Article 87a — Resistance, flight, breach of arrest, and escape

Part IV · Punitive Articles

Article 87a. Resistance, flight, breach of arrest, and escape · MCM ¶ 12

2024 Manual for Courts-Martial, United States

Recent revisions Summary of changes

(a) Text of statute. Any person subject to this chapter who—

(1) resists apprehension;

(2) flees from apprehension;

(3) breaks arrest; or

(4) escapes from custody or confinement;

shall be punished as a court-martial may direct.

(b) Elements.

(1) Resisting apprehension.

(a) That a certain person attempted to apprehend the accused;

(b) That said person was authorized to apprehend the accused; and

(2) Flight from apprehension.

(a) That a certain person attempted to apprehend the accused;

(b) That said person was authorized to apprehend the accused; and

(3) Breaking arrest.

(a) That a certain person ordered the accused into arrest;

(b) That said person was authorized to order the accused into arrest; and

(4) Escape from custody.

(a) That a certain person apprehended the accused;

(b) That said person was authorized to apprehend the accused; and

(5) Escape from confinement.

(a) That a certain person ordered the accused into confinement;

(b) That said person was authorized to order the accused into confinement; and

Practice Note

[Note: If the escape was post-trial confinement, add the following element]

(d) That the confinement was the result of a court-martial conviction.

(1) Resisting apprehension.

(a) Apprehension. Apprehension is the taking of a person into custody. See R.C.M. 302.

(b) Authority to apprehend. See R.C.M. 302(b) concerning who may apprehend. Whether the status of a person authorized that person to apprehend the accused is a question of law to be decided by the military judge. Whether the person who attempted to make an apprehension had such a status is a question of fact to be decided by the factfinder.

(c) Nature of the resistance. The resistance must be active, such as assaulting the person attempting to apprehend. Mere words of opposition, argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension although they may constitute other offenses.

(d) Mistake. It is a defense that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. However, the accused’s belief at the time that no basis exists for the apprehension is not a defense.

(e) Illegal apprehension. A person may not be convicted of resisting apprehension if the attempted apprehension is illegal, but may be convicted of other offenses, such as assault, depending on all the circumstances. An attempted apprehension by a person authorized to apprehend is presumed to be legal in the absence of evidence to the contrary. Ordinarily the legality of an apprehension is a question of law to be decided by the military judge.

(2) Flight from apprehension. The flight must be active, such as running or driving away.

(3) Breaking arrest.

(a) Arrest. There are two types of arrest: pretrial arrest under Article 9 (see R.C.M. 304) and arrest under Article 15 (see subparagraph 5.c.(3), Part V, MCM). This article prohibits breaking any arrest.

(b) Authority to order arrest. See R.C.M. 304(b) and paragraph 2 and subparagraph 5.b., Part V, MCM concerning authority to order arrest.

(c) Nature of restraint imposed by arrest. In arrest, the restraint is moral restraint imposed by orders fixing the limits of arrest.

(d) Breaking. Breaking arrest is committed when the person in arrest infringes the limits set by orders. The reason for the infringement is immaterial. For example, innocence of the offense with respect to which an arrest may have been imposed is not a defense.

(e) Illegal arrest. A person may not be convicted of breaking arrest if the arrest is illegal. An arrest ordered by one authorized to do so is presumed to be legal in the absence of some evidence to the contrary. Ordinarily, the legality of an arrest is a question of law to be decided by the military judge.

(4) Escape from custody.

(a) Custody. Custody is restraint of free locomotion imposed by lawful apprehension. The restraint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, it may consist of control exercised in the presence of the prisoner by official acts or orders. Custody is temporary restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is released.

(b) Authority to apprehend. See subparagraph (1)(b) of this paragraph.

(d) Illegal custody. A person may not be convicted of this offense if the custody was illegal. An apprehension effected by one authorized to apprehend is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of an apprehension is a question of law to be decided by the military judge.

(e) Correctional custody. See paragraph 13.

(5) Escape from confinement.

(a) Confinement. Confinement is physical restraint imposed under R.C.M. 305, 1102, or subparagraph 5.b., Part V, MCM. For purposes of the element of post-trial confinement (subparagraph b.(5)(d)) and increased punishment therefrom (subparagraph e.(4)), the confinement must have been imposed pursuant to an adjudged sentence of a court-martial and not as a result of pretrial restraint or nonjudicial punishment.

(b) Authority to order confinement. See R.C.M. 304(b), 1102(b)(2); and paragraph 2 and subparagraph 5.b., Part V, MCM concerning who may order confinement.

