Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 131c and Article 78 address conduct after someone else commits a crime, but they require different levels of involvement. Article 131c Misprision of a Serious Offense punishes concealing knowledge of certain serious crimes without reporting them. Article 78 Accessory After the Fact punishes actively helping an offender avoid apprehension or punishment. One is about staying silent; the other is about taking action to help. Understanding this distinction matters because passive concealment and active assistance are treated as different levels of culpability.
The Action Distinction
Article 131c Misprision requires:
Knowledge that a serious offense was committed
Concealing that knowledge
Failing to report to appropriate authorities
This is essentially a failure to report plus active concealment.
Article 78 Accessory After the Fact requires:
Knowledge that an offense was committed
Actively assisting the offender
With intent to help them avoid apprehension, trial, or punishment
This requires affirmative action to help, not just silence.
Different Levels of Involvement
Misprision involves:
Knowing about a crime
Keeping quiet
Taking steps to conceal knowledge
But not actively helping the offender escape consequences
Accessory after the fact involves:
Knowing about a crime
Taking action to help the offender
Hiding them, destroying evidence, providing alibis, or otherwise assisting
Active participation in helping them avoid justice
Misprision is about concealing what you know. Accessory is about what you do to help.
Article 131c: Misprision Elements
Misprision requires:
A serious offense occurred. The underlying crime must be a serious offense as defined (generally offenses punishable by confinement for more than one year).
The accused knew about it. Actual knowledge that the offense occurred.
The accused concealed knowledge. Took some affirmative step to hide knowledge (lying about it, destroying evidence of knowledge).
Failed to report. Didn’t notify appropriate authorities.
Simply knowing about a crime and not reporting it may not be enough; there must be some concealment.
Article 78: Accessory Elements
Accessory after the fact requires:
An offense was committed. Any offense, not just serious ones.
The accused knew the offender committed it. Actual knowledge of guilt.
The accused assisted the offender. Provided some help to avoid capture or punishment.
Intent to hinder. The assistance was meant to help the offender avoid justice.
The focus is on active assistance, not passive silence.
Types of Assistance
Accessory conduct includes:
Hiding the offender from authorities
Providing false alibis
Destroying evidence of the crime
Warning the offender about investigation
Helping them flee the jurisdiction
Lying to investigators about the offender’s whereabouts
Providing money or resources for escape
Misprision conduct includes:
Lying to investigators about whether you know anything
Hiding evidence of your own knowledge
Failing to come forward when asked
Concealing your witness status
Typical Fact Patterns
Clear misprision (Article 131c):
A service member witnesses a serious assault but doesn’t report it. When investigators ask if anyone saw anything, they lie and say they weren’t present. They’ve concealed their knowledge and failed to report. Misprision of serious offense.
A service member knows a colleague committed a theft. They tell no one and, when the victim asks if they know anything, they deny knowledge. Concealment plus failure to report.
Clear accessory (Article 78):
After a colleague commits an assault, a service member helps them hide the weapon used, provides a false alibi to investigators, and drives them to another state to avoid arrest. Active assistance to help avoid capture. Accessory after the fact.
A service member lets an offender hide in their quarters when MPs come looking, then lies about the offender’s presence. Active concealment of the offender. Accessory.
Distinction in action:
Knowing your roommate committed a crime and saying nothing: Potentially misprision if you also conceal
Hiding your roommate from MPs and lying about their location: Accessory after the fact
Same knowledge, different conduct, different offense.
The Serious Offense Requirement
Misprision (Article 131c) only applies to “serious offenses”:
Generally defined as offenses punishable by confinement for more than one year
Doesn’t cover minor misconduct
Limited to significant crimes
Accessory (Article 78) applies to any offense:
No minimum severity required
Can be accessory to minor as well as major crimes
Broader application
This means you can be an accessory to a minor offense but can only commit misprision of a serious one.
Punishment Comparison
Article 131c (Misprision):
Generally lesser punishment than the underlying offense
Designed for those who merely concealed knowledge
Not as severely punished as active assistance
Article 78 (Accessory After the Fact):
Maximum punishment is typically lesser than the principal’s maximum
But can still be significant for serious underlying offenses
Recognizes active assistance is more culpable than passive concealment
Both carry punishment proportional to involvement level and severity of underlying offense.
