Notes and Questions-Impossibility

Notes and Questions on Legal Impossibility 

1.     While many jurisdictions have done away with the distinction between factual and legal impossibility, it is still important to understand the difference between the two. In Oviedo, the court defines them as follows: "Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective.” The passage below provides another illustration:

[I]f a person were to hold an illicit poker game in a Las Vegas apartment, thinking and intending to break a law against gambling, no attempt has been committed, because it is impossible to gamble illegally in Las Vegas. This is often called ‘pure’ legal impossibility. If, however, a person were to possess a package which he believed to be narcotics, but was in fact talcum powder, then the attempt to possess narcotics would be only factually impossible. Therefore the impossibility of the attempt would be no defense.

Kyle S. Brodie, The Obviously Impossible Attempt: A Proposed Revision to the Model Penal Code, 15 N. Ill. U. L. Rev. 237, 238–39 (1995).

Consider, further, some of the problems with the impossibility doctrine: 

In most cases, . . . courts could not clearly determine whether the defendant's attempt was legally or factually impossible. The distinction was so ineffective that different courts often found the nearly identical action either factually or legally impossible. For example, a person who shoots a stuffed deer, thinking it to be alive, is not guilty of an attempt to shoot a deer out of season. But a person who shoots into an empty bed, believing that it is occupied, is guilty of attempted murder. Despite the different results, these two cases are logically indistinguishable. In both instances the attemptor has fired a gun at a target, but has been mistaken about what that target represented. In the first instance the hunter thought the deer was alive, while in the second the actor thought the bed was occupied.

Id. at 239.

2.     Consider the following questions and apply the rules for impossibility stated in Oviedo (see Note 1 above): 

Question 1: D intends to pick V’s pocket, stealing V’s wallet, but it turns out V’s pocket was empty. D argues not guilty because it was impossible for D to commit the crime. Is D guilty of attempted robbery? 

Question 2: D made a living during prohibition selling “bootleg” (illegal) liquor. In the days after prohibition was repealed, making the sale of liquor legal, news traveled slowly. Believing prohibition remained in force, D attempted to sell V bootleg liquor. Is D guilty of attempted sale of illegal liquor?

Question 3: Recall Mr. Forrest, who intentionally killed his ailing father. Assume instead that, when D entered his father’s hospital room and fired the shots, unbeknownst to D, V was already dead, so he merely shot at his father’s corpse.If state charges D with attempt murder, how might impossibility apply?

For the same three questions above, what result applying MPC 5.01(1)(a) and (b)?Which of the two outcomes (common law vs. MPC) strikes you as more just? 

3.     A man walked about 350 miles to have sex with a minor he had been speaking to on Facebook. Turns out, though, that he had actually been chatting with the police. Has he satisfied the requirements for attempt under a dangerous proximity test? What about taking a substantial step? How might he use the impossibility defense? Would your answer be different if it really had been a 14-year-old girl and that her parents called the police when they became aware of the Facebook chat?

4.     Under the MPC, hybrid (legal plus factual) impossibility is not a valid defense. The drafters share their reasoning for ending the impossibility defense in §5.01 cmt. 3(b), at 315–16 (1985):

[T]he defense of impossibility . . . has been used to verify criminal purpose; if the means selected were absurd, there is good ground for doubting that the actor really planned to commit a crime. Similarly, if the defendant’s conduct, objectively viewed, is ambiguous, there may be ground for doubting the firmness of his purpose to commit a criminal offense. A general defense of impossibility is, however, an inappropriate way of assuring that the actor has a true criminal purpose. . . .[Another] consideration that has been advanced in support of an impossibility defense is the view that the criminal law need not take notice of conduct that is innocuous, the element of impossibility preventing any dangerous proximity to the completed crime. The law of attempts, however, should be concerned with manifestations of dangerous character as well as with preventive arrests; the fact that particular conduct may not create an actual risk of harmful consequences, though it would if the circumstances were as the defendant believed them to be, should not therefore be conclusive. 

