One area of law that often causes confusion on the Bar Exam is factual impossibility.  The general rule is that factual impossibility is not a defense to a crime.  The classic example is a defendant charged with attempting to sell or distribute a controlled substance when in fact the actual substance they possess is not a controlled substance.  The defendant may still be found guilty even though it was literally impossible for them to ever commit the completed crime since they did not possess the controlled substance.   Another example is the defendant charged with an attempted act of terrorism where the defendant obtained fake explosives from an undercover federal agent.  The fact that the underlying terrorist act was never possible is not a valid defense, and the defendant may still be found guilty.

However like most black letter law you need to know for the Bar Exam, there is an exception to the rule.   When you take the MBE it is important to look for situations in which the following two factors are present:  First, that the defendant is aware of the factual impossibility, i.e. the defendant knows that the “drugs” are not real, or knows that the explosives are fake, and second, that the crime the defendant is charged with is a specific intent crime.   When both of those factors are present, the defendant cannot be guilty of the crime because the intent element cannot be proved.

Another way to think about it is to ask was the defendant actually trying to commit the charged crime?  If the answer is yes, then factual impossibility will not absolve them of guilt.  If the answer is no, then it will.  For instance, a recent Bar Exam tested the rule and its exception by asking the following question:

Beth decided to make some money by selling drugs.  She approached Albert, who she believed sold cocaine in order to obtain some drugs to sell.  Albert supplied her with white powder that Beth believed to be cocaine but was in fact baking soda.  Beth then sold a bag of the baking soda to an undercover police officer.  She immediately confessed and told the officer that Albert was her supplier.  If Albert knew all along that the powder was baking soda, and both Albert and Beth are charged with attempt to sell cocaine, who may be found guilty?

(A) Both Albert and Beth

(B) Neither Albert nor Beth

(C) Albert only

(D) Beth only

The correct answer is (D).  The fact that the white powder was not cocaine, and that therefore Beth could never have completed the crime is not a defense.  This is by operation of the general rule that factual impossibility is not a defense to a crime.  However, Albert was aware that the powder was not cocaine, and therefore did not have the specific intent to commit the crime (remember, attempt is always a specific intent crime).   Therefore Albert is not guilty.

Here’s an example of how the topic is tested on the Dominate The Bar Flash Cards:

 Q: Defendant believes he has purchased a large quantity of marijuana, but in fact he was ripped off and only has oregano.  Is the defendant guilty of an attempt?

 A:  Yes, this is a case of factual impossibility, and factual impossibility is not a defense to attempt. Ask yourself if what the defendant was trying to do is against the law.  If it is, then the defendant is guilty of an attempt so long as there is specific intent and a substantial step is taken – even if the defendant never could have committed the crime.  In this case the underlying act – possession of marijuana – is illegal, so the defendant is guilty of an attempt to possess it.


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