Classifying the Mistake

Classifying the Mistake

The no-defense rule helps only when a reader can tell which impossibility claims it reaches, and the common law supplies a vocabulary for that sorting. The vocabulary grew up in attempt law, where impossibility arose far more often than in conspiracy, and it carries over because the labels describe what the defendants got wrong.¹ An undertaking fails by impossibility when the defendants would be committing a crime if they did everything they intend under the conditions they believe to exist, yet what they actually do is not the offense they meant to commit, because the conditions differ from what they believed.² The categories below were worked out in attempt cases, and the conspiracy rule follows the same logic, so the exam move is to run the test on the conspirators' plan.

The test is a single question about that plan. Take the conspirators' objective, assume the circumstances were exactly as they believed, and assume they carried out everything they intended. If a crime would then have been committed, the impossibility is factual, and under the rule taught earlier it is no defense.³ If no crime would have been committed, the conspirators planned something the law does not forbid, and the claim has the shape of true legal impossibility. This as-believed test tracks what criminal liability is meant to reach. When the plan was a crime on the defendants' own view of the facts, they are as culpable as people who succeeded, and the hidden fact that stopped them was an accident of circumstance. When the plan was lawful even on their view of the facts, the only thing they got wrong was the law, since they believed lawful conduct was forbidden, and the criminal law does not punish a mistaken belief that innocent conduct is criminal.

The second step is where the analysis usually goes wrong. A reader looking at a failed plan naturally focuses on what really happened, such as the empty safe or the undercover buyer, and then asks whether the plan could ever have worked. The test directs attention elsewhere, because the hidden fact is exactly what the defendants did not know. Students lose this issue when they classify a claim by what actually blocked the plan and ignore the facts as the defendants believed them. The third step, by contrast, uses the law as it really reads, since the defendants' beliefs about the facts are taken as given while their beliefs about what the statute forbids are not.

Three kinds of claim come out of the test. Scholars sometimes count four labels, adding inherent factual impossibility, but that label names a variety of factual impossibility, so three working categories remain, and each receives its own treatment next.⁴

• Pure factual impossibility: the defendants are mistaken about a physical or factual condition, and had it been as they believed they would have succeeded, as with the pickpocket who reaches into an empty pocket or the shooter whose gun is unloaded.⁵
• Attendant-circumstance mistakes: the defendants understand what the law prohibits but are wrong about a fact tied to a legal status, as with a buyer who takes goods believed to be stolen that were not stolen.⁶
• True legal impossibility: the defendants misunderstand how the offense is defined, so that even a fully successful plan would have been lawful, as with a hunter who goes out believing the season is closed when it is in fact open.⁷

Only the last category answers no to the test. The old attempt cases labeled the middle category hybrid legal impossibility and allowed it as a defense to attempt, yet the as-believed test puts the buyer's plan on the yes side, because receiving stolen goods would have been complete had the goods been what the buyer believed.⁸ The sub-sections below explain why that classification matters for conspiracy.

Courts do not label these mistakes consistently, and an exam stem may reproduce the confusion. The Third Circuit observed in United States v. Hsu that the factual and legal labels are largely a matter of semantics, because almost any legal impossibility can be recast as a factual one: the person who shoots a corpse was also stopped by a circumstance beyond the person's control, namely that the intended victim was already dead.⁹ The court added that the great majority of jurisdictions had therefore abolished impossibility as a defense, and that its own circuit was the lone holdout, recognizing legal impossibility only for certain attempts.¹⁰ Hsu is an attempt decision, so it speaks to conspiracy by analogy, but it confirms what the traditional sorting suggests, that deciding which box a mistake belongs in is often hard.¹¹

That inconsistency is the reason to define true legal impossibility narrowly. A claim qualifies only if the conspirators misunderstood how the offense is defined, so that their plan, carried out in full on their own view of the facts, would have been lawful. A claim that a hidden fact foiled the plan does not qualify, however that fact is described. Jurisdictions also differ on whether even true legal impossibility defeats a conspiracy charge, so an answer should say that the defense succeeds where the jurisdiction recognizes it, and only then. The first category, pure factual impossibility, is the clean case, so it comes first.

