UCMJ ARTICLE 80: ATTEMPTS

Executive Summary

Key Takeaway: UCMJ Article 80 criminalizes attempts to commit military offenses when a service member takes substantial steps toward completing a crime with specific intent but fails to accomplish it. Conviction requires proof of a specific overt act, intent to commit a particular offense, conduct beyond mere preparation, and direct movement toward commission of the crime. Maximum punishment mirrors the completed offense except death penalty cannot be imposed and confinement for most attempts cannot exceed 20 years.

What Article 80 Covers: Performing overt acts with specific intent to commit UCMJ violations, taking substantial steps toward crime completion that go beyond mere preparation, attempting offenses that fail due to circumstances preventing completion, engaging in conduct that would result in a crime but for intervention or interruption, and demonstrating unequivocal criminal intent through actions proximately related to the intended offense.

Critical Article 80 Elements:

Specific intent to commit the target offense is required (the accused must intend to complete the crime and believe any required attendant circumstances exist)
Substantial step must go beyond mere preparation (planning, gathering materials, or early arrangements typically do not constitute attempts)
Factual impossibility provides no defense (if the accused believed the act would succeed, unknown circumstances preventing completion do not negate guilt)
Voluntary abandonment may provide affirmative defense (complete renunciation based solely on change of heart, not fear of detection or external circumstances)
Maximum punishment follows the completed offense with statutory caps (death penalty prohibited, 20-year confinement limit except attempted murder and certain sexual assault attempts)

Why Article 80 Cases Present Unique Challenges: The line between punishable attempt and non-punishable preparation is highly fact-specific and subject to varying judicial interpretation, prosecutors often rely heavily on circumstantial evidence to prove specific intent, the substantial step requirement lacks precise definition and depends on multiple factors including proximity to completion and unequivocal demonstration of intent, and distinguishing voluntary abandonment from mere hesitation or postponement requires careful factual analysis.

Immediate Steps if Under Investigation: Exercise your right to remain silent under Article 31(b) if questioned about any potential criminal conduct, do not provide statements explaining your actions or intent without defense counsel present, preserve all evidence that may show innocent explanations for your conduct or voluntary abandonment, document your timeline and any witnesses who can verify your activities, and consult with experienced military defense counsel immediately before investigators complete their case assessment.

Understanding UCMJ Article 80

Article 80 of the Uniform Code of Military Justice addresses criminal attempts. This provision allows prosecution of service members who take substantial steps toward committing an offense with specific intent but fail to complete the crime. The statute recognizes that criminal conduct deserving punishment may occur even when the intended offense is not accomplished.

The policy behind Article 80 is straightforward: military discipline requires accountability not only for completed offenses but also for deliberate efforts to commit crimes that fail due to circumstances beyond the accused's control. A service member who fully intends to commit an offense and takes significant steps toward that goal has demonstrated the same criminal mindset as someone who succeeds in completing the crime.

Article 80 cases frequently involve situations where intervention, discovery, or unforeseen circumstances prevent crime completion. The prosecution focuses on what the accused intended to do and how far they progressed toward that goal, not whether they ultimately succeeded.

Elements of Article 80

To obtain a conviction under Article 80, the prosecution must prove four elements beyond a reasonable doubt:

Element 1: The accused did a certain overt act

The government must establish that the accused performed a specific act at a particular time and place. This act must be clearly identified and proven. General allegations of intent without corresponding conduct are insufficient. The overt act must be something concrete that the accused actually did, not merely thought about or planned.

Element 2: The act was done with the specific intent to commit a certain offense under the UCMJ

Specific intent is critical. The accused must have acted with the purpose of bringing about the completion of a particular UCMJ offense. General criminal intent or recklessness does not satisfy this element. The prosecution must prove the accused specifically intended to commit the target offense and believed any required attendant circumstances existed. For example, in attempted larceny, the accused must intend to take property and believe it belongs to another person.

