Also known as: factual impossibilities · factually impossible · impossibility of fact
Written by attorneys · grounded in primary & secondary sources — see below
A factual circumstance preventing the commission of a crime because of some unknown physical or factual condition outside the defendant's knowledge. The circumstance supplies no defense to attempt, solicitation, or conspiracy at common law because liability turns on the defendant's intent and the circumstances as the defendant believed them to be.
Fumiko Fujimoto and Frederick Ferguson agree to rob a bank vault they believe holds cash. Unknown to them the vault is empty after an earlier heist. They are charged with conspiracy. The agreement and intent establish guilt even though the objective cannot be accomplished.
Francois Fortier and Felicia Fuentes both negligently fire shots toward Farid Farahani, who suffers a single wound. It is impossible to determine which shot caused the injury. The burden shifts to each defendant to prove his shot was not the cause. Failure to do so renders both liable.
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Fabian Flynn urges Foster Forge's employee to steal trade secrets, believing the employee works for a competitor. The employee is an undercover officer. Flynn's culpability is measured by the facts as he believed them, so factual impossibility supplies no defense to solicitation.
Fisher Foods' security guard aims an unloaded gun at a suspected thief, believing it is loaded, and pulls the trigger. The guard is charged with attempted assault. The unknown empty chamber creates factual impossibility that does not defeat attempt liability.
Franklin Foundry worker Fabian Flynn bites a security officer intending to transmit HIV. The officer tests negative and the transmission risk is factually impossible. Flynn remains liable for attempted murder because the law assesses his purpose under the facts as he believed them.
Flagship Logistics employee Farid Farahani poisons what he believes is a rival's drink with a lethal substance. The substance is actually sugar. The factual impossibility of death does not excuse attempt liability when the defendant's intent and acts are measured by the circumstances he believed existed.
No. At common law factual impossibility supplies no defense to attempt. Liability rests on the defendant's intent and the circumstances as the defendant believed them to be, even when an unknown physical condition prevents completion of the target offense.
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No. At common law a defendant may not invoke factual impossibility as a defense to conspiracy. The agreement and intent to commit the unlawful act remain sufficient for guilt even when external facts make the ultimate objective impossible.
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No. At common law factual impossibility does not provide a defense to solicitation. Culpability is measured by the circumstances as the solicitor believed them to be even if the solicitation could not in fact have succeeded.
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Factual impossibility arises when an unknown physical condition prevents completion although the intended conduct would have been criminal if the facts were as the defendant believed. Legal impossibility exists when the intended conduct would not constitute a crime even if fully carried out. Only the latter supplies a defense to attempt.
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…of whether the result can be accomplished. And even if the result, which would be death in this case, was a scientific or factual impossibility. In this case if you should be convinced beyond a reasonable doubt by the State's evidence that Mr. Smith's purpose was to kill Sheriff's Officer Waddington by biting him it does not matter…