Also known as: impossibility defense · impossibility · impossibility of performance · commercial impracticability
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A criminal law doctrine that provides a complete defense to attempt when the defendant's intended acts would not constitute a crime even if fully carried out as planned. Legal impossibility exists because the completed conduct would not violate the governing law.
A criminal law doctrine that provides a complete defense to attempt when the defendant's intended acts would not constitute a crime even if fully carried out as planned. Legal impossibility exists because the completed conduct would not violate the governing law.
Select any source to read its text and confirm it supports the definition.
A criminal law doctrine that supplies no defense to attempt, conspiracy, or solicitation when external facts unknown to the defendant make success impossible. Culpability is measured by the circumstances the defendant believed to exist.
Select any source to read its text and confirm it supports the definition.
A criminal law doctrine that supplies no defense to attempt, conspiracy, or solicitation when external facts unknown to the defendant make success impossible. Culpability is measured by the circumstances the defendant believed to exist.
Each sense below has its own examples, sources, and questions.
Daniel Diaz prepared and submitted a sworn statement he believed contained a material falsehood. The statement concerned a matter that was not legally material under the governing statute. Even if every act had been completed exactly as planned, no perjury would have occurred, so the attempt charge failed.
Legal impossibility is a complete defense when every act the defendant intended to perform would not constitute a crime even if completed exactly as planned. An essential element of the target offense would be missing under the governing law.
Supporting sources
Derek Douglas and Devon Drake agreed to sell what they believed was stolen artwork to an undercover buyer. Unknown to them the artwork was a replica and not stolen property. The agreement and shared intent to commit the unlawful sale established the conspiracy even though the objective could never be achieved.
Derek Douglas and Devon Drake agreed to sell what they believed was stolen artwork to an undercover buyer. Unknown to them the artwork had already been seized by police. The agreement and shared intent established the conspiracy even though government intervention made the objective impossible.
Diego Duarte offered cash to Dorothy Daniels to assault a rival he believed was still at the venue. The rival had already left hours earlier. The solicitation was complete because culpability turned on the facts as Duarte believed them to be.
Davenport Pharmaceuticals directed an employee to ship a mislabeled drug batch that the company believed violated federal safety rules. The batch actually met all requirements because of an unknown testing error. The attempt conviction stood because the company acted on the facts it believed existed.
Dominion Capital instructed an agent to bribe an official the company believed held discretionary power over a contract. The official in fact lacked any such authority under state law. The attempt charge proceeded because the company's belief that the bribe would influence an official decision supplied the required culpability.
No. Courts measure culpability by the facts the defendant believed to exist. External conditions that make success impossible do not negate the agreement or substantial step taken with criminal intent.
Supporting sources
No. Once the agreement is formed or the solicitation is made, the offense is complete. Subsequent renunciation does not undo the prior criminal act.
Supporting sources
The Model Penal Code focuses on the circumstances as the actor believes them to be and rejects impossibility as a defense to attempt or solicitation. Common law retains the distinction between factual and legal impossibility for attempt.
Supporting sources
…to adult persons in deciding how to conduct their private lives in matters pertaining to sex " (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions…