Also known as: impossibility defense · impossibility · impossibility of performance · commercial impracticability
Written by attorneys — see sources below.
2 senses
A criminal law doctrine that provides a complete defense to attempt when the defendant's intended acts would not constitute a crime even if fully carried out as planned. Legal impossibility exists because the completed conduct would not violate the governing law.
A criminal law doctrine that supplies no defense to attempt, conspiracy, or solicitation when external facts unknown to the defendant make success impossible. Culpability is measured by the circumstances the defendant believed to exist.
A criminal law doctrine that provides a complete defense to attempt when the defendant's intended acts would not constitute a crime even if fully carried out as planned. Legal impossibility exists because the completed conduct would not violate the governing law.
A criminal law doctrine that supplies no defense to attempt, conspiracy, or solicitation when external facts unknown to the defendant make success impossible. Culpability is measured by the circumstances the defendant believed to exist.
Each sense below has its own examples, sources, and questions.
Daniel Diaz prepared and submitted a sworn statement he believed contained a material falsehood. The statement concerned a matter that was not legally material under the governing statute. Even if every act had been completed exactly as planned, no perjury would have occurred, so the attempt charge failed.
1 common questions
Legal impossibility is a complete defense when every act the defendant intended to perform would not constitute a crime even if completed exactly as planned. An essential element of the target offense would be missing under the governing law.
Supporting sources
Derek Douglas and Devon Drake agreed to sell what they believed was stolen artwork to an undercover buyer. Unknown to them the artwork was a replica and not stolen property. The agreement and shared intent to commit the unlawful sale established the conspiracy even though the objective could never be achieved.
Derek Douglas and Devon Drake agreed to sell what they believed was stolen artwork to an undercover buyer. Unknown to them the artwork had already been seized by police. The agreement and shared intent established the conspiracy even though government intervention made the objective impossible.
Diego Duarte offered cash to Dorothy Daniels to assault a rival he believed was still at the venue. The rival had already left hours earlier. The solicitation was complete because culpability turned on the facts as Duarte believed them to be.
Davenport Pharmaceuticals directed an employee to ship a mislabeled drug batch that the company believed violated federal safety rules. The batch actually met all requirements because of an unknown testing error. The attempt conviction stood because the company acted on the facts it believed existed.
Dominion Capital instructed an agent to bribe an official the company believed held discretionary power over a contract. The official in fact lacked any such authority under state law. The attempt charge proceeded because the company's belief that the bribe would influence an official decision supplied the required culpability.
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.
3 common questions
No. Courts measure culpability by the facts the defendant believed to exist. External conditions that make success impossible do not negate the agreement or substantial step taken with criminal intent.
Supporting sources
No. Once the agreement is formed or the solicitation is made, the offense is complete. Subsequent renunciation does not undo the prior criminal act.
Supporting sources
The Model Penal Code focuses on the circumstances as the actor believes them to be and rejects impossibility as a defense to attempt or solicitation. Common law retains the distinction between factual and legal impossibility for attempt.
Supporting sources
…to adult persons in deciding how to conduct their private lives in matters pertaining to sex " (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions…