"Ei Incumbit Probation Qui Dicit."

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Article 78 Accessory After the Fact

Under Article 78, being an accessory to an alleged crime is an offense under the UCMJ. Any person helping an individual who has committed an offense can be charged under this punitive article if it is proved that he was aware of the latter's involvement in the offense.

The elements of the crime under Article 78 of UCMJ that must be proved by the prosecution are as follows:

  1. The law requires an offense that is punishable by the UCMJ code to be perpetrated by a person;
  2. That the individual charged under Article 78 was aware that this person had committed such an offense;
  3. That, having this knowledge, the accused under the Article 78 received, assisted, or comforted the person who committed the offense;
  4. That the purpose of the accused individual's actions were to hinder or prevent the trial, apprehension, or punishment of the perpetrator of the offense.

Explanation of Article 78

When an individual gives assistance or harbors an offender, he becomes an accessory after the fact under Article 78 if: a) he helps the offender escape or hide, b) he helps the offender conceal evidence of the offense committed. For example, helping a person who has committed a murder conceal incriminating evidence such as the assault weapon constitutes an offense under Article 78.

Points to Note about Article 78:

  • Mere failure to report an offense may not, by itself, make one an accessory after the fact. However, it may violate other regulations and fall within the purview of other Punitive Actions.
  • The offender who is being comforted, protected, or concealed by the accused under Article 78 need not be subject to the code. However, the offense committed by him should fall within the purview of the code.
  • Under Article 78 of the UCMJ, the prosecution is required to prove beyond doubt that the alleged perpetrator actually did commit the offense that he is accused of.
  • The accused charged with Article 78 may still be punished even if the principal in the case is acquitted of all charges in a separate trial.

What is the Maximum Punishment Granted under Article 78 Accessory After the Fact?

Persons found guilty of Article 78 violations shall be subject to the maximum authorized punishment for principal offense. However, these conditions apply on the punishment granted under this punitive article:

  • Death penalty shall not be awarded in any such trial.
  • The accused shall not be given more than 1/2 the maximum confinement authorized for the principal offense.
  • The period of confinement shall not exceed 10 years even in those cases where life imprisonment is awarded to the principal.

Example of Article 78 Accessory After the Fact Incidence

In the United States vs. Foushee, 13 M.J. 833 (A.C.M.R. 1982) trial, the accused was found guilty of providing Q-tips as well as alcohol to remove traces of blood off the assault weapon, a knife, and to treat the principal's injuries sustained during the assault. The accused was deemed to be an accessory after the fact. However, evidence was presented that indicated the accused was unaware that the assault had been done with intent to kill or inflict grievous bodily harm. Given this, the accused was found guilty of being accessory after the fact to assault with a dangerous weapon instead of being accessory after the fact to assault with intent to kill.

Military law is a complex subject that may be challenging for servicemen and women to fully comprehend. Defenses that may result in a more favorable verdict for the accused may be possible in such Punitive Action trails and these can be assessed by competent and experienced military defense attorneys with in-depth knowledge of UCMJ law. For further information on this Punitive Action, refer to the Manual for Courts Martial.

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