Court Martial Lawyer - Accessory After the Fact UCMJ Article 78
a. MAXIMUM PUNISHMENT: Maximum authorized for principal offense, but not death, no more than 1/
2 confinement authorized for principal offense, and not more than 10 years.
b. MODEL SPECIFICATION:
I n t h a t _ ( p e r s o n a l j u r i s d i c t i o n d a t a ) , k n o w i n g t h a t ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t
__________, __________ 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
( a p p r e h e n s i o n ) ( t r i a l ) ( p u n i s h m e n t ) o f t h e s a i d _ , ( r e c e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e s a i d
__________ by __________.
c. 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) in order to (hinder) (prevent) (his) (her) (apprehension)
(trial) (punishment).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The accused may be found guilty as an accessory after the fact only if,
i n a d d i t i o n t o a l l o t h e r e l e m e n t s o f t h e o f f e n s e , y o u a r e s a t i s f i e d
beyond a reasonable doubt that:
NOTE 1: 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 2: 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
158 DA PAM 27–9 • 15 September 2002
ARTICLE 78
evidence indicates the principal may have intended to commit inside the house, building, or
structure involved.
N O T E 3 : M a x i m u m p u n i s h m e n t f o r p r i n c i p a l o f f e n s e a f f e c t e d b y v a l u e . I f t h e o f f e n s e
c o m m i t t e d b y t h e p r i n c i p a l i s o n e f o r w h i c h t h e m a x i m u m p u n i s h m e n t i s g r a d u a t e d
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: simple arson
( A r t i c l e 1 2 6 ) , f r a u d a g a i n s t t h e U n i t e d S t a t e s ( A r t i c l e 1 3 2 ) , k n o w i n g l y r e c e i v i n g s t o l e n
property (Article 134), and other offenses in violation of Articles 103, 10 8, 109, and 123a.
When value, damage or amount is in issue an instruction in accordance with Instruction 7-
16, Value, Damage, or Amount, should be given.
NOTE 4: 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.
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