“If you see something, say something.” Though not exactly like this saying, misprision of felony has everything to do with the knowledge of, concealing, and not reporting a felony. Misprision of felony dates back before the founding of the nation all the way back to England under common law. The law was taken from England and used in all common law countries, including the early days of the colonies. Currently, most common law countries have abolished misprision of felony. This includes England, Wales, Scotland, Northern Ireland, Ireland, and Australia. However, it has been replaced in some of these districts with a more narrowly defined rule that states that it is only a crime when the individual accepts compensation for not reporting the felony.
Generally, though, if you are in the United States, you are still under the traditional common law rule. So if you are afraid of the feds coming after you for a crime that you saw, witnessed, or for whatever reason know about, don’t actively conceal it. Further, it is usually advisable to not lie to the police, regardless of the situation. But what is the United States’ version of the misprision of felony law? And how is it currently being applied? Though this guide won’t delve into every state’s laws, it serves as an introduction to the concept and your launching off point for whatever you need to know regarding misprision of felony.
What Is The Crime Of Misprision Of Felony?
Currently, misprision of felony is codified in 18 U.S. Code § 4 – Misprision Of Felony. Originally made a law in 1789, the current version in the code listed was created in 1909. Whereas the original common law version from England only required knowledge of the law for you to be required to report it, the United States federal law version requires there be some form of concealment. It reads as follows:
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.
As you can see, the United States version is seemingly simple and broad; however, there still are some engrained nuances that make it different than what was applied back in England. Rest assured, if you do see something, for the majority of times, there isn’t a positive requirement to report anything. Let’s break down the law step by step to understand what is going on in the language.
What Are The Elements Of the Crime?
The elements of a crime or misdemeanor are exactly what they sound like. They are what is required for the government to convict an individual of a crime. The state or federal government must present each element to a jury to get a conviction. So what are the elements of misprision of felony? Here is the original language of the code: “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.” The bold portions of the statute show the elements of the crime, but let’s go through them one by one.
Not in the language, but assumed by the language of the statute, is the fact that a felony must have actually occurred. If no actual felony has taken place, then it would be absurd to find someone guilty for not reporting a crime they falsely believed happened. A good example would be the following: A bystander witnesses a young kid break the driver’s side window of a car, get into the car, and drive off. The bystander feels sorry that the young kid has to fall back on a life of crime to support their family. So the bystander commits to concealing the facts in any way possible and will refuse to talk to the police if asked. Unbeknown to the bystander, the kid was actually quite well off but just a complete airhead and locked their keys and cell phone in the car. So the kid decided to break into their own car to retrieve them. You can’t steal your own car, nor can you commit a crime against yourself. So regardless of the mental perception of the bystander, because there was no underlying crime, there can be no misprision of felony.
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States
Knowledge is a powerful thing. Here, for misprision of felony, knowledge is required and an element of the crime. However, there are two components of knowledge that are important to discuss. First, there has to be the simple knowledge that the event happened. Using the example above, the bystander must know that the actual event happened – that a kid physically got into the car through the window. Without actual knowledge of the event, there can be no concealment or lack of reporting. Further, the method of obtaining the knowledge doesn’t have to be through eyewitness. As long as the bystander knows or learns that the events actually occurred, that is enough to satisfy the first part of knowledge.
The second aspect of knowledge is a little more nuanced. There must be knowledge that the actual event occurred, and it is a felony. Let’s read that again. For the state to convict someone of misprision of a felony, they must show convincing evidence of both knowledge of the event and knowledge that the events constituted a felony. In many instances this is a low bar. For example, most white-collar crimes like embezzlement are easily viewed as a felony. Further, kidnapping is easy to tell that it is a felony. Or to say it in a different light, it would be more difficult to say you didn’t know kidnapping was felony. The purpose of this is to protect against truly not understanding what is going on.
Here is a new hypothetical. Let’s assume that there is a bystander who witnesses an adult take a car with a kid in the backseat. However, the car happened to just be unlocked and the adult stole the car with the intent to sell the kid on the black market. This is obviously a felony. However, though the bystander knows the events happened, they don’t know that a felony took place. Because there can’t be both types of knowledge present based on the facts, there can’t be misprision of felony. The bystander had no knowledge of the felony, and therefore can’t be convicted. This was recently restated in a 2017 court case in the 9th circuit court of appeals in the case of United States v. Olson. Here, the court concluded that for the government to prove knowledge, they must prove that the defendant knew that the action or principle crime was that of felony specifically, not just a misdemeanor. This is important to note. The court waxed poetic that it wasn’t the intent of the common law rule to punish people for not reporting the stealing of an apple but of something much more significant.
