Misprision is an old law; albeit, not as old as the one handed to Moses that influenced its original construction – the Commandment to honor our fathers and mothers – and a relatively young law in this country.
In 16th Century England, misprision was applied to treason – a crime treated differently in today’s United Kingdom – according to what I lightly call my alma mater, “the Wiki School of Law”.
With the development of the modern law, this crime has been discarded in most jurisdictions (it was abolished in England & Wales in 1967), and is generally only applied against persons placed in a special position of authority or responsibility.
Other laws now establish a duty to report information on treasonous acts both there and in this country – the difference here being that misprision is still on the books and in the Code as a felony, although historically considered a misdemeanor and not a felony unless associated with treason.
Under the old common law hierarchy of crimes (as treasons, felonies and misdemeanours), misprision of treason was a felony and misprision of felony was a misdemeanour. (There was no such offence as misprision of a misdemeanour.)
“Misprision of Felony” is still an offense under United States federal law after being codified in 1909 under :
The actual crime of misprision is the failure to report a felony to to some judge or other person with civil or military authority under the US as soon as possible (emphasis added).
However, before misprision applies, the individual must have concealed knowledge of the actual commission of a felony recognizable by a court of the United States. Again, according to my so-called alma mater,
This offense, however, requires active concealment of a known felony rather than merely failing to report it. (emphasis added).
In other words, if knowledge is not actively concealed, the failure to report a felony is not a crime – creating what can only be called a don’t conceal but don’t tell either policy that we’ve held out as justice all but a half-century longer than should have been needed. That’s neither as soon as possible nor a reasonable amount of time.
This court has set forth the following elements for a misprision of a felony conviction: (1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). “[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony.” Id. “Mere failure to make known does not suffice.” Id. at 508-09 (citation omitted). Patel v. Mukasey