Impossibility defense

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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.[1] 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.[2]

Factual impossibility[edit]

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.[3] 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.[3] Another case involving the defense of factual impossibility is Commonwealth v. Johnson,[4] 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[5][1] 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.

Legal impossibility[edit]

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.[6] 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.[1][3]

See also[edit]


  1. ^ a b c 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. 
  2. ^ 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. 
  3. ^ a b c George P. Fletcher. Rethinking Criminal Law. Oxford University Press. pp. 149–151. Retrieved 2008-01-25. 
  4. ^ Commonwealth v. Johnson, 167 A. 344, 348 (Pa. 1933).
  5. ^ United States v. Thomas, 13 U.S.C.M.A. 278 (1962).
  6. ^ "Attempt -Impossibility Unavailable as a Defense". Oklahoma Jury Instructions. Retrieved 2008-01-25.