Impossibility defense
Encyclopedia
An Impossibility defense is a criminal defense occasionally used when a defendant
is accused of a criminal attempt
that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law
. In the United States, thirty-seven states have ruled out factual impossibility as a defense to the crime of attempt. This is not to be confused with a 'mistake' of fact defense, which is always considered as a defense to criminal charges.
is unaware of this when the attempt is made. In People v. Lee Kong
, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder
for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting. Another case involving the defense of factual impossibility is Commonwealth v. Johnson, in which a wife intended to put arsenic
in her husband's coffee but by mistake added the customary sugar instead. Later she felt repentant and confessed her acts to the police. She was arrested, tried, and convicted of attempted murder
. In United States v. Thomas
the court held that men who believed they were raping
a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.
. Mistakes of law have proved a successful defense. An example of a failed attempt of law is a person who shoots at a tree stump, believing that he is committing attempted murder; that person cannot be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime.
However, "legal" and "factual" mistakes are not mutually exclusive. A borderline case is that of a person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey, (1953) in which a person was originally convicted for attempting to kill a protected animal out of season. In a debatable reversal, an appellate judge threw out the conviction on the basis that it is no crime to shoot a stuffed deer out of season.
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
is accused of a criminal attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. In the United States, thirty-seven states have ruled out factual impossibility as a defense to the crime of attempt. This is not to be confused with a 'mistake' of fact defense, which is always considered as a defense to criminal charges.
Factual impossibility
A impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to commit although the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
is unaware of this when the attempt is made. In People v. Lee Kong
People v. Lee Kong
People v. Lee Kong 95 Cal. 666, is a case in which the defendant claimed the "impossibility" defense to charges of assault, on the basis of a mistake in fact...
, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder
Attempted murder
Attempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting. Another case involving the defense of factual impossibility is Commonwealth v. Johnson, in which a wife intended to put arsenic
Arsenic
Arsenic is a chemical element with the symbol As, atomic number 33 and relative atomic mass 74.92. Arsenic occurs in many minerals, usually in conjunction with sulfur and metals, and also as a pure elemental crystal. It was first documented by Albertus Magnus in 1250.Arsenic is a metalloid...
in her husband's coffee but by mistake added the customary sugar instead. Later she felt repentant and confessed her acts to the police. She was arrested, tried, and convicted of attempted murder
Attempted murder
Attempted murder is a crime in England and Wales and Northern Ireland.-Today:In English criminal law, attempted murder is the crime of more than merely preparing to commit unlawful killing and at the same time having a specific intention to cause the death of human being under the Queen's Peace...
. In United States v. Thomas
United States v. Thomas
United States v. Thomas 13 U.S.C.M.A. 278 is a famous case of a military court-martial involving a failed attempt to commit a crime, in this case, rape and the use of the "impossibility" defense.-Circumstances:...
the court held that men who believed they were raping
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.
Legal impossibility
An act that is considered legally impossible to commit is traditionally considered a valid defense for a person who was being prosecuted for a criminal attempt. An attempt is considered to be a "legal" impossibility when the defendant has completed all of his intended acts, but his acts fail to fulfill all the required in elements of a crime in common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Mistakes of law have proved a successful defense. An example of a failed attempt of law is a person who shoots at a tree stump, believing that he is committing attempted murder; that person cannot be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime.
However, "legal" and "factual" mistakes are not mutually exclusive. A borderline case is that of a person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey, (1953) in which a person was originally convicted for attempting to kill a protected animal out of season. In a debatable reversal, an appellate judge threw out the conviction on the basis that it is no crime to shoot a stuffed deer out of season.