Article 80 — Attempts | Manual for Courts-Martial

Part IV · Punitive Articles

Article 80. Attempts · MCM ¶ 4

2024 Manual for Courts-Martial, United States

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(a) Text of statute.

(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing to effect its commission, is an attempt to commit that offense.

(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial may direct, unless otherwise specifically prescribed.

(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

(b) Elements.

(1) That the accused did a certain overt act;

(2) That the act was done with the specific intent to commit a certain offense under the UCMJ;

(3) That the act amounted to more than mere preparation; and

(4) That the act apparently tended to effect the commission of the intended offense.

(1) In general. To constitute an attempt there must be a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.

(2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

(3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person’s billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

(4) Voluntary abandonment. It is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person’s own sense that it was wrong, prior to the completion of the crime. The voluntary abandonment defense is not allowed if the abandonment results, in whole or in part, from other reasons, for example, the person feared detection or apprehension, decided to await a better opportunity for success, was unable to complete the crime, or encountered unanticipated difficulties or unexpected resistance. A person who is entitled to the defense of voluntary abandonment may nonetheless be guilty of a lesser included, completed offense. For example, a person who voluntarily abandoned an attempted armed robbery may nonetheless be guilty of assault with a dangerous weapon.

(5) Solicitation. Soliciting another to commit an offense does not constitute an attempt. See paragraph 6 for a discussion of Article 82, Solicitation.

(6) Attempts not under Article 80. While most attempts should be charged under Article 80, the following attempts are specifically addressed by some other article, and should be charged accordingly:

(a) Article 85—Desertion

(b) Article 94—Mutiny or sedition

(d) Article 103a—Espionage

(e) Article 103b—Aiding the enemy

(f) Article 119a—Death or injury of an unborn child

(g) Article 128—Assault

(7) Regulations. An attempt to commit conduct which would violate a lawful general order or regulation under Article 92 ( see paragraph 18) should be charged under Article 80. It is not necessary in such cases to prove that the accused intended to violate the order or regulation, but it must be proved that the accused intended to commit the prohibited conduct.

(d) Maximum punishment. Any person subject to the UCMJ who is found guilty of an attempt under Article 80 to commit any offense punishable by the UCMJ shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case shall the death penalty be adjudged, and in no case, other than attempted murder, shall confinement exceeding 20 years be adjudged. Except in the cases of attempts of rape and sexual assault under Article 120(a) or (b), and rape and sexual assault of a child under Article 120b(a) or (b), mandatory minimum punishment provisions shall not apply.

(e) Sample specification. In that __________ (personal jurisdiction data) did, (at/on board—location) (subject-matter jurisdiction data, if required), on or about _____ 20 __, attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element).

Information on this tab is reproduced from the U.S. Army Military Judges’ Benchbook (Electronic Benchbook v2.70, updated 2026-05-26). It is for informational purposes only to compare to the text on the Manual for Courts-Martial on the MCM tab. Always check the current EBB to make sure you’re reviewing the most recent information.

NOTE 1. Applicability of this instruction. The following instruction will ordinarily apply to all attempts under Article 80 except attempted murder (use Instruction 3A-4-2) and attempted voluntary manslaughter (use Instruction 3A-4-3). Also, do not use this instruction in the following cases: assault by attempt (use instructions for appropriate assault offense tailored for attempt), attempted desertion (use Instruction 3A-9-4), attempted mutiny (use Instruction 3A-21-6), attempting to compel surrender (use Instruction 3A-28-2), attempted espionage (use Instruction 3A-32-2), attempting to aid the enemy (use Instruction 3A-33-2) and attempting to kill an unborn child (use Instruction 3A-58-3).

NOTE 2. If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM. For attempt offenses, the confinement category is dependent on the underlying offense.

Maximum punishment

That authorized for commission of the offense attempted, except (1) in no case shall the death penalty be adjudged, (2) in no case, other than attempted murder, shall confinement exceeding 20 years be adjudged, and (3) except in cases of rape/sexual assault (Articles 120(a) or (b)) and rape/sexual assault of a child (Articles 120b(a) or (b)), mandatory minimum punishment provisions shall not apply.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location) on or about __________, attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element).

