Feisty said on April 09, 2009  

You may be right that misprison of a felony is punishable by up to a year in jail, but it seems it would be very difficult to prosecute, and probably a waste of time and money.

If I was asked why I failed to report a crime (assuming that there was rock solid evidence that I had failed to report a crime), I might respond by saying that I don't think it's my obligation to help the state to lock people up. I'd probably make a first amendment claim as well, as requiring citizens to report felonies means compelling speech.

 Ken Lammers said on April 30, 2009  

Actually, it would be quite easy to prosecute in any number of cases. I've lost count of the number of times I've been in court and the defendant's defense was, "I was just there judge. I didn't know he was going to steal the cigarettes / sell drugs / shoot him." Combined with the fact that the defendant never reported the person who committed the crime it makes a solid case.

Under unchanged and ancient common law (misprision), it is your duty to help the State catch those whom you've observed committing felonies and the 1st Amendment doesn't protect against compelling speech - it protects against the forbidding of speech.

 Donald said on April 30, 2009  

Interesting post. You don't go into the elements though, and nor does Blackstone in that snippet. Mens rea: "knowing of the felony" is obviously a factual element. But as for the state of mind during the "concealment" -- would that be intentional? Specific intent ? Willful? Strict liability?

And actus reus - would there be some action required? Or simply a failure to act? If the latter, what excuses are available? Some degree of inability would presumably excuse a failure to act...

I'm thinking that the crime is not prosecuted all that much (if ever) because these questions are too troublesome (and the "thou shalt rat on your neighbor" vibe is icky enough) until the facts reach the level of accessory after the fact, after which point you don't need the misprision theory in order to find criminal liability.

 Ken Lammers said on April 30, 2009  

Personally, I think it's one of those laws which was probably seldom used, wasn't adopted as part of the MPC and then fell out of teaching (because it wasn't part of the MPC) - which explains why, even in a common law State such as Virginia where misprision is still good law, it is not well known.

The elements are fairly simple:

1. Obtain knowledge of a felony, &

2. Fail to report the felony as soon as doing so will not cause immediate danger to the person with the knowledge.

The intent would be general in nature - intending to not report - rather than specific - intending to allow the offender to get away with felony X (something not mentioned in any formulation I've seen of misprision).

 Shiv said on July 13, 2009  

§ 1-200. The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.
---------------------------

Misprision of felony has NOT been the common law in England since circa 1967.

So it is not the common law of Virginia, then??

 Ken Lammers said on July 13, 2009  

This is the current form of the statute passed in 1776 leaving the common law and general acts of parliment in place until such time as the General Assembly altered them. In 1792 the General Assembly abandoned acts of parliment.

I think it's plain that the statute was meant to preserve the law as it stood in 1776. Even if that wasn't the meaning, The Criminal Law Act 1967 would have no effect in Virginia and the common law stands.

 Anonymous said on July 01, 2010  

I realize here I am, a layperson, coming to this a year after the last comments. Here is how I see it being applied in Virgina.

Anyone pay attention to the recent indictment against members of the Outlaw motorcycle club? How about laying a charge against every single member of that club who the government believes had knowledge of any of the felonies and failed to report them.

If the government could show the club was aware a certain thing was a felony, commonly known to the public as a felony, and the commissions of that offense was discussed during a club meeting, and an officer (undercover) was present then all present could be charged, couldn't they?

Might not get convictions on other charges but locking every single member up for a year might have an impact.

 Anonymous said on October 22, 2010  

I am not a lawyer. Just a student. Yet I have seen conflicting definitions/ explantions of misprision. This is one explanation that I have seen more than once. :

at common law, the misdemeanor of observing a felony and failing to prevent it, or of knowing about a felony and failing to disclose the fact of its occurrence, or concealing the felony without any previous agreement with or subsequent assistance to the felon. "Misprision of felony" should be distinguished from the crime of being an accessory before- or after-the-fact, which requires some agreement with the party committing the felony. See 217 A. 2d 432, 433. The offense of misprision of felony has not been accorded general recognition in the United States. Perkins & Boyce Criminal Law 576 (3rd ed. 1982). Today, in order to be guilty of the federal crime of "misprision of felony," in addition to knowing about a felony and failing to disclose information about it, one must take an affirmative step to conceal the felony. See 38 F. 2d 515, 517; 18 U.S.C. §4

It is said in more than one legal study source that misprision has fallen under more modern terms of understanding. There must be a step towards concealment of the act. It is also been theorized, inconsistently, if it has to be a person of authority or just any citizen. Since it is a federal statute it does not seem that states can make up their own statutes that it is just person of authority with a DUTY to act. Since it is a Federal statute does that not limit it to government or by requriing all states to mean it is any citizen and they have no right to make statutes to vary in types of guilt violate supremacy clause?
The lying to a police when an investigation takes place saying they did not know who did it..under common law would be a misprision. If it is only for person under authority it does not mean anyone. Personally I do not think there could EVER be enough prisions to hold the misprisioners prisoners floating about in our land.

 Ken Lammers said on October 22, 2010  

I think you are pretty close to stating the federal law on misprision. However, that is not the common law and it has nothing to do with the laws of the Various States, which can vary from the federal law as long as they do not violate the constitution.

Concealing a felony after an act is being an accessory after the fact, not misprision. Lying to an officer may be an offense unto itself, but the crime of misprision would merely be having observed a felony and not telling the officer.

Misprision is probably not the law in the many States which abrogated the common law and passed their own version of the Model Penal Code. Virginia never did this. And, it is only a misdemeanor, so you won't see a bunch of officers in Virginia going out of their way to hunt down violators.