When a service member is tried for an attempt under Article 80 of the Uniform Code of Military Justice, the military judge must instruct the panel on a set of elements and concepts that differ in important ways from the instructions for a completed offense. An attempt is its own crime, with its own mental and physical requirements, and the members cannot reach a sound verdict unless the judge explains those requirements precisely. The instructions are the framework the panel uses to decide whether conduct that fell short of the completed crime nonetheless crossed the line into criminal attempt.
The Elements the Judge Must Define
The core of any attempt instruction is the statement of the four elements, each of which the government must prove beyond a reasonable doubt. The judge must tell the members that the government must prove, first, that the accused did a certain overt act; second, that the act was done with the specific intent to commit a certain offense under the code; third, that the act amounted to more than mere preparation; and fourth, that the act apparently tended to effect the commission of the intended offense. The judge tailors these elements to the specific underlying offense charged, naming the crime the accused is alleged to have attempted so the members understand exactly what the intent was directed toward.
The Specific Intent Instruction
Among these, the specific intent element demands the most careful explanation. The judge must instruct that an attempt requires more than a general criminal state of mind. The accused must have acted with the specific intent to commit the particular underlying offense. Recklessness, negligence, or a generalized willingness to break the law does not satisfy this element. The members must be told that they have to find a conscious purpose to bring about the completion of the named offense. Because some underlying offenses do not themselves require specific intent, this instruction is essential; the attempt elevates the required mental state, and the panel must understand that even where the completed crime might be proved by a lesser mens rea, the attempt cannot.
Distinguishing Mere Preparation From a Criminal Attempt
The judge must explain the line between preparation and attempt, which is often the central factual dispute. The instruction makes clear that mere preparation, such as devising a plan or acquiring the means to commit the offense, is not enough. The overt act must go beyond preparation and constitute a direct movement toward the commission of the offense after the preparations are made. The members should understand that the act need not be the last possible step before completion, but it must be a substantial step that directly tends to accomplish the intended crime. The judge frames this as a question for the members to resolve on the facts, guiding them to ask whether the accused’s conduct moved from planning into execution.
The Overt Act and Its Apparent Tendency
Closely related is the instruction on the overt act and its apparent tendency to effect the offense. The judge tells the members that the act, viewed in the circumstances, must appear to tend toward bringing about the completed crime. This focuses the panel on the objective character of what the accused did, not merely on the accused’s hopes or thoughts. An act that has no apparent capacity to advance the intended offense does not satisfy the element, while an act that, given the surrounding facts, plainly moves toward completion does.
Why Factual Impossibility Does Not Excuse
The judge should also address impossibility where the facts raise it. The members must understand that it is not a defense that the offense was factually impossible to complete because of circumstances unknown to the accused. If the accused intended to commit the offense and took a substantial step toward it, the fact that completion turned out to be impossible under the actual circumstances does not bar an attempt conviction. The judge instructs the panel that the focus remains on the accused’s intent and conduct, not on whether external facts made success unattainable.
Voluntary Abandonment Where Raised
If the evidence raises it, the judge must instruct on voluntary abandonment. The members should be told that a genuine and complete voluntary abandonment of the criminal purpose, motivated by a change of heart rather than by fear of detection or by external obstacles, can be a defense to attempt. The judge frames this carefully, because abandonment that is merely a postponement, or a retreat prompted by the appearance of resistance or the risk of being caught, does not qualify. This instruction is given only when some evidence supports it, but when raised it is an essential part of the panel’s charge.
Lesser Included Offense Considerations
The judge must also consider whether attempt arises as a lesser included offense of a charged completed crime, or whether a still lesser offense is included within the attempt. Where the evidence would permit the members to find an attempt rather than the completed offense, or to find a lesser attempt, the judge instructs on those alternatives so the panel can return a verdict that matches the proof. Proper lesser included offense instructions ensure the members are not forced to choose only between full conviction and acquittal when the facts point to an intermediate result.
The General Charge That Surrounds the Elements
Finally, the attempt instructions do not stand alone. The judge embeds them in the standard charge on the presumption of innocence, the government’s burden of proof beyond a reasonable doubt as to every element, the members’ role as the exclusive judges of the facts and credibility, and the requirement to consider each element separately. The members must be told that if the government fails to prove any one of the four elements, they must acquit of the attempt, although they may still consider any properly instructed lesser offense.
Conclusion
When the charge is an attempt under Article 80, the military judge must instruct the panel on the four elements of attempt, with special emphasis on the specific intent to commit the named underlying offense and on the distinction between mere preparation and a substantial overt act that apparently tends toward completion. Depending on the evidence, the judge must add instructions on factual impossibility, voluntary abandonment, and any lesser included offenses, all framed within the standard charge on the presumption of innocence and proof beyond a reasonable doubt. Accurate and complete instructions on these points are what allow the members to distinguish a punishable attempt from conduct that never left the realm of planning.
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.
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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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