Elements

(1) That, (state the time and place alleged), the accused did (a) certain overt act(s), that is: (state the act(s) alleged or raised by the evidence);

(2) That the act(s) (was) (were) done with specific intent to commit the offense of (state the alleged attempted offense);

(3) That the act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the commission of the intended offense; and

(4) That such act(s) apparently tended to bring about the commission of the offense of (state the alleged attempted offense), (that is, the act(s) apparently would have resulted in the actual commission of the offense of (state the alleged attempted offense) except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of that offense.

Definitions & other instructions

Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward the commission of the intended offense. A substantial step is one that is strongly corroborative of the accused’s criminal intent and is indicative of (his) (her) resolve to commit the offense.

Proof that the offense of (state the alleged attempted offense) actually occurred or was completed by the accused is not required. However, it must be proved beyond a reasonable doubt that, at the time of the act(s), the accused intended every element of (state the alleged attempted offense).

The elements of the attempted offense are: (state the elements of the offense allegedly intended along with necessary definitions).

NOTE 3. Instructing on the elements of the offense attempted. When instructing on the elements of the attempted offense, the military judge may describe the intended offense in summarized fashion, along with applicable definitions, rather than enumerate each element. For example, where the alleged offense is attempted larceny of an item of a value greater than $500, the military judge may state: “Larceny is the wrongful taking of the property of another of a value greater than $500 with the intent to permanently deprive the owner of the use and benefit of the property or the intent to permanently appropriate the property to the accused’s own use or the use of anyone other than the lawful owner. A taking is wrongful only when done without the consent of the owner and with a criminal state of mind.” When the offense attempted involves elements of another offense, such as burglary with intent to commit rape, the elements of both offenses (burglary and rape), along with applicable definitions, must be stated.

NOTE 4. Graduated punishment possibilities for the attempted offense. If the offense attempted has maximum punishments graduated according to value, amounts, type of property, or other factors, the elements of the attempted offense should include the value, amount, type of property, or other factor alleged. For example, where the offense attempted is larceny of military property, that the property was military property must be stated as an element and the definition of military property given. The elements for the offense need not be enumerated but may be summarized as in the example in NOTE 2, above.

NOTE 5. Factual impossibility. If the evidence indicates that it was impossible for the accused to have committed the offense attempted for reasons unknown to him or her, the accused may still be found guilty of attempt. A person who purposefully engages in conduct which would constitute an offense if the circumstances were as that person believes them to be is guilty of an attempt. For example, if with intent to commit robbery, a person by force and against the victim’s will reaches into the victim’s pocket to steal money, believing money might be there, the person is guilty of attempted robbery even though the victim has no money on his person. When factual impossibility is raised, the following may be appropriate:

The evidence has raised the issue that it (was) (may have been) impossible for the accused to have committed the offense of __________ because (here state the facts or contention of the counsel). If the facts were as the accused believed them to be, and under those facts (his) (her) conduct would constitute the offense of (__________), the accused may be found guilty of attempted (__________) even though under the facts as they actually existed it was impossible for the accused to complete the offense of (__________). The burden of proof to establish the accused’s guilt beyond a reasonable doubt is upon the government. If you are satisfied beyond a reasonable doubt of all the elements of the offense as I have explained them to you, you may find the accused guilty of attempted (__________) even though under the facts as they actually existed it was impossible for the accused to commit the offense of (__________).

NOTE 6. Offenses requiring an intent to commit murder. When an attempt to commit an offense which requires the intent to commit murder is charged (e.g., burglary with intent to commit murder), the military judge MUST instruct that the requisite intent is to kill; an intent to inflict great bodily harm is not sufficient. See US v. DeAlva, 34 MJ 1256 (ACMR 1992).

NOTE 7. Other Instructions. Where the evidence raises the issue that the accused may have abandoned his or her criminal purpose, Instruction 5-20, Voluntary Abandonment, may be applicable. Where there is evidence that the accused may not have had the ability to formulate the requisite intent, Instruction 5-15, Evidence Negating Mens Rea, should be given. Instruction 5-15 is required even when evidence of the defense of lack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); US v. Berri, 33 MJ 337 (CMA 1991). If voluntary intoxication in relation to the ability to formulate the requisite intent is raised by the evidence, Instruction 5-21, Voluntary Intoxication, should ordinarily be given. Instruction 7-3, Circumstantial Evidence (Intent), is normally applicable.

References

US v. Jones, 37 MJ 459 (CMA 1993); US v. Schoof, 37 MJ 96 (CMA 1993); US v. Byrd, 24 MJ 286 (CMA 1987).

