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.