Also known as: logically impossible · impossibility
Written by attorneys — see sources below.
A situation in which the actor's intended conduct cannot logically satisfy the elements of the target offense even if completed exactly as planned. The required mental state for attempt cannot exist when the substantive crime lacks an intent element.
Leonard Lowe and Leo Lynch agreed to sell stolen art that had already been recovered by police. The agreement and shared intent to commit the unlawful act established the conspiracy even though the objective could never be reached.
Lamar Lewis prepared to commit reckless homicide by firing into a crowd without aiming at anyone. No attempt liability arose because the target offense lacks any intent element that could support the purposeful mental state required for attempt.
Lucas Lee offered money to Lila Lin to assault a target who had already left the city. The solicitation was complete because culpability is measured by the circumstances as Lucas believed them to be.
Lola Langley prepared false documents and asked a witness to sign them under oath. No attempt occurred because materiality, an essential element of perjury, would have been missing even if the plan had succeeded.
Liberty Trust loaded a truck with what it believed were controlled substances for sale. The attempt charge stood because the inability to complete the sale due to an unknown factual condition did not negate the required intent.
Lumen Capital's employee fired shots into a crowd hoping to cause death through reckless conduct. The attempt charge was dismissed because the substantive offense of reckless homicide contains no intent element that could support an attempt.
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 agreement and intent to commit the unlawful act remain sufficient even when external facts make the objective impossible to accomplish.
Legal impossibility is a defense when the completed conduct, exactly as planned, would not constitute a crime because an essential element of the substantive offense would be missing.
Reckless homicide requires no intent to kill. Attempt demands purposeful conduct aimed at causing the result, so the mental state for attempt cannot coexist with the recklessness element of the target offense.
No. Culpability is measured by the circumstances as the solicitor believed them to be, so the impossibility of success supplies no defense.
Attempt liability is barred when the target offense contains no intent element because the purposeful mental state required for attempt cannot logically attach to a crime defined by recklessness or negligence.