Do you agree with the MPC authors’ concerns about the impossibility defense? Do you think the impossibility defense should be abolished entirely?

5.     Drafters of the MPC believed that a “person who has behaved in a wholly innocuous way” is not likely to be prosecuted. What do you think of this statement? Read the passage below for a counterargument: 

The draftsmen of the Model Penal Code have argued that while eliminating legal impossibility as a defense, the Code adequately takes care of these problems by its separate provision requiring that the defendant's act corroborate his mens rea. But the Model Penal Code's requirement that the act corroborate the mens rea applies only to cases in the preparation-attempt continuum. . . . Perhaps the draftsmen assumed that doing the act defined in the substantive crime will always supply at least as much corroboration of mens rea as is present in the substantive crime itself. If so, what they have failed to see is that the act in its narrow sense of the defendant's physical movements can be perfectly innocent in itself-possession of [stolen] goods [or] bringing goods into the country-and that what gives the act character as corroborative of mens rea is often . . . the attendant circumstances that the goods possessed are in fact stolen, or that the goods brought into the country are in fact dutiable, or that the goods possessed are in fact narcotics.

Arnold N. Enker, Impossibility in Criminal Attempts—Legality and the Legal Process, 53 Minn. L. Rev. 665, 674 (1969).

MPC drafters responded to Enker’s criticism as follows: 

[I]t should . . . be noted how unlikely it is that persons will be prosecuted on the basis of admissions alone; the person who has behaved in a wholly innocuous way is not a probable subject of criminal proceedings. So the issue posed over Subsections (1)(a) and (1)(b) is more theoretical than practical.

Model Penal Code and Commentaries § 5.01 cmt. 3(c), at 319–20 (1985).

Which of these two positions do you find more persuasive?

6.     In People v. Jaffe, the defendant received goods that he thought to be stolen and was subsequently convicted of attempted receipt of stolen property. Upon appeal, the conviction was overturned because of legal impossibility. Do you understand why? Do you agree with the court's explanation (below)? 

The crucial distinction . . . lies not in the possibility or impossibility of the commission of the crime, but in the fact that, in the present case, the act, which it was doubtless the intent of the defendant to commit would not have been a crime if it had been consummated. If he had actually paid for the goods which he desired to buy and received them into his possession, he would have committed no offense . . . because the very definition [of the offense requires that] . . . the accused shall have known the property to have been stolen or wrongfully appropriated in such a manner as to constitute larceny. This knowledge . . . cannot exist unless the property has in fact been stolen or larcenously appropriated. No man can know that to be so which is not so in truth and in fact. He may believe it to be so but belief is not enough under this statute.

185 N.Y. 497, 500 (1906).

7.     In what way would the outcome change if we applied MPC on impossibility to the facts in Thousand?

8.     In the following hypotheticals, determine whether the defense lies in pure legal impossibility, factual impossibility, or hybrid legal impossibility. 

1. 1. Jayesh was walking around town searching for a car to steal. He came across a Chevy Cobalt and noticed that the doors were unlocked and the key was in the ignition. He got in the car and drove away, without noticing the sign in the rear window that stated “free car.” He is charged with attempted car theft. 

   2. Verena wants to assassinate the President while he is at Camp David. She sets up a sniper rifle outside the camp, and fires several shots into a few of the windows, believing the president to be in one of the rooms. The President was in the White House that day. Is Verena guilty of attempted assassination of the President?

   3. Gunda’s wife Polymnia is on trial for homicide. During the trial, the evidence overwhelmingly points to Polymnia’s guilt. Gunda decides to take matters into her own hands, and accosts a person she believes to be a juror in the bathroom. She tells the person, “I believe my wife is innocent, and I have $1,000 that says you do too.” This person bears a resemblance to someone on the jury, but is not actually a juror. Gunda is charged with attempted bribery of a juror.