07 April 2009

Misprision of a Felony:
Failing to Report a Felony

I was prepping up cases yesterday and Mark started tweeting about a case, bringing up misprision (yes, that's the correct spelling). He'd been dealing with it in federal court, where it's a 3 year felony per 18 USC 4).
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
Admittedly, I did not know there is a federal crime of misprision of a felony. In fact, I don't think I'd heard of misprision since law school. So, I got curious and went looking to see if misprision of a felony is still good law in Virginia.

To begin with misprision of a felony is a common law crime in Virginia. Of course, this is no problem in the Commonwealth.
§ 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.
No statute has been passed altering the common law in any way. In fact, the only statute mentioning misprision is referring to misprision of treason - an entirely different crime. As well, the case law is littered with cases concerning misprision of a clerk, which isn't helpful at all. Nevertheless, there are some mentions of misprision of a felony.

However, none of the mentions define misprision itself. The majority of the cases are older and hold up misprision as something everyone knows in order to define accessories against it. Even the case which is most important in confirming that misprision of a felony is still good law in Virginia, Juniper v. Commonwealth, 2006, No. 051423, only mentions the law as a reason a witness was given immunity by the prosecution; it never offers a definition.
When questioned about the events on the day of the murders, Murray answered, "Your Honor, I plead the Fifth." The trial court called a recess and outside of the presence of the jury, the Commonwealth stated its intention to offer Murray immunity. 10
. . .
10 The Commonwealth determined Murray could incriminate himself as an accessory after the fact or give information that could lead to a charge of misprision of a felony offense.
Thus we see that in 2006 misprision of a felony is still a part of Virginia law, but we still don't have a definition.

So, where do we find a definition? Well, we go where every good American legal theoretician goes - Blackstone.
XI. Analogous to the preceding offence is misprision of felony ie the concealment of a felony which a man knows of but never assented to for if he assented to it this makes him either principal or accessory. The punishment of this misprision in a public officer by the statute Westrn 1 3 Edw 1 c 9 is imprisonment for a year and a day in a common person imprisonment for a less discretionary time and in both fine and ransom at the pleasure of the crown which pleasure must be observed once for all not to signify any extrajudicial will of the sovereign but such as is declared by his representatives the judges in his courts of justice voluntas régis in curiâ non in camera.
Concealment in this case, does not mean actively hiding something. Instead, as is made clearer in the section on misprision of treason, this type of concealment is merely a failure to report as soon as possible.
This concealment becomes criminal if the party apprised of the [act] does not as soon as conveniently may be reveal it to some judge of assize or justice of the peace.
Basically, the criminal act in misprision of felony is seeing a felony and not telling a law enforcement official as soon as possible.

Although Blackstone sets out that misprision of felony tops out at 12 months for regular citizens (a misdemeanor), there is no set punishment for misprision of felony under Virginia statutes so the punishment defaults to a class 1 misdemeanor (max 12 months &/or $2,500).
§ 18.2-12. A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.
Just remember folks, the next time you see a felony in Virginia and don't report it, it could be you spending time in jail.


Feisty said...

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...

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...

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...

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).

Shiv1971 said...

§ 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...

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...

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...

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...

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.

Anonymous said...

If you do the research, you will find that mainly attorneys plead guilty to this offense. It has been said that attorneys are all guilty of federal misprision of felony. How much legal business would a lawyer get if she was known to pick up the phone and call the FBI whenever she learned of felonious conduct? Sure, you may say that attorney's are not required to 'rat out' clients, due to attorney-client privilege, but if the client has told anyone else, or if there are co-defendants not represented by the attorney, the information is not privileged and the attorney is a felon if she doesn't pick up the phone and 'drop a dime.' Nasty business.

Nietzsche said...

I am an attorney. You misinterpret the law. Not only is SC the only state to have ever successfully prosecuted anyone for this “crime”, you are wrong about the concealment element, even under federal law. It requires more than mere knowledge. Some affirmative act towards concealment is required. See, eg, http://georgialawreview.org/eleventh-circuit-determines-petitioners-actions-constitute-an-affirmative-act-of-concealment-in-misprision-of-a-felony-case/ and http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/15/15-30022.pdf.

Ken Lammers said...

But, of course, neither federal or South Carolina precedent would apply to Virginia and Blackstone - at least those portions we all cherry-pick to prove our points - would.