MBE Rules · Criminal Law
Impossibility — factual vs. legal
The rule
Factual impossibility — where the intended crime could not be completed because of a factual circumstance unknown to the defendant (e.g., the pocket was empty, the victim was already dead) — is NOT a defense to attempt. Legal ("true legal") impossibility — where the conduct, even if completed as intended, would not constitute a crime — IS a defense.
In plain English
The classic line: if the defendant thought he was breaking the law and only luck stopped him, he is still guilty of attempt. If what he set out to do was not actually illegal, there is no crime to attempt.
The trap
Most "impossibility" fact patterns are factual and thus no defense; true legal impossibility is rare on the bar.
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