An impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. In the United States, thirty-seven states have ruled out factual impossibility as a defense to the crime of attempt. This is not to be confused with a 'mistake of fact' defense, which may be a defense to a specific intent crime like larceny.
An impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to commit although the defendant is unaware of this when the attempt is made. In People v. Lee Kong, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting. Another case involving the defense of factual impossibility is Commonwealth v. Johnson, in which a psychic healer was charged and convicted of fraud, despite the fact that a fictitious name was used to catch him. In United States v. Thomas the court held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.
An act that is considered legally impossible to commit is traditionally considered a valid defense for a person who was being prosecuted for a criminal attempt. An attempt is considered to be a "legal" impossibility when the defendant has completed all of his intended acts, but his acts fail to fulfill all the required in elements of a crime in common law. Mistakes of law have proved a successful defense. An example of a failed attempt of law is a person who shoots at a tree stump, believing that he is committing attempted murder; that person cannot be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime. Another example would be a party that litters by throwing a dozen apples on the ground. The party may have believed that his/her act was a crime & thus may have intended to commit a crime. However, in that jurisdiction, throwing organic or readily decomposable matter on the ground happened not to be a crime according to statute. Thus, the mistake by the party was a mistake as to law, which would insulate the party from conviction for an attempt to commit the crime in question, because the ultimate objective of the party wasn't in fact a crime. Even if the party had done what he/she intended to do, it would not have been a crime. This is distinguishable from "factual" impossibility, where if the party had done what he/she intended to do (say attempting to poison someone by giving them Coca Cola) it would have been a crime (actually poisoning someone is a crime). To put it another way, merely trying to commit a crime is insufficient to constitute a criminal attempt, what you are actually trying to achieve must be an actual crime. "Factual" impossibility therefore involves an error made in the process of carrying out a crime (a means-end blunder; generally an error as to factual reality that causes one to fail in one's criminal attempt), whereas "legal" impossibility involves an error (an error as to a legal reality; drawing wrong legal conclusions as to what is a crime) made with regard to the goals of the process. You can mess up attempting to commit an actual crime & be guilty of attempting to commit that actual crime, but you can't be guilty of attempting to commit a crime that isn't an actual crime.
However, "legal" and "factual" mistakes are not mutually exclusive. A borderline case is that of a person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey, (1953) in which a person was originally convicted for attempting to kill a protected animal out of season. In a debatable reversal, an appellate judge threw out the conviction on the basis that it is no crime to shoot a stuffed deer out of season.
- Richard M. Bonnie; Anne M. Coughlin; John C. Jefferies, Jr.; Peter W. Low (1997). Criminal Law. Westbury, NY: The Foundation Press. p. 251. ISBN 1-56662-448-7.
- John Hasnas (2002). "Once More unto the Breach:The Inherent Liberalism of the Criminal Law and Liability for Attempting the Impossible" (PDF). George Mason University School of Law - Hastings Law Journal. p. 13. Retrieved 2008-01-25.
- George P. Fletcher. Rethinking Criminal Law. Oxford University Press. pp. 149–151. Retrieved 2008-01-25.
- Commonwealth v. Johnson, 167 A. 344, 348 (Pa. 1933).
- United States v. Thomas, 13 U.S.C.M.A. 278 (1962).
- "Attempt -Impossibility Unavailable as a Defense". Oklahoma Jury Instructions. Retrieved 2008-01-25.