Source: Instruction 3a-4-1 · view original on jagcnet.army.mil

NOTE 1. Applicability of this instruction. Use this instruction only for attempted premeditated or attempted unpremeditated murder. For attempted voluntary manslaughter as the charged offense, see Instruction 3A-4-3; as a lesser included offense, see NOTE 6, below. For other attempts, see Instruction 3A-4-1.

Maximum punishment

DD, TF, life without eligibility for parole, E-1.

Sample specification

In that __________ (personal jurisdiction data) did, (at/on board—location), on or about __________, attempt to (describe offense with sufficient detail to include expressly or by necessary implication every element).

NOTE 3. About this specification. There is no MCM sample specification specifically for attempted murder. The specification above is for Article 80 attempts generally.

Elements

(1) That (state the time and place alleged), the accused did (a) certain overt act(s), that is: (state the act(s) alleged or raised by the evidence);

(2) That such act(s) (was) (were) done with the specific intent to kill (state the name of the alleged victim); that is, to kill without justification or excuse;

(3) That such act(s) amounted to more than mere preparation, that is, (it was) (they were) a substantial step and a direct movement toward the unlawful killing of (state the name of the alleged victim); (and)

(4) That such act(s) apparently tended to bring about the commission of the offense of (premeditated murder) (unpremeditated murder); that is, the act(s) apparently would have resulted in the actual commission of the offense of (premeditated murder) (unpremeditated murder) except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of that offense; [and]

NOTE 4. Attempted premeditated murder. If the accused is charged with attempted premeditated murder, give element (5).

((5)) That at the time the accused committed the act(s) alleged, (he) (she) had the premeditated design to kill (state the name of the alleged victim).

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond a reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward commission of the intended offense. A substantial step is one that is strongly corroborative of the accused’s criminal intent and is indicative of (his) (her) resolve to unlawfully kill.

Proof that a person was actually killed is not required. However, it must be proved beyond a reasonable doubt that the accused specifically intended to kill (state the name of the alleged victim) without justification or excuse.

The intent to kill does not have to exist for any measurable or particular length of time before the act(s) of the accused that constitute(s) the attempt.

(For attempted premeditated murder, the intent to kill must precede the act(s) that constitute(s) the attempt. “Premeditated design to kill” means the formation of a specific intent to kill and consideration of the act intended to bring about death. The “premeditated design to kill” does not have to exist for any measurable or particular length of time. The only requirement is that it must precede the act(s) that constitute(s) the attempt.)

(For (the lesser included offense of) attempted unpremeditated murder, the intent to kill must exist at the time of the act(s) that constitute(s) the attempt.)

The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, you may infer that a person intends the natural and probable results of an act (he) (she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, you may infer that (he) (she) intended to inflict death. The drawing of this inference, however, is not required.

NOTE 5. Instructions on attempted unpremeditated murder as a lesser included offense—generally. The evidence may indicate that all the elements of attempted premeditated murder have been proven except premeditation. If so, give the instruction below. If the military judge will also be instructing on attempted voluntary manslaughter as a lesser included offense, the portion in parentheses of the instruction below should also be given. If the evidence indicates that premeditation is in issue because of the accused’s passion or the accused lacked the ability to premeditate, NOTE 5 and the instruction following are normally applicable:

If you find beyond a reasonable doubt all the elements of attempted premeditated murder except the element of premeditation (and you find beyond a reasonable doubt that the attempted killing was not done in the heat of sudden passion caused by adequate provocation, which I will mention in a moment), you may find the accused guilty of the lesser included offense of attempted unpremeditated murder.

NOTE 6. Attempted unpremeditated murder as a lesser included offense—accused’s passion and ability to premeditate. If the evidence indicates that the passion of the accused may have affected his or her capacity to premeditate, the court may be instructed as below:

