Also known as: impossible attempt · impossibility of attempt · factual impossibility · legal impossibility
Written by attorneys — see sources below.
A doctrine in criminal law that distinguishes factual impossibility, which supplies no defense to attempt, solicitation, or conspiracy, from legal impossibility, which bars liability when the defendant's intended acts would not constitute a crime even if completed exactly as planned.
Iain Irons and Idina Iverson agreed to rob a bank they believed held substantial cash reserves. Unknown to them, the bank had closed permanently the week before. Iain and Idina are charged with conspiracy. The agreement and shared intent establish guilt even though the robbery could never occur.
Imran Iyer submitted a sworn statement he believed contained a material falsehood in order to obstruct justice. The statement was in fact immaterial under the governing statute. Even if every act unfolded exactly as Imran intended, no perjury would have occurred, so he cannot be convicted of attempt.
Imani Idowu offered Ivy Ibarra cash to vandalize a house Imani believed still stood. The house had already burned down in an unrelated fire. Imani is guilty of solicitation because her culpability is measured by the facts as she believed them to be.
Isabella Ingram placed what she believed was a working explosive on a plane to kill the passengers. The detonator lacked a critical part and could never explode. Isabella is liable for attempted murder because the factual impossibility does not excuse her substantial step taken with intent to kill.
Stagehand Tim cut the cable he believed supported a spotlight above performer Greg. Unknown redundant lines prevented any fall. Tim is guilty of attempted battery because the unknown factual condition supplies no defense under the common law rule.
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 casePromoter Dean urged crew member Charles to assault critic Marshall at a festival Dean believed Marshall still attended. Marshall had already left hours earlier. Dean remains guilty of solicitation because factual impossibility does not bar liability when measured by the circumstances as Dean believed them.
Roy Mandujano was convicted in the district court of attempted distribution of heroin in violation of 21 U.S.C. § 846 and sentenced to fifteen years imprisonment. On March 29, 1973, San Antonio police officer Alfonso H. Cavalier, assigned to the Office of Drug Abuse Law Enforcement and working undercover, along with a government informer, went to the Tally-Ho Lounge on Guadalupe Street in San Antonio. The informant introduced Cavalier to Roy Mandujano. Mandujano asked if they were looking for 'stuff' and offered to sell good brown Mexican heroin for $650.00 an ounce, but stated that Cavalier would have to wait until later in the afternoon for deliveries. When Cavalier indicated he could not wait, Mandujano made four telephone calls in an effort to locate another source. Mandujano then proposed going to a contact who kept narcotics at home but required the money upfront. Mandujano received $650.00 from Cavalier at about 3:30 P.M., left the bar, and returned approximately one hour later without the heroin, returning the money. Agent Gerald Courtney of the Drug Enforcement Administration observed Mandujano leave the bar around 3:15 or 3:30 P.M. and return at about 4:30 P.M. Cavalier called at 6:00 P.M. and 6:30 P.M. but was told Mandujano was not available. Cavalier did not attempt further contact because he believed it would be unsafe based on information he had received. Mandujano was indicted on a count charging that on or about March 29, 1973, he knowingly and intentionally attempted to distribute one ounce of heroin. At trial, the only government witnesses were Agents Cavalier and Courtney. The jury returned a verdict of guilty, and the district court imposed a fifteen-year sentence. Mandujano appealed the judgment of conviction to the United States Court of Appeals for the Fifth Circuit.
View caseNo. Common law measures culpability by the facts as the defendant believed them to be. If those believed facts would have made the completed conduct criminal, the defendant is guilty of attempt even though an unknown physical condition prevented success.
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Legal impossibility exists when the intended acts would not constitute a crime even if completed exactly as planned. Factual impossibility arises from an unknown physical condition that prevents success. Only legal impossibility supplies a defense to attempt.
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No. The solicitor's guilt is judged by the circumstances as the solicitor believed them to be. The offense is complete upon the request made with specific intent that the crime occur, regardless of whether the solicited act could actually be performed.
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The rule punishes the dangerous combination of culpable intent and substantial steps toward crime. It prevents defendants from escaping liability solely because unknown external facts thwarted completion, thereby deterring conduct that would have been criminal under the believed circumstances.
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