No Defense at Common Law

No Defense at Common Law

The common-law rule is stated as a limit on what a defendant may argue. A defendant charged with attempt cannot defend by showing that he was unable to complete the substantive offense because of some physical or factual condition he did not know about.¹ The rule has two components, and the subsections below take them one at a time. The first covers mistakes about physical conditions and means, such as a container with nothing in it or a weapon that cannot do what the defendant expected. The second covers mistakes about attendant circumstances, the surrounding facts that an offense definition makes relevant, and it applies whenever the conduct would have been a crime had those circumstances been as the defendant believed them to be.²

Both components rest on a single premise: culpability for attempt is measured against the facts as the defendant believed them to be. The court therefore asks what the defendant set out to do and whether that, accomplished under the conditions he thought existed, would have been a crime. The modern and better view follows this logic to its conclusion, holding that impossibility is no defense when the defendant's actual intent, unconstrained by the true facts he did not know, was to do an act or bring about a result that the law forbids.³ Courts apply the factual half of the rule uniformly. If what the defendant intends is proscribed, and he fails only because of circumstances unknown to him when he acted, he may be convicted of the attempt.⁴

The premise has two supports, and each deserves its own account. The first concerns mental state and conduct. In the situations where the defendant fails because of an unknown fact, his mental state matches that of a person guilty of the completed crime, and his acts show the same readiness to carry out the venture, so he needs restraint and correction just as much as the defendant whose plan worked.⁵ The second support is practical. Nearly every failed crime fails because the defendant misjudged some fact: the victim was elsewhere, the weapon was defective, the pocket was empty. A defense built on that misjudgment would be open to almost every defendant whose attempt did not succeed, and the offense would have little left to punish. Denying the defense keeps attempt in force for the people it exists to reach, those who have shown by intention and conduct that they are ready to commit the crime.

The range of affirmed convictions shows how far the rule extends. Courts have sustained attempt convictions where the defendant shot a decoy believing it was a deer, where an adult communicated online with someone he wrongly thought was a minor, where the intended victim was not where the shooter believed or was too far away for the weapon to kill, where poison or a bomb could not produce death, and where the substance sold as an illegal drug was something else.⁶ A sting operation supplies a modern illustration. A defendant tries to sell an undercover officer pills whose sale a specific statute forbids and is arrested, and testing then shows that his supplier duped him and the pills were sugar. The sale failed because of a fact unknown to him, yet he can be convicted of attempting to sell the proscribed pills.⁷

The same premise marks where the rule stops. Measuring the facts as the defendant believed them produces a conviction only if the conduct would then have been a crime. A defendant who smuggles a new pill into the country, believing the importation is forbidden when no law forbids it, has the facts right, and his error is about what the law prohibits. Even on his own version of events he would have committed no offense, and no particular offense exists for his conduct to be an attempt at, so this true legal impossibility still bars conviction.⁸ Set beside the sugar-pill seller, the smuggler shows which fact moves the answer: the seller would have broken a statute had the pills been what he thought, while the smuggler would have broken none had everything been as he thought. Students lose this issue when they treat a mistake about what the law forbids as if it were a mistake about the facts. Mistakes about legal status, which can resemble either kind of error, are taken up in a later section, and the two components of the factual rule come first, beginning with physical conditions and means.

Mistakes About Physical Conditions

The first component of the common-law rule covers the defendant who cannot complete the crime because of a physical or factual condition he did not know about, and the law gives that defendant no defense to a charge of attempt.¹⁰ The recurring scenes are easy to picture: a pickpocket reaches into a pocket that holds nothing, a thief opens a strongbox or ransacks a house that has already been emptied, a shooter pulls the trigger on a gun that is unloaded or defective, a poisoner gives the victim a harmless powder believing it deadly, and an assailant fires into a bed or at a window where the intended victim is not. The empty pocket is the standard illustration, and its traditional label is factual impossibility.¹¹ In every one of these scenes the obstacle is a fact about the world that the defendant had wrong, and nothing in his purpose or his effort separates him from the pickpocket whose target happened to carry a wallet.

A single question resolves all of these cases. The court asks whether the defendant's conduct would have completed the crime had the facts been as the defendant believed them to be.¹² Factual impossibility is the situation in which the answer is yes: the defendant is mistaken about a fact that makes the target offense unattainable, and with that fact corrected the defendant would have succeeded.