(c) Escape. An escape may be either with or without force or artifice, and either with or without the consent of the custodian. However, where a prisoner is released by one with apparent authority to do so, the prisoner may not be convicted of escape from confinement. See also subparagraph 24.c.(2)(b). Any completed casting off of the restraint of confinement, before release by proper authority, is an escape, and lack of effectiveness of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from the restraint. If the movement toward escape is opposed, or before it is completed, an immediate pursuit follows, there is no escape until opposition is overcome or pursuit is eluded.

(d) Status when temporarily outside confinement facility. A prisoner who is temporarily escorted outside a confinement facility for a work detail or other reason by a guard, who has both the duty and means to prevent that prisoner from escaping, remains in confinement.

(e) Legality of confinement. A person may not be convicted of escape from confinement if the confinement is illegal. Confinement ordered by one authorized to do so is presumed to be lawful in the absence of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be decided by the military judge.

(d) Maximum punishment.

(1) Resisting apprehension. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(2) Flight from apprehension. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(3) Breaking arrest. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

(4) Escape from custody, pretrial confinement, or confinement pursuant to Article 15. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(5) Escape from post-trial confinement. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(e) Sample specifications.

(1) Resisting apprehension. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, resist being apprehended by __________, (an armed force policeman) (__________), a person authorized to apprehend the accused.

(2) Flight from apprehension. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, flee apprehension by __________, (an armed force policeman) (__________), a person authorized to apprehend the accused.

(3) Breaking arrest. In that __________ (personal jurisdiction data), having been placed in arrest (in quarters) (in (his) (her) company area) (__________) by a person authorized to order the accused into arrest, did, (at/on board— location) on or about _____ 20 __, break said arrest.

(4) Escape from custody. In that __________ (personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, escape from the custody of __________, a person authorized to apprehend the accused.

(5) Escape from confinement. In that __________ (personal jurisdiction data), having been placed in (post-trial) confinement in (place of confinement), by a person authorized to order said accused into confinement did, (at/on board— location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, escape from confinement.

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.

Maximum punishment

BCD, TF, 1 year, E-1. (Category 1)

Sample specification

In that _________ (personal jurisdiction data), did, (at/on board--location), on or about _________, resist being apprehended by _________, (an armed force policeman) (_________), a person authorized to apprehend the accused.

Elements

(1) That (state the time and place alleged), (state the name and status of the person alleged to be apprehending) attempted to apprehend the accused;

(2) That (state the name and status of the person alleged to be apprehending) was authorized to apprehend the accused; and

(3) That the accused actively resisted the apprehension.

Definitions & other instructions

To resist apprehension, a person must actively resist the restraint attempted to be imposed by the person apprehending. (This resistance may be accomplished by assaulting or striking the person attempting to apprehend the accused.) (Mere use of words of protest or of argumentative or abusive language will not amount to the offense of resisting apprehension.)

(An attempt to escape from custody after an apprehension is complete does not amount to the offense of resisting apprehension.)

NOTE 2. Flight. In US v. Harris, 29 MJ 169 (CMA 1989), the court held that mere flight is insufficient to establish the offense. Note that fleeing apprehension is an offense under Article 87a (See Instruction 3a-12-2). Accordingly, the following instruction may be given when appropriate:

(Evidence of flight, if any, may be considered by you, along with all other evidence, in determining whether the accused committed the offense of resisting apprehension. (However, mere flight is insufficient to establish the offense of resisting apprehension.))

NOTE 3. Lawfulness of apprehension at issue. The military judge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and ordinarily determines whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Resisting a person not authorized to apprehend is not an offense under this article. Specifically, resisting apprehension by non-military affiliated law enforcement officers for non-military offenses is not a violation of this article. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the UCMJ. Article 7c, UCMJ. MCM, RCM 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the military judge must determine as a matter of law that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:

An accused may not be convicted of this offense unless the person who (attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.

As a matter of law, a [military or military affiliated law enforcement official] [(commissioned) (warrant) (petty) (noncommissioned) officer] [police officer] [constable] [highway patrolman] [__________] was authorized to apprehend the accused at the time of the alleged offense.

However, you may find the accused guilty of this offense only if you are satisfied beyond a reasonable doubt that the person who (attempted to apprehend) (apprehended) the accused actually was a (military or military affiliated law enforcement official) ([commissioned] [warrant][petty] [noncommissioned] officer) ([police officer] [constable] [highway patrolman] [__________]) at the time of the [attempted] apprehension.