Pure Factual Impossibility

Pure factual impossibility is the clean case among the three categories, and the as-believed test from the last section identifies it quickly. The conspirators are mistaken about a physical or factual condition, and that condition is the only thing standing between their plan and success. The defining feature is a counterfactual: had the facts been as the defendants believed them to be, they would have committed the target offense.¹³ The test asks the reader to assume the believed facts and carry the plan out in full. For a claim of this kind, that assumption produces a crime, so the answer to the test is yes and the impossibility is no defense to the conspiracy.¹⁴

Attempt law, where these labels developed, supplies the standard pictures, and conspiracy borrows them. A would-be pickpocket slides a hand into a stranger's pocket to take a wallet, and the pocket is empty. Run the test aloud: the pickpocket believed a wallet was there, and with a wallet there and the plan carried out, theft would have been complete. A crime exists on the believed facts, so the impossibility is factual and the pickpocket is guilty of attempted theft.¹⁵ The empty pocket is the textbook example of a physical impossibility that does not excuse an attempt.¹⁶ An English court reached that result in R. v. Ring, where a pickpocket who worked an empty pocket was guilty of attempted larceny, and in Preddy, a Virginia case, an impotent man who tried to rape could be convicted of attempted rape.¹⁷

The second standard picture is the shooter who aims what is believed to be a loaded gun at an enemy's head and pulls the trigger, only to find the gun unloaded. The test gives the same answer, since a loaded gun fired as intended would have killed the enemy, and the shooter can be convicted of attempted murder.¹⁸ A conspiracy to kill that rested on the same belief sorts the same way. The agreement was complete before anyone reached for the gun, and the empty chamber is a hidden fact that the defendants did not know when they committed to the plan.

The reason the hidden fact is set aside is that it says nothing about the defendants. People who plan a crime and fail because of a condition they could not see had the same culpable intent as people who succeed, and they had done everything within their power. The failure is a product of chance, which tells the law nothing about their innocence. If such a mistake were a defense, liability would turn on facts the defendants could not have known when they chose to act, and the most determined conspirators would go free whenever luck ran against them. The danger also survives the mistake. A defendant who feeds a harmless substance to a victim, believing it to be poison, is no closer to murder than someone who casts a spell, yet that defendant is dangerous because the next attempt will probably be made with greater care.¹⁹ For conspiracy the point is stronger, because the group that planned around a gun that turned out to be empty still exists and can load it the next day.

The opposite pole shows which fact is doing the work. Change what the defendants got wrong, and the test returns a different answer.

The two situations differ in what the believed facts contain. In the pocket case the believed facts include a crime, and the only error is a hidden physical condition. In the stand case the believed facts include no crime, and the only error is about the content of the law. Students lose this issue by asking whether the plan could have worked when the question is whether the plan, as the defendants pictured it, was criminal. The empty pocket and the unloaded gun both pass the second question, so both fail as defenses. Two refinements follow in the next sections. A mistake about a fact that bears on legal status, such as whether goods are stolen, also produces a crime on the believed facts, though the older attempt cases treated it differently. And a defendant who actually knew the pocket was empty or the gun unloaded raises a separate problem, because awareness of the hidden fact bears on whether that defendant intended the objective at all.²⁰

Attendant-Circumstance Mistakes

The middle category in the sorting above is the hybrid case, and it is where the labels have done the most damage. In an attendant-circumstance mistake the conspirators understand exactly what the law forbids, but they are wrong about a fact that bears on the legal status of the thing or person involved: goods they believe are stolen are not, a powder they believe is cocaine is harmless, or a person they believe is a minor is an adult. The mistake takes its name from the offense definition, which requires a circumstance to accompany the prohibited conduct, as receiving stolen property requires that the property actually be stolen.²² Because that circumstance is a legal status (stolen, controlled, underage) attached to an ordinary fact, older courts could not agree whether an error about it was an error about the world or an error about the law.

The traditional answer was to treat the mistake as its own species. A buyer who purchases a cheap used refrigerator from a seller with appliances in a pickup truck in an alley, believing it stolen when it was not, presents what courts in the old common-law tradition called hybrid legal impossibility: the intended act is criminal, but the buyer is mistaken about the legal status of a factor the offense requires.²³ Those courts recognized the hybrid as a defense to attempt, so the buyer could be found not guilty of attempting to receive stolen property.²⁴ The traditional attempt cases reached the same classification for goods believed stolen that were not then stolen, and the label matters here because a conspiracy defendant who borrows the attempt vocabulary will describe the same mistake as legal impossibility and ask for the same result.²⁵

The decision most often cited for the old approach is People v. Jaffe. The goods there had been returned to their owner, who then played along with the police to catch the fence, and the New York Court of Appeals reversed the attempt conviction on the ground that attempt required knowledge of the stolen character of the goods, which could not exist once the goods were no longer stolen.²⁶ That reasoning rests on a mistake about what the offense requires. The offense asks about the defendant's subjective belief that the goods are stolen, and if knowledge in an absolute sense were required, no one could ever be convicted of receiving stolen goods, because a fence could always claim to have believed the goods stolen without knowing it to a certainty.²⁷ The drafters of the Model Penal Code cited Jaffe as a misuse of the impossibility defense and rejected both factual and legal impossibility except for true legal impossibility.²⁸ The modern view in attempt law runs the same way, holding impossibility no defense when the defendant's actual intent, unlimited by the true facts unknown to the defendant, was to do an act or bring about a result the law prohibits.²⁹

