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Misprision in California?

California lawmakers are considering ways to expand the current criminal reporting law to include a requirement that anyone who witnesses a violent crime being committed upon someone younger than 16, or possibly 18, report the crime to the authorities. Current law only covers children up to 14, which angers some Richmond, California, residents who think the young people who failed to report an alleged rape and robbery being committed upon a 15-year-old girl should be punished.

The crime of failing to report a known felony existed at common law, and exists today in some jurisdictions, as misprision of a felony, and is usually a misdemeaor. The principle supporting a general societal obligation to report crime began to develop in the 13th century, and, as far as we know, the crime was first defined in 1557 by Sir William Staundford, who said:

“Misprision: this is properly when anyone learns or knows, that another has committed treason or felony, and he does not choose to denounce him to the King, or to his council, or to any magistrate, but conceals his offence.”

Misprison was distinguished at common law from a number of related crimes, such as being an accessory after the fact and obstructing justice, both of which required that the offending party take some affirmative steps in concert with the crime (aiding/abetting and actively interfering, respectively). Misprision also requires some act, but that need only relate to concealment (controversy over whether misprision actually requires an affirmative act of concealment or whether mere silence is enough continues today). The gist at common law was that in order to avoid being guilty of misprision, if a citizen saw a felony being committed he was required to “raise a hue and cry” and report the felony to authorities. Some states still prohibit misprision, as does the federal government (see 18 U.S.C. § 4). California, evidently, does not, except in cases where the alleged victim is 14 years old or younger.

There are some concerns associated with misprision that California lawmakers should be aware of in going down this road. First, misprision laws are arguably in tension with the Fifth Amendment when a person obligated under a misprision statute to report a known felony is himself implicated in the felony. One should never be required to report a felony to the authorities when the report would lead to his or her own criminal prosecution and possible punishment; this would be in direct conflict with the constitutional protection against self-incrimination. Second, misprision statutes have occasionally be applied to people who have concealed information about the commission of felonies committed against them. Any law mandating the reporting of felonies should spare people who do not wish to report the crimes of which they themselves are victims. Third, if California is to enact a general misprision statute, it might consider limiting the reach of the law to mandate the reporting of violent felonies, not all felonies. Today’s criminal codes contain thousands more felonies than existed at common law – it is not in the public interest to punish everyone who fails to report any felony.

In interpreting the federal misprision law, the Supreme Court admonished in 1980 that “gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.” Roberts v. U.S., 445 U.S. 552 (1980). The question for Californians now is how the Richmond case will affect their sense of what this means for them.

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