Also known as:pure legal impossibilities · legal impossibility
Written by attorneys · grounded in primary & secondary sources — see below
A complete defense to attempt liability that applies when the defendant's intended acts would not constitute a crime even if all circumstances were as the defendant believed them to be. The defense exists because the law does not criminalize the goal the defendant sought to achieve.
Sources & Authorities
How it applies
Common Examples
3
Bar Grievance Affidavit Scheme
Marcia directs her paralegal to obtain a sworn affidavit from a former client falsely claiming a rival firm missed a filing deadline. Marcia plans to submit the affidavit to bar counsel even though official guidelines state that such affidavits are categorically excluded and determinations rest solely on court records. Even if the affidavit is signed and delivered exactly as Marcia intends, it cannot satisfy the materiality element of subornation of perjury. The defense of pure legal impossibility therefore bars her conviction for attempted subornation of perjury.
Smuggling Letters From Prison
A federal prisoner enlists another inmate on study release to carry letters out of the penitentiary. Prison officials learn of the plan and instruct the courier to proceed while monitoring the letters. Because the warden's knowledge and consent would negate an essential element of the smuggling offense even if the letters were delivered exactly as planned, pure legal impossibility defeats any attempt charge.
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Cases
Common Law
Casebooks
Hornbooks
Study Supplements
United States v. Mandujano499 F.2d 370, 376 (5th Cir. 1974)
Right Turn On Red Attempt
A driver stops at a red light and turns right, believing the maneuver is a criminal offense in the jurisdiction. In fact the jurisdiction permits right turns on red. Because the intended conduct would not violate any criminal statute even if completed exactly as the driver planned, pure legal impossibility provides a complete defense to a charge of attempt.
State v. Smith621 A.2d 493 (N.J. Super. Ct. App. Div. 1993)
Common questions
Frequently Asked
4
How does pure legal impossibility differ from factual impossibility?+
Pure legal impossibility is a defense because the defendant's intended conduct would not be criminal even under the facts as the defendant believed them. Factual impossibility is not a defense because the conduct would be criminal if the unknown facts were as the defendant believed.
Does pure legal impossibility apply when the defendant mistakes an attendant circumstance that is an element of the offense?+
No. That situation describes hybrid legal impossibility, which some common law courts recognized but which is distinct from pure legal impossibility. Pure legal impossibility requires that the law itself does not proscribe the goal the defendant sought to achieve.
What is the classic example of pure legal impossibility?+
A driver turns right on red while believing the act is a crime, yet the jurisdiction permits right turns on red. Because the intended conduct is not criminal under the governing law, the driver cannot be guilty of attempt.
Why does pure legal impossibility bar attempt liability in the subornation of perjury context?+
Subornation of perjury requires a material false statement. When official rules render any affidavit on the subject categorically inadmissible, the materiality element would be absent even if the defendant completed every intended act. The absence of an essential element means no crime would have occurred, triggering the defense.
621 A.2d 493 (N.J. Super. Ct. App. Div. 1993)Criminal Law
…virus can be transmitted by human saliva." Id. at 16. The Georgia statute, Ga. Code Ann. § 16-4-4, provides that factual or legal impossibility is not a defense to attempted murder, "if such crime could have been committed had the attendant circumstances been as the accused believed them to be." Id. at 18. The Georgia Court of…