This intent requirement distinguishes attempts from reckless or negligent conduct. If someone acts recklessly and nearly causes harm, but did not intend to cause that harm, Article 80 does not apply. The accused must have acted purposefully to achieve a criminal result.

Specific intent is often proven through circumstantial evidence: the accused's statements, preparations, choice of time and place, relationship to the victim or target, conduct during and after the act, and other facts that logically demonstrate purposeful criminal intent.

Element 3: The act amounted to more than mere preparation

This is frequently the most contested element. The accused's conduct must cross the line from non-punishable preparation into punishable attempt. Mere preparation includes planning, gathering materials, arranging means, or taking preliminary steps that do not yet demonstrate a firm commitment to complete the crime.

Courts evaluate several factors to determine whether conduct has progressed beyond preparation:

Proximity to completion. How close did the accused come to finishing the crime? Acts very near to completion are more likely to constitute attempts than acts at early stages.

The last act test. Did the accused perform the last act necessary to complete the offense? While not required for conviction, performing the final necessary act strongly indicates an attempt.

Unequivocal act. Did the conduct unequivocally demonstrate criminal intent, or could it be explained by innocent purposes? Acts that clearly reveal criminal purpose support attempt liability.

Substantial step. Did the conduct constitute a substantial step toward crime completion? The step must be significant, not merely incidental or preparatory.

The line between preparation and attempt is fact-specific and subject to judicial interpretation. Different courts may reach different conclusions based on similar facts. Understanding how courts apply these factors is essential to defending Article 80 charges.

Element 4: Under the circumstances, the act tended to effect the commission of the intended offense

The act must be one that would naturally lead to completion of the crime. It must represent direct movement toward the criminal objective, not merely create an opportunity or condition that might later be exploited. The conduct must be on a path that, if uninterrupted, would result in the completed offense.

Distinguishing Mere Preparation from Criminal Attempt

The distinction between non-punishable preparation and punishable attempt is central to Article 80 cases. Early planning stages, even when combined with criminal intent, typically do not constitute attempts.

Examples of mere preparation:

Researching methods to commit a crime
Gathering materials that could be used for criminal purposes
Traveling to a location where a crime could be committed
Observing or surveilling a potential victim or target
Making general arrangements or plans

Examples of criminal attempt:

Placing explosives with a timer in a building
Pointing a weapon at someone and pulling the trigger
Breaking into someone's quarters with intent to commit a crime inside
Approaching a victim and attempting physical contact for an assault
Taking concrete steps to execute a plan that would result in the crime

Illustrative scenario: A service member who plans to steal classified documents might engage in several stages of conduct:

Deciding to steal the documents (not criminal)
Learning where documents are stored (preparation, not attempt)
Acquiring tools to bypass security (preparation, possibly attempt depending on circumstances)
Entering the secure area where documents are kept (likely attempt)
Reaching for the documents (clearly attempt)

The exact point where preparation becomes attempt depends on all circumstances and how courts evaluate the factors discussed above.

Factual Impossibility Is Not a Defense

Article 80 explicitly provides that factual impossibility does not prevent conviction. If the accused believes their actions will result in a crime, but unknown circumstances make completion impossible, they may still be convicted of attempt.

Classic examples from military case law:

Defective weapon. A service member points what they believe is a loaded firearm at another person and pulls the trigger intending to kill them. Unknown to the accused, the weapon is defective or unloaded. This constitutes attempted murder despite the factual impossibility of success.

Empty pocket. A service member reaches into another person's pocket intending to steal property, but the pocket is empty. This constitutes attempted larceny despite no property being available to steal.

Fake contraband. A service member attempts to purchase illegal drugs, but the substance is actually fake or legal. This may constitute attempted wrongful possession depending on the accused's belief and intent.

The key principle is that the accused's subjective belief about the facts, not the objective reality, determines guilt. If the accused believed the circumstances would permit crime completion and acted on that belief, factual impossibility provides no defense.

