§ Article 78 : Accessory After the Fact

Article 78 of the UCMJ (10 U.S.C. § 878) punishes a person who, knowing that an offense punishable under the UCMJ has been committed, receives, comforts, or assists the offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. It does not require participation in the original offense.

Who It Applies To

Any person subject to the UCMJ who, knowing that another person has committed an offense punishable under the UCMJ, receives, comforts, or assists that person in order to hinder or prevent the person’s apprehension, trial, or punishment. The assistance is not limited to helping the offender escape or hide; it also includes acts that conceal the offense itself, such as concealing evidence.

What It Covers

1. An offense punishable under the UCMJ was committed by a certain person.
2. The accused knew that this person had committed the offense.
3. Thereafter, the accused received, comforted, or assisted the offender.
4. The accused did so for the purpose of hindering or preventing the offender’s apprehension, trial, or punishment.

Actual knowledge is required, although it may be proved by circumstantial evidence.

Limits and related rules

• Merely failing to report a known offense does not make a person an accessory after the fact.
• The person who committed the underlying offense need not be subject to the UCMJ, but the underlying offense must be one punishable under the UCMJ.
• The prosecution must prove that the underlying offense was committed. An accused may be convicted as an accessory after the fact even if the principal was acquitted in a separate trial, and the principal’s conviction or acquittal in a separate trial is not admissible to show whether the principal committed the offense.
• Being an accessory after the fact is not a lesser included offense of the underlying offense.

Maximum Punishment

Maximum authorized punishment. The maximum punishment authorized for the underlying offense, with three limits: death may not be adjudged; confinement may not exceed one-half of the maximum confinement authorized for the underlying offense; and confinement may not exceed 10 years in any case, including where the underlying offense authorizes confinement for life.

Sentencing parameters. Article 78 is classified as “dependent on underlying offense.”

The newer sentencing rules apply, subject to the capital-case rules, when the accused is convicted only of offenses committed after 27 December 2023. See How UCMJ Sentencing Rules Apply. The maximum authorized punishment and the applicable sentencing framework do not predict the sentence in a particular case.

Related and Distinguished

Being a principal (Article 77) or a conspirator (Article 81) involves participation before or during an offense. Article 78 applies only to assistance given after the offense is complete.

The Manual notes that a failure to report a known offense, which does not by itself violate Article 78, may instead violate a general order or regulation under Article 92, and that where the offense is a serious one and the person does something to conceal it, the conduct may fall under Article 131c (misprision of a serious offense).

What the Provision Does

Article 78 applies only to assistance given after an offense is complete, by a person who knows the offense was committed and acts to hinder or prevent the offender’s apprehension, trial, or punishment. The maximum confinement is one-half of the underlying offense’s maximum, and never more than 10 years.

History

The statutory language traces to the original 1950 Uniform Code of Military Justice and was re-enacted in its current form on August 10, 1956.

Sources

• 10 U.S.C. § 878 (Article 78, UCMJ)
• Manual for Courts-Martial, United States, 2024 edition, Part IV, ¶ 2
• Manual for Courts-Martial, United States (2024 ed.), Appendix 12B and Appendix 12C