With respect to the accused’s ability to premeditate, an issue has been raised by the evidence as to whether the accused acted in the heat of sudden “passion.” “Passion” means a degree of rage, pain, or fear which prevents cool reflection. If sufficient cooling off time passes between the provocation and the time of the attempted killing which would allow a reasonable person to regain self-control and refrain from killing, the provocation will not reduce attempted murder to the lesser offense of attempted voluntary manslaughter. However, you may consider evidence of the accused’s passion in determining whether (he) (she) possessed sufficient mental capacity to have “the premeditated design to kill.” An accused cannot be found guilty of attempted premeditated murder if, at the time of the attempted killing, (his) (her) mind was so confused by (anger) (rage) (pain) (sudden resentment) (fear) (or) (__________) that (he) (she) could not or did not premeditate. On the other hand, the fact that the accused’s passion may have continued at the time of the attempted killing does not necessarily demonstrate that (he) (she) was deprived of the ability to premeditate or that (he) (she) did not premeditate. Thus, (if you are convinced beyond a reasonable doubt that sufficient cooling off time had passed between the provocation and the time of the attempted killing which would allow a reasonable person to regain (his/her) self-control and refrain from attempting to kill), you must decide whether (he) (she) in fact had the premeditated design to kill. If you are not convinced beyond a reasonable doubt that the accused attempted to kill with premeditation you may still find (him) (her) guilty of attempted unpremeditated murder if you are convinced beyond a reasonable doubt that the accused attempted to kill (state the name of the alleged victim) without justification or excuse.

NOTE 7. Attempted voluntary manslaughter as a lesser included offense. When there is evidence that an attempted killing may have been in the heat of sudden passion caused by adequate provocation, the military judge must instruct upon the lesser included offense of attempted voluntary manslaughter using the instructions below:

The lesser offense of attempted voluntary manslaughter is included in the crime of attempted (premeditated) (and) (unpremeditated) murder.

“Attempted voluntary manslaughter” is the attempted unlawful killing of a human being, done with an intent to kill, in the heat of sudden passion caused by adequate provocation. The presence of sudden passion caused by adequate provocation differentiates attempted unpremeditated murder from attempted voluntary manslaughter.

Acts of the accused which might otherwise amount to attempted (premeditated) (or) (unpremeditated) murder constitute only the lesser offense of attempted voluntary manslaughter if those acts were done in the heat of sudden passion caused by adequate provocation. “Passion” means a degree of anger, rage, pain, or fear which prevents cool reflection. The law recognizes that a person may be provoked to such an extent that in the heat of sudden passion caused by adequate provocation, (he/she) attempts to strike a fatal blow before (he/she) has had time to control (himself/herself). A person who attempts to kill because of passion caused by adequate provocation is not guilty of (either) attempted (premeditated) (or) (unpremeditated) murder. Provocation is adequate if it would cause uncontrollable passion in the mind of a reasonable person. The provocation must not be sought or induced as an excuse for attempting to kill.

If you are not satisfied beyond a reasonable doubt that the accused is guilty of attempted (premeditated) (or) (unpremeditated) murder, but you are satisfied beyond a reasonable doubt that the attempted killing, although done in the heat of sudden passion caused by adequate provocation, was done with the intent to kill, you may still find (him) (her) guilty of attempted voluntary manslaughter.

NOTE 8. Factual impossibility. If the evidence indicates that it was impossible for the accused to have committed the offense for reasons unknown to him/her, the accused may still be found guilty of attempt. A person who purposely engages in conduct which would constitute an offense if the circumstances were as that person believes them to be is guilty of an attempt. For example, if a person points a pistol he or she believes is loaded at the victim and pulls the trigger with intent to kill the victim, the person is guilty of attempted murder or attempted voluntary manslaughter even though the pistol is not loaded. In such cases, the following instruction may be appropriate:

The evidence has raised the issue that it was impossible for the accused to have committed the offense (or lesser included offense) of (premeditated murder) (unpremeditated murder) (voluntary manslaughter) (because (here the military judge may state the facts or contention of counsel)). If the facts were as the accused believed them to be, and under those facts the accused’s conduct would constitute the offense of (premeditated murder) (unpremeditated murder) (voluntary manslaughter), the accused may be found guilty of attempted (premeditated murder) (unpremeditated murder) (voluntary manslaughter), even though under the facts as they actually existed it was impossible for the accused to complete the offense of (premeditated murder) (unpremeditated murder) (voluntary manslaughter). The burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the government. If you are satisfied beyond a reasonable doubt of all the elements of the offense(s) as I have explained them to you, you may find the accused guilty of attempted (premeditated murder) (unpremeditated murder) (voluntary manslaughter) even though under the facts as they actually existed it was impossible for the accused to commit the offense attempted.

