Nebraska Law Review Volume 40 | Issue 1 Article 5 1960 Silence and Perjury before Police Officers: An Examination of the Criminal Law Risks Dale W. Broeder University of Nebraska College of Law Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Dale W. Broeder, Silence and Perjury before Police Officers: An Examination of the Criminal Law Risks, 40 Neb. L. Rev. 63 (1961) Available at: https://digitalcommons.unl.edu/nlr/vol40/iss1/5 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Leading Articles SILENCE AND PERJURY BEFORE POLICE OFFICERS An Examination of the Criminal Law Risks Dale W. Broeder* I. INTRODUCTION Briefly stated, the purpose here is to review and to synthesize those areas of the law bearing on the nature and extent of the citizen's modern-day responsibilities to inform on the criminal ac- tivities of others and to discuss the criminal law risks involved in lying to police officers during the course of their investigations of crime. Policy considerations, of course, are also advanced. These subjects, it is realized, constitute only a portion, and that a com- paratively small one, of the broad area of the extent of the citi- zen's duty to cooperate with police officers, but, it is hoped, a suf- ficiently important one to merit separate treatment. Certainly there is need for such treatment if the extent of law student mis- understanding of these subjects is any criterion. The difficulty, however, has not primarily been with the students but rather with the confused, intertwining and to a considerable extent overlapping way the law has evolved in these areas. Common law misprision of felony, modern misprision of felony statutes, duty to assist and to obey police officers statutes, two fundamentally different varieties of accessory after the fact statutes and obstruction of justice and ly- ing to police statutes must all be considered together with accom- panying caselaw and questions of policy and constitutionality in order to get a complete picture. Previous writings in these areas largely tend to concentrate only on one crime area, ignoring or vir- tually ignoring the others and a particular effort has been made here to avert at least this one difficulty. *B.A. 1950, Willamette University; J.D. 1953, University of Chicago; mem- ber, Illinois and American Bar Associations. Presently Associate Professor of Law, University of Nebraska. NEBRASKA LAW REVIEW-VOL. 40, 1960 Organizationally, the discussion falls into two major parts, the first dealing with the extent of one's duty to inform on the crim- inal activities of others, the second with the risks involved in at- tempting to lie to police officers or to mislead them. II. DUTY TO INFORM A. CONVENTIONAL IDEAS Under what circumstances, then, if any, does a citizen expose himself to the risk of criminal liability for failing to disclose the criminal activities of others? The conventional answer-to the ex- tent that the texts bother any more even to discuss the question-is that there no longer is any risk and that failure to inform on the criminal behavior of others is not and has not for generations been punishable.' No exceptions are considered, no qualifications drawn. While it is almost invariably stated that the answer was once dif- ferent as to treason and felonies, modern American authority is said unswervedly to point in the other direction and conclusively to settle the question. 2 The Model Penal Code, for example, takes this ap- proach and brushes the problem aside in less than a page.3 The conventional answer, however, is misleading. While the part about misdemeanors is true-the law has never, except per- haps in the case of law enforcement officers,4 imposed any affirma- tive duty to report misdemeanors, regardless of the circumstances- the matter as to treason 5 and felonies is not nearly so clear cut. As ISee, e.g., MAY, LAW OF CRIMES § 12 (4th ed. 1938); McCLAIN, CRIM- INAL LAW § 938 (1897); 1 WHARTON, CRIMINAL LAW § 289 (12th ed. 1932); 9 HALSBURY, THE LAWS OF ENGLAND § 580, n.1 (Hail- sham ed. 1933); Notes, 54 HARV. L. REV. 506 (1941); 20 NEB. L. REV. 66 (1941). 2 See authorities cited in note 1 supra. 3 MODEL PENAL CODE, Tentative Draft No. 9, at 209 (1959). 4 Cf. People v. Herlihy, 35 Misc. 711, 72 N.Y. Supp. 389 (1901); Donnelley v. U.S., 276 U.S. 505 (1928). 