Impossibility
Impossibility: when the underlying crime cannot, in fact or in law, be completed by ∆'s conduct.
Two Categories
- Legal Impossibility (defense at CL): even if ∆ succeeded in everything ∆ intended, no crime would result. (Ex.: ∆ shoots at a stuffed deer believing it is real—but hunting decoys is not a crime.)
- Factual Impossibility (NOT a defense): the crime fails because of an unknown factual condition. (Ex.: ∆ tries to pickpocket an empty pocket; ∆ shoots at a victim who is already dead.)
Analytic Framework
- Step 1: Did ∆ have actus reus + mens rea + concurrence for attempt?
- No → no attempt.
- Yes → Step 2.
- Step 2: Why did the crime fail?
- Legal impossibility → defense to attempt (CL).
- Factual impossibility → not a defense.
Common Law vs. MPC
- CL: distinguishes legal vs. factual impossibility (legal is defense; factual is not).
- MPC § 5.01(4): no separate impossibility defense. ∆ is guilty of attempt if ∆ "purposefully engages in conduct that would constitute the crime if the attendant circumstances were as he believed them to be." → factual impossibility is no defense; legal impossibility (true impossibility) effectively still is.
Cases:
- State v. Guffey, 262 S.W.2d 152 (Mo. App. 1953) — old-school legal impossibility (decoy deer).
- State v. Curtis, 603 A.2d 356 (Vt. 1992) — modern rejection of legal-impossibility defense (decoy deer redux).
- People v. Dlugash, 363 N.E.2d 1155 (N.Y. App. 1977) — belief-based liability under MPC framework.