Attempt cases are difficult precisely because the underlying offense never happened. Under Article 80 of the Uniform Code of Military Justice, an attempt is an act done with the specific intent to commit an offense, amounting to more than mere preparation and tending, even though failing, to effect the commission of that offense. For investigators and the legal officers who advise them, the challenge is to identify the facts that establish probable cause for an attempt, where the central questions are what the suspect intended and how far toward completion he had gone. The investigative indicators that matter are the ones that speak to those two elements: specific intent and a substantial step beyond preparation.
The two elements that probable cause must reach
Probable cause for any offense requires reliable facts sufficient to support a reasonable belief that the offense was committed and that the suspect committed it. For an attempt, that means the facts must support two distinct conclusions. First, that the suspect specifically intended to commit a particular underlying offense. Attempt is a specific-intent crime, so a vague sense that the suspect was up to no good is not enough; the intended offense must be identifiable. Second, that the suspect took an overt act that was more than mere preparation, a substantial step that tended toward the commission of that offense. An investigation that gathers evidence on only one of these elements leaves the probable cause incomplete.
Because the crime was never completed, almost all of this proof is circumstantial. Intent in particular is nearly always shown through circumstantial evidence, so investigators look for facts from which a reasonable person could infer the suspect’s purpose and his progress toward carrying it out.
Indicators of specific intent
The first cluster of indicators concerns the suspect’s state of mind. Direct expressions of intent are the strongest: messages, recordings, statements to others, or admissions in which the suspect describes what he meant to do. Communications often supply this, including texts, chats, emails, or social-media messages that state or strongly imply a plan to commit the offense.
Where there is no direct statement, investigators assemble circumstantial indicators of intent. These include conduct that has no plausible innocent explanation, acquisition of items uniquely suited to the intended offense, research or reconnaissance directed at a specific target, and a sequence of steps that fit together only as movement toward a particular crime. The recognized question is whether the suspect’s conduct is strongly corroborative of his criminal intent. Facts that point to a single criminal objective, and that are hard to square with lawful purposes, are what build the intent side of probable cause.
Indicators of a substantial step beyond mere preparation
The second cluster concerns how far the suspect went. The law draws a line between mere preparation, which is not punishable as an attempt, and a substantial step that tends to effect the commission of the offense, which is. The military uses a substantial-step analysis, and whether conduct crosses the line is decided case by case. For investigators, the task is to document conduct that shows the suspect moved past planning and into execution.
Indicators that tend to show a substantial step include the suspect taking direct action against the intended target or victim, traveling to the place where the offense would occur, positioning himself to commit the act, putting tools or means into operation, and completing all the steps within his control so that only an outside intervention or a mistake stopped the offense. The recognized touchstone is conduct that is a direct movement toward commission of the crime, strongly corroborative of the suspect’s intent and indicative of his resolve to carry it out. The more the documented conduct looks like the suspect was actually carrying out the plan rather than getting ready to, the stronger the probable cause that an attempt occurred.
Proximity to completion is a useful frame. Investigators should capture how close the suspect came, what remained to be done, and why the offense did not complete. An offense that failed only because of an unforeseen obstacle, an interruption, or a factual mistake by the suspect is a classic attempt fact pattern, and documenting that failure point is part of establishing the attempt.
Common evidentiary sources
Across both elements, certain sources recur. Electronic evidence frequently anchors attempt investigations, because plans, target selection, and steps taken often leave digital traces. Witness accounts of the suspect’s statements and observed conduct supply both intent and step evidence. Physical evidence, such as acquired implements, prepared materials, or items found at a staging location, can show that preparation had matured into execution. Surveillance, access logs, location data, and financial records can corroborate that the suspect did what the other evidence suggests. Investigators should also preserve evidence of the interruption itself, since the manner in which the attempt was thwarted often illustrates that the suspect had passed the point of mere preparation.
Avoiding the preparation trap
A recurring weakness in attempt cases is conflating preparation with attempt. Buying ordinary items, expressing a wish, or making a plan, without more, is generally preparation and will not support probable cause for an attempt by itself. The investigation strengthens the case by tying preparatory facts to an overt act that actually moved toward the offense. Probable cause for an attempt is at its firmest when the file shows both a clearly identifiable intended offense and a concrete, documented step in which the suspect began to carry that offense out.
Putting it together
The investigative indicators that support probable cause for attempted misconduct under Article 80 fall into two reinforcing groups. On intent, investigators look for statements, communications, and conduct strongly corroborative of a purpose to commit a specific offense. On the act, they look for a substantial step, a direct movement toward the offense that goes beyond preparation, ideally one that failed only because of an outside interruption or mistake. When the evidence reaches both elements, identifying the intended crime and showing the suspect began to execute it, there is probable cause to believe an attempt occurred, even though the underlying offense was never completed.
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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