Compounding or Concealing a Felony in Massachusetts | G.L. c. 268 § 36

November 21st, 2018

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G.L. c. 268, § 36 — Taking Something of Value in Exchange for Silence or Non-Prosecution

Massachusetts law makes it a crime to accept money, a gratuity, a reward, or a promise of any of those things in exchange for agreeing to conceal a felony, not to prosecute it, or not to give evidence about it. The offense is set out in G.L. c. 268, § 36 and is commonly referred to as compounding or concealing a felony.

This expanded guide explains the elements of the offense, the distinction between compounding and related crimes such as being an accessory after the fact, the penalties (including the enhanced range when the underlying felony is punishable by life imprisonment), and practical defense considerations.

The Statutory Offense

G.L. c. 268, § 36 provides:

“Whoever, having knowledge of the commission of a felony, takes money, or a gratuity or reward, or an engagement therefor, upon an agreement or understanding, express or implied, to compound or conceal such felony, or not to prosecute therefor, or not to give evidence thereof, shall, if such crime is punishable with death or imprisonment in the state prison for life, be punished by imprisonment in the state prison for not more than five years or in jail for not more than one year; and if such crime is punishable in any other manner, by a fine of not more than five hundred dollars or by imprisonment in jail for not more than two years.”

Elements the Commonwealth Must Prove

To convict a defendant of compounding or concealing a felony, the Commonwealth must prove beyond a reasonable doubt:

That the defendant knew a felony had been committed;
That the defendant made an agreement—express or implied—to conceal that felony, not to prosecute it, or not to give evidence about it; and
That the defendant made the agreement in exchange for something of value or a promise of something of value (money, a gratuity, a reward, or an engagement therefor).

The agreement need not be formal or written. A silent understanding can suffice if the evidence supports the inference that the parties reached an understanding in exchange for consideration.

What Does Not Constitute Compounding a Felony

Important limitations distinguish lawful conduct from the crime:

Simply refusing to prosecute out of sympathy, without taking anything of value, is not compounding a felony;
Accepting a promissory note (a written pledge) not to prosecute, standing alone, has been held not to constitute the offense in certain circumstances; and
Mere knowledge of a felony, without an agreement to conceal or withhold evidence in exchange for consideration, is not enough.

Penalties

The severity of the penalty turns on the maximum punishment available for the underlying felony:

If the underlying felony is punishable by death or life imprisonment: imprisonment in state prison for not more than five years, or in jail for not more than one year;
If the underlying felony is punishable in any other manner: a fine of not more than $500, or imprisonment in jail for not more than two years.

Because the enhanced range applies when the underlying crime is a life-felony, the nature of the predicate offense is often a central issue at trial.

Distinction from Accessory After the Fact

Compounding a felony is distinct from being an accessory after the fact under G.L. c. 274, § 4. An accessory after the fact harbors, conceals, maintains, or assists the principal felon with intent that the principal avoid or escape detention, arrest, trial, or punishment. Compounding focuses on the acceptance of consideration in exchange for silence or non-prosecution. The two offenses have different elements and different proof requirements.

Defense Strategies

Common avenues of defense include:

Challenging whether the defendant actually knew a felony had been committed;
Contesting the existence of any agreement—express or implied—to conceal, not prosecute, or withhold evidence;
Arguing that nothing of value or any promise of value was given or accepted;
Demonstrating that any refusal to prosecute was motivated by sympathy or other non-consideration reasons; and
Examining whether the underlying conduct was in fact a felony (and, if relevant, whether it was a life-felony).

Frequently Asked Questions

Is it illegal simply to know about a felony and not report it?

Mere knowledge without an agreement to conceal or withhold evidence in exchange for consideration does not constitute compounding under § 36. (Other statutes may impose reporting duties in limited circumstances.)

Does the underlying felony have to result in a conviction?

The statute requires knowledge that a felony was committed. A subsequent acquittal or dismissal of the underlying case does not automatically negate the compounding charge if the knowledge and agreement elements are otherwise proved.

Can a victim of the felony be charged with compounding?

Yes. The classic form of the offense involves a victim who accepts something of value in exchange for agreeing not to prosecute or not to give evidence.

Why Experienced Counsel Matters

Compounding charges turn on the existence of an agreement and the exchange of consideration. These elements are often proved through circumstantial evidence and the interpretation of conversations or payments. An attorney experienced in public-justice offenses can evaluate the strength of the knowledge and agreement proof and protect the client from overcharging or unfair inferences.

Contact Criminal Defense Attorney William J. Barabino

If you or a loved one has been charged with compounding or concealing a felony, early and experienced representation is essential. The Law Office of William J. Barabino provides client-focused criminal defense throughout Massachusetts.

Call 781-393-5900 today for a confidential consultation.

Visit williambarabino.com for additional resources on public-justice offenses and related topics.

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