The Duty to Report Question
Misprision implies a duty to report serious crimes. This reflects military values:
Unit integrity. Concealing crimes undermines unit discipline.
Justice system. Criminal justice requires information.
Victim protection. Unreported crimes leave victims without recourse.
Prevention. Unreported offenders may commit more offenses.
The military expects members to report serious misconduct, not to protect wrongdoers through silence.
When Both Might Apply
Some conduct might support both charges:
Example: A service member knows their colleague committed sexual assault. They tell the offender that CID is investigating, help them delete incriminating messages, and then lie to investigators about knowing anything.
Misprision: Concealed knowledge of serious offense, failed to report
Accessory: Warned offender about investigation, helped destroy evidence
The different acts might support different charges.
Defenses
For misprision:
No serious offense actually occurred
The accused didn’t actually know about the offense
No concealment occurred (mere silence without active hiding)
The accused did report to appropriate authorities
Self-incrimination (limited; can’t be forced to report if doing so would incriminate yourself)
For accessory:
No offense was committed
The accused didn’t know about the offense
No assistance was actually provided
No intent to help the offender avoid justice
The accused was coerced into providing assistance
The Self-Incrimination Problem
Can you be required to report a crime you participated in?
Fifth Amendment protection generally prevents being forced to incriminate yourself
Misprision typically doesn’t apply if reporting would expose your own criminal conduct
Accessory liability might attach if you go beyond protecting yourself to actively helping others
The line is between protecting yourself (generally protected) and helping others escape justice (not protected).
Spouse/Family Considerations
What if the offender is your spouse or family member?
Traditional common law recognized some privilege against being forced to help convict family
Modern military law doesn’t fully protect family concealment
You might face reduced culpability or prosecutorial discretion
But family relationship isn’t a complete defense to either offense
Prosecutors consider family relationships in charging decisions but may still proceed in serious cases.
Practical Implications
For service members who witness crimes:
Report what you know to appropriate authorities
Don’t lie about your knowledge
Don’t help the offender escape or destroy evidence
Seek legal advice if you’re uncertain about your obligations
Your silence might be understandable but becomes criminal when combined with active concealment or assistance.
Frequently Asked Questions
If I just stay silent about a crime I witnessed, is that misprision?
Mere silence might not be enough for misprision. Article 131c typically requires both failure to report AND some act of concealment (lying about your knowledge, destroying evidence of what you know, actively hiding that you witnessed something). Simply not volunteering information may not trigger criminal liability, depending on jurisdiction and circumstances. However, if you’re asked directly whether you know anything and you lie, that concealment plus failure to report could constitute misprision. The safest approach is to report what you know. If you’re concerned about the implications, consult with legal counsel before responding to direct questions, but don’t affirmatively lie.
What’s the difference between being an accessory after the fact and obstruction of justice?
Both involve interfering with justice, but they focus on different things. Accessory after the fact (Article 78) focuses on helping the offender personally: hiding them, helping them escape, assisting their evasion of consequences. Obstruction of justice (Article 134) focuses on impeding the investigation or proceeding itself: destroying evidence, intimidating witnesses, interfering with investigators. There’s significant overlap: hiding an offender both helps them (accessory) and impedes the investigation (obstruction). Destroying evidence primarily obstructs justice but might also help the offender. Prosecutors choose charges based on which theory best fits the facts. The same conduct might support charges under both articles.
Can I be charged as an accessory if I didn’t know for certain that my friend committed the crime?
Accessory liability requires that you knew the person committed an offense. Suspicion or belief isn’t enough; you need actual knowledge. If you genuinely didn’t know for certain that your friend committed the crime, you may have a defense. However, “knowledge” can be proven through circumstances: if you helped them destroy bloody clothing right after someone was assaulted, a court might infer you knew what happened even if you claim you didn’t ask questions. Willful blindness (deliberately avoiding knowledge) might not protect you. The safest approach is not to help people who might have committed crimes, especially by destroying evidence or providing alibis.