NOTE 4. Mistake of Fact. The accused’s belief at the time that no basis exists for the apprehension is not a defense. It is a defense, however, that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. If there is evidence raising such a defense, the following instruction should be given.

The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name and status of the person alleged to be apprehending) was authorized to apprehend (him) (her).

The accused is not guilty of the offense of resisting apprehension (1) if (he) (she) mistakenly believed that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), and (2) if such belief on (his) (her) part was reasonable.

(The accused’s belief that (state the name and status of the person alleged to be apprehending) had no basis to apprehend (him) (her) is not a defense.)

To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend him/her. (Additionally, the mistake cannot be based on a negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)

You should consider the accused’s (age) (education) (experience) (__________) along with the other evidence on this issue, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused was not under the mistaken belief that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), the defense of mistake does not exist. Even if you conclude that the accused was under the mistaken belief that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), if you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused’s mistake was unreasonable, the defense of mistake does not exist.

NOTE 5. Voluntary intoxication and mistake of fact. If there is evidence the accused may have been under the influence of an intoxicant, the following instruction should ordinarily be given in conjunction with the above mistake of fact instruction:

There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense. On the question of whether the accused’s belief was reasonable, you may not consider the accused’s intoxication, if any, because a reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.

Source: Instruction 3a-12-1 · view original on jagcnet.army.mil

Maximum punishment

BCD, TF, 1 year, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board--location), on or about __________, flee apprehension by __________, (an armed force policeman) (__________), a person authorized to apprehend the accused.

Elements

(1) That (state the time and place alleged), (state the name and status of the person alleged to be apprehending) attempted to apprehend the accused;

(2) That (state the name and status of the person alleged to be apprehending) was authorized to apprehend the accused; and

(3) That the accused fled from the apprehension.

Definitions & other instructions

“Apprehension” means taking a person into custody; that is, placing a restraint on a person’s freedom of movement. The restraint may be physical and forcible, or it may be imposed by clearly informing the person being apprehended that (he) (she) is being taken into custody. An apprehension is attempted, then, by clearly informing a person orally or in writing that (he) (she) is being taken into custody or by attempting to use a degree and kind of force which clearly indicates that (he) (she) is being taken into custody. Flight from apprehension must be active, such as running or driving away from the person attempting to apprehend the accused. (Mere use of words of protest or of argumentative or abusive language will not amount to the offense of fleeing apprehension.)

NOTE 2. Lawfulness of apprehension at issue. Ordinarily, the military judge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Fleeing a person not authorized to apprehend does not constitute an offense under this article. Specifically, fleeing apprehension by non-military affiliated law enforcement officers for non-military offenses is not a violation of this article. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the UCMJ. Article 7c, UCMJ. MCM, RCM 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the military judge must determine as a matter of law that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:

An accused may not be convicted of this offense unless the person who (attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.

NOTE 3. Mistake of Fact. The accused’s belief at the time that no basis exists for the apprehension is not a defense. It is a defense, however, that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. If there is evidence raising such a defense, the following instruction should be given.

The accused is not guilty of the offense of fleeing apprehension (1) if (he) (she) mistakenly believed that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend him/her, and (2) if such belief on his/her part was reasonable.

(The accused’s belief that (state the name and status of the person alleged to be apprehending) had no basis to apprehend (him) (her) is not a defense.)

NOTE 4. Voluntary intoxication and mistake of fact. If there is evidence the accused may have been under the influence of an intoxicant, the following instruction should ordinarily be given in conjunction with the above mistake of fact instruction:

Source: Instruction 3a-12-2 · view original on jagcnet.army.mil

Maximum punishment

BCD, TF, 6 months, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), having been placed in arrest (in quarters) (in (his) (her) company area) (__________) by a person authorized to order the accused into arrest, did, (at/on board--location) on or about __________, break said arrest.

Elements

(1) That (state the name and status of the person ordering the accused into arrest) ordered the accused into arrest (in quarters) (in his/her company area) (__________);

(2) That (state the name and status of the person ordering the accused into arrest) was authorized to order the accused into arrest; (and)

(3) That (state the time and place alleged), the accused went beyond the limits of arrest before being released from that arrest by proper authority; [and]

NOTE 2. Knowledge of arrest status raised. If there is any evidence from which it may justifiably be inferred that the accused may not have known of his/her arrest and its limits, give the element below:

[(4)] That the accused knew of (his) (her) arrest and its limits.

