Criminal Law Class Notes 11/18/03


Defenses to attempt


We talked a bit about abandonment, and today we’ll talk about impossibility.


People v. Thousand


What crime was the defendant charged with?  Primarily, we’re interesting in the charge of attempted distribution of obscene material to a minor.


From the defendant’s perspective, the individual was not really a minor, so it’s impossible for the defendant to have committed the crime.  The defendant must make a more specific argument.  What kind of impossibility is claimed?  Thousand claims legal impossibility.


At common law, factual impossibility is no defense, while legal impossibility is a defense.


The court punts on this distinction because they claim that neither impossibility defense exists anymore in Michigan due to statute.


An increasing number of states, though not a huge number, have done what the court here has done, that is, they have denied that their state’s common law ever recognized this defense, or they refer to a statute and say that by statute the defense doesn’t currently exist.


The Model Penal Code clearly does away with one aspect of the impossibility defense.  But even in some non-Model Penal Code states, their law may be interpreted to eliminate this defense.


The dissent says that the statute does not eliminate the impossibility defense.


How can we find that Thousand is not guilty under the interpretation of the statute offered by the dissent?




Jaffe was in the business of receiving stolen property and then selling it at a profit.  He got some property, received it, and sold it.  The thing was that he bought this property from an undercover police officer.  This property wasn’t really stolen!  Or we might say that once the police touch the property, it’s no longer stolen.


The Jaffe court said that this is an act that wouldn’t have been a crime if it had been completed.  That is to say that if he had purchased the item, he would have been buying regular old non-stolen property, and there’s nothing wrong with that.  We wouldn’t otherwise punish someone for receiving non-stolen property.


How does entrapment fit into all of this?


Dressler says that it’s silly.  Jaffe intended to buy stolen goods.


The Jaffe explanation is a traditional way to explain legal impossibility.


The distinction between “pure” legal impossibility and “hybrid” legal possibility will almost never be mentioned in opinions.


In traditional common law, here is a good definition of legal versus factual impossibility:


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.


Factual impossibility versus legal impossibility


This edition of the book has the Thomas case, where military guys were charged with attempted rape for raping a dead person.  They believed that the person was unconscious.


Was Thomas factual impossibility or legal impossibility?  If the facts had been as the accused had believed them to be, then what they did would have constituted the crime of rape.  That would argue for factual impossibility.


What would be the case for legal impossibility?  The idea would be that the victim is no longer a human being, and thus the act which Thomas intended to do was to have sex with this particular thing which is a dead person, not a live human being.  It seems perverse to say at it was Thomas’s intent to have sex with a dead person.  That’s not the argument.


Is this a hybrid?  Yes, because there was a mistake of fact that existed on the part of Thousand.  He thought the person on the other end of the Internet was an underage female.  Jaffe thought he was receiving stolen property.  Thomas thought the female was alive.  But there is also legal impossibility in some sense.  As a result of the mistake of fact, that mistake of fact affects an attendant circumstance, and that attendant circumstance in turn has specific legal significance.


In Jaffe, the mistake of fact affects whether the goods were stolen or not stolen.  The law only deals with stolen property.  In Thomas, the mistake of fact was whether they had sex with a human being or a non-human being.  The factual error affects the attendant circumstance.  It’s the same in Thousand.  The mistake affects an attendant circumstance in the statute: you mustn’t send obscene material to underage people.  There was no underage female to receive the pornography.  There was no stolen property to receive.  There was no woman to be raped.


Most of the cases of so-called legal impossibility involve this kind of “hybrid” situation.  Because they are hybrid and because you can make a plausible legal argument to suggest that it’s factual impossibility, which is not a defense at common law, and you can also make an argument that it’s legal impossibility, which is a defense at common law, there must be a problem with the law.


That’s not to say that we should abolish the impossibility defense.  But the way the common law has developed, the idea of hybrid legal impossibility needs to be rethought because of the problems we’re describing.


Take Thousand for example: was this a complete or an incomplete attempt?  This was a complete alleged attempt.  This is a conduct crime, so we use § 5.01(1)(a).  It’s sometimes difficult or impossible to say for sure.  So under the Model Penal Code, Thousand would be guilty of attempt.  The attendant circumstance is this case was that the person on the other side of the Internet was an underage female.  Thousand did engage in conduct that would be a crime if that really was an underage female.


This language was put in by the drafters so that people could be convicted in cases of impossibility.


Why abolish the defense?  We want to take bad guys off the streets.  This is a utilitarian view.  These are bad, dangerous people!  We should take them off the streets!  They would commit these crimes if they had the chance.  They are also morally culpable people.


What’s the argument for why we might not want to knock out the legal impossibility defense?  Why should we sometimes be hesitant to convict?  An objectivist might say that you’re punishing thoughts.  We also might focus on the actual social harm or lack thereof.


Because we’re punishing for thoughts, we run the risk of punishing entirely innocent people who didn’t have the thoughts that we thought they had.


Consider the hypothetical of Lady Eldon.  What tells us that she had the intention to smuggle?  The fact that supports that is that she hid the lace.  That’s ambiguous, though.  She had to put it someplace.  We’re told that she was hiding it, but we’re not told why.  Is it really so meaningful to put something at the bottom of your suitcase?  If that’s the only evidence, are we prepared to convict of attempt on that basis?


Scholars are divided about whether to abolish the impossibility defense.  Legislatures are anxious to go down the Model Penal Code route of abolishing the impossibility defense.  Dressler thinks that in 10 years, there will be no more impossibility defense.


Pure legal impossibility means “pure mistake of law”.  Everything is exactly factually the way you think it is, but you just don’t understand the law.  Just as ignorance of the law is no excuse, ignorance of the law doesn’t make a crime.


The pure version of legal impossibility remains a defense in the Model Penal Code, but even if it weren’t, the legality principle would require us to reach the same result.


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