Limits on the Rule

Limits on the Rule

The corrected-facts test and the Model Penal Code's substitution of believed circumstances produce the same answer in the ordinary case: factual impossibility is no defense to attempt, and on the modern view neither is hybrid impossibility. That answer is easy to stretch into the claim that impossibility never matters, and the reasons behind the rule show where the stretch fails. The rule rests on two supports. The first is intent: the defendant is measured against the facts as believed, so the purpose was to do something the law forbids, and that purpose is as culpable as the purpose of an offender whose plan worked.¹ The second is dangerousness: attempt exists to bring dangerous persons within the corrective reach of the law, and conduct aimed at a crime shows a disposition to commit it that does not shrink because this occasion happened to be impossible.²

In the ordinary case both supports hold at once, which is why the defense fails there. A shooter who pulls the trigger on a pistol she believes is loaded has shown a plain purpose to kill and a readiness to act on it, and the missing cartridge is a fact outside her control that speaks to neither. The limits on the rule begin where one support weakens. When the means are so remote from the end that any reasonable person would have known from the outset that they could not succeed, some view the case as a separate category, inherent impossibility, because the actor has not shown the danger that attempt liability is meant to reach.³ When the impossibility leaves it uncertain whether the defendant really had the criminal purpose, the intent support weakens instead, and the obstacle matters as evidence on a required element and not as a freestanding defense.⁴ A person who relies on means no sensible observer would credit shows little danger however sincerely he hopes for the result.

The flipped version shows why the second limit is a matter of proof. An impotent man who tries to commit rape can be guilty of attempted rape, yet evidence that he was aware of his impotence is relevant to whether he really had the specific intent the offense requires.⁵ The obstacle never became a defense in either situation. In the first the defendant was ignorant of it, so the intent was unquestioned, and in the second the defendant's knowledge of it raised a doubt about the very purpose attempt demands. The next two subsections take these limits one at a time, first the attempt so remote that it presents no danger, and then the impossibility that clouds the defendant's intent.

Neither limit revives the old defense. The old categories asked what kind of fact was missing, legal or physical, while these limits ask about the defendant: how dangerous was the attempt, and how sure is the intent. A defendant whose conduct shows a real purpose and a real threat stays fully guilty however impossible the crime turned out to be, which is why the empty gun, the empty pocket, and the sting victim who is not a minor remain ordinary attempts. The error to avoid is the slogan that impossibility never matters, and the opposite slogan, that every impossible plan escapes liability, fails just as surely. A fact pattern calls for these limits only when it supplies a reason to doubt danger or intent, such as an actor who knew about the obstacle or a method no sensible person would credit.

Inherent Impossibility

Inherent impossibility is a subset of the factual cases, and it is the one subset that courts and the Model Penal Code have not treated as automatic liability. The traditional classification lists four kinds of impossibility: factual, inherent, pure legal, and hybrid legal.⁸ Inherent impossibility describes a plan aimed at a real crime but carried out with means so unlikely to bring it about that any reasonable person would have known from the outset that they could not succeed.⁹ A familiar illustration involves a self-described conjuror who charges a client $450 to place a death curse on the client's former lover. Murder is a genuine crime and the client genuinely wants it committed, but the curse has no realistic chance of causing a death, and prosecuting the plan seems a waste of time and energy.¹⁰

This category stands apart because it strains one of the two supports that hold up the rule against an impossibility defense. The intent support survives, since the client who pays for a curse sincerely wants a death, and that purpose is as culpable as the purpose of an offender whose poison works. The dangerousness support is what weakens, because attempt law exists to bring dangerous persons within the corrective reach of the law.¹¹ A person whose chosen means could never plausibly work has shown little more danger than a person who only wishes harm, so the full sanction for the completed crime adds little that a lesser response would not accomplish. The shooter with an unloaded gun differs on exactly this point. The weapon was one that kills when loaded, the failure came from a fact hidden from the shooter, and a reasonable person in that position would have no way to know the chamber was empty. The curse fits the reasonable-person description and the empty gun does not.

The Model Penal Code does not translate that weakness into a defense. It rejects the defense of impossibility in part because courts had persistent trouble keeping the categories distinct.¹² What it gives instead is a discretionary tool in § 5.05(2): when the conduct charged is so "inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger," the court may enter judgment for a lower grade or degree of offense or, in an extreme case, dismiss the prosecution.¹³ Discretion fits the structure of the rule better than a defense would. A defense would invite every defendant whose plan failed to argue that success had been unlikely, and it would reopen the general rule that failure from an unknown fact excuses nothing. Discretion confines relief to the extreme case and leaves the ordinary case untouched. Many such cases probably never reach a judge, because prosecutors decline to charge them.¹⁴

The contrasting case is the actor whose means were real but fell short. Commonwealth v. Kennedy illustrates the point: the defendant gave his intended victim poison, but too little to kill, and that shortfall in dosage leaves attempted murder fully in place.¹⁵ Poison is a method that kills in the right quantity, so the miscalculation is a matter of degree rather than a sign that the plan was hopeless. The defendant also showed a willingness to use something that works, and he will probably be more careful the next time. That is the disposition attempt liability is meant to reach.