Definitions & other instructions

NOTE 3. Types of Arrest. There are two types of arrest: pretrial arrest under Article 9, UCMJ, and arrest in quarters under Article 15, UCMJ. If the accused is alleged to have broken pretrial arrest, give the definition below:

Arrest is restraint imposed upon a person by oral or written orders of competent authority, not imposed as punishment for an offense, directing that person to remain within certain specified limits pending disposition of charges. The restraint imposed is binding upon the person arrested because of (his) (her) moral and legal obligation to obey the order of arrest.

NOTE 4. Arrest in Quarters. If the accused is alleged to have broken arrest in quarters, give the definition below:

An officer undergoing arrest in quarters as nonjudicial punishment is required to remain within that officer’s quarters during the period of punishment unless the limits of arrest are otherwise extended by appropriate authority. The quarters of an officer may consist of a military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when government quarters have not been provided.

NOTE 5. Lawfulness of arrest in issue. Ordinarily, the legality of the arrest is a question of law to be decided by the military judge. A commissioned or warrant officer may be ordered into pretrial arrest by a commanding officer with authority over the arrestee. Rules for Courts-Martial 304(b) (1). An enlisted person may be ordered into pretrial arrest by any commissioned officer, or a warrant, noncommissioned, or petty officer when authorized to do so by a commanding officer with authority over the arrestee. Rules for Courts-Martial 304(b) (2) and (3). An officer may be ordered into arrest in quarters as nonjudicial punishment by an officer exercising general court-martial jurisdiction, a general officer in command, or a principal assistant to an officer exercising general court-martial jurisdiction or a general officer in command. Paragraphs 2c and 5b, Part V, Manual for Courts-Martial. The military judge resolves, as an interlocutory question, whether a certain status would authorize that person to place the accused in arrest and whether the arrest was lawful. The fact finder decides whether the person who placed the accused in arrest actually had such a status. When there is an issue as to whether the person who ordered the accused into arrest actually occupied a position that authorized him to do so, the following instruction may be appropriate. The military judge should tailor the instruction based upon the rank of the accused.

An accused may not be convicted of breaking arrest unless the person who placed the accused in arrest was authorized to order the accused into arrest.

You may find the accused guilty of breaking arrest only if you are satisfied beyond a reasonable doubt that (state the name of the person who ordered the accused into arrest) held the status of (a commanding officer with authority over the accused) (a commissioned officer) (a [warrant] [noncommissioned] officer authorized to arrest the accused by a commanding officer with authority over the accused) ([an officer exercising general court-martial jurisdiction] [a general officer in command] [a principal assistant to (an officer exercising general court-martial jurisdiction) (a general officer in command)]) at the time that he/she ordered the accused into arrest.

NOTE 6. Other instructions. If the 4th element is given, Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily applicable. Consider whether Instruction 5-13, Ignorance or Mistake of Fact or Law—General Discussion (General Intent), should be given as well.

Source: Instruction 3a-12-3 · view original on jagcnet.army.mil

Maximum punishment

DD, TF, 1 year, E-1. (Category 1)

Sample specification

In that __________ (personal jurisdiction data), did, (at/on board--location), on or about __________, escape from the custody of __________, a person authorized to apprehend the accused.

Elements

(1) That (state the name and status of the person who apprehended the accused) apprehended the accused;

(2) That (state the name and status of the person who apprehended the accused) was authorized to apprehend the accused; and

(3) That (state the time and place alleged), the accused freed (himself) (herself) from custody before being released by proper authority.

Definitions & other instructions

“Apprehension” means taking a person into custody; that is, placing a restraint on a person’s freedom of movement. The restraint may be physical and forcible. Restraint may also be imposed by clearly informing the person being apprehended, either orally or in writing, that (he) (she) is being taken into custody, if followed by the accused’s submission to the apprehending authority. Once a person has submitted to an apprehension or has been forcibly taken into custody, continuing custody may consist of control exercised in the presence of the prisoner by official acts or orders.

NOTE 2. Lawfulness of apprehension at issue. Ordinarily, the military judge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Escape from a person not authorized to apprehend is not an offense under this article. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the Uniform Code of Military Justice. Article 7c, Uniform Code of Military Justice. Manual for Courts-Martial, Rules for Courts-Martial 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the military judge must determine as a matter of law that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:

An accused may not be convicted of this offense unless the person who apprehended (him) (her) was authorized to apprehend the accused.

