Misprision of Felony

Is it a crime to fail to report a felony?

“Misprision of felony” is a crime that occurs when someone knows a felony has been committed, but fails to inform the authorities about it. The crime originated in English common law and required that citizens report crimes or face criminal prosecution. (Common law is law originating from custom and court decisions rather than statutes.)

Due to the harshness of imprisoning people merely for failing to report a crime, most states chose not to include misprision of felony in their criminal laws. Instead, conduct that would fit the misprision definition is covered by other laws, such as those dealing with accomplice liability.

Federal Law

First enacted into U.S. law in 1789, misprision of a felony in the federal system is a felony punishable by a fine and up to three years in prison. The common-law rule criminalized simply knowing about a felony and not notifying the authorities. But contemporary federal law also requires that the defendant take some affirmative act to conceal the felony. The crime has four elements:

  • a completed felony
  • the defendant knowing about the felony’s commission
  • the defendant failing to notify a proper law enforcement authority, and
  • the defendant taking some affirmative step to conceal the felony.

(18 U.S.C. §4.)

Typical acts of concealment include making false statements, hiding evidence, and harboring the felon. Whether someone’s actions amount to concealment is for the jury to decide.

Suppose Marty knows his neighbor, Biff, is growing marijuana. Marty wouldn’t be guilty of federal misprision simply for remaining silent. But if he lies to the police about Biff’s growing, he’s committed the crime.

Although the crime has a broad definition, misprision prosecutions are uncommon. Prosecutors usually reserve misprision charges for people with special duties to report crimes, such as prison guards and elected officials. That said, nothing in the statute’s language limits it to such cases. The authorities might invoke it for certain types of crimes where the government wants to encourage reporting, like treason and terrorism.

State Law

Most states have abolished common-law crimes. So, misprision tends to exist only in those states that adopted the common law by statute or in their constitutions. A few states have enacted their own misprision-type laws. Even in the states where the crime exists, though, prosecutions are extremely rare.

As a practical matter, what was misprision under the common law is usually covered by other criminal laws, like those relating to being an accessory after the fact, making false statements to the police, and obstruction of justice.

To the extent that they remain, most misprision statutes apply to failure to report a completed felony, though some states also punish the act of failing to report a future felony. In the few states where it’s a crime, misprision is a misdemeanor.

In states where the crime exists, more than looking the other way is often required: Typically, the failure to report must be prompted by some “evil motive” having to do with the crime being discovered. For example, consider an old Massachusetts case. The defendant failed to report a missing child’s body because he discovered it while having an affair. A desire to keep the affair a secret (and avoid potential prosecution for adultery)—not a wish to obstruct justice—motivated his silence. So, the court held that he shouldn’t have been convicted of misprision. (Commonwealth v. Lopes, 61 N.E.2d 849 (Mass. 1945).)

Fifth Amendment Exception

Courts have held that the Fifth Amendment privilege against self-incrimination prevents a misprision conviction if the defendant reasonably believed that informing the authorities could result in his own prosecution. This means that most accomplices can’t be convicted of misprision. But, in one federal case, a woman who had been involved in a crime chose to talk to—and lie to—the police about her involvement. The court said that her false statements negated her ability to use the Fifth Amendment as a defense to a misprision charge. (U.S. v. Weekley, 389 F.Supp.2d 1293 (2005).)

Similar and Related Crimes

Several crimes (like the ones noted above) are similar to misprision, and the lines separating them are often hazy. In some cases, more than one law could apply to the conduct in question.

Accessory After the Fact

Each state has its own accomplice-liability laws; the elements, and sometimes even the name of the crime, may vary from state to state. But these laws generally require that the defendant do something in order to prevent or delay someone’s apprehension, and they usually cover concealing or destroying evidence.

Misprision is most similar to being an accessory after the fact because both crimes apply where there’s been some act designed to conceal the commission of a crime. Most courts consider accessory laws to be the modern—and more enlightened—version of misprision laws. For instance, one difference from common-law misprision is that accessory laws require that the person give aid to the criminal—such as harboring or warning her, concealing evidence, or helping her avoid capture.

Compounding a Crime

Compounding a crime, which is usually a misdemeanor, occurs when a crime victim agrees with the criminal not to prosecute or report the crime, or to conceal it, in exchange for something of value. Most states allow for a defense to compounding where private agreements to pay restitution are involved, as long as the amount doesn’t exceed what the victim reasonably believed was due as restitution for the crime.

Compounding laws usually apply only where felonies are involved, but some states also apply them to misdemeanors. Although many states have passed compounding laws, other laws, such as those dealing with witness tampering, may cover the same conduct.

While both compounding and misprision involve concealing a crime, misprision laws don’t require an agreement or the receipt of anything from the criminal.

So, if Lindsay intentionally runs Greg over with her car, breaking his arm and leg, and offers to pay him $500 if he doesn’t call the police, she is guilty of compounding. (Greg would also be guilty if he accepted the offer.) If Greg lies to a police officer about how his arm and leg were broken, he is guilty of misprision or one of the related crimes discussed above. He’s similarly guilty if he warns Lindsay that a witness gave the police her description and license plate number.

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