Misprision

• Author: Jeffrey Lehman, Shirelle Phelps

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The failure to perform a public duty.

Misprision is a versatile word that can denote a number of offenses. It can refer to the improper performance of an official duty. In Arkansas, for example, rule 60 of the Arkansas Rules of Civil Procedure provides that a judgment, decree, or order may be vacated or modified "for misprisions of the clerk." In this sense misprision refers to neglect, mistake, or subterfuge on the part of the court clerk who performed the paperwork for the judgment, decree, or order.

Misprision also can refer to seditious or rebellious conduct against the government or the courts. This is an archaic usage of the word. Organized rebellion against the government is now uniformly referred to as SEDITION or insurrection.

The most familiar and popular use of the term misprision describes the failure to report a crime. In England, beginning in the thirteenth century, the failure to report a crime became itself a crime. According to tradition, it was a citizen's duty to "raise the hue and cry" by reporting crimes, especially felonies, to law enforcement authorities (Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 [1972], quoting WILLIAM BLACKSTONE).

The crime of misprision still exists in England, but it has never been fully embraced in the United States. The first Congress passed a misprision of felony statute in 1789. The statute holds, "Whoever, having knowledge of the actual commission of a felony ? 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" is guilty of misprision of felony and can be punished with up to three years in prison.

Under the federal statute, the prosecution must prove the following elements to obtain a misprision of felony conviction: (1) another person actually committed a felony; (2) the

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defendant knew that the felony was committed; (3) the defendant did not notify any law enforcement or judicial officer; and (4) the defendant took affirmative steps to conceal the felony. Precisely what constitutes active concealment is a QUESTION OF FACT that depends on the circumstances of the case. Lying to a police officer satisfies the requirement, but beyond that generally accepted rule, little is certain about the definition of active concealment.

Almost every state has rejected the crime of misprision of felony. Thus, persons are under no duty to report...