Impossibility defense

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An Impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit.^[1] Mistakes of fact is rarely an adequate defense in common law. In the United States, thirty-seven states have ruled out mistakes of fact as a defense to charges of attempt.^[2] Mistakes of law has proved a more successful defense.

1 Mistakes of fact
2 Mistakes of law
3 Compulsion of an Impossibility
4 See also
5 Footnotes

[edit] Mistakes of fact

A "factual" impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to commit although the defendant is unaware of this when the attempt is made.^[3] In People v. Lee Kong, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting.^[3] Another case involving the defense of factual impossibility is Commonwealth v. Johnson, 167 A. 344, 348 (Pa. 1933) in which a wife intended to put arsenic in her husband's coffee but by mistake added the customary sugar instead. Later she felt repentant and confessed her acts to the police. She was arrested, tried, and convicted of attempted murder.^[3] In United States v. Thomas, 13 U.S.C.M.A. 278 (1962) the court held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.^[1]^[4]

[edit] Mistakes of law

An act that is considered legally impossible to commit is traditionally considered a valid defense for a person who was being prosecuted for a criminal attempt. An attempt is considered to be a "legal" impossibility when the defendant has completed all of his intended acts, but his acts fail to fulfill all the required in elements of a crime in common law. Mistakes of law has proved a successful defense. An example of a failed attempt of law is a person who shoots a tree stump; that person can not be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump.The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime.^[5]

However, "legal" and "factual" mistakes are not mutually exclusive. A borderline case is that of a person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey, (1953) in which a person was originally convicted for attempting to kill a protected animal out of season. In a debatable reversal, an appellate judge threw out the conviction on the basis that it is no crime to shoot a stuffed deer out of season.^[1]^[3]

[edit] Compulsion of an Impossibility

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A separate but related defense of impossibility is that the law cannot compel an individual to perform an impossible action, nor can it punish an individual for failure to perform an impossibility. An example might be the paying of taxes. An insolvent or indigent person with no valuable assets cannot be forced to pay back taxes he or she may owe, and cannot be punished for such failure. Such logic led to the eventual discontinuance of "debtor's prisons" where persons who owed money were jailed until they could pay. If they had no means with which to pay, this effectively amounted to a life sentence. It similarly led to the creation of bankruptcy law allowing an insolvent person to either renegotiate the terms of a debt such that paying it becomes possible, or to liquidate their assets to pay as much of the debt as is possible, and force creditors to write off the remainder.

Other examples include the extension of deadlines under contract law or for governmental proceedings due to force majeure, where a party can claim that a contract that was initially possible to fulfill became impossible due to unforeseeable and uncontrollable circumstances such as a natural disaster. Even if the contract did not include a force majeure clause specifically mitigating or relieving contractual obligations, if the tortfeasor has made every effort to meet the terms of the contract, such that the force majeure is the only reasonable cause of the failure to fulfill the contract, courts generally accept the impossibility defense and force a modification of the contract's terms to include one, or hold the contract null and void.