Also known as: factual impossibilities · factually impossible · impossibility of fact
Written by attorneys — see sources 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.
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.
Gregory Smith was committed to the Camden County jail on April 14, 1989, for trial on robbery charges. In September 1988 he had tested positive for HIV and knew of his infection. Jailers placed him in a special blood alert area. Before June 11, 1989, Smith repeatedly threatened corrections officers that he would bite or spit on them to kill them or give them AIDS. He had discussed his HIV status with guards and a local reporter while seeking transfer to a state prison for better medical care. On May 5, 1989, Smith kicked his cell door. After officers restrained him, he threatened to bite and spit while showing his teeth. On May 17 he again resisted officers. He threatened to take one of us the fuck out. He promised to have an officer killed by his brothers. He later spat at another officer while trying to bite him. On June 11 officers escorted Smith to Cooper Hospital after he claimed a fall. At the hospital he became disruptive. He grabbed a metal cylinder. During the struggle he bit Officer Waddington's hand, causing puncture wounds visible in photographs taken days later. Throughout the incident Smith repeatedly threatened to bite and give the officers AIDS so they would die. Waddington was treated by Dr. Zimmerman who prescribed an oral antibiotic and administered hepatitis B immunoglobulin. Since the incident, Waddington has undergone continued testing for HIV. As of the time of trial in April 1990, the tests had been negative. Additional incidents occurred on June 12 and October 17, 1989, in which Smith again threatened officers with his HIV status while resisting restraint. At the April 1990 trial the State presented Dr. Porwancher, who testified that transmission of HIV by bite was possible on rare occasions based on case reports in Lancet and a Soviet study. Defendant's expert Dr. Condoluci testified that the chance was extremely remote and cited studies showing no transmissions in documented bite cases. Smith testified that he knew HIV could be transmitted only sexually, by transfusion, or by needles. He believed transmission by bite was impossible. Mental health worker Eugene Niblack confirmed he had told Smith biting was extremely difficult if not impossible. Smith denied biting or threatening the officers and claimed the officers lied. The jury convicted Smith on April 11, 1990, of attempted murder of Waddington, aggravated assault on both officers, and terroristic threats. Judge Mariano imposed an aggregate twenty-five-year term with twelve-and-one-half years of parole ineligibility. Smith appealed to the Superior Court, Appellate Division.
View caseFlagship 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.
Supporting sources
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.
Supporting sources
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.
Supporting sources
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.
…attempt. Indeed, even a decision to analyze impossibility on the basis of what is generally described as the two categories of factual impossibility and legal impossibility presents serious problems unless conceptual distinctions between the two labels are recognized and respected. Generally speaking factual impossibility is said to…