Court Martial Crimes - Aiding Article 77
3–1–1. PRINCIPALS—AIDING, ABETTING, COUNSELING, COMMANDING, OR
PROCURING (ARTICLE 77)
a. This paragraph does not contain any instructions, but will assist the military judge in formulating
instructions when issues of vicarious liability are raised by the evidence.
b. Article 77 does not define an offense; it merely makes clear that a person who did not personally
perform an act charged may still be criminally responsible for that offense.
c. See Instruction 7-1-4 for the instructions on the vicarious liability of co-conspirators.
d. When the evidence shows that the accused is the person who actually committed the offense, the military
judge should use that Chapter 3 instruction corresponding to the offense charged.
e. If the evidence shows that the accused did not actually commit the offense, but may be criminally
responsible as one who aided and abetted, commanded, counseled, procured, or caused the commission of
the offense, the military judge should follow the guidance in Instruction 7-
1. Depending on the evidence,
one, two, or all of Instructions 7-1-1 through 7-1-3 will be given.
f. As Instruction 7-1 indicates, when instructing on an offense in which the accused is not the one who
actually committed the offense, the military judge should:
(1) Give the elements of the offense charged indicating that the actual perpetrator, and not the accused, is
the one who is alleged to have committed the offense.
(2) After all the elements of the charged offense have been given, add the following element: “That
(state the name of the accused) ((aided and abetted) (counseled) (commanded) (procured) (caused)) (state
the name of the actual perpetrator) ((to commit) (in committing)) the offense of (state the alleged offense)
by (state the manner alleged).”
(3) Give the instructions and definitions of the offense charged, remembering that “the accused” as used
in those instructions and definitions will refer to the actual perpetrator and not the accused at trial.
(4) Give Instructions 7-1-1 through 7-1-3 as required by the evidence.
156 DA PAM 27–9 • 15 September 2002