Legal impossibility distinguished. Factual impossibility differs from legal impossibility. Legal impossibility exists when what the accused intended to do is not actually a crime. For example, if someone believes certain conduct is criminal but it actually is not, they cannot be convicted of attempting a non-existent offense. Legal impossibility may provide a defense, but it rarely arises because the accused must have intended to commit an actual UCMJ offense.

Voluntary Abandonment as Affirmative Defense

Unlike factual impossibility, voluntary and complete abandonment of criminal purpose may provide a defense to Article 80 charges. This affirmative defense applies when the accused abandons the attempt based solely on a genuine change of heart, not due to external circumstances.

Requirements for voluntary abandonment defense:

The abandonment must be voluntary (based on the accused's own decision, not forced by external factors), complete (the accused must fully renounce the criminal purpose, not merely postpone it), and based on genuine change of heart (not motivated by fear of detection, increased difficulty, or waiting for a better opportunity).

Examples where abandonment is voluntary:

The accused approaches a victim intending assault but stops upon reflection about the wrongfulness of the conduct
The accused begins executing a theft plan but voluntarily decides the conduct is morally wrong and ceases all action
The accused enters premises to commit a crime but experiences genuine remorse and leaves without proceeding

Examples where abandonment is NOT voluntary:

The accused stops because police arrive or witnesses appear (fear of detection)
The accused postpones the attempt to wait for better conditions (not complete abandonment)
The accused discovers the target is more difficult than anticipated (external circumstances, not change of heart)
The accused pauses to obtain additional tools or wait for the victim to be alone (temporary delay, not abandonment)

Burden of proof: Voluntary abandonment is an affirmative defense. Once the accused presents some evidence of abandonment, the prosecution must prove beyond reasonable doubt that the abandonment was not voluntary and complete.

Timing matters: To constitute a defense, abandonment must occur before the accused has taken all steps necessary to complete the offense. If the accused has done everything required and the crime fails for other reasons, abandonment is no longer possible.

This defense recognizes that someone who genuinely renounces criminal purpose before completion has not demonstrated the same level of criminal culpability as someone who proceeds to the full extent of their ability.

Lesser Included Offenses

Understanding lesser included offenses is important in attempt cases. When charged with attempting a serious offense, the accused may be convicted of attempting a lesser included offense if the evidence supports that alternative finding.

Common examples:

Attempted murder and assault. Assault is a lesser included offense of murder. A service member charged with attempted murder may be convicted of assault if the evidence shows unlawful force or violence but does not establish intent to kill.

Attempted aggravated assault and simple assault. Simple assault is lesser included in aggravated assault. If the evidence shows an attempt to cause bodily harm but does not establish the aggravating factors (serious bodily harm, dangerous weapon, etc.), conviction for attempted simple assault may result.

Attempted robbery and attempted larceny. Larceny is lesser included in robbery. If the evidence shows an attempt to take property but does not establish the force or intimidation element of robbery, attempted larceny may be proven.

Attempted kidnapping and attempted false imprisonment. False imprisonment is lesser included in kidnapping. If evidence shows an attempt to confine someone but not to move them or hold them for ransom, attempted false imprisonment may apply.

Defense counsel must carefully evaluate which lesser included offenses may apply to the facts of each case. In some situations, arguing for conviction on a lesser included attempt provides a strategic alternative to risking conviction on the greater offense charged.

Maximum Punishment Under Article 80

Article 80 provides that attempt offenses carry the same maximum punishment as the completed offense, with two important exceptions:

Death penalty prohibited. Even for attempted murder or other capital offenses, death penalty cannot be imposed for an attempt.

Twenty-year confinement cap. Except for attempted murder and attempts of certain sexual assault offenses under Articles 120 and 120b, no attempt offense may result in confinement exceeding 20 years, even if the completed offense carries a higher maximum. For attempted rape and sexual assault offenses, mandatory minimum sentences that apply to completed offenses may also apply to attempts.

