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VOLUME 6 - CHAPTER 66
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66.3 Attempt: Defense Of Impossibility

    66.3.1 Defense Theory That Factual Impossibility Precludes Conviction For Attempt
    66.3.2 Impossibility As Defense To Attempted Purchase Of Controlled Substance
    66.3.3 Attempt: Defense Theory That Completed Act Would Not Have Been A Crime
    66.3.4 Attempt: Legal Impossibility As Defense

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VOLUME 6 - CHAPTER 66

PRACTICE NOTE:  See FORECITE National™ 66.3.4 [Attempt: Legal Impossibility As Defense].

RESEARCH NOTES:

See Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch. 6, § 3, p. 628 [recognizing that one does not attempt to commit a crime which he or she knows cannot be perpetrated because there is no real intention to do what is known to be impossible].

LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.3(a) and 6.3(b); Robinson, Criminal Law Defenses (West, 1984) § 85 pp. 422-39 [inchoate offenses and complicity -- impossibility defense].

Wharton’s Criminal Law (West, 15th ed. 1998 Supp.) § 697, pp. 626-37.

Annotation, Impossibility Of Consummation Of Substantive Crime As Defense In Criminal Prosecution For Conspiracy Or Attempt To Crime, 37 ALR3d 375.

Spjut, When Is An Attempt To Commit An Impossible Crime A Criminal Act?  29 Ariz. L. Rev. 247, 278 (1987).

See generally, FORECITE National™ 305.1.18 [Attempts].

See also generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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VOLUME 6 - CHAPTER 66

PRACTICE NOTE: See FORECITE National™ 88.5.2 [Attempt: Impossibility As Defense Theory To Attempted Purchase Of Controlled Substance]; see also FORECITE National™ 66.5.1 [Attempted Possession As Lesser Included Offense Of Possession For Sale Or Distribution]  

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Where the act intended, if completed, would not have been a crime, there is no crime due to an inherent impossibility that a criminal act would be committed.  (See U.S. v. Berrigan (3rd Cir. 1973) 482 F2d 171, 188-89; People v. Ng (MI 1986) 402 NW2d 500, 504 [legal impossibility is a defense to the crime of attempt, factual impossibility is not]; People v. Rollino (NY 1962) 233 NYS2d 580, 582 [legal impossibility in the completion of the crime precludes prosecution for an attempt]; Booth v. State (OK 1964) 398 P2d 863, 870-71[where legal and not factual impossibility prevents commission of crime itself, one cannot be convicted of attempt to commit that crime]; Lawhorn v. State (TX 1995) 898 SW2d 886, 891-92; Foster v. Commonwealth (VA 1898) 31 SE 503, 505.)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Legal impossibility is a defense to attempt. That is, if an element of the offense is missing there can be no attempt because the completed act would not constitute the charged offense. For example, the defendant could not be convicted of attempted murder upon a person who is already dead. (See LaFave & Scott, Substantive Criminal Law (West, 1986) pp. 510-18; Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 627-35; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:02, comment [Aiding And Abetting] (Micpel, 1999).)

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].