Most impossibility problems fall on the side of the line the capsule occupies. The empty pocket, the unloaded gun, the sting victim who is really an adult officer, and the substance that proves harmless are ordinary factual cases, because in each the means or the object would have worked had the facts been as the defendant believed. Inherent impossibility applies only where the method itself, such as a curse, could not realistically produce the result. Even then the Code supplies a discretionary mitigation tool, not a defense, so the right answer is that the court may lower the grade or dismiss in an extreme case, which leaves the defendant's liability to the court's judgment instead of ending the case automatically.

Doubt About Intent

The limit just discussed asks how dangerous the attempt was. This one asks whether the prosecution can prove the purpose that attempt requires. Attempt requires that the defendant act with the purpose of committing the completed crime.¹⁸ The rule against an impossibility defense holds up because the defendant's actual intent, which facts unknown to him do not limit, was to do something the law forbids.¹⁹ That reasoning assumes the defendant held a belief about the facts. A defendant who was ignorant of the obstacle held the belief the rule assumes, so the missing fact says nothing about what he meant to do. A defendant who knew of the obstacle did not hold that belief, and the obstacle then works as evidence on the element of intent, because it makes some purpose other than the crime a live possibility.

The impotent-defendant cases show both sides. In Preddy v. Commonwealth an old man whose impotence was hidden from him tried to rape a girl, and he could be convicted of attempted rape, because he meant to commit the crime and the obstacle was an unknown fact that reveals nothing about his purpose.²⁰ In State v. Ballamah the question ran the other way: evidence that a defendant was personally aware of his impotence is relevant to whether he really had the specific intent to rape.²¹ The same physical condition appears in both cases, and what separates them is what the defendant knew. A man who knows he cannot complete intercourse and still engages in conduct toward a woman may be pursuing some other aim, so a jury could doubt that rape was his purpose. The knowledge does not end the case. It is evidence for the jury to weigh, and the prosecution can still prevail if other proof shows that rape was the purpose despite the awareness. Policy points the same way, because a person who acts on a belief that his target is real is as dangerous as one whose target is real, and that comparison holds only when he actually held the belief.²²

A second source of doubt arises when the defendant's conduct does not itself reveal the purpose. Courts hesitate to infer a criminal purpose from equivocal conduct, since without some outward sign of purpose a conviction would rest on the defendant's private thoughts. A defendant who serves water to an intended victim presents that problem, because it is hard to be objectively certain that the defendant meant it as poison.²³ The difficulty largely disappears if the defendant first asks a store clerk for a bottle of arsenic and immediately serves the bottle's contents, even when the bottle turns out to hold water.²⁴ Both scenes involve the same harmless liquid and the same missing poison. The evidence differs: the request for arsenic is an outward act that makes the poisoning purpose clear, while a glass of water would be read by any observer as innocent.

The same concern explains why some courts acquit in cases they label legal impossibility. A professor who takes her own umbrella, believing it belongs to a colleague, has done nothing that outwardly marks her as a thief, and the acquittal is better explained by that lack of objective certainty about purpose than by any true legal impossibility.²⁵ The umbrella case does not state the general rule for hybrid mistakes. The modern view is that impossibility is no defense when the defendant's actual intent was to do an act the law forbids, and in hybrid cases the majority approach is to convict.²⁶ The example shows what a court is reacting to when it acquits, and it does not move the default.

Sting prosecutions put the same pressure on proof. A defendant who believes the recipient is under the statutory age when the recipient is really an adult presents the classic factually impossible attempt, and the defendant is generally guilty.²⁷ Even so, an adult who answers an email and arranges to meet a person who is really an undercover officer posing as a child has usually, though not always, been convicted, and the open questions are how sure a court can be that the purpose was real and not fantasy, and whether the jurisdiction treats the impossibility as legal.²⁸

The requirement of proof appears in another form when the missing fact is whether the victim was still alive. In Dlugash, the state's appellate court found the evidence insufficient to establish beyond a reasonable doubt that Geller was alive when Dlugash fired, and the murder conviction was reconstructed as attempted murder. A federal habeas court then ordered a retrial on whether Dlugash in fact intended Geller's death, because a jury that believed Geller was alive may have inferred an intent to kill from the natural consequences of causing a death the evidence did not establish.²⁹ The lesson is that actual intent must be proved and cannot be assumed from conduct whose significance depends on a fact the evidence did not establish.

Step three is where students go wrong. The mistake is to treat a known obstacle as a defense that ends the case, when it is only evidence on one element, and the opposite mistake is to treat it as irrelevant because factual impossibility is never a defense. Neither reading is correct, because the rule against the defense and the requirement of intent operate at different points in the analysis.