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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.

  1. 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.
  2. 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 arson.

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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

  1. Looked at the events as a causation; (another type of proximity test);
  2. From our causation link, is there a point in time when a reasonable person would/could have stepped in and stopped him?
  3. 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 in wait, searching for or following the contemplated victim of the crime
  • possession of materials to be employed in the commission of the crime, which are specifically designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances
  • soliciting an innocent agent to engage in conduct constituting an element of the crime

For Defenses to Attempt see Impossibility

More Helpful Information: List of Specific Intent Crimes