5 The question of one's criminal law obligation affirmatively to come for- ward and to disclose his knowledge of another's treasonable acts to the authorities is not herein discussed as there is no recorded American case dealing with the subject. It should be noted, however, that the federal government and many states have by statute apparently imposed such a duty in the form of a crime known as misprision of treason. See, e.g., CAL. PEN. CODE § 38: '"Misprision of treason is the knowledge and concealment of treason without otherwise assenting to or participating in the crime. It is punishable by imprisonment for a term not exceeding five years." And see CONN. GEN. STAT. § 8344 (1949); ILL. ANN. STAT. c. 38, § 557 (Smith-Hurd 1935); and IND. ANN. STAT. § 10-4402 SILENCE AND PERJURY BEFORE POLICE a matter of fact, nothing about the subject seems ever to have been altogether clear, and modern American authority at least would seem to compel the drawing of various distinctions. Much may depend, for example, on whether we are speaking about a simple failure to disclose felonies to the authorities with no intention on defendant's part of aiding the felon or of profiting from his silence or of impeding a police investigation or on whether such factors are present. Other distinctions may also occasionally be important. There is some reason to believe, for instance, that failing to dis- close information concerning another person's felonies when re- quested to do so by law enforcement officers may be quite different from simply failing to volunteer information, that law enforcement officers are perhaps dealt with differently in this area from other people and that various groups of persons who might otherwise be subject to criminal liability for failing to speak out may be pro- tected because of their businesses or professions or because of the way in which information concerning the felonies comes to their attention. B. HISTORY Probably it is best to begin with the history and the English law on the question. Such distinguished common law commenta- tors as Coke,6 Hale,7 Hawkins, 8 East 9 and Blackstone ° unqualifiedly asserted that a simple failure without any ulterior purpose to dis- close another's felony to the authorities was punishable as a com- mon law misdemeanor-known as misprision of felony-and that it was a misdemeanor even to stand by and watch a felony without at least attempting to prevent it and this latter apparently without regard to the bystander's ability effectively to intervene. And such statements, particularly as regards the criminality of failing to dis- close felonies to the authorities, have many times been repeated by later English and American commentators so as to give them almost the force and effect of law." (1946). A short but helpful textbook discussion will be found in MILLER, CRIMINAL LAW 503 (1934). 6 3 COKE, FIRST INSTITUTE 139-42 (1836). 71 HALE, PLEAS OF THE CROWN 439 (1847). 8 2 HAWKINS, PLEAS OF THE CROWN 440, c. 29 § 10 (8th ed. 1824). 91 EAST, PLEAS OF THE CROWN 377 (1803). 10 4 BLACKSTONE, COMMENTARIES § 121 (Lewis ed. 1897). "See, e.g., CLARK & MARSHALL, CRIMES 486 (6th ed. 1958): "One who sees another commit any felony, or knows of its commission, and uses no means to apprehend him, or bring him to justice, or to prevent the NEBRASKA LAW REVIEW-VOL. 40, 1960 The repetition, to be sure, is understandable. The early writers are legitimately entitled to great deference and their statements concerning the English law of misprision, though quite severe, have an independently plausible ring when viewed in the light of political, social and economic conditions of early England and par- ticularly of the two and one-half centuries immediately following the Norman conquest. The pressure of the need to protect the in- vading Normans against a hostile countryside gave a special im- petus to the development of an already partially established sys- tem of communal responsibility for crime, which, once firmly es- tablished, continued in some form in England until the early 17th century.12 The Statute of Winchester in 1285,13 for example, com- pelled every private citizen, according to his wealth, to provide himself with armaments and a horse the use of which would be at the disposal of the King's officers for the purpose of putting down crime. It was also, of course, the duty of every able-bodied male to pursue criminals once the "hue and cry" was raised, 14 an obliga- tion, incidentally, which stubbornly persists in modified form today in the criminal codes of most states. 5 Finally, in order to give added incentive to this system of communal responsibility, the pratice was developed of fining the members of the vill or hundred in which crime occurred for their failure or inability to produce criminals for trial before the King's justices.' 6 Against this historical backdrop, there would be nothing very surprising in the birth of felony, is guilty of a (common law) misdemeanor named 'misprision of felony.'" And see 1 WHARTON, CRIMINAL LAW 376 (12th ed.