a judge through pique or vindictiveness will overreact to insult, that opportunity is magnified by requiring the judge, if he is to act at all, to do so without time to reflect. See Sacher v. United States, supra.
It appears to me that taken together these considerations disclose the value and necessity for affirming the power of a court to summarily impose punishment for direct contempt not limited to instant adjudications permissible solely for the purpose of insuring the continuity of the proceeding. It appears equally that due process of law is not a necessary barrier to that result.
When, then, may summary punishment be imposed by the judge before whom a contempt was committed? Mayberry and Taylor rule that where parties or counsel are involved in trial, the court may not wait several days until the trial is concluded. Furthermore, in Taylor the fact that the court told Taylor during the trial that he was in contempt and in most instances gave opportunity for response shortly thereafter was insufficient. While the Court seemed greatly concerned about the judge engaging in combat per Offutt, it did treat the con-tempts as not finally adjudicated until sentence was imposed.5 94 S.Ct. 2702.
Since Cooke it has been clear that it is judicially proper for a judge to defer a contempt adjudication to a different judge. It is equally clear that a member of the judiciary should weigh in the given instance the benefits to be derived from recusal, and should not hesitate to disqualify himself merely to avoid the burden of a separate hearing. However, these considerations do not rise to the level of a constitutional due process mandate.
It appears to me that an ingredient for the nexus between summary punishment and the preservation function is that the court promptly advise the person in question that the conduct is, or verges upon, contempt and that if continued with the same or other disrespectful conduct citation will occur.6 When this is done I believe the rational basis necessary to sustain summary action exists and comports with due process at least where the opportunity to be heard is afforded and the contempt adjudicated *1051before the recommencement of trial upon the next day, or in the absence of a continuing trial, as an early order of business upon the next day.
Upon this basis, however, I am forced to conclude that Jacobsen was entitled to a hearing before a different judge for the first contempt, and therefore that conviction must be reversed. However, the court was not without jurisdiction, and accordingly conviction for the two contempts which occurred at the hearing was proper.
I would reverse and remand the conviction for the first contempt for further proceedings and would affirm the second and third convictions.
. The often-cited passage states:
“The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable. But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that, where conditions do not make it impracticable, or where the delay may not injure public or “private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.” 267 U.S. 517, 539, 45 S.Ct. 390, 395, 69 L.Ed. 767.
. Rule 42(b), Federal Rules of Criminal Procedure expressly provides for disqualification if the contempt “involves disrespect to or criticism of a judge.”
. Thus, while Illinois v. Allen (1970), 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, reh. den. 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80, recognizes that more direct methods may be required to maintain continuity, it also accepts as viable for many instances the deterrent effect of summary contempt.
. As Judge Frank pointed out, one of the problems with this approach is that it would leave the court powerless to utilize summary punishment where the offense occurred while no trial was in progress. His example placed the judge upon the bench waiting a case to be called when someone ran into the courtroom shouting that the judge was a tyrant and threw an ink bottle at him. Presumably the same quandary would exist during recesses and before or after adjournment for the day.
. There would appear to be no obstacle to imposing sentence and withholding its execution until conclusion of the trial.
. Under appropriate circumstances a person may be adequately admonished in this regard prior to the actual occurrence of any disruption or show of disrespect.