Hybrid Impossibility

Hybrid Impossibility

The two categories sorted so far sit at opposite ends of the subject. A defendant who is wrong about a plain fact, such as the contents of a pocket, is guilty of attempt, and a defendant who is wrong about what the statute forbids has a complete defense. Hybrid impossibility occupies the ground between them, and it is where the case law became most tangled. The hybrid defendant reads the statute correctly and sets out to violate it, but the fact that goes wrong carries a legal status: whether goods are stolen, whether a person being bribed is a juror, whether a car being bought is stolen property. One leading formulation describes the category as a case where the actor's goal is illegal but the offense cannot be completed because of a factual mistake about the legal status of an attendant circumstance that is an element of the charged offense.¹ The word hybrid fits because the mistake is a fact in substance that happens to wear a legal label.

The standard examples are goods believed stolen that are not, a person bribed as a juror who is not one, a stuffed deer shot as though alive, and a car that undercover officers offer as stolen. In each, the completed offense fails for want of one element, whether stolen property, a juror, or a live deer, and the only question is whether the attempt charge can survive that gap.² The answer depends on which of two lines of authority a court follows, so it helps to fix which is which at the outset. The modern majority treats the hybrid mistake as factual impossibility and convicts of attempt, because on the facts as the defendant believed them the crime would have been complete.³ An older line, now the minority, labeled the same mistake legal impossibility and acquitted, and the reported older decisions on non-stolen goods, the bribery of a non-juror, and the stuffed deer came out both ways, which is part of what made the area so hard to teach.⁴

The label itself is a source of the trouble. Courts that say legal impossibility are generally describing what is more accurately called hybrid impossibility, and the failure to separate the hybrid situation from pure legal impossibility has produced much of the confusion.⁵ The word legal also attracts defendants whose mistakes have nothing legal about them: the soldiers in Thomas, who had intercourse with a woman they believed unconscious from drink when she had in fact died, argued legal impossibility.⁶ Usage drifts further still, because the phrase is sometimes stretched to cover any case in which an element required for the attempt is unmet.⁷ A term that elastic cannot decide a case, which is why the analysis here runs on the corrected-facts method and not on the label.

The older acquittals reasoned in two steps, and both fail. The first step described the defendant's act by what actually happened, so that the defendant had received goods that were not stolen, and receiving goods that are not stolen is lawful. The second step applied the rule that an intended act which is not criminal cannot support an attempt.⁸ The first step is the error, because attempt measures the defendant by the act intended, and what the defendant intended was to receive stolen goods, which the statute forbids. The second step then borrows the rule for pure legal impossibility, where the defendant's picture of the facts is right and his picture of the law is wrong, and applies it where the picture of the law is right and only a fact is wrong. A man who buys a cheap used refrigerator from a seller in an alley, believing it stolen when it is not, shows the contrast between the two eras: older courts allowed a defense, but his mistake concerns a fact about the refrigerator's history, and on the better modern view he is guilty of attempted receipt.⁹

People v. Jaffe, which the previous section used to show how a label can mislead, is also the clearest statement of the older line's reasoning in the stolen-goods setting. The statute punished receiving property 'knowing the same to have been stolen,' and the court read that phrase to demand that the goods actually be stolen, so that goods recovered by their owner could never support an attempt.¹⁰ That reading turns a mental-state element into a requirement about the world. What the offense asks about is the defendant's state of mind, and the state of mind in question is a belief that the goods are stolen, which the hybrid defendant has.¹¹ Absolute knowledge cannot be the standard, since a fence could then escape every prosecution, even for completed receipt, by claiming only a belief that the goods were stolen and never certainty.¹²

A second assumption sat beneath the older acquittals, and the modern rule rejects it. Courts long assumed that attempt law exists only to reach conduct that threatens immediate harm, so an impossibility that prevented any dangerous closeness to the completed crime left nothing to punish. The modern view adds that attempt also serves to proceed against people who have shown their dangerousness, and on that view legal impossibility is no useful guide to whether the actor is disposed toward such conduct, on this occasion or on others.¹³ The hybrid defendant fits the modern account. A buyer who pays for goods she believes are stolen has shown the same readiness to deal in stolen property as a buyer whose goods really were stolen, and the only difference between them is when the police happened to recover the goods.

The corrected-facts method reaches the same answer without any special rule. Make the goods stolen, which is what the defendant believed, leave the statute alone, and receiving stolen property is complete, so the obstacle disappears and the impossibility is factual. That is also why the rule on attendant circumstances already governs the category: a mistake about an attendant circumstance is no defense when the conduct would have been a crime had the circumstance been as the defendant believed, and nothing in that rule turns on whether the circumstance carries a legal definition.¹⁴ Stolen status and juror status are attendant circumstances like any other. The Model Penal Code builds the same measure into attempt by judging the actor by the circumstances as the actor believes them to be, a point taken up in a later section.¹⁵

The boundary with pure legal impossibility is the boundary between an error about a fact and an error about the content of the law. A man who believes the age of consent is sixteen and who has intercourse with a fifteen-year-old girl is not guilty of attempted statutory rape when the law actually sets the age at fifteen, because correcting the facts changes nothing and only a different statute would make his conduct criminal.¹⁶ The car buyer stands differently: she is right about the statute and wrong about one fact, and correcting that fact completes the crime.

Jurisdiction matters only a little on this point. Thirty-seven states have followed the Model Penal Code, which rejects impossibility as a defense to attempt apart from pure legal impossibility.¹⁷ A state that retains the common law defense for hybrid cases is the exception, so a fact pattern that names no jurisdiction calls for the majority answer.¹⁸ Students lose this issue when they let a legal word in the mistaken fact, such as stolen or juror, persuade them that the mistake is about the law. The question is whether the defendant misunderstood the statute or misjudged a fact on which the statute depends, and a defendant who understood the statute correctly is guilty of attempt on the majority view even though the missing fact carries a legal status.