Beyond these statutory limitations, the maximum punishment for attempt mirrors the completed offense:

Total forfeiture of pay and allowances
Reduction to the lowest enlisted grade
Punitive discharge (bad conduct or dishonorable)
Confinement up to the maximum for the completed offense (subject to statutory caps)

Actual sentences depend on numerous factors including the seriousness of the attempt, how close the accused came to completion, the accused's intent and culpability, aggravating and mitigating circumstances, and the accused's service record and character.

If you are facing Article 80 charges, contact Joseph L. Jordan at (888) 643-6254 for immediate consultation. Early intervention by experienced defense counsel can significantly impact charging decisions and case outcomes.

Case Law: Substantial Steps Beyond Mere Preparation

Military appellate courts have addressed the preparation-versus-attempt distinction in numerous cases. Two examples illustrate how courts evaluate whether conduct has crossed into criminal attempt territory:

United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979)

The accused broke into a female service member's quarters and reached toward her before being interrupted. The court held this conduct constituted attempted rape because it went beyond mere preparation. Breaking into the quarters and approaching the victim with reaching movements demonstrated specific intent and constituted substantial steps directly related to commission of the offense. The accused had moved well past planning stages into active execution of the criminal purpose.

United States v. St. Fort, 26 M.J. 764 (A.C.M.R. 1988)

The accused was discovered naked inside a closet in another service member's quarters. When confronted, he fled. The court concluded these circumstances established attempted adultery. Being found naked in another person's private quarters, combined with flight when discovered, constituted substantial steps toward commission of adultery. The conduct unequivocally demonstrated criminal intent and progressed beyond mere preparation into active attempt.

These cases demonstrate that courts evaluate the totality of circumstances to determine whether substantial steps have been taken. The same conduct might be evaluated differently depending on additional facts and context. Skilled military defense counsel must carefully analyze how courts have interpreted similar conduct and present arguments distinguishing the accused's actions from punishable attempts.

Defense Strategies for Article 80 Charges

Defending against Article 80 charges requires challenging one or more elements the government must prove:

Challenging Specific Intent

If the accused lacked specific intent to commit the target offense, conviction cannot be sustained. Defense may establish:

The accused's conduct had innocent explanations
The accused abandoned the criminal purpose voluntarily before taking substantial steps
Evidence of intent is insufficient or misinterpreted
The accused intended something different from what was charged
Intoxication or other factors negated specific intent

Intent is almost always proven through circumstantial evidence. Defense can present alternative interpretations of that evidence or introduce facts inconsistent with criminal intent.

Challenging the Substantial Step Element

If the accused's conduct remained in the preparation phase, conviction should not result. Defense may argue:

The accused's actions were preliminary arrangements, not execution
Substantial distance remained between the accused's conduct and crime completion
The actions had multiple potential purposes, not unequivocal criminal intent
Additional significant steps would have been necessary to complete the crime
Under the totality of circumstances, the conduct did not cross the line into attempt

Because the preparation-attempt distinction is highly fact-specific, skilled advocacy can often create reasonable doubt about whether substantial steps were taken.

Asserting Voluntary Abandonment

If the accused genuinely and completely abandoned criminal purpose based on change of heart, this affirmative defense may apply. Defense must present evidence showing:

The accused stopped pursuing the offense voluntarily
The decision was based on moral reflection or change of heart
External circumstances did not force the abandonment
The abandonment was complete, not temporary postponement

Challenging the Target Offense

If the government cannot prove all elements of the intended underlying offense, the attempt charge may fail. Defense strategies include:

Demonstrating that what the accused allegedly attempted is not actually a crime
Establishing affirmative defenses to the underlying offense
Showing the accused could not have completed the offense due to legal impossibility
Proving elements of the target offense cannot be established

Suppressing Evidence

If evidence was obtained unlawfully, defense can seek suppression:

Statements taken in violation of Article 31(b) rights
Evidence from unlawful searches or seizures
Coerced or involuntary statements
Evidence derived from constitutional violations

Presenting Alternative Theories

Defense may present evidence supporting innocent explanations:

The accused was engaging in lawful conduct misinterpreted by witnesses
The accused explored criminal conduct but abandoned it before reaching attempt stage
Circumstances created misleading appearances
The accused's conduct was defensive, protective, or otherwise justified

Your Rights During Article 80 Investigations

Service members under investigation for attempt offenses retain important constitutional and statutory protections:

Article 31(b) Rights

Before any questioning regarding suspected offenses, you must receive Article 31(b) warnings:

You are suspected of an offense
The nature of the suspected offense
You have the right to remain silent
Any statement may be used against you

These warnings apply to all official questioning about offenses, regardless of custody status.

