I assert several key conclusions, the reasoning of which is detailed below:
– The evidence that would allow you to criminalize non-reporting, either, by its existence, shows that the witness’ silence was irrelevant, or that the witness may actually have committed the crime, hence non-reporting is meaningless as a distinct concept. (There is an exception for the situation where you expect every citizen to be a police officer – with the usual benefits and drawbacks associated with that approach.)
– In a typical, under-resourced policing situation, the criminalization of this behavior becomes the basis of arbitrary rule.
– Further, the criminalization of this behavior means that honest, law-abiding citizens, and the people who know them, receive unjustified punishment.
Recall fundamentals and then read on:
In criminalizing the non-reporting of a case or evidence:
The prosecution must establish that the crime occurred, and that the witness did not report the crime or other suspicious behavior, with associated witness affirmation or evidence.
For crimes that leave obvious traces, it’s easy for the prosecution to demonstrate that the crime occurred. Likewise, if a report promptly was investigated, it’s also easy to establish that a crime occurred. For any other crime, the fact that the crime occurred cannot be derived, except by a denunciation rule (which are known to be unreliable and subject to fraud).
In the case where the prosecution asserts that the witness was at the scene of the crime during the commission of the crime (including immediately before and after), the investigation must have fixed the person at the scene, meaning that they may also have committed the crime directly, or otherwise facilitated the act. In this case, criminalizing non-reporting of the case is unnecessary, as the prosecution for the crime itself suffices as punishment. If the prosecution has some other evidence that shows the witness didn’t actually commit the crime, then prosecution for non-reporting is difficult to justify, as the prosecution already found out about the circumstances without the witness report (which, by the very nature of accusing the witness, implies that the witness’ testimony is unreliable).
In the case where the prosecution asserts that the witness observed suspicious behavior or evidence, but was not at the crime scene, there are a few possibilities:
– They witnessed the detailed preparation for the crimes, which could have left no doubt that something illegal was about to happen. In practical terms, this means that the future criminal took possession of illicit items (e.g. they assembled drugs and paraphernalia); if the criminal only took legal items, then there would be nothing to report. As such, the sighting of the illicit items would be the basis for the determination of the primary offense – and if this can be proved, then prosecution for non-reporting of the other crime is unnecessary. What that primary offense is, would depend on the circumstances. One could consider that the witness effectively had possession of the contraband, and therefore is a criminal. The other option is that the witness didn’t stop the crime, either by calling/reporting, or by direct physical action. Effectively, this makes every citizen a law enforcement officer, required to interdict any potentially suspicious activity regardless of training or capability for self-defense.
– They saw some objects after the commission of the crime that clearly indicated criminal activity. If the items were inherently illicit, then the similar reasoning applies. The more interesting situation occurs when bloodstained objects, broken car bumpers, or other uncommon items or behaviors, but which are not clearly identifiable as illicit (otherwise the simple act of making such items illicit would suffice to resolve the matter). In order for such items to be recognized as evidence of crimes, their existence must be matched with the “likely evidence” of the crimes that have been reported to date. The most direct means of accomplishing this would be to direct every citizen to consult a well-known listing of recent, open crimes, to match the observation with the corresponding crimes.
— The problem comes when the prosecution attempts to verify that the witness actually saw the suspicious objects, and failed to make a match. The bloodstained knives will be cleaned or discarded; the suspicious trunks will be buried in the backyard. The prosecution would need videotape or other evidence, which eliminates the need for such an eyewitness account. As such, it would be difficult to justify prosecution, since the witness’ testimony was again unreliable, and clearly the witness didn’t commit the crime, either. If the prosecution asserts that the witness tampered with the items, they would have to have physical traces on the items to back up the assertion – but then the witness could be facilitating the act, in which case you would prosecute the witness for the actual crime.
– The witness heard a confession or other incriminating statements. This would build to a conviction by denunciation rule. However, if the denunciation rule is not being met by the lack of witness testimony, then how can the witness be prosecuted for non-denunciation? Only by videotape or other evidence showing the the confession and/or incriminating statements – but then the denunciation proceeding is not necessary.
There are several other situations you see that bear on this matter:
In the case where the crime can’t be proved, except by a witness’ testimony: to prosecute the witness for failing to testify, is in effect a denunciation rule against both the witness and the criminal, negating the need for the witness’ testimony.
In the case where the police don’t prosecute all crimes of a certain class (such as underage drinking), the prosecution of witnesses based on non-reporting is an extension of the arbitrary prosecution for the crime in general.
In particular, to prosecute witnesses of a complaint-based crime, for not complaining, is either:
– If the people are honest, to promote the crime to an always pursued crime; however, since the citizens are honest, they ostensibly would have reported the crimes anyway, so the penalty is irrelevant
– If the people are partially honest, to punish the associates of honest people (because the honest people would turn them in)
– If the people are completely dishonest, to have no effect
so the effect of implementing prosecution for non-reporting is to penalize honest and forthright reporting of those crimes.
and of course you will have to accept a high rate (ten percent or more) of false convictions (for all people), since the conviction for this behavior (vs. the original crime) fundamentally is based on unreliable testimony and not about physical evidence or clear circumstantial evidence.