Telling the Two Apart

Telling the Two Apart

The earlier sections kept returning to one move, correcting the facts to match the defendant's belief while leaving the law alone, and this section turns that move into a procedure that can be run on any fact pattern. A procedure is needed because the traditional labels are the least dependable part of the subject. Under the traditional approach, legal impossibility is a defense and factual impossibility is not, and the usual definition of the first describes a defendant who did everything he intended and still had not committed the completed crime.¹ That definition is too wide to sort cases by itself, because a defendant whose victim had already died, or whose decoy was not a child, also did everything intended without committing the completed crime, and under the better view those are factual-impossibility cases. Courts have accordingly had considerable difficulty deciding which label a set of facts deserves, and the many reported decisions reflect that difficulty.²

The stolen-goods case People v. Jaffe shows how far a label can mislead. In that case a defendant was convicted of attempting to receive goods he believed were stolen, although the goods had been recovered and returned to their owner, who was playing along with the police to catch the buyer.³ New York's highest court reversed, reasoning that an attempt required knowledge that the goods were stolen and that such knowledge could not exist once the goods had lost their stolen character.⁴ The decision has been much criticized, because the stolen status of the goods is a circumstance element of the offense, which makes the case one of factual impossibility that the court treated as legal.⁵ A later section returns to cases like this one, where the mistaken fact concerns a legal status. For now, Jaffe shows that a court's label can be wrong, so the label cannot be what decides an exam answer.

Steps three and four treat facts and law differently on purpose, and that difference is the heart of the method. Attempt measures culpability by the world as the defendant understood it, so a mistaken belief about a fact can be corrected without changing what the defendant deserves. Once the obstacle is removed, the only gap between the defendant and a completed crime is bad luck, and bad luck reveals nothing about dangerousness. A pickpocket who finds an empty pocket is exactly as ready to take the next wallet as one who finds a full one. A mistaken belief about the law gets no such correction, because the legislature, and not the defendant's understanding, decides what is a crime. If step four let the defendant's picture of the statute stand, anyone could make an act criminal by imagining a prohibition, and the person punished would be punished for the belief alone.

Run the sequence on the cases already studied and the factual side comes out the same way each time. In United States v. Thomas soldiers had intercourse with a woman they believed was unconscious from drink, and she had in fact died.⁶ Make her alive, which is what the soldiers believed, leave the law untouched, and rape is complete, so the impossibility was factual and her death was no bar to the attempt conviction. The empty pocket works the same way: put the wallet where the pickpocket expected it, and larceny is complete, so the attempt stands.⁷

The legal side fails at the last step. In Wilson v. State a defendant raised the numerals on a check from $2.50 to $12.50 and left the written-out amount alone, and he could not be convicted of attempted forgery, because the written amount controlled and no forgery would have existed even had every change succeeded.⁸ Every fact matched what he intended, so step three leaves nothing to correct. The shortfall lies in what the statute reaches, which step four forbids the analyst to repair.

A statute against delivering obscene material to anyone under 18 supplies a clean pair showing how a single belief in criminality can fall on either side of the line. A deliverer who believes the recipient is 17 when the recipient is in fact 19 presents the classic factually impossible attempt, and the deliverer is guilty of attempt because correcting the age leaves a completed offense.⁹

One caution applies to the way the fourth step is run. The sequence assumes the defendant's belief can stand in for any fact the offense requires, and that assumption holds when the statute asks only about what the defendant believed or intended. It breaks down when the legislature writes a condition into the offense itself as something the prosecution must prove, because then the missing condition is a missing element of the very crime charged, and nothing the defendant believed can supply it. This situation is sometimes called conditional impossibility, and where the statute clearly requires the condition, denying liability seems reasonable.¹⁰

The caution has a mirror image, and courts have erred on that side too. Jaffe is again the example: the statute required that the defendant know the goods were stolen, and the court converted that knowledge requirement into a demand that the goods actually be stolen. Knowledge in that absolute sense is not a condition of the offense, since all the statute requires is belief, and any other reading would let every fence escape by saying the goods were believed stolen but not known to a certainty.¹¹ The reader should therefore read the statute for what it truly requires in the world before treating any missing fact as an element.

Students lose this issue when they let the label a court attaches decide the outcome. The words legal and factual describe how a court or an advocate framed the argument, while the corrected-facts steps decide whether a crime would be complete. A mistake called legal that disappears when the facts are corrected is factual impossibility, and the attempt charge stands. A mistake called factual that survives the correction of every fact is true legal impossibility, and the charge fails. The Model Penal Code arrives at the same sorting from another direction, since it rejects legal and factual impossibility as defenses to attempt and keeps only true legal impossibility.¹²