Right to Counsel

You have the right to consult with military defense counsel and may retain civilian counsel:

Right to appointed military counsel at no cost
Right to civilian counsel at your own expense
Right to have counsel present during questioning
Right to stop questioning to consult with counsel

Protection Against Self-Incrimination

You cannot be compelled to make incriminating statements. Silence cannot be used as evidence of guilt. This protection applies throughout investigation and prosecution.

Fourth Amendment Protections

You are protected against unreasonable searches and seizures. Investigators need proper authorization to search your person, property, quarters, vehicles, or electronic devices. Do not consent to searches without consulting defense counsel.

The Importance of Early Legal Consultation

Article 80 cases often turn on evidence gathered early in investigations. Statements attempting to explain conduct or deny criminal intent frequently become key evidence supporting specific intent and substantial steps.

Consulting with experienced military defense counsel at the first indication of investigation provides critical benefits:

Protection of rights. Counsel ensures Article 31(b) rights are properly invoked and respected, preventing damaging statements.

Strategic positioning. Early counsel involvement allows presentation of your perspective before charging decisions, potentially preventing charges from being filed.

Evidence preservation. Counsel identifies and preserves exculpatory evidence that might otherwise be lost or overlooked, including evidence supporting voluntary abandonment.

Investigation of facts. Independent investigation can uncover witnesses and evidence supporting innocent explanations or establishing that conduct remained in preparation phase.

Case analysis. Early evaluation helps identify weaknesses in the government's case and potential defenses.

When You Should Contact Defense Counsel

Consult with military defense counsel immediately if:

You are questioned about potential criminal conduct
Investigators request interviews or statements
You learn you are a subject or target of investigation
Your conduct might be interpreted as attempted offense
Command asks about your intentions or activities
Digital evidence or communications are being examined
Witness statements implicate you in attempted offense

The earlier you consult counsel, the better positioned you are to protect your rights and build an effective defense.

Why Choose Joseph L. Jordan for Article 80 Defense

Joseph L. Jordan is a former Army Judge Advocate with extensive experience prosecuting and defending courts-martial. As a former military prosecutor, he understands how the government builds attempt cases, evaluates evidence of intent, and argues that conduct has crossed from preparation to attempt.

Our defense approach includes:

Thorough case analysis. We review all evidence, witness statements, and investigation reports to identify weaknesses in specific intent or substantial step elements.

Expert investigation. We conduct independent investigations to develop evidence supporting innocent explanations, showing conduct remained in preparation phase, or establishing voluntary abandonment.

Strategic motion practice. We file motions to suppress unlawfully obtained evidence, dismiss charges based on insufficient evidence, and challenge improper command influence.

Skilled trial advocacy. We present compelling defenses challenging the government's interpretation of facts and arguing for acquittal or conviction on lesser included offenses.

We represent service members worldwide at every stage of investigation and prosecution.

Immediate Steps if You Are Under Investigation

If you are being investigated for possible Article 80 violations:

Invoke your right to remain silent. Do not explain your conduct or intentions to investigators without defense counsel present. State clearly: "I wish to exercise my right to remain silent under Article 31 and consult with defense counsel before answering questions."

Do not delete evidence. Destruction of evidence creates separate criminal liability and adverse inferences. Preserve all communications and documents.

Document your recollection. Write down your timeline, activities, and innocent purposes while memory is fresh. If you voluntarily abandoned any conduct, document the circumstances and your reasons. Identify witnesses who can verify your account.

