Destroying or getting rid of physical evidence to protect someone who committed a crime is a serious matter in the military justice system. Whether it amounts to being an accessory after the fact under Article 78 of the Uniform Code of Military Justice depends on the elements of that offense and on exactly what the person did and why. Disposing of evidence can fall within Article 78, but only when the specific requirements of the offense are met, and there are important distinctions between Article 78 and related charges.
What Article 78 prohibits
Article 78, codified at 10 U.S.C. 878, addresses the accessory after the fact. The offense has four core elements. First, an offense punishable under the UCMJ must have been committed by a certain person. Second, the accused must have known that this person committed the offense. Third, after that offense was committed, the accused must have received, comforted, or assisted the offender. Fourth, the accused must have done so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender. Every element must be present; the offense is not about committing the underlying crime but about helping the perpetrator escape accountability afterward.
How disposal of evidence fits the elements
Getting rid of physical evidence can satisfy the third element, because assisting an offender is not limited to hiding the person or helping them flee. Acts done to conceal the commission of an offense, including concealing or destroying evidence of another’s crime, can constitute the assistance that Article 78 contemplates. So when a service member throws away, destroys, or hides items that would tie another person to a crime, that conduct can qualify as receiving, comforting, or assisting the offender within the meaning of the article. The disposal is the assisting act.
The role of knowledge and purpose
The two mental elements are what separate criminal accessory conduct from innocent or unrelated behavior. The accused must have known that the other person committed a UCMJ offense, and the accused must have acted for the purpose of hindering or preventing that person’s apprehension, trial, or punishment. Disposing of an object is not enough by itself. A person who discards an item without knowing it is evidence, or who cleans up for ordinary reasons unconnected to shielding an offender, does not commit the offense. The government must prove both that the accused knew of the underlying crime and that the disposal was aimed at protecting the offender from justice. This purpose requirement is often the decisive battleground in these cases.
The underlying offense must exist
Article 78 is derivative, meaning it depends on a real underlying crime committed by another identifiable person. The prosecution must establish that a UCMJ offense actually occurred and that the accused knew the offender had committed it. If the underlying offense cannot be proven, or if the accused did not know of it, an accessory charge built on disposal of evidence cannot stand. This requirement is a meaningful limit, because it ties the accessory liability to an actual predicate crime rather than to suspicion.
How Article 78 differs from related offenses
Disposing of evidence can implicate offenses other than Article 78, and the distinctions matter. If a person destroys evidence to conceal their own crime rather than to protect someone else, that is not accessory after the fact, because Article 78 targets assistance to another offender. Such conduct might instead be charged as obstruction of justice or a similar offense under the general article. Likewise, tampering with evidence connected to an ongoing investigation or proceeding can raise obstruction-type charges that focus on interfering with justice rather than on aiding a particular offender after a completed crime. Because the same act of getting rid of evidence can map onto different offenses depending on the purpose and timing, charging decisions turn closely on the facts. The key questions are whose crime was being concealed, whether the actor knew of that crime, and what the actor was trying to accomplish.
Why the distinction matters for the accused
The differences are not academic. The elements of Article 78, particularly the knowledge of another’s offense and the specific purpose to shield that offender, give the defense concrete points to contest. A person accused of being an accessory through disposal of evidence can challenge whether the underlying offense was proven, whether they actually knew of it, and whether their conduct was truly aimed at preventing the offender’s apprehension, trial, or punishment rather than done for some innocent or independent reason. The maximum punishment for an accessory offense is also tied to the underlying crime, so the seriousness of the predicate offense affects the exposure the accused faces.
Practical guidance
A service member who is suspected of disposing of evidence should be careful before making any statement, because admissions about knowledge and purpose are exactly what the government must prove. Early consultation with defense counsel is important, because counsel can analyze whether the facts truly satisfy Article 78 or whether the conduct, if anything, points to a different offense, and can identify weaknesses in the government’s proof of knowledge and intent. The way the conduct is characterized can significantly change the available defenses and the potential punishment.
The bottom line
Disposal of physical evidence can be an accessory act under Article 78, but only when all the elements are met: a real underlying UCMJ offense committed by another person, the accused’s knowledge of that offense, an assisting act such as destroying or concealing the evidence, and the specific purpose of hindering the offender’s apprehension, trial, or punishment. Without that knowledge and protective purpose, or where the actor was concealing their own crime, the conduct falls outside Article 78 and may instead implicate obstruction-type offenses. Because the line is drawn by intent and knowledge, these cases are highly fact-dependent and warrant prompt legal advice.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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