Also known as:legal impossibility doctrine · legal impossibility
Written by attorneys · grounded in primary & secondary sources — see below
A complete defense to a charge of criminal attempt. The defense applies when the defendant's intended acts would not constitute a crime even if carried out exactly as planned and under the circumstances the defendant believed to exist.
Sources & Authorities
How it applies
Common Examples
3
Immaterial Affidavit in Bar Grievance
Demetrius Douglas directed a paralegal to obtain a sworn statement from a former client falsely claiming a rival firm missed a filing deadline. Douglas planned to submit the affidavit to bar counsel to support dismissal of a grievance. State guidelines provided that determinations of missed deadlines rest exclusively on court records and that client affidavits on timing issues are expressly excluded. Even if the affidavit had been signed and submitted exactly as Douglas intended, the statement could never satisfy the materiality element required for subornation of perjury.
Inactive Player in Game-Fixing Plot
Darrell Duncan agreed with a gambler to miss free throws during a basketball game so that his team would lose by more than the betting line. Both parties believed Duncan would play and start the game. League bylaws already barred Duncan from participating because the team's medical staff had placed him on the inactive list. Because the planned conduct could never affect the point spread under the rules governing player eligibility, the agreement could not support liability for conspiracy to fix the game.
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Cases
Common Law
Study Supplements
State v. Smith621 A.2d 493 (N.J. Super. Ct. App. Div. 1993)
Unreviewable Statement to Rating Firm
Diane Dawson induced a former client to sign a sworn statement falsely inflating the client's net worth. Dawson believed the rating firm would review the statement and downgrade a competitor firm. The firm's policies provided that it never considers individual investor information when determining rankings. Even if the statement had been delivered and reviewed exactly as Dawson planned, it could not have influenced the firm's actions.
United States v. Mandujano499 F.2d 370, 376 (5th Cir. 1974)
Common questions
Frequently Asked
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What must be shown for the doctrine of legal impossibility to bar an attempt conviction?+
The defendant must show that even if every act had been completed exactly as intended and under the circumstances the defendant believed to exist, an essential element of the target offense would still have been missing. When that element is absent as a matter of law, the completed conduct would not have been criminal.
Supporting sources
How does legal impossibility differ from factual impossibility?+
Legal impossibility arises when the intended conduct would not be criminal even under the facts the defendant believed to exist. Factual impossibility arises when unknown physical circumstances prevent completion even though the conduct would be criminal if the facts matched the defendant's belief. Only legal impossibility defeats attempt liability.
Supporting sources
Does the doctrine apply when the defendant misjudges whether a statement would be material?+
Yes. If the statement would be immaterial as a matter of law even under the circumstances the defendant believed to exist, the essential element of materiality is missing and legal impossibility bars conviction for attempted subornation of perjury.
Supporting sources
Can legal impossibility ever apply to conspiracy charges?+
No. Conspiracy focuses on the agreement and shared intent rather than whether the planned conduct could actually succeed. Courts reject impossibility defenses to conspiracy even when external legal barriers make the objective impossible.
Supporting sources
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…