NOTE 9. Inapplicability of transferred intent instruction. The military judge should not ordinarily give a transferred intent instruction (NOTE 4, Instruction 3-42-2) when the accused is charged with an attempt. If the person intends to kill X and in attempting to consummate that intent, shoots at Y believing that Y is in fact X, the evidence establishes the intent to kill Y. In these cases, an exceptions and substitutions or variance instruction (Instruction 7-15) may be applicable. The factual impossibility instruction in NOTE above should not be used for situations posed in the hypothetical in this note because an unlawful killing is not factually impossible.

NOTE 10. Voluntary intoxication as a defense. If the issue of voluntary intoxication with respect to the ability to premeditate is raised by the evidence, Instruction 5-21, Voluntary Intoxication, should ordinarily be given. Voluntary intoxication by itself is not a defense to unpremeditated murder and will not reduce unpremeditated murder to a lesser form of unlawful killing. US v. Morgan, 37 MJ 407 (CMA 1993). Voluntary intoxication is, however, a defense to the offense of attempt. Attempts require the specific intent to commit the offense intended and accordingly, voluntary intoxication by itself may defeat that specific intent. When this issue is raised by the evidence, Instruction 5-21, Voluntary Intoxication, is ordinarily applicable.

NOTE 11. Other instructions. When there is evidence that the accused may not have had the ability to formulate the requisite intent, Instruction 5-15, Evidence Negating Mens Rea, should be given. Instruction 5-15 is required even when evidence of the defense of lack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); US v. Berri, 33 MJ 337 (CMA 1991). When an issue of self-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given. See the instructions in Chapter 5. If the evidence raised the defense that the accused may have abandoned his or her criminal purpose, Instruction 5-20, Voluntary Abandonment, may be applicable. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.

References

US v. Jones, 37 MJ 459 (CMA 1993); US v. Schoof, 37 MJ 96 (CMA 1993); US v. Byrd, 24 MJ 286 (CMA 1987).

Source: Instruction 3a-4-2 · view original on jagcnet.army.mil

NOTE 1. Applicability of this instruction. Use this instruction only for attempted voluntary manslaughter. For attempted premeditated or attempted unpremeditated murder, see Instruction 3A-4-2. For other attempts, see Instruction 3A-4-1.

Maximum punishment

(1) Attempted voluntary manslaughter: DD, TF, 15 years, E-1.

(2) Attempted voluntary manslaughter of a child: DD, TF, 20 years, E-1.

Sample specification

NOTE 3. About this specification. There is no MCM sample specification specifically for attempted voluntary manslaughter. The specification above is for Article 80 attempts generally.

Elements

(1) That (state the time and place alleged), the accused did (a) certain act(s), that is, (state the act(s) alleged or raised by the evidence);

(2) That such act(s) (was) (were) done with the specific intent to unlawfully kill (state the name of the alleged victim); that is, to kill without justification or excuse;

(3) That such act(s) amounted to more than mere preparation; that is, (it was) (they were) a substantial step and a direct movement toward the unlawful killing of (state the name of the alleged victim); and

(4) That such act(s) apparently tended to bring about the commission of the offense of voluntary manslaughter, that is, the act(s) apparently would have resulted in the actual commission of the offense of voluntary manslaughter except for (a circumstance unknown to the accused) (an unexpected intervening circumstance) (__________) which prevented completion of that offense.

Definitions & other instructions

The killing of a human being is unlawful when done without legal justification or excuse.

Preparation consists of devising or arranging the means or measures necessary for the commission of the attempted offense. To find the accused guilty of this offense, you must find beyond reasonable doubt that the accused went beyond preparatory steps, and (his) (her) act(s) amounted to a substantial step and a direct movement toward commission of the intended offense. A substantial step is one that is strongly corroborative of the accused’s criminal intent and is indicative of (his) (her) resolve to commit the offense.

Proof that a person was actually killed is not required. However, it must be proved beyond reasonable doubt that the accused specifically intended to kill (state the name of the alleged victim) without justification or excuse.

The intent to kill may be proved by circumstantial evidence, that is, by facts or circumstances from which you may reasonably infer the existence of such an intent. Thus, it may be inferred that a person intends the natural and probable results of an act (he/she) purposely does. Therefore, if a person does an intentional act which is likely to result in death, it may be inferred that (he/she) intended to inflict death. The drawing of this inference, however, is not required.

The intent to kill does not have to exist for any measurable or particular time before the act(s) of the accused that constitute the attempt. All that is required is that it exist at the time of the act(s) that constitute(s) the attempt.