However, you may find the accused guilty of this offense only if you are satisfied beyond a reasonable doubt that the person who apprehended the accused actually was a (military or military affiliated law enforcement official) ([commissioned] [warrant] [petty] [noncommissioned] officer) ([police officer] [constable] [highway patrolman] [__________]) at the time of the apprehension.

NOTE 3. Escape from confinement and custody distinguished. Though escape from confinement and custody both include throwing off of lawful restraint, confinement and custody are different in nature. Confinement must be actually imposed to initiate confinement status. See US v. Edwards, 69 MJ 375 (CAAF 2011); US v. Ellsey, 37 CMR 75 (CMA 1966) (proper charge is escape from custody, not escape from confinement, when an accused who has been ordered into confinement escapes prior to being placed in a confinement facility); cf. US v. Felty, 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused, after having been placed in a confinement facility, escapes from a guard while outside the confinement facility for a magistrate hearing. Once confined in a military confinement facility, an accused remains in that status until released from confinement by proper authority).

Source: Instruction 3a-12-4 · view original on jagcnet.army.mil

Maximum punishment

(1) Pretrial confinement: DD, TF, 1 year, E-1. (Category 1)

(2) Post-trial confinement: DD, TF, 5 years, E-1. (Category 2)

Sample specification

In that __________ (personal jurisdiction data), having been placed in (post-trial) confinement in (place of confinement), by a person authorized to order said accused into confinement did, (at/on board--location), on or about __________, escape from confinement.

Elements

(1) That the accused was placed in confinement in (state the place of confinement) by order of (state the name and status of the person ordering the accused into confinement);

(2) That (state the name and status of the person ordering the accused into confinement) was authorized to order the accused into confinement; (and)

(3) That (state the time and place alleged), the accused freed (himself) (herself) from confinement before being released by proper authority; [and]

NOTE 2. Escape from post-trial confinement alleged. If escape from post-trial confinement is alleged, add the following element:

[(4)] That the confinement was the result of a court-martial conviction.

Definitions & other instructions

“Confinement” is the physical restraint of a person within a confinement facility or under guard or escort after having been placed in a confinement facility. The status of confinement, once created, continues until the confined individual is released by proper authority. Any completed casting off of the physical restraint of the confinement facility or guard before being set free by proper authority is escape from confinement. An escape is not complete until the prisoner has, at least momentarily, freed (himself) (herself) from the physical restraint of the confinement facility, guard, or escort (so if the prisoner’s movement toward an escape is opposed, or if immediate pursuit follows before the escape is actually completed, there will be no escape until the opposition is overcome or the pursuit is shaken off.)

(An escape may be accomplished either with or without force or trickery and either with or without the consent of the prisoner’s immediate custodian.)

NOTE 3. Detention cell and other locations as a confinement facility. If an issue is raised whether the accused has been delivered to a place that constitutes a confinement facility, the military judge may use the following instruction. In US v. Jones, 36 MJ 1154 (ACMR 1993), a detention cell was considered to be a confinement facility.

You are advised that, as a matter of law, the (Fort Lewis Regional Correctional facility) (Cumberland County Jail) (Fort __________ Provost Marshal Detention Cell) (__________) is a confinement facility.

NOTE 4. The status of confinement and the fact of physical restraint. Although the status of confinement requires physical restraint, it is not necessary that the prisoner actually have physical restraints (in the form of irons or a guard) applied to him. A prisoner lawfully placed into confinement is still in a confinement status even if legitimately away from a confinement facility without irons or an escort or guard. See US v. Felty, 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused, after having been placed in a confinement facility, escapes from a guard while outside the confinement facility for a magistrate hearing) and US v. Cornell, 19 MJ 735 (AFCMR 1984) (escape from confinement existed when accused left the base after authorized to leave confinement facility without guard to go to gymnasium).

NOTE 5. Moral suasion as confinement. Although physical restraint is required for confinement to exist, a confined prisoner who is allowed to go to a designated location, unescorted, remains confined by moral suasion or moral restraint which serves as a substitute for the physical restraint. See US v. Standifer, 35 MJ 615, 617 (AFCMR 1992) (prisoner’s escort allowed accused to visit wife alone); cf. US v. Maslanich, 13 MJ 611, 614 (AFCMR 1982), pet. denied, 14 MJ 236 (CMA 1982) (accused left defense counsel’s office where guard had left him.) If an issue of moral suasion or restraint is raised by the evidence, the following instruction may be appropriate:

A prisoner who has been placed into confinement and who is later allowed outside the confinement facility to perform details or visit other locations remains in confinement. This status of confinement continues even if the details were performed or the visit occurred without the supervision of a guard or escort. For example, confinement continues when the prisoner is placed into minimum custody or in a work release program or is permitted to visit a specific place for a certain period of time, without the presence of a guard or escort. The moral restraint or moral suasion placed upon the prisoner is a substitute for the physical restraint necessary for the continuation of the prisoner’s confinement.