The disagreement in the older cases was over the label, and the as-believed test settles it without arguing about labels. For the refrigerator buyer, assume the facts were as believed: the refrigerator was stolen, and the buyer carried out the purchase in full. Receiving stolen property would then be complete, so a crime exists on the believed facts and the impossibility is factual.³⁰ The classification is correct because of what the buyer got wrong. The buyer understood the law, since receiving stolen goods is forbidden, and erred only about whether the world contained the circumstance the offense requires. Whether a refrigerator was stolen is a fact about its history, even though 'stolen' is a legal word, and that hidden fact says nothing about the buyer's culpability. The buyer is exactly as blameworthy as one whose refrigerator happened to be stolen, which is why the better view treats the mistake as factual and rejects the defense.

The same sorting handles a mistake about the nature of the goods. Quentin hides cigars in a secret compartment and fails to declare them at customs, believing they are Cuban, but they are not and could lawfully be imported. A law forbids importing Cuban cigars, and Quentin intended conduct that would violate it, so most courts treat the case as factual impossibility and deny the defense.³¹ A minority might say that Quentin intended only what he in fact did, importing Santo Domingan cigars, but that argument misreads intent, because it measures the mental state by the true facts and so equates mens rea with actus reus.³²

Carrying the sorting into conspiracy changes the stakes but leaves the test alone. Impossibility of success is already no defense to conspiracy, because criminal combinations are dangerous apart from the danger of reaching the particular objective, so the classification matters only where a jurisdiction allows some impossibility defense, and there the as-believed test places an attendant-circumstance mistake on the no-defense side.³³ The sharpest illustration involves two friends, Jody and Jenny, who agree to steal a red Tesla in a supermarket parking lot and are arrested, and the car turns out to be Jody's own.³⁴ They agreed to commit a crime in a particular way, and on the real facts the substantive offense could not be accomplished, since one cannot steal one's own car. That is the strongest case for an impossibility claim, yet the trend, particularly under the Model Penal Code, is to assess culpability on the facts as the actors believed them, and both would in all probability be convicted of conspiracy to commit theft.³⁵ A conspiracy to commit abortion on a police agent who falsely claimed to be pregnant, in a jurisdiction where pregnancy is an element of the offense, is analyzed the same way.³⁶ On the facts as the conspirators believed them, the woman was pregnant and the plan, fully carried out, would have been the crime, so the mistake is factual and the general rule that impossibility of success is no defense controls.³⁷

Change what the defendants got wrong, and the answer flips.

The two scenes differ in one variable. In the first, the believed facts include a minor and the error is about the identity of the person met; in the second, the believed facts include a person above the legal age and the error is about where the statute draws its age line. Because courts historically split on how to label these mistakes, an exam stem may reach the same facts through either vocabulary, and the traditional sorting was often hard to apply, as the many decided cases show.³⁸ Students lose this issue when a status word such as stolen or minor persuades them that the mistake concerned the law. A sound answer notes that older attempt cases called such a mistake hybrid legal impossibility and allowed the defense, then runs the as-believed test, finds a crime on the believed facts, and concludes that the defense fails, since the plan was the same crime whichever way the circumstance happened to fall.³⁹

True Legal Impossibility

Every mistake sorted so far shared one feature: on the facts the defendants believed, a crime existed, and a hidden fact only stood between the plan and its completion. The as-believed test returns a different answer in one category, where the defendants have misunderstood how the offense is defined. They picture the facts correctly and carry the plan out exactly as pictured, yet no crime results, because the law they thought forbade their conduct does not exist. This is true legal impossibility. What the defendants meant to do is not illegal, although they believed it was, and standard definitions recognize it as a defense to attempt, conspiracy, and solicitation alike.⁴¹

This category stands apart because the criminal law punishes violations of prohibitions that actually exist, and that idea has two halves. The first concerns the conduct: a conviction requires that the defendants set out to do something the legislature forbade, and people who set out to do something lawful have not done that, however sure they were of the contrary. The second concerns who decides what is criminal. The rule is the mirror image of the principle that ignorance of a prohibition is no excuse. Someone who violates a real prohibition cannot escape by claiming not to have known of it, and by the same logic someone who obeys the law cannot be convicted because of a private opinion that the law forbade the act.

