UCMJ Article 78: Accessory After the Fact

An accessory after the fact is someone who, knowing that another person committed an offense, receives, comforts, or assists that person in order to hinder or prevent apprehension, trial, or punishment. The maximum follows the principal offense, but never includes death, never exceeds half of that offense’s maximum confinement, and never exceeds 10 years, even when the principal faces life.

Receiving, comforting, or assisting the offender

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.

Source: 10 U.S.C. § 878.

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 2.b, lists four elements: an offense punishable by the UCMJ was committed by a certain person; the accused knew that person had committed it; afterward, the accused received, comforted, or assisted the offender; and the accused did so for the purpose of hindering or preventing the offender’s apprehension, trial, or punishment.

What counts as assistance

The assistance “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.c(1)). Hiding the offender and hiding the evidence both qualify, if done for the purpose the statute requires.

“Actual knowledge is required but may be proved by circumstantial evidence” (¶ 2.c(7)).

Silence is not enough

“The mere failure to report a known offense will not make one an accessory after the fact” (¶ 2.c(2)). The Manual points to two other possibilities: failing to report may violate a general order or regulation that requires reporting, chargeable under Article 92; and if the offense is serious and the accused does something to conceal it, the conduct may be misprision of a serious offense under Article 131c.

The principal and the principal’s trial

• The principal “need not be subject to the UCMJ,” but the offense must be one punishable by the UCMJ (¶ 2.c(4)). Helping a civilian who committed a UCMJ-punishable offense can qualify.
• The government must prove that the principal committed the offense. But the principal’s conviction or acquittal in a separate trial is not admissible to show whether the principal did, and an accessory may be convicted even though the principal was acquitted separately (¶ 2.c(5)).
• Being an accessory after the fact “is not a lesser included offense of the primary offense” (¶ 2.c(6)). It must be charged on its own.

Half the principal’s confinement, never more than 10 years

Under ¶ 2.d, an accessory after the fact is 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.”

Two worked examples from the rule:

• Principal offense: larceny of military property over $1,000, maximum 10 years. Half is 5 years, so the accessory’s maximum confinement is 5 years.
• Principal offense: murder, punishable by death or life. Death is excluded, and the 10-year cap applies.

Principal, conspirator, or accessory

Someone who helped plan or carry out the offense, before or during it, is a principal under Article 77 and faces the full maximum of the offense. An agreement made beforehand plus an overt act is conspiracy under Article 81. Article 78 is for help given only after the offense is complete.

Sources

• 10 U.S.C. § 878, Article 78, Accessory after the fact (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 2

General information about military law, not legal advice for any individual case.