NOTE 4. Sudden passion/adequate provocation. When attempted voluntary manslaughter is the charged offense, the existence of sudden passion caused by adequate provocation is not an element. The following instruction may be appropriate if an explanation is necessary:

The offense of attempted voluntary manslaughter is committed when a person, with intent to kill, unlawfully attempts to kill a human being in the heat of sudden passion caused by adequate provocation. The term “passion” means anger, rage, pain, or fear. Proof that the accused was acting in the heat of passion caused by adequate provocation is not required. It is essential, however, that the four elements I have listed for you be proved beyond reasonable doubt before the accused can be convicted of attempted voluntary manslaughter.

NOTE 5. Factual impossibility. If the evidence indicates that it was impossible for the accused to have committed the offense for reasons unknown to him/her, the accused may still be found guilty of attempt. A person who purposely engages in conduct which would constitute an offense if the circumstances were as that person believes them to be is guilty of an attempt. For example, if a person points a pistol he/she believes is loaded at the victim and pulls the trigger with intent to kill the victim, the person is guilty of attempted murder or attempted voluntary manslaughter even though the pistol is not loaded. In such cases, the following instruction may be appropriate:

The evidence has raised the issue that it was impossible for the accused to have committed the offense of voluntary manslaughter because (here state the facts or contention of counsel). If the facts were as the accused believed them to be, and under those facts the accused’s conduct would constitute the offense of voluntary manslaughter, the accused may be found guilty of attempted voluntary manslaughter, even though under the facts as they actually existed it was impossible for the accused to commit the offense of voluntary manslaughter. The burden of proof to establish the accused’s guilt beyond reasonable doubt is upon the government. If you are satisfied beyond reasonable doubt of all the elements of the offense as I have explained them to you, you may find the accused guilty of attempted voluntary manslaughter even though under the facts as they actually existed it was impossible for the accused to commit the offense of voluntary manslaughter.

NOTE 6. Inapplicability of transferred intent instruction. The military judge should not ordinarily give a transferred intent instruction (NOTE 4, Instruction 3-42-2) when the accused is charged with an attempt. If the person intends to kill X and in attempting to consummate that intent, shoots at Y believing that Y is in fact X, the evidence establishes the intent to kill Y. In these cases, an exceptions and substitutions or variance instruction (Instruction 7-15) may be applicable. The Factual Impossibility Instruction in NOTE 5 above should not be used for situations posed in the hypothetical in this note because an unlawful killing is not factually impossible.

NOTE 7. Voluntary intoxication as defense to attempted voluntary manslaughter. Voluntary intoxication by itself is not a defense to voluntary manslaughter. See US v. Morgan, 37 MJ 407 (CMA 1993). Voluntary intoxication is a defense to attempted voluntary manslaughter. Attempts require the specific intent to commit the offense intended and accordingly, voluntary intoxication by itself may defeat that specific intent. When this issue is raised by the evidence, Instruction 5-21, Voluntary Intoxication, is ordinarily applicable.

NOTE 8. Other instructions. When there is evidence that the accused may not have had the ability to formulate the requisite intent to kill, Instruction 5-15, Evidence Negating Mens Rea, should be given. Instruction 5-15 is required even when evidence of the defense of lack of mental responsibility is not presented. Ellis v. Jacob, 26 MJ 10 (CMA 1988); US v. Berri, 33 MJ 337 (CMA 1991). When an issue of self-defense, accident, or other legal justification or excuse is raised, tailored instructions must be given. See the instructions in Chapter 5. If the evidence raises the defense that the accused may have abandoned his or her criminal purpose, Instruction 5-20, Voluntary Abandonment, may be applicable. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable.

References

US v. Jones, 37 MJ 459 (CMA 1993); US v. Schoof, 37 MJ 96 (CMA 1993); US v. Byrd, 24 MJ 286 (CMA 1987).

Source: Instruction 3a-4-3 · view original on jagcnet.army.mil

Article 80. Attempts · MCM ¶ 4

3a-4-1 · ATTEMPTS-OTHER THAN MURDER AND VOLUNTARY MANSLAUGHTER

3a-4-2 · ATTEMPTS-MURDER, PREMEDITATED AND UNPREMEDITATED

3a-4-3 · ATTEMPTS-VOLUNTARY MANSLAUGHTER