Introduction

Factual Impossibility and Conspiracy

Introduction

Two or more people agree to commit a crime, and the plan is then foiled by facts they never knew. The safe they meant to crack is empty, the shipment they meant to steal was never loaded, or the person they meant to defraud had no money to lose. The prosecution charges conspiracy anyway, and the defendants answer that they could not have succeeded no matter what they did. At common law that answer fails. A defendant may not invoke factual impossibility as a defense to a charge of conspiracy, because the agreement and the intent to commit the unlawful act remain sufficient for guilt even when outside facts make the ultimate objective impossible to accomplish.¹

The rule is easy to state and easy to misapply, which is why it repays careful study. A failed criminal plan can fail for several different reasons, and only one of them is the reason this rule disposes of. A conspiracy charge may also collapse because the parties never truly agreed, because a defendant lacked the intent that the target crime demands, or because the plan, even if carried out exactly as imagined, would not have been a crime at all. Each of those is a defect in the conspiracy offense itself. Treating every one of them as "impossibility" leads a student to reject a sound defense in one case and to allow an unsound one in the next.

This chapter takes the problem in order. It first states the rule in full and tests it on a concrete example, then explains why conspiracy refuses to recognize impossibility when the objective could never have been reached. Next it supplies a working vocabulary, borrowed from attempt law, for sorting an impossibility claim into the factual kind the rule rejects and the legal kind it does not, and it marks the limits of the rule where intent or agreement is genuinely missing. Finally it compares impossibility with other events that occur after the agreement is made. Because the whole doctrine depends on what conspiracy actually punishes, the first section begins by stating the rule and watching it work.