Military Judges Benchbook
7–1. VICARIOUS LIABILITY—PRINCIPALS AND CO-CONSPIRATOR
If the evidence at trial indicates that a person other than the accused committed the substantive criminal
acts charged against the accused and that the prosecution is asserting criminal liability against the accused
on a theory of vicarious or imputed liability, the theory of liability will usually rest on one or two bases:
the law of principals and/or the rule of co-conspirators. The law of principals allows conviction of the
accused for a substantive offense upon proof that the accused aided, abetted, counseled, commanded, or
procured the commission of the offense by the actual perpetrator, or caused an illegal act to be done. The
rule of co-conspirators allows conviction of the accused for a substantive offense upon a showing that the
accused was a member of an unlawful conspiracy, and that while the accused continued to be a member of
that conspiracy the offense charged was committed in furtherance of the conspiracy or was an object of the
conspiracy.
While the two theories of liability are distinct, they are closely related and, in most cases, both theories will
apply to the facts of the case. Occasionally, however, the facts will only support one theory or the other.
The military judge may, in the exercise of discretion, choose to instruct on one or both theories. Prior to
deciding upon the appropriate instructions, the military judge may wish to question the trial counsel as to
the theory being relied upon by the prosecution.—————–
Michael Waddington is a court martial lawyer – court martial attorney that defends military personnel worldwide as well as deployed civilian contractors subject to the UCMJ. He defends Army, Navy, Air Force, Marine, Coast Guard, and civilian contractor court martial cases. He has successfully defended military personnel as a court martial lawyer Army Navy Marine & Air Force court martials in Germany, England, San Diego, Norfolk, Jacksonville, Fort Bragg, Fort Jackson, Fort Stewart, Fort Gordon, Italy, Iraq, Kuwait, Korea, Okinawa, Japan, Yokota, and throughout the United States.
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