Impossibility and abandonment are special defenses that one can make to the inchoate crime of attempt.


People v. Thousand

631 N.W.2d 694 (Mich. 2001).

Charged with attempt to distribute obscene material to a minor. Raised the impossibility defense and the charges were dismissed by the trial court.


Whether the defendant can make the defense of impossibility.


Factual impossibility is never a defense to a crime.

Legal impossibility can be broken down into two parts:

  • Pure
    • When the defendant engages in something they believe to be criminal but the “criminal act” is actually not prohibited by law.
  • Hybrid
    • The hybrid contains a legal aspect and a factual aspect. Meaning, the crime is missing an elemental part of the crime based on the mistake of facts of the situation.


No legal impossibility defense is present, reversed.


An undercover cop created an online account acting as a minor to catch overage sexual predators. The defendant reached out to the cop, believing the cop to be the minor. He attempted to send inappropriate images and sexually propositioned the individual. As such, he established a time and place to meet with the cop. Upon arrival, the defendant was arrested.


The defendant argues that it was impossible for the crime to be committed because the crime of distribution of obscene material requires that the offense be directed towards a minor. Because the undercover cop is not a minor, he could not be guilty of an attempt to commit that crime because a legal aspect of the crime is missing, despite that legal aspect being predicated on a factual impossibility.

However, the court looks at the crime of attempt, not the crime of distribution of obscene material to a minor. In the crime of attempt, it simply says that the defendant needs to attempt the crime and take substantial steps to commit it. Here, the defendant intended to distribute obscene materials to a minor. Therefore, he made an attempt and the mistake of fact cannot be a defense.


Our big takeaway from this case is that factual impossibility is never a defense, pure legal impossibility will always be a defense and there is controversy in how a hybrid legal impossibility should serve as a defense. It appears that most jurisdictions appear to consider a hybrid legal impossibility as providing no defense (including the MPC).

Additional Notes

Factual Impossibility – “When the defendant intended end constitutes a crime but fails to consummate it because of a factual circumstance unknown to her or beyond her control.” An example is a person who pulls a gun and pulls the trigger but the defendant doesn’t know that the gun is unloaded.

Pure legal impossibility – The criminal law does not prohibit the defendant’s conduct or the intended result. For example, a person can believe that the age of consent is 18 and has sexual contact with a 17 year old. Turns out that the age of consent was 17. This can serve as a defense because there was never an actual crime.

Hybrid legal impossibility – The defendant has an illegal goad, but the fact is impossible due to a factual mistake regarding legal status of some factor (attendant circumstances) that is an element of the offense. An example of this is a person who believes they possessed stolen goods, but the goods were actually purchased lawfully. Every case of hybrid legal impossibility contains a factual mistake. It is important to realize what the mistake was about. This is a defense as long as we focus more on the legal impossibility.

This case is a clear hybrid legal impossibility and that is why the lower courts determine that the case should be dismissed. However, this court determined that they actually needed to look at attempt.

The above is the common law approach.

MPC 5.01(1-2)

First, you need to determine if there was an offense. The MPC allows for only a pure legal impossibility defense.

Mitigation just says that if you are guilty of a crime, then you can ask to not be convicted just because there is no point of conviction.


Commonwealth v. McCloskey

341 A.2d 500 (Pa. 1975).

Charged and convicted with attempted prison breach.


Is abandonment a viable defense here?


For an incomplete offense, abandonment can serve as a defense as long as the defendant is still in the predatory stage.


The defendant abandoned the attempt and cannot be guilty of the offense.


The defendant was an inmate at a prison. He had made plans to escape, cut an inner wire to make it onto the prison recreation area but got cold feet, turned around, and gave up his intent. He was later discovered and charged with the attempted prison breach.


The majority says that because the defendant left his design before making it to the exterior prison walls, he was not guilty of an attempted prison breach.

Likewise, the concurrence says that the defendant is not guilty of an attempted prison breach. However, they argue that the reasoning by the majority is confusing preparations for attempt and the actual attempt. Had the defendant been stopped when he had first cut the barbed wire, he would have been guilty of attempt. However, because he was not stopped, but later abandoned his design, his voluntary abandonment can serve as a complete defense to the crime of attempt.

Additional Notes

The majority says that the defendant didn’t meet the elements for attempt (still in preparation). As a result, he was still in the position to abandon his escape. (Traditional approach)

The concurrence disagrees with the analysis but agrees with the result. Here, the defendant “voluntarily abandoned” the attempt. Therefore, the utilitarian theory worked (deterred the defendant) and the person cannot be guilty. (Modern approach)

MPC 5.01(4): Renunciation

Only applied to 5.01(1)(b) and (c) says that you can abandon the attempt as long as it is complete and voluntary.

Not Complete = If the defendant is motivated to only postpone the criminal conduct

Not Voluntary = If the person desists due to the probability of detection or apprehension which makes it more difficult to commit the crime.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Criminal Law

Will Laursen

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