UCMJ Article 78:
Accessory After the Fact
What is Article 78?
Any service member of the United States military that knowingly protects or aids a criminal after an offense has been committed will be subject to Article 78 of the UCMJ: Accessory After the Fact.
As an Accessory After the Fact, you will be subject to the same tough sentencing faced by the offender of the crime.
- Under Article 78, you are facing punishment equal to that of the original offender. There are very few exceptions to this rule.
- Should you be found guilty, you could face serious consequences, a dishonorable discharge and jail time. Imagine going to jail for a crime you didn’t even commit.
- You will almost certainly be stripped of your rank. As a disgraced E-1 with a criminal record, your military career over and your civilian career to come is effectively over as well.
Defining the Elements of Article 78: Accessory After the Fact
The prosecution must prove beyond a reasonable doubt the following elements in order to prove you were an accessory after the fact:
- That an offense punishable by the UCMJ was committed by another person.
- That the accused was aware that the other individual had committed a punishable offense.
- That the accused, despite his or her knowledge about the criminal activity, still provided aid to the offender by way of receiving, comforting and assisting him or her.
- That the accused performed these actions in order to hinder or prevent the apprehension and punishment of the offender.
Fighting Back Against Accessory Charges
Expect the prosecution and defense to wage a pitched battle in court over the extent to which you knew you were aiding a criminal:
- The prosecution will likely attempt to pin you down with evidence and witness testimony “proving” that you knew about the crime beforehand and was well aware that the crime had occurred. A skilled court-martial lawyer is prepared for this eventuality and will attempt to persuade a jury or judge that the prosecution’s case is entirely speculative.
- Meanwhile, a strong defense team may rely on its own evidence and testimony to prove that you knew little or nothing about the crime in question and did not intend to harbor a criminal from justice.
- The fact that you did not commit the crime in question won’t be the issue, your actions after the fact will be central to the case.
Frequently Asked Questions About Article 78
Would Actively Remaining Silent Make Me an Accessory After the Fact?
No. Silence does not necessarily make you an accessory after the fact. You must actively assist an offender in some fashion to be charged with Article 78 of the UCMJ.
As an example, let’s say you think you saw a suspected criminal running down your street in an attempt to escape, but you weren’t certain and never called 911. Later, law enforcement interrogates you and you tell them what you saw. They cannot consider you an accessory after the fact simply by withholding information that you didn’t think was important at the time.
On the other hand, if that same criminal is hiding in your home with your knowledge, and you remain silent about his whereabouts to law enforcement, you certainly could be an accessory after the fact.
If I’m an Accessory After the Fact, Would I Be Considered a Principal of the Original Crime?
No. Being named an accessory after the fact makes you the principal of an entirely separate crime, unrelated to the original offense. You will not be charged with the same crime as the offender you sought to aid. Rather, you will be charged with a completely different crime under Article 78 of the UCMJ.
Of course, if you had known about the offender’s actions prior to his or her committing the crime, and had planned to assist them after the crime all along, then you will be subject to the charges under the article of the UCMJ that relates to those crimes
A service member found guilty of Article 78 Accessory After the Fact will face charges equal to that of the offender of the original crime, with a few exceptions:
- You cannot be put to death under an Article 78 offense
- You cannot be given more than ½ the maximum confinement as defined by the Article of the original offense
- Should the principal of the original offense be given life in prison, you will only serve a maximum of 10 years.