If belief alone could create a crime, the definition of offenses would pass from the legislature to each defendant's imagination. The hidden-fact cases are different, because the believed plan there was a crime and only chance stopped it. Here the believed plan was lawful from the start, so the defendants showed a willingness to break the law but no intent to break any particular law. A belief that one is breaking the law, even when coupled with action, cannot generate criminal responsibility.⁴²

The cigar illustrations show how one changed fact moves a case across the line. In the first version, Quentin hides cigars in a secret compartment and does not declare them at customs, believing they are Cuban. They are not, and a statute does forbid importing Cuban cigars. The believed plan violates that statute, so the case is factual impossibility and most courts deny the defense.⁴³ In the second version Quentin's conduct and belief are unchanged, but no statute forbids importing Cuban cigars. Quentin has shown a willingness to commit a crime and has acted on it, yet what he tried to do is not criminal, so this is true legal impossibility, and he could not be convicted under the common law or the Model Penal Code.⁴⁴ Had Quentin and a partner agreed to carry out that plan together, the conspiracy would fail for the same reason, since the agreed object would not be an offense. What changed between the versions was the content of the law, not any hidden fact about the cigars.

Attempt law, where this vocabulary developed, supplies the classic illustration in People v. Teal. The defendant there tried to induce a witness to testify falsely in a divorce action, but the testimony would have been immaterial to the complaint, and false testimony on an immaterial matter is not perjury. With no perjury to procure, there was no subornation of perjury to attempt, and the attempt failed with it. The idea is often summarized in the formulation from United States v. Berrigan, as quoted in United States v. Hsu, that "attempting to do that which is not a crime is not attempting to commit a crime."⁴⁵

That attempt background carries a warning for conspiracy. In Hsu the Third Circuit observed that the line between legal and factual impossibility is largely a matter of semantics, because nearly every case of legal impossibility can be redescribed as a factual one. A shooter who fires at a corpse intending to kill, for instance, can be said to have failed because of a circumstance beyond control. The court added that the great majority of jurisdictions had therefore abolished impossibility as a defense, leaving the Third Circuit as the one circuit still honoring a common-law legal-impossibility defense under Berrigan.⁴⁶ Berrigan itself involved a prisoner charged with smuggling letters out of a federal prison without the warden's knowledge and consent, when the warden had learned of the scheme and was playing along.⁴⁷ Measured by the as-believed test, the warden's secret knowledge was a hidden fact, because on the facts as the prisoner believed them the plan carried out in full would have been the offense. The decision shows how readily the labels slide. The narrow category the test protects covers mistakes about what the law forbids, not hidden facts relabeled as law.

In conspiracy the claim is better understood as the failure of an element than as a defense. A conspiracy is an agreement to commit a crime or other unlawful act, so when the agreed object is neither, the elements of the offense are not met.⁴⁸ The as-believed test shows where to look: if the plan, carried out in full as pictured, is lawful, then the agreement had no unlawful object and the prosecution cannot prove a required element. That framing explains why the claim survives rules that abolish impossibility defenses. Those rules answer the argument that the object could not be achieved, which is the argument the general no-defense rule rejects.⁴⁹ They do not manufacture an unlawful object that the agreement never had, and the Model Penal Code's treatment of attempt shows the pattern, since it rejects legal and factual impossibility alike except when the impossibility is true legal impossibility.⁵⁰ How a particular jurisdiction labels the point varies, so an answer should state the element analysis first and then name the label.

The word unlawful makes the element broader than the word crime suggests. The object of a conspiracy need not itself be criminal, because 'unlawful' can include civil wrongs, and the usual justification is that planned group behavior can be dangerous even when the same conduct by an isolated individual would go unpunished.⁵¹ A plan that would amount to a civil wrong if completed is therefore not legally impossible in a jurisdiction that defines conspiracy this way, even though no crime would result. The breadth has a constitutional limit. In Musser v. Utah the Supreme Court held a statute forbidding conspiracies to commit acts injurious to public health, morals, trade, or the administration of justice unconstitutionally vague unless the state court could narrow it.⁵² So the first question in a stem is what object the jurisdiction's conspiracy law requires, and only a plan that is neither criminal nor otherwise unlawful when carried out as pictured falls on the true-legal-impossibility side.

The crow plan and the powder plan both rest on a belief that the conduct is criminal, and neither produces a completed offense, so the pair isolates the one variable that matters. In the first, the error lies in the law, and the believed plan is lawful. In the second, the error lies in the goods, and the believed plan is a crime. Students lose this issue by treating a belief that conduct is criminal as though it could make the conduct criminal, or by stretching the label to cover any plan that failed. Ordinary factual mistakes, including mistakes about legal status such as stolen or controlled, all produce a crime on the believed facts, which is why true legal impossibility is rare. The lie-to-the-police scene shows the safeguard: before concluding the object was lawful, check whether some other offense covers the plan as pictured.