B. Accessory After the Fact (Article 78, UCMJ).
An accessory after the fact is a person who, knowing that an offense punishable by the
UCMJ has been committed, receives, comforts, or assists, the offender in order to hinder or prevent his
apprehension, trial, or punishment. Silence does not make one an accessory after the fact. The
accessory after the fact must actively assist the offender. This assistance is not limited to the goal of
hiding the offender or effecting his escape, but it includes acts which are performed in order to conceal
the commission of an offense. Part IV, MCM 1984, Article 78, para b(1) to (4).
QUESTION: WHAT IS THE DIFFERENCE BETWEEN A PRINCIPAL AND AN ACCESSORY
AFTER THE FACT?
ANSWER: A PRINCIPAL ASSISTS OR ENCOURAGES THE PERPETRATOR IN THE
COMMISSION OF THE CRIME. THE OFFENSE OF ACCESSORY AFTER THE FACT OCCURS
AFTER THE COMMISSION OF THE CRIME. INSTEAD OF BEING FOUND GUILTY OF THE
OFFENSE AS A PRINCIPAL, THE ACCESSORY AFTER THE FACT HAS COMMITTED A
SEPARATE VIOLATION THROUGH HIS OBSTRUCTION OF JUSTICE. ONE EXAMPLE OF AN
ACCESSORY AFTER THE FACT WOULD BE THE INDIVIDUAL WHO WAS NOT A PARTY TO
AN ORIGINAL LARCENY SCHEME BUT WHO, AFTER THE THEFT, REMOVES THE STOLEN
GOODS FROM THEIR HIDDEN LOCATION IN ORDER TO HELP THE PERPETRATOR EVADE
PROSECUTION. UNITED STATES V. GREENER, 1 MJ 11 (NCMR 1977). IT WOULD BE A
DEFENSE TO A CHARGE OF ACCESSORY AFTER THE FACT IS LACK OF KNOWLEDGE
REGARDING THE COMMISSION OF A CRIME OR LACK OF INTENT TO ASSIST THE
PERPETRATOR ESCAPE LIABILITY.
C. Attempts (Article 80).
There are strong public policy grounds for punishing the individual who tries to commit a
crime and, for some reason, fails. If one soldier fires his weapon toward his bunkmate with the intent to
kill him and the sole reason for his failure is that he is a poor shot, it is obvious that the perpetrator is a
dangerous individual who should be removed from society. In this case, punishing the perpetrator will
hopefully prevent him from trying to kill his bunkmate again or turning his aggression against someone
The law of attempts also gives law enforcement personnel the power to stop the commission
of a crime before people are injured and property is destroyed. If attempts were not punishable, the
police would have to stand by and watch crimes in progress knowing they could do nothing until the
crime was completed.
Article 80, UCMJ, defines an attempt as "an act, done with specific intent to commit an
offense under this chapter, amounting to more than mere preparation and tending, even though failing, to
effect its commission..." Its elements, then, are as follows:
1. Act. To constitute an attempt, there must be a specific intent to commit a particular
offense. Both the UCMJ and the Manual for Courts-Martial (MCM) require that the specific intent to
commit the offense be accompanied by an act. The primary difficulty encountered in the law of
attempts is in