Also known as: inherently factually impossible · factual impossibility
Written by attorneys — see sources below.
A category of impossibility in attempt law arising when the chosen means are so inherently improbable that they cannot produce the intended criminal result.
Iain Irons and Isaiah Ishikawa agree to place a death curse on a business competitor. They select a conjuror and pay the fee even though the method cannot possibly succeed. The agreement and intent alone establish conspiracy liability because factual impossibility supplies no defense.
Ingrid Innes asks Imran Iyer to cast a spell that will cause a bank vault to open. She offers payment and detailed instructions despite the spell's total ineffectiveness. The solicitation is complete under the circumstances as Ingrid believed them to be, so impossibility provides no defense.
Imani Idowu hires a conjuror and pays to place a lethal curse on her ex-husband. She believes the ritual will cause death even though the means are inherently incapable of doing so. The substantial step taken under her mistaken belief supports attempt liability because factual impossibility is not a defense.
Idina Iverson climbs into the rigging and performs a ritual she believes will cause a spotlight to fall on a performer. Redundant safety lines make any fall impossible, yet the ritual itself is inherently ineffective. The court rejects any impossibility defense and finds attempt liability on the facts as she believed them.
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.
View caseNo. The common-law rules for conspiracy and solicitation measure culpability by the agreement or the solicitation itself and the intent to commit the crime. External facts that make success impossible, including inherent improbability, supply no defense.
…attempt. Indeed, even a decision to analyze impossibility on the basis of what is generally described as the two categories of factual impossibility and legal impossibility presents serious problems unless conceptual distinctions between the two labels are recognized and respected. Generally speaking factual impossibility is said to…