Yes. When a service member is charged with a completed offense, the military judge can instruct the court-martial panel on both that offense and the attempt to commit it, provided the evidence reasonably raises the possibility that the accused tried but did not complete the crime. The attempt is treated as a lesser included offense, and the rules governing instructions require the judge to cover lesser offenses that the evidence fairly puts in issue. This article explains the legal basis for that dual instruction, when it is appropriate, and how panels are told to use it.
Attempt as a Lesser Included Offense
Article 80 of the UCMJ, codified at 10 U.S.C. § 880, defines an attempt as an act, done with specific intent to commit an offense, amounting to more than mere preparation and tending, even though failing, to effect the commission of that offense. The statute also states that a person may be convicted of an attempt even though the trial shows the offense was actually completed.
That statutory language is the foundation for instructing on both theories. Because the law expressly permits an attempt conviction where the proof shows completion, an attempt is generally a lesser included offense of the completed crime. Article 79 of the UCMJ, 10 U.S.C. § 879, recognizes that an accused charged with an offense may be found guilty of a lesser offense necessarily included in the one charged. Military courts have long treated attempt as falling within this framework relative to the substantive offense.
The Judge’s Duty to Instruct on Lesser Offenses
Under the Rules for Courts-Martial, the military judge is responsible for instructing the panel on the elements of each charged offense and on any lesser included offense reasonably raised by the evidence. The duty does not depend on a request from either party. If the record contains evidence from which the members could rationally find that the accused committed only the attempt rather than the completed crime, the judge should give the lesser included offense instruction even if the defense has not asked for it and even if both sides would prefer an all-or-nothing presentation.
The trigger is whether the evidence reasonably raises the lesser offense. Where the proof of completion is overwhelming and undisputed, and nothing suggests the act fell short, an attempt instruction may not be warranted because the lesser offense is not genuinely in issue. But where the evidence leaves room for the panel to conclude that the accused had the specific intent and took a substantial step yet did not bring about the result, both the completed offense and the attempt are properly submitted.
A Concrete Illustration
Consider an accused charged with a completed result crime. Suppose the evidence is conflicting about whether the harmful result actually occurred or whether the accused’s conduct produced it. The accused may have plainly intended the result and done far more than prepare for it, yet a factfinder could reasonably doubt that the offense was consummated. In that situation, instructing only on the completed offense would force the panel to acquit entirely if it harbored a reasonable doubt about completion, even though it was convinced the accused attempted the crime. Instructing on both the completed offense and the attempt gives the members an accurate set of options that matches the evidence.
This is precisely the circumstance Article 80 anticipates when it allows an attempt conviction notwithstanding proof of consummation. The dual instruction ensures the verdict reflects what the members actually find, rather than collapsing into an unwarranted acquittal or an overstated conviction.
How the Panel Is Told to Proceed
When both theories go to the members, the instructions explain the elements of the greater, completed offense first and then the elements of the attempt. The Article 80 attempt elements are that the accused did a certain overt act, that the act was done with the specific intent to commit the named offense, that the act amounted to more than mere preparation, and that the act apparently tended to effect the commission of the intended offense.
The members are ordinarily instructed to consider the completed offense first. If they are convinced beyond a reasonable doubt that the accused is guilty of the completed offense, they convict on it and do not reach the attempt. If they are not convinced of the completed offense but are convinced of the attempt, they may find the accused guilty of the lesser included attempt. This sequential structure prevents a conviction on both the completed offense and the attempt arising from the same conduct, because the attempt merges into the completed crime once completion is found.
Why This Matters to the Accused and the Government
For the accused, the availability of the attempt instruction can be significant. The maximum punishment for an attempt is ordinarily less than for the completed offense, so a conviction limited to the attempt can carry a lower ceiling on confinement and other consequences. A defense that concedes intent but contests completion may benefit from having the lesser offense before the panel, while a defense built on a complete denial may prefer to keep it out. Either way, the judge’s obligation to instruct on lesser offenses raised by the evidence does not bend to tactical preference.
For the government, the dual instruction protects a conviction from being lost entirely when the proof of completion is genuinely in doubt. It allows the members to hold the accused accountable for the criminal effort that the evidence supports.
Conclusion
A court-martial panel can be instructed on both the completed offense and the attempt to commit it. The basis is Article 80’s recognition that an attempt is provable even where the offense was consummated, combined with Article 79’s lesser included offense doctrine and the military judge’s duty to instruct on lesser offenses reasonably raised by the evidence. The instruction is appropriate when the record would let the members rationally find an attempt rather than a completed crime, and the members are guided to consider the greater offense first so that the attempt is reached only if the completed offense is not proven.
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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