Article 78 — Accessory after the fact | Manual for Courts-Martial

Part IV · Punitive Articles

Article 78. Accessory after the fact · MCM ¶ 2

2024 Manual for Courts-Martial, United States

(a) Text of statute. Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.

(b) Elements.

(1) That an offense punishable by the UCMJ was committed by a certain person;

(2) That the accused knew that this person had committed such offense;

(3) That thereafter the accused received, comforted, or assisted the offender; and

(4) That the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.

(1) In general. The assistance given a principal by an accessory after the fact is not limited to assistance designed to effect the escape or concealment of the principal, but also includes acts performed to conceal the commission of the offense by the principal (for example, by concealing evidence of the offense).

(2) Failure to report offense. The mere failure to report a known offense will not make one an accessory after the fact. Such failure may violate a general order or regulation, however, and thus constitute an offense under Article 92. See paragraph 18. If the offense involved is a serious offense, and the accused does anything to conceal it, failure to report it may constitute the offense of misprision of a serious offense, under Article 131c. See paragraph 84.

(3) Offense punishable by the UCMJ. The term “offense punishable by this chapter” in the text of the article means any offense described in the UCMJ.

(4) Status of principal. The principal who committed the offense in question need not be subject to the UCMJ, but the offense committed must be punishable by the UCMJ.

(5) Conviction or acquittal of principal. The prosecution must prove that a principal committed the offense to which the accused is allegedly an accessory after the fact. However, evidence of the conviction or acquittal of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. Furthermore, an accused may be convicted as an accessory after the fact despite the acquittal in a separate trial of the principal whom the accused allegedly comforted, received, or assisted.

(6) Accessory after the fact not a lesser included offense. The offense of being an accessory after the fact is not a lesser included offense of the primary offense.

(7) Actual knowledge. Actual knowledge is required but may be proved by circumstantial evidence.

(d) Maximum punishment. Any person subject to the UCMJ who is found guilty as an accessory after the fact to an offense punishable under the UCMJ shall be subject to the maximum punishment authorized for the principal offense, except that in no case shall the death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged, nor shall the period of confinement exceed 10 years in any case, including offenses for which life imprisonment may be adjudged.

(e) Sample specification. In that __________ (personal jurisdiction data), knowing that (at/on board—location), on or about _____ 20 __, had committed an offense punishable by the Uniform Code of Military Justice, to wit: __________, did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, in order to (hinder) (prevent) the (apprehension) (trial) (punishment) of the said __________, (receive) (comfort) (assist) the said __________ by __________.

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.

3a-2-1ACCESSORY AFTER THE FACT

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. For this offense, the confinement category is dependent on the underlying offense.

Maximum punishment

Maximum punishment authorized for the principal offense, except that in no case shall the death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged, nor shall the period of confinement exceed 10 years in any case, including offenses for which life imprisonment may be imposed.

Sample specification

In that __________ (personal jurisdiction data), knowing that (at/onboard—location), on or about __________, __________ had committed an offense punishable by the Uniform Code of Military Justice, to wit: __________, did, (at/on board—location) on or about __________, in order to (hinder) (prevent) the (apprehension) (trial) (punishment) of the said __________, (receive) (comfort) (assist) the said __________ by __________.

Elements

(1) That (state the alleged offense), an offense punishable by the Uniform Code of Military Justice, was committed by (state the name of the principal) at (state the time and place alleged);

(2) That the accused knew that (state the name of the principal) had committed such offense;

(3) That the accused thereafter (state the time and place alleged) [(received) (comforted) (assisted)] (state the name of the principal) by (state the manner alleged); and

(4) That the accused [(received) (comforted) (assisted)] (state the name of the principal) for the purpose of [(hindering) (preventing)] the [(apprehension) (trial) (punishment)] of (state the name of the principal).

Definitions & other instructions

The accused may be found guilty as an accessory after the fact only if, in addition to all other elements of the offense, you are satisfied beyond a reasonable doubt that:

NOTE 2. Elements of principal’s offense. Here, the members must be instructed on the elements of the offense allegedly committed by the principal. The instructions given should be those setting forth the elements of the pertinent offense and should be carefully tailored to include such factors as value, amount, or other essential ingredients which might affect the maximum punishment.

NOTE 3. Principal offense housebreaking or burglary. In cases in which the offense alleged to have been committed by the principal is burglary or housebreaking, the members should be advised as to the relevant elements of the particular offense or offenses which the evidence indicates the principal may have intended to commit inside the house, building, or structure involved.

NOTE 4. Maximum punishment for principal offense affected by value. If the offense committed by the principal is one for which the maximum punishment is graduated according to the value of the property, damage, or amount involved, and if the allegations and evidence will support a finding as to specific value, damage, or amount, the element(s) of the instruction should be phrased so as to set out that value, damage, or amount. For example, if the offense committed by the principal is larceny, element 1 of the instruction should state: “That larceny, an offense punishable by the Uniform Code of Military Justice, of property of a value of (state the value alleged) was committed by (state the name of the principal) at (state the time and place alleged).” Offenses other than larceny and wrongful appropriation which require similar modification of the instruction include: obtaining services by false pretenses (Article 121b), fraud against the United States (Article 124), knowingly receiving stolen property (Article 122a), and other offenses in violation of Articles 108, 108a, 109, and 123a. When value, damage, or amount is in issue an instruction in accordance with Instruction 7-16, Variance - Value, Damage, or Amount, should be given.

NOTE 5. Conviction of the principal not required. Conviction of the principal of the offense to which the accused is allegedly an accessory after the fact is not a prerequisite to the trial of the accused. Furthermore, evidence of the acquittal or conviction of the principal in a separate trial is not admissible to show that the principal did or did not commit the offense. An accused may be convicted as an accessory after the fact despite the acquittal, in a separate trial, of the principal the accused allegedly comforted, received, or assisted.

Source: Instruction 3a-2-1 · view original on jagcnet.army.mil