Avoid discussing the investigation. Do not talk about the matter with other service members, friends, or family. These conversations can be discovered and used as evidence.

Contact defense counsel immediately. Call (888) 643-6254 to speak with Joseph L. Jordan about your case. Early consultation protects your rights and strengthens your defense.

Frequently Asked Questions About UCMJ Article 80

What is Article 80 of the UCMJ?

Article 80 addresses criminal attempts. It applies when someone takes substantial steps toward committing a crime with specific intent but fails to complete the offense for any reason.

What elements must be proven for an Article 80 violation?

Prosecutors must establish that a specific overt act was performed, the act was done with specific intent to commit a particular offense and belief in required attendant circumstances, the act amounted to more than mere preparation, and the act was direct movement toward commission of the intended offense.

What is the difference between mere preparation and criminal attempt?

The distinction is highly fact-specific. Mere preparation includes planning, arranging means, and gathering materials. Criminal attempt requires substantial steps that strongly corroborate intent and constitute direct movement toward crime completion. Courts evaluate proximity to completion, whether the last act was performed, unequivocal demonstration of intent, and significance of the step taken.

What is factual impossibility?

Factual impossibility means unknown circumstances made crime completion impossible. Under Article 80, factual impossibility is not a defense. If the accused believed their actions would result in a crime and acted on that belief, they may be convicted even though completion was actually impossible. Examples include attempting to shoot someone with an unloaded weapon or attempting to steal from an empty pocket.

What is voluntary abandonment?

Voluntary abandonment is an affirmative defense that applies when the accused completely renounces criminal purpose based solely on genuine change of heart, not due to fear of detection or external circumstances. The abandonment must be voluntary, complete, and motivated by moral reflection rather than practical obstacles.

How are lesser included offenses handled?

Lesser included offenses require careful analysis. Common examples include assault as lesser included in attempted murder, simple assault in attempted aggravated assault, and false imprisonment in attempted kidnapping. The specific facts of each case influence which lesser offenses apply.

What are the potential penalties under Article 80?

Convicted service members face the same maximum punishment as the completed offense with exceptions: death penalty cannot be imposed, and confinement for attempts other than attempted murder and certain sexual assault attempts cannot exceed 20 years.

What rights do service members have during investigation?

Service members retain Article 31 rights including right to remain silent, right to counsel, right against self-incrimination, and right to be informed of accusations. They also have Fourth Amendment protections against unreasonable searches.

When should someone seek legal counsel?

Consult qualified defense counsel upon learning of an investigation, before making any statements to investigators, when asked to provide evidence or testimony, or if charged with any offense.

What constitutes a substantial step under Article 80?

Substantial step analysis is case-specific. Courts consider proximity to completion, whether acts strongly corroborate intent, if conduct would naturally lead to crime commission, and whether the accused passed the point of abandonment. Each case requires individual analysis of specific facts.

Can charges proceed if the crime wasn't completed?

Yes. The essence of attempt charges is that the crime was not completed. Prosecution focuses on proving intent and substantial steps, not successful completion.

What legal precedents apply?

Military appellate courts have addressed Article 80 in numerous cases including United States v. Sampson (addressing substantial steps beyond mere preparation) and United States v. St. Fort (examining evidence of attempted adultery).

Where can service members find more information?

Manual for Courts-Martial, military justice provisions, installation legal assistance offices, military defense counsel, and qualified civilian military attorneys can provide additional information.

What should service members know about legal representation?

Military members have the right to appointed military defense counsel at no cost. They may also retain civilian counsel at their own expense. Initial consultations are confidential. Early consultation may help protect rights and interests.

For immediate consultation regarding Article 80 charges or investigations, contact Joseph L. Jordan at (888) 643-6254. Experienced military defense representation for service members worldwide.

Important Notice: This information is provided for educational purposes and does not constitute legal advice. Every case involves unique facts requiring individualized legal analysis. Reading this information does not create an attorney-client relationship. For advice specific to your situation, consult with a qualified military defense attorney.