Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 79 and Article 80 address situations where someone didn’t commit the full charged offense, but they serve completely different functions. Article 79 allows conviction for a lesser included offense when the evidence doesn’t prove the greater charge but does prove a related lesser crime. Article 80 addresses attempts: conduct that would have been a crime if completed but was interrupted before completion. Understanding this distinction matters because one involves what you can be convicted of, and the other creates a separate offense for uncompleted crimes.
The Function Distinction
Article 79 Lesser Included Offenses is procedural:
Allows conviction for lesser related offenses when charged with greater ones
Doesn’t create any new offense
Provides flexibility in verdicts based on evidence
Protects both prosecution and defense interests
Article 80 Attempts is substantive:
Creates a separate offense: attempting to commit a crime
Punishes conduct that would be criminal if completed
Applies when the offense was started but not finished
Can be charged independently or found as lesser included of the completed offense
How Each Works
Article 79 works like this:
Someone is charged with murder
The evidence proves they killed, but maybe not with premeditation
The panel can convict of manslaughter instead (lesser included offense)
No separate charge for manslaughter was needed; it’s included in the murder charge
Article 80 works like this:
Someone tried to kill another person but failed (victim survived, attempt was thwarted)
They can be charged with attempted murder
Or if charged with murder, attempted murder might be a lesser included offense
Attempt is a separate crime, not just a reduced version of the completed offense
Article 79: Lesser Included Explained
Article 79 provides:
An accused may be found guilty of an offense necessarily included in the offense charged
Or of an attempt to commit either the offense charged or an offense necessarily included therein
The concept of “necessarily included” means:
Every element of the lesser offense is also an element of the greater offense
You can’t commit the greater without also committing the lesser
The lesser is a subset of the greater
Examples:
Robbery includes larceny (taking property by force includes taking property)
Murder includes manslaughter (unlawful killing with premeditation includes unlawful killing)
Aggravated assault includes simple assault
Article 80: Attempts Explained
Article 80 creates attempt liability:
Intent. The accused intended to commit a specific offense.
Overt act. The accused did an act that was a substantial step toward commission.
Failure to complete. The offense wasn’t actually completed.
Attempt applies when someone:
Tried to commit a crime but was stopped
Started the crime but was interrupted
Took substantial steps but the intended result didn’t occur
The Relationship Between Them
These articles interact in several ways:
Attempt as lesser included. When charged with a completed offense, attempt is often a lesser included under Article 79. If the evidence shows the accused tried but didn’t succeed, conviction for attempt is available.
Separate attempt charge. Attempt can also be charged separately under Article 80 when the offense clearly wasn’t completed.
Double coverage. This ensures that criminal conduct is punishable whether it succeeded or failed.
Typical Scenarios
Lesser included offense (Article 79):
Charged: Premeditated murder
Evidence shows: Killing occurred but premeditation isn’t proven
Verdict: Guilty of unpremeditated murder or manslaughter (lesser included)
Article 79 allows conviction on what the evidence proves without requiring separate charge.
Attempt (Article 80):
Charged: Attempted murder
Facts: Accused shot at victim but missed; victim survived
Result: Attempted murder conviction (the crime was attempted but not completed)
Article 80 makes the attempt itself a crime.
Intersection:
Charged: Murder
Evidence shows: Accused shot victim intending to kill, but victim survived (facts were different than prosecution believed)
Verdict: Guilty of attempted murder (lesser included of murder, also separately defined by Article 80)
Punishment Implications
For lesser included offenses (Article 79):
Punishment is whatever the lesser offense carries
May be significantly less than the charged offense
The reduction follows automatically from conviction on lesser charge
For attempts (Article 80):
Maximum punishment is same as the completed offense (except death penalty doesn’t apply to attempts)
Attempt carries serious punishment because intent to commit the crime existed
The sentence reflects both the intent and how close to completion the attempt came
Strategic Considerations
For prosecution:
Lesser included offenses provide a safety net if they can’t prove every element of the greater charge
Charging attempt covers situations where completion is unclear
For defense:
May argue for conviction on lesser included if acquittal on the greater charge is unlikely
May argue that conduct didn’t rise to level of attempt (no substantial step)
Elements Analysis
For lesser included offenses, courts analyze elements:
Is every element of the allegedly lesser offense contained within the greater offense?
