Legal Definitions - factual impossibility

Factual impossibility refers to a situation in criminal law where an individual intends to commit a crime and takes steps to do so, but the crime cannot actually be completed because of some external, factual circumstance unknown to the individual.

Crucially, factual impossibility is generally not a valid defense to a charge of criminal attempt. The law focuses on the defendant's intent and their actions, rather than whether it was physically possible for them to succeed in completing the crime.

Here are some examples illustrating factual impossibility:

• Example 1: Attempted Theft

  A person attempts to pickpocket a wallet from another individual's back pocket. Unbeknownst to the pickpocket, the pocket is actually empty, or the "wallet" is just a folded piece of paper. The pickpocket had the clear intent to steal and took an overt act (reaching into the pocket). However, the factual circumstance (the absence of a wallet or valuable item) made the completion of the theft impossible. Despite this factual impossibility, the pickpocket could still be charged with attempted theft because their intent and actions demonstrated a clear effort to commit the crime.

• Example 2: Attempted Assault

  An individual, harboring malice, points a loaded firearm at what they believe to be their enemy standing in a dimly lit alley and pulls the trigger. However, the "enemy" is actually a mannequin that has been placed there by a nearby store. The individual intended to commit assault (or even murder) and took a direct step towards it (firing the weapon). The factual circumstance (the target being an inanimate object) made it impossible to harm a living person. Nevertheless, the individual could still face charges for attempted assault or attempted murder, as their intent and actions were directed at committing a crime.

• Example 3: Attempted Drug Dealing

  A person agrees to sell what they genuinely believe to be illegal narcotics to an undercover police officer. They hand over a bag containing a white powdery substance, believing it to be cocaine. However, the substance is actually baking soda. The individual intended to engage in drug dealing and took significant steps to do so (negotiating a sale, exchanging the substance). The factual circumstance (the substance not being an illegal drug) made the completion of the drug offense impossible. Despite this, the individual could still be charged with attempted drug dealing, as their intent and actions were consistent with committing the crime.