Impossibility Defense in Criminal Law

The impossibility defense can only be applied for incomplete offenses (i.e. attempt). There are two types of impossibility defenses: factual impossibility and legal impossibility. Factual Impossibility – the defendant could not complete the crime because…; this defense seeks to negate the actus reus. The defendant is arguing that something got in the way of his completion of the crime. Generally, a factual impossibility defense is not permitted. Legal Impossibility – even if the defendant’s conduct was or is completed, it is not illegal.  Here, the court looks at the elements of the offense and finds that not all of the elements are present. Even if the defendant thought his conduct was wrong, a legal impossibility defense will be valid. Example: Defendant burns down his own house in order to collect the insurance proceeds. Under common law, arson required the burning of the dwelling of another. Therefore, it is legally impossible to find the defendant guilty of...

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Conspiracy

Conspiracy is the concerted effort or act of committing the crime. Conspiracy is a specific intent crime and the common law requires two parties for a conspiracy charge. Both parties must have the same mens rea or “mutuality” (See State v. Hayes). The common law does not require an over act or a step beyond preparation for the crime; however, it does require a showing of when the agreement (or implied agreement) was actually formed. Under conspiracy, a defendant can be held accountable for acts that exceed the defendant’s initial agreement. In Pinkerton v. United States, the court held the defendant liable for acts of co-conspirators that occurred “in the furtherance” of the conspiracy. Under this standard, the court looks from the point of view of the conspiracy and states that those acts which are “reasonably foreseeable consequences of the conspiratorial agreement.” Note: This standard is different from the natural and probable consequences doctrine under felony-murder which viewed forseeability from the perspective of the defendant. Defeat the purpose of the conspiracy Under the common law, a defendant could not abandon the original conspiracy. Once the defendant entered the conspiracy, he was stuck. However, the common law did allow a defendant to withdraw from the reasonably foreseeable consequences (aka the Pinkerton crimes). In order to withdraw from these consequences, the defendant had to notify the co-conspirators of his withdrawal and the withdrawal had to be completed within a reasonable amount of time so that the co-conspirators could also withdraw before the commission of the crime. MPC Conspiracy Under the MPC Section 5.03, both parties do not need the same mens rea (no mutuality required). Because conspiracy is a specific intent crime, the defendant can only be charged with conspiracy, attempt, or solicitation. The state must choose one of the three. Under the MPC Section 5.03(6), renunciation must be presented as an affirmative defense if the defendant “thwarted the success of the conspiracy.” This could include calling law enforcement with a reasonable amount of time so that the co-conspirators could also withdraw. The MPC essentially rejects Pinkerton because it allows the defendant to avoid the conspiracy charge as a whole instead of only avoiding the foreseeable consequences with an appropriate renunciation.   List of Specific Intent...

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Solicitation

Common Law Solicitation Solicitation is a general intent crime under the Common Law; however, it was typically treated as though it was a specific intent crime because solicitation is an incomplete crime like attempt. The defendant only needed to have a general intent that his conduct/solicitation will lead to the result of the crime; however, the defendant needed to “have the purpose” or specific intent that the third party will commit the crime. Under common law, whenever the defendant completed the actus of asking a third party to commit a crime, the solicitation was complete. The law required that the state must show the defendant encouraged or induced through the statement (i.e. the defendant offers the third party tangible property if the third party commits a crime). In order to be found guilty, the defendant’s statement would have to indicate a clear mens rea that the third party commit the crime. Common law only looked at the statement by the defendant and not any actions surrounding the statement. No overt act required under Common Law or MPC. The statement was evaluated under an objective reasonableness standard. Modern Solicitation Modern statutes define solicitation as a specific intent crime.  For example, MPC Section 5.02 defines solicitation as: “A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission [specific intent] he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.” If the defendant wants to end or renunciate the solicitation he must persuade the third party not to do the crime or otherwise prevent the commission of the crime. In order to renunciate from the solicitation, the defendant must manifest a “complete and voluntary renunciation of his criminal purpose” (Section 5.02(3)). Renunciation is presented by the defendant as an affirmative defense.   Helpful: General Intent Crimes...

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Attempt

Attempt is an “incomplete crime.” To constitute attempt, the defendant’s mens rea must have intended the actual conduct AND the actual result (or ultimate harm). In other words, attempt is a specific intent crime even if the attempted crime only requires general intent. Common Law Attempt The Common Law had four tests to determine whether the defendant attempted a crime: 1. Equivocality Looked at the factual circumstances the defendant committed to show that it was unambiguous that the defendant intended the completed offense 2. Proximity Under this analysis, the court balances the following tests: (a) “Nearness” test. This test looks to see how close the defendant came to actually committing the offense. (i) How many steps did the defendant take? (ii) How many steps where left? (b) Harm test. Looks at the ultimate result of the actual harm. (i) How serious would the harm have been if the defendant committed the act? The less serious the harm, the closer we need in “nearness;” the more serious the harm, we don’t need to get as close in “nearness” (ii) What would it take to prevent the harm? The more police involvement required (government intrusion), the further we can be away from the nearness 3. Desistance Looked at the events as a causation; (another type of proximity test); From our causation link, is there a point in time when a reasonable person would/could have stepped in and stopped him? The goal of the desistance test is to determine the point in time when a reasonable person could have stepped in and stopped the offense (reasonable person analysis) Reasonable person – someone of common intelligence who wants to avoid serious bodily injury to himself If they could step in, they would. Analyze seriousness of the harm to determine if the reasonable person would step in The last point in time that a reasonable person would have stepped in is the point of desistance 4. Last Act The last act before a defendant can change is mind before completing the offense of attempt. MPC Attempt The MPC Section 5.01 only has one test: “substantial step.” However, 5.01(2) specifically lists conduct which may be held as a substantial step. The MPC does require that a defendant’s conduct be strongly corroborative of his criminal purpose in order to constitute a substantial step. Examples, from section 5.01(2), of what may constitute a substantial step include: lying...

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People v. Burton, 491 P.2d 793 (1971)

Case Name: People v. Burton Citation:  491 P.2d 793 (1971)  Facts: Burton was committing the felony of armed robbery, during which he killed someone. He was arrested and charged with murder. At Trial, the Judge instructed the jury that they could find Burton guilty of first-degree murder if they found that the death happened as a result of the robbery, even if that death was unintentional. State’s argument: The doctrine of felony-murder applies because armed robbery is inherently dangerous to life. Defendant’s argument: An independent felonious purpose does not exist between the murder and the armed robbery. Holding: An independent felonious purpose does exist and the defendant can be charged with felony-murder. Reasoning: We look at the mind (mens rea) of the defendant committing the crime. The felony-murder doctrine is purposed to deter those committing felonies from killing people by holding them strictly liable for their...

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People v. Phillips, 414 P.2d 553 (1966)

Case Name: People v. Phillips Citation: 414 P.2d 553 (1966) Facts: At the hospital, the parents of a child with cancer were told that surgery was the only effective treatment. However, the defendant who was a chiropractor convinced the parents that he could cure the child. The child died and the defendant was charged with felony murder. The defendant was charged with grand theft medical fraud and the state tacked on a murder charge through the felony-murder doctrine. Felony murder is strict liability. Defendant’s argument: Felony-murder only applies to those felonies which are inherently dangerous to life. Inherently dangerous felonies do not include grand theft. Holding: The defendant cannot be charged with felony-murder. Reasoning: Neither common law nor the legislature has deemed grand theft as an inherently dangerous felony. If the defendant did not commit an inherently dangerous felony then he cannot be charged with...

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