Step two carries a requirement that is easy to overlook, because the defendant must have been ignorant of the obstacle. A defendant who knew the pocket was empty presents a different problem, since the question then becomes whether he had the intent attempt requires, and a later section takes that up among the limits on the rule. In the cases here the defendant acts in ignorance, so his intent is not in doubt.

Published illustrations apply the sequence the same way. In one worked example, Suzy buys a gun, learns to use it, lures Bob to a spot where she can pass the killing off as an accident, aims at his heart, and pulls the trigger of what she believes is a loaded pistol, though unknown to her the shells are blanks.¹³ She may argue impossibility, but the obstacle is a physical fact she did not know and a law against killing a human being exists, so her claim is one of factual impossibility and she is guilty of attempted murder.¹⁴ In United States v. Thomas the Court of Military Appeals, surveying the civilian decisions, noted that an accused may be guilty of attempted murder who fires at a hole to kill a policeman who is in fact elsewhere on the roof, who shoots into a bed believing the victim asleep there when the victim is somewhere else, or who pulls the trigger of an unloaded gun at his wife's head believing it loaded.¹⁵ Those decisions fill out the list of physical conditions: the target who is not where the defendant believed, and the weapon that cannot fire.

The reasons for denying the defense can be read off what a physical obstacle does and does not change. The first concerns the defendant's culpability. The elements of attempt, an intent to commit the offense and an act in pursuit of it, are present in these cases, and the only missing piece is a completed result that depended on a fact outside the defendant's knowledge and control.¹⁶ The pickpocket who finds the pocket empty formed the same purpose and made the same reach as the pickpocket who finds a wallet, so a defense would reward him for ignorance of a fact he did not create and cannot take credit for. The second reason concerns the danger the law is trying to reach. A person who fails once through an empty pocket or a dud cartridge has learned only to choose the next target or cartridge more carefully, so the dangerousness that justifies punishing attempts is fully intact. The same purpose and the same conduct therefore receive the same treatment, whether luck supplied a full pocket or an empty one.

The rule reaches only obstacles that are physical or factual, and a contrasting scene shows where it stops.

Step three of the sequence has nothing to correct in that scene, and the absence of any wrong fact is the signal that the physical-conditions rule does not decide it. The obstacle is the way the offense is defined, which differs in kind from an empty pocket and receives its own treatment in the sections that follow, beginning with mistakes about attendant circumstances and then true legal impossibility. The trap is to label every failed attempt factual impossibility without asking whether the obstacle lies in the world or in the statute.

Mistakes About Attendant Circumstances

The second component of the common-law rule carries the same reasoning from physical obstacles to the surrounding facts that turn conduct into a crime. An attendant circumstance is a fact other than the defendant's conduct and its result that the definition of the offense still requires, such as the age of a victim or whether the person acted upon is alive. A statute against supplying obscene material to a minor needs a recipient under the stated age, and murder needs a living human being. Neither fact is something the defendant does; each is a condition of the world that he may judge correctly or incorrectly. When he judges it incorrectly, and his conduct would have been a crime had the circumstance been as he believed it to be, the common-law rule gives him no impossibility defense.¹⁸ The Model Penal Code's attempt provision is drafted for exactly this situation, measuring the actor by the circumstances as he believes them to be where he thinks an element of the offense exists that in fact does not.¹⁹

The decoy-minor sting is the modern setting in which this component is tested most often. In Chen v. State an adult exchanged lewd messages with an undercover officer whom he believed to be an underage girl named “Julie,” and the two planned to meet at a hotel.²⁰ No such girl existed, so the circumstance the offense required, a minor on the receiving end, was missing from the world. The defendant's belief put that circumstance in place in his own mind, and he acted on the belief by traveling to the hotel, well past mere preparation. Courts treat a plan carried forward until the decoy's unreality stopped it as evidence that the intent was real and not fantasy.²¹ Because the facts as he believed them would have made his conduct a crime, the missing minor is no defense and he is guilty of attempt.