If yes, it’s a lesser included offense
This is a technical, elements-based test
For attempts, courts analyze conduct:
Did the accused intend to commit the offense?
Did they take a substantial step toward completion?
Was the offense not completed?
These are factual determinations about what happened.
Examples of Lesser Included Offenses
Common lesser included relationships:
Murder includes: manslaughter, aggravated assault, assault
Robbery includes: larceny, assault
Burglary includes: housebreaking, unlawful entry
Rape includes: sexual assault, abusive sexual contact
The panel instructions will identify available lesser included offenses.
When Attempt Isn’t Available
Attempt doesn’t apply to all offenses:
Some offenses have no meaningful attempt. Being AWOL is a status; you either are or aren’t.
Negligent offenses. You can’t “attempt” to be negligent; negligence and intent are incompatible.
Result offenses without clear attempt. Some offenses require specific results that either occur or don’t.
But most intentional offenses have attempt versions.
Defenses
For lesser included (Article 79):
Challenge is typically to the elements of the lesser offense itself
If you have a complete defense to the greater charge that also defeats the lesser, argue it
For attempts (Article 80):
No intent to commit the offense
No substantial step was taken (mere preparation)
Voluntary abandonment (some jurisdictions recognize this)
Impossibility (factual impossibility generally isn’t a defense; legal impossibility may be)
Practical Implications
For accused:
Understand that lesser included offenses are automatically available to the panel
Being charged with a greater offense exposes you to conviction on lesser offenses too
Attempt charges can result in nearly as much punishment as the completed offense
For panel members:
Consider all lesser included offenses during deliberation
If you can’t agree on the greater charge, consider whether a lesser is proven
Attempt is often available when the evidence shows the crime wasn’t completed
Frequently Asked Questions
If I’m charged with a serious crime, am I automatically at risk for conviction on lesser included offenses?
Yes. Under Article 79, any offense “necessarily included” in the charged offense is available as a verdict. You don’t get a separate charge or separate notice for lesser included offenses; they come with the greater charge. This means charging someone with murder automatically puts them at risk for manslaughter, assault, and other lesser included offenses if the evidence supports those verdicts. Defense strategy must account for all possible lesser included convictions, not just the charged offense. However, this works both ways: if acquittal on the greater charge seems likely, juries sometimes convict on lesser included as a compromise verdict.
What’s the difference between “preparing” to commit a crime and “attempting” it?
Preparation alone isn’t attempt; there must be a “substantial step” toward commission. Buying a gun to commit murder is preparation. Pointing the gun at the intended victim is a substantial step (attempt). The line isn’t always clear, but courts look for conduct that strongly corroborates criminal intent and moves beyond mere planning. Sitting at home thinking about committing a crime: not attempt. Driving to the victim’s house with your weapon: getting closer. Breaking into the victim’s house to kill them: substantial step, even if the victim isn’t home. The substantial step requirement ensures that people aren’t punished for thoughts alone.
If I voluntarily decided not to complete a crime after starting it, is that a defense to attempt?
This is the “voluntary abandonment” doctrine. Some jurisdictions recognize it as a defense to attempt: if you freely and completely abandoned the criminal purpose before completion, you might have a defense. However, abandonment due to external circumstances (police arrived, victim fought back, alarm sounded) isn’t voluntary abandonment; it’s just a failed attempt. The abandonment must be voluntary (your own choice) and complete (not just delayed). Even where recognized, this defense is narrow. Courts want to encourage people to stop before completing crimes, but they’re skeptical of claimed last-minute changes of heart. The UCMJ’s treatment of voluntary abandonment may vary by how specific cases are analyzed.