A single word makes all the difference in this law. It could mean the difference between going to jail or just being an innocent bystander. This single word could mean all the difference in a person’s life. The statute as written lists two requirements once there is knowledge of the felony. The first is that there is concealment. But that is all it says. How do you know what concealment is? Well, it can be pretty easy. Generally, there must be some proactive furtherance of the underlying felony. What does “proactive furtherance” mean? Simply put, it means that the bystander must do something to aid, hide, or give shelter to the criminal. This would be akin to loaning them a car to drive off in, or giving them money to buy new clothes. It could also mean approving paperwork that is obviously wrong, forged, or illegal in someway. There are many different types of aid that could be given. Generally though, it just needs to be a discretionary action taken with the intent to help the individual(s) that committed the underlying crime. This is an important distinction because this means that just being a witness doesn’t mean you by default must report the felony or face charges. On the contrary, if you are just a witness to a felony but refuse to testify or report the crime, you can’t be charged with misprision of felony. You must also “conceal” or “proactively aid” the perpetrators with knowledge that the actions that took place were a felony.
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
The last element to the crime of misprision of felony is that the individual does not report the felony to the proper authorities. There is a distinction that has been made through application by the courts on this element that is very important. The language is clear. All that needs to be evidenced is the lack of reporting to show the final element. Did you report the crime? No? Then you can be charged. However, this unnecessarily casts a very wide net across all types of individuals, including regular citizens that may not understand what is going on, what is required for reporting, or even how to report a felony.
In application, the federal statute for misprision of felony is seldom used for this reason. The courts do not want to pull in defendants for a crime of confusion. So instead, the statute is applied, in general (not a guarantee for any future action), to those that have some type of duty to report the offense. This usually means that the individual is an official in some capacity that is overseeing people’s work. A bystander witness has no positive duty to report any type of crime or offense. However, there are some circumstances, particularly in the world of government administration where certain officials do have a duty to report certain crimes and offenses. If you are one of these, you would probably know, and if you don’t, then you may want to consult your employee or management handbook. Many government officials have a proactive duty to report crimes. If they don’t, they could be held for trial under this statute.
Is It a Federal Or State Crime?
As mentioned, the crime of misprision of felony is codified in the federal statutes. Federal statutes apply anywhere the United States has jurisdiction. This would include all of the states and territories. However, there are state laws as well. State laws by definition differ on many subjects due to the independent nature of each of their judicial systems. Though, most have gotten rid of misprision of felony and instead rely on accessory after the fact, compounding a crime, making false statements to the police, and obstruction of justice. These crimes still generally are able to capture the essence of misprision of felony – the essence being that the individual knows that a felony took place and conceals the felony from the authorities in a proactive and aiding way. The states don’t want to criminalize the act of being silent; they want to criminalize helping actors that hurt the general public. This is seen in the fact that someone who uses their fifth amendment right against self criminalization cannot be considered a misprision of felony. So the point here is that, yes, it is technically just a federal crime. However, any actions to aid the felonious intent of the perpetrators could most likely easily fall under another state statute, such as accessory after the fact or obstruction of justice.
Is It Still Being Used?
Generally, the statute is not being used. There are few cases that occur on a yearly basis at the federal level that use the crime of misprision of felony. It is generally seen in actions taken by officials in very grievous ways. Further, as mentioned earlier, it is generally only being used against officials that have a proactive duty to report crimes that occur in their respective scope of office. The number of people that this would actually apply to is very small, and the desire to prosecute under certain conditions is also most likely very small.
So Why Should I care?
You should care because misprision of felony is not the only way a state or the federal government could come after you if you are in any way connected to a felony actor. You should care because, even if you don’t fall under the narrow scope of a government official with a duty to report, there are laws on the books to cover the general public. For example, under accessory, generally, you only need to aid the bad actors in some small way with knowledge of the felony act to be tried as an accessory to the crime. The charges could be just as bad. You should care because if the government wants to try you under the statute, it doesn’t have to limit itself to the narrow scope of government officials. The statute doesn’t read with the inclusion of government officials. That is only how it has been applied. It could be opened to encompass a new class of people with you as the first victim and target.