A published four-cell illustration shows that belief governs in both directions. Congress forbids delivering obscene material to someone known to be under 18, and the deliverer knows the material is obscene and knows that 18 is the line.²² The four combinations of what the deliverer believes and what is true then come out as follows:

• A deliverer who believes the recipient is 17 and delivers to a 17-year-old has committed the completed offense.
• A deliverer who believes the recipient is 19 but delivers to a 17-year-old has made a mistake of fact that negates the required mental state, so under traditional rules there is no guilt.
• A deliverer who believes the recipient is 17 but delivers to a 19-year-old presents the classic factually impossible attempt, and the deliverer is guilty of attempt.
• A deliverer who believes the recipient is 19 and delivers to a 19-year-old has done nothing unlawful.

The two middle cells carry the lesson. The distance between belief and reality is the same in both, yet one deliverer is acquitted and the other is guilty of attempt, because the law asks what the deliverer believed about the recipient. A statute that defines the offense by the defendant's awareness shows why this result is natural. Michigan's statute on distributing obscene matter to a minor defines knowing a minor's status as being aware that the recipient is under 18 or recklessly disregarding a substantial risk that the recipient is.²³ The required mental state is aimed at the recipient's status as the defendant understands it. A deliverer who believes the recipient is under 18 therefore has the awareness the statute describes whether or not the recipient is a minor, and an attempt charge asks only whether he held that belief and acted on it.

The already-dead victim is the other standard illustration, and it was litigated as a claim of legal impossibility. In United States v. Thomas soldiers had intercourse with a woman they believed had fallen unconscious from intoxication. An autopsy later showed she had died of a heart condition, probably when she collapsed at the tavern or very soon afterward, and the soldiers did not know because rigor mortis does not ordinarily begin right away.²⁴ Charged with attempted rape, they argued legal impossibility.²⁵ A living victim is an attendant circumstance of rape, so the question was whether their conduct would have been rape had she been alive as they believed. It would have been, and the court held that her death was no bar to a conviction for attempted rape.²⁶ The court surveyed civilian authority, observing that when the intended crime is impossible because of a physical fact unknown to the accused the elements of attempt are present, and that the weight of authority treated such cases as attempts.²⁷ It set beside that survey the Model Penal Code's reform definition, which punishes a person who purposely engages in conduct that “would constitute the crime if the attendant circumstances were as he believes them to be.”²⁸ The same analysis applies in a homicide: a defendant who believed the victim alive and shot to kill is guilty of attempted murder even though the victim had already died.²⁹

Courts once divided over whether mistakes like these were legal impossibility, which was a defense, or factual impossibility, which was not. The soldiers' argument shows why the legal label was tempting: a defendant could say the crime was impossible because no living victim existed, as though the statute had a hole in it. The sting cases raised the same question, because the issue was whether a jurisdiction treated the decoy's lack of minority as a legal impossibility.³⁰ The better view classifies these mistakes as factual, and the reason can be read off the test already in use. Correct the fact to match the defendant's belief, so that “Julie” is a real fifteen-year-old or the woman is alive, and leave the law untouched, and the same statute then condemns the same conduct.³¹ His error concerns a condition of the world, and an error of that kind is what factual impossibility means. A case becomes true legal impossibility only when correcting every fact would still leave the conduct lawful.³²

The reasons for denying the defense follow the two parts of the situation. The first concerns culpability. The defendant holds the mental state the offense demands, aimed at the circumstance as he understands it, and has done everything he believed necessary, while the circumstance itself is a fact he neither knows nor controls.³³ The second is an incentive problem that stings make vivid. Police choose the facts in a sting, and they supply a decoy in place of a real child. If the decoy's unreality could excuse, every defendant caught by a properly run sting would hold a complete defense, and only those who happened to reach a real minor could be convicted of attempt. The person who has shown willingness to commit the crime would go free because law enforcement, or fate, arranged the facts differently than he expected, and the offense would reward the accident of how the facts fell.

The rule has a boundary at the belief itself, and a twin shows where it falls.

Whether such a defendant might still be shown to have intended some other crime is a question about intent, taken up later among the limits on the rule. The more contested form of attendant-circumstance mistake, a mistake about the legal status of property, also receives its own section below. Students lose this issue when they treat the absence of a real minor or a living victim as if it were a gap in the statute, because the statute is intact and the missing item is a fact.