NOTE 6. Escape from moral suasion. If there is an issue whether a prisoner has cast off his restraint when there was only a moral restraint or moral suasion, the following instruction may be helpful. See US v. Standifer, 35 MJ 615, 617 (AFCMR 1992); cf. US v. Anderson, 36 MJ 963, 984 (AFCMR 1993), aff’d, 39 MJ 431 (CMA 1994), cert. denied, 513 U.S. 819 (1994) (no casting off of restraint where escort left accused, unsupervised, off-post and the escort returned to post alone).

A prisoner who is authorized by confinement officials to go to a certain location under escort, and who then persuades the escort to allow him to go to a different place, with or without the escort, has not escaped from confinement, so long as (he) (she) remains within the area permitted by the escort.

NOTE 7. Effectiveness of the guard’s restraint. The status of confinement does not depend on whether the guard or escort is armed or has the actual ability to restrain the prisoner. See US v. Jones, 36 MJ 1154 (ACMR 1993) (escape by pushing aside unarmed escort); US v. Standifer, 35 MJ 615, 617 (AFCMR 1992). Likewise, an ineffective effort by the guard or escort to restrain the accused does not negate the existence of the physical restraint necessary to confinement. See US v. Felty, 12 MJ 438 (CMA 1982) (escape where accused falsely told escort he had been released by magistrate and then slipped away); US v. Maslanich, 13 MJ 611, 614 (AFCMR 1982), pet. denied, 14 MJ 236 (CMA 1982). If this issue is raised by the evidence, the following instruction may be helpful:

The status of confinement while under guard or escort does not depend on whether the guard or escort is armed or has the actual physical prowess to restrain the prisoner. Nor is it necessary that the prisoner be shackled. Once confinement is imposed and the accused knows of (his) (her) confinement, that status continues until it is lifted by an official with the authority to do so.

NOTE 8. Inception of post-trial confinement—accused not in pretrial confinement when sentence was adjudged. If there is an issue whether post-trial confinement has begun, and the accused was not in pretrial confinement when the sentence was adjudged, the following instruction may be appropriate. (See NOTE 10 regarding the distinction between escape from custody and from confinement):

As a general rule, post-trial confinement begins when the accused has been ordered into confinement pursuant to the sentence of a court-martial and the accused is delivered to a confinement facility.

NOTE 9. Inception of post-trial confinement—accused in pretrial confinement when sentence was adjudged. If there is an issue whether post-trial confinement has begun, and the accused was in pretrial confinement when the sentence was adjudged, the following instruction may be appropriate:

An individual in pretrial confinement at the time a sentence to confinement is adjudged remains in a confinement status. Upon adjournment of the court-martial and an order by competent authority, such as a commanding officer or the trial counsel, the status of pretrial confinement automatically becomes one of post-trial confinement.

NOTE 10. Mistake of fact as to status, release, or limits of confinement. If the evidence raises an issue of whether the accused knew he or she was confined, believed he or she had been released, or knew the limits of confinement, Instruction 7-3, Circumstantial Evidence (Knowledge), is ordinarily appropriate. Instruction 5-13, Ignorance or Mistake of Fact or Law—General Discussion (Actual Knowledge), may be appropriate.

NOTE 11. Escape from confinement and custody distinguished. Though escape from confinement and custody both include throwing off of lawful restraint, confinement and custody are different in nature. Confinement must be actually imposed to initiate confinement status. See US v. Edwards, 69 MJ 375 (CAAF 2011); US v. Ellsey, 37 CMR 75 (CMA 1966) (proper charge is escape from custody, not escape from confinement, when an accused who has been ordered into confinement escapes prior to being placed in a confinement facility); cf. US v. Felty, 12 MJ 438 (CMA 1982) (proper charge is escape from confinement when an accused, after having been placed in a confinement facility, escapes from a guard while outside the confinement facility for a magistrate hearing. Once confined in a military confinement facility, an accused remains in that status until released from confinement by proper authority).

NOTE 12. Legality of the confinement. Ordinarily, the legality of confinement is a question of law to be decided by the military judge.

Source: Instruction 3a-12-5 · view original on jagcnet.army.mil