Also known as: factual impossibility · legal impossibility · impossibility defense · impossibility · attempt impossibility
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A circumstance in which a defendant cannot complete a substantive offense because of some physical or factual condition unknown to the defendant. The law measures culpability based on the circumstances as the defendant believed them to be and denies a defense on this ground for attempt, conspiracy, and solicitation.
A circumstance in which a defendant cannot complete a substantive offense because of some physical or factual condition unknown to the defendant. The law measures culpability based on the circumstances as the defendant believed them to be and denies a defense on this ground for attempt, conspiracy, and solicitation.
Select any source to read its text and confirm it supports the definition.
A circumstance in which, even if the defendant carries out every act exactly as planned and all circumstances are as believed, the completed conduct would not constitute a crime under the governing law. This serves as a complete defense to attempt because the law does not criminalize the intended result.
Select any source to read its text and confirm it supports the definition.
A circumstance in which, even if the defendant carries out every act exactly as planned and all circumstances are as believed, the completed conduct would not constitute a crime under the governing law. This serves as a complete defense to attempt because the law does not criminalize the intended result.
Each sense below has its own examples, sources, and questions.
Frank Fisher and Felix Franco agreed to sell stolen electronics to an undercover officer they believed was a fence. Unknown to them, the officer had already been reassigned and the sting operation shut down. Their agreement and intent to commit the unlawful sale establish guilt for conspiracy even though completion was factually impossible.
Freda Finch mailed a threatening letter to a target she believed still resided at the listed address. The target had moved out of state weeks earlier. Because the factual condition was unknown to her, factual impossibility supplies no defense to the attempt charge.
Farah Fox offered cash to a stagehand to start a fight with a critic she believed was still at the festival venue. The critic had already left hours earlier. The solicitor's culpability is measured by the circumstances as believed, so factual impossibility supplies no defense to solicitation.
Faye Fuller reached into a victim's pocket intending to steal cash she believed was there. The pocket was empty. The factual condition unknown to her does not provide a defense because the law denies impossibility as a bar to attempt when the believed circumstances would have made the conduct criminal.
Falcon Dynamics executives agreed to import narcotics they believed would arrive by ship. Federal agents had already seized the shipment before the agreement. The government's intervention creating factual impossibility does not terminate or defeat liability for the conspiracy.
No. The agreement and intent to commit the unlawful act remain sufficient even when external facts make the ultimate objective impossible to accomplish.
Supporting sources
No. Culpability is measured by the circumstances as the solicitor believed them to be, so the fact that the solicitation could not have succeeded supplies no defense.
Supporting sources
No. The law denies the defense when the defendant could not complete the offense because of a physical or factual condition unknown to him, including mistakes about attendant circumstances that would have made the conduct criminal if true.
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Francisco Frost prepared and submitted a sworn statement he believed contained a false fact. Under the governing law that fact was immaterial even if everything unfolded exactly as planned, so no perjury would have occurred. Legal impossibility therefore bars conviction for attempt.
It provides a complete defense when, assuming the defendant completed every intended act exactly as planned, the conduct would still not constitute a crime because an essential element of the substantive offense would be missing.
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…