Also known as:true legal impossibilities · legal impossibility
Written by attorneys · grounded in primary & secondary sources — see below
A complete defense to attempt liability that arises when the defendant's intended conduct, even if fully carried out under the circumstances as the defendant believed them to exist, would not constitute a crime under the governing law. The defense applies because an essential element of the target offense would be absent even if events unfolded exactly as planned. Courts accept the defense in all jurisdictions because attempt requires conduct that would be criminal if completed under the believed facts.
Sources & Authorities
How it applies
Common Examples
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Sworn Statement Lacks Materiality
Trevor Tate urged Tessa Takahashi to sign a sworn statement falsely inflating her net worth for submission to a private rating firm. Trevor believed the firm would review the statement and downgrade a competitor. Even under those believed facts the statement could never influence the firm's rankings because the firm never considered individual investor data. The court dismissed the attempted subornation of perjury charge because true legal impossibility barred conviction.
Believed Conduct Falls Outside Statute
Tristan Thompson directed Timothy Tang to prepare a false affidavit about a missed filing deadline for submission to bar counsel. Tristan believed bar counsel would accept and rely on the affidavit during its investigation. Under the governing rules the affidavit could never be considered because determinations rested exclusively on court records. The court granted the motion to dismiss the attempt charge on true legal impossibility grounds.
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Cases
Common Law
Casebooks
Course Outlines
Dictionaries
Planned Act Not Criminal by Definition
Theodore Tucker instructed Tyrone Tran to obtain a sworn statement falsely claiming a rival missed a court deadline. Theodore believed the statement would be reviewed and would support dismissal of a grievance. Even if the statement had been submitted exactly as planned it would have been excluded by the controlling guidelines and therefore could never satisfy the materiality element. The court held that true legal impossibility prevented conviction for attempted subornation of perjury.
Common questions
Frequently Asked
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How does true legal impossibility differ from factual impossibility?+
True legal impossibility is a complete defense because the defendant's intended conduct would not be criminal even if completed under the believed facts. Factual impossibility is never a defense because the intended conduct would be criminal if the unknown facts had been as the defendant believed. The distinction turns on whether the missing element is legal or factual.
Supporting sources
Does true legal impossibility apply when the defendant mistakes how an offense is defined?+
Yes. When the defendant's only error concerns the legal definition of the offense and the planned acts would not violate the statute even under the believed facts, the defense bars attempt liability. Courts treat this as a pure mistake of law that prevents the completed act from constituting a crime.
Supporting sources
Can true legal impossibility protect a defendant charged with attempted subornation of perjury?+
Yes when the believed facts would still leave the statement immaterial under the governing rules. Materiality is an essential element of the substantive offense. If that element would be absent even if events unfolded exactly as planned, the defense requires dismissal of the attempt charge.
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…