Legal impossibility

Legal impossibility is a traditional common law defense to a charge of an attempted crime. Legal impossibility arises when the act, if completed, would not be a crime.[1]: 707  A person believes she is committing a crime, but the act is, in fact, lawful. For example, a person may believe she is receiving stolen goods, but the goods are in fact not stolen.[2]

A different form of legal impossibility (known as "hybrid legal impossibility") comes into play when an actor's goal is illegal, but commission of the crime is impossible due to a factual mistake regarding the legal status of one of the attendant circumstances of one of the elements of the crime. For example, a man attempting to bribe someone whom he mistakenly believes is a juror is not liable for attempted bribery of a juror. On the other hand, some jurisdictions may find the actor guilty of attempt. The United States Model Penal Code did away with the legal impossibility defense.[3] Under the MPC, a defendant is guilty of an attempt to commit a crime if they purposely engage in conduct which would constitute the object crime if the attendant circumstances were as they believed them to be.[4]

Footnotes
  1. Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan (law professor), Robert Weisberg, Guyora Binder, ISBN 978-1-4548-0698-1,
  2. People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906)
  3. Enker, Arnold (1969). "Impossibility in Criminal Attempts–Legality and the Legal Process". Minnesota Law Review. 53: 682–83.
  4. Model Penal Code §5.01(1)(a)
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