The crime of attempt – Section 18-2-101 – is a commonly charged crime in Colorado. As mentioned above, this is an immature or unfinished crime. It is related to the crime of attempt, the defense of impossibility is most often raised. Legal impossibility occurs when the accused performs all the acts planned, but his actions do not constitute a criminal offence. Therefore, they cannot be guilty of a crime, even if they thought they were committing a crime. There are two types of defences of impossibility : legal impossibility, which can serve as a defence for the attempt, and factual impossibility which is generally not possible. Legal impossibility means that the defendant believes that what they are trying to do is illegal, even if they are not. The impossibility of the facts means that the accused could not carry out the attempted crime because the facts are not as he believes them. The Model Penal Code prohibits factual impossibility as a defence by stating that conduct is an attempt if the accused “intentionally engages in conduct that would constitute the crime if the circumstances were such as he believes them” (Model Penal Code, § 5.01 (1) (a)).
Although it is generally accepted that mere legal impossibility precludes an attempted conviction, the notion of hybrid legal impossibility has proved problematic. However, it is legally impossible if the acts envisaged, even if they were carried out, would not constitute a criminal offence. [United States v. King, 2006 U.S. Dist. LEXIS 57013 (W.D. Mich. August 14, 2006)].
Even for the crime of attempt, a defendant who engages in conduct that he considers illegal but is not illegal cannot be convicted of an attempt. The factual or legal impossibility of committing the offence is not a defence if the offence could have been committed if the circumstances had been such as the perpetrator believed them, nor is it a defence that the attempted offence was actually committed by the accused. A de facto impossibility exists when the execution of the crime is rendered impossible by: The Model Penal Code (MPC), which serves as a model for the penal codes of many States, prohibits factual impossibility as a defence in the attempt to commit a crime by defining attempt as “intentional conduct that would constitute the crime if the circumstances were, as he believes them.” The action is not criminal, and any behavior beyond that is not a criminal attempt. De facto impossibility is NOT a defense in Colorado and most other states. Factual impossibility is the opposite of a “factual error” defence. A factual error occurs when a person is not aware of the circumstances that actually exist. Whereas factual impossibility exists when the person believes that a circumstance exists, when in reality it does not exist. Factual impossibility is not a defense under Colorado law against attempted crime.
The abolition of the de facto impossibility exception is codified in Colorado`s Criminal Attempt Act – reproduced above. Another example of factual impossibility is the person who intends to poison his spouse with the poison strychnine by adding the substance to his spouse`s morning coffee – but mistakenly uses sugar instead. The attempted crime — murder — was virtually impossible because of the mistake, but the crime is still prosecuted in Colorado as attempted murder, an incomplete crime called immature crime. Legal impossibility refers to an impossibility resulting from the fact that what the defendant intended is not illegal. Legal impossibility is considered a defense against the crime of attempt. The category of legal impossibility is divided into two subcategories: There are two types of defences of impossibility – factual impossibility and legal impossibility. A crime is considered factually impossible if the facts made the intended crime impossible, even though the accused did not know of it at trial. Georgia, however, does not accept any de facto impossibility as a defence and will instead charge the accused with attempted intentional crime.
If the objective pursued is prohibited by law, failure to achieve it is not a defence because of the absence of a factual condition necessary for its achievement. An incapacity defense is a criminal defense that is sometimes used when a defendant is charged with a failed criminal attempt solely because the crime was factually or legally impossible. [1] Factual impossibility is rarely an adequate defence at common law. This should not be confused with a “factual error” defense, which can be a defense against a specific intentional crime, such as theft. [2] However, it is not always easy to determine whether an actor has erred in law and fact. In State v. Guffey (1953), the accused shot a stuffed deer because he thought it was alive and was convicted of attempting to kill a protected animal out of season. In a hotly debated reversal, an appeals judge overturned the conviction on the basis of legal impossibility, concluding that shooting a stuffed deer out of season is not a crime. [1] [3] The fact that the crime with which the accused is charged was factually or legally impossible in the circumstances if such a crime could have been committed if the circumstances had been such as the defendant believed them is not a defence to a charge of attempted crime. Legal impossibility may possibly be a defense. It depends on the circumstances, as described in more detail above.
Legal impossibility applies ONLY to situations where the intended act or actions, even if executed, do not constitute a criminal offence. The best example of de facto impossibility is an undercover operation such as the carefully curated sale of controlled substances with an undercover police officer as the buyer. Look at the example from section 8 “Test Res Ipsa Loquitur” with Melissa and Matthew and the attempted poisoning of the neighbor`s dog. Suppose Melissa is eighteen. Melissa believes that a person must be twenty-one years old to buy rat poison because it is the law in the state where she lived five years ago. In fact, the state where Melissa currently lives allows the purchase of rat poisons by eighteen years or older. The first store Melissa enters asks for ID when she tries to pay for rat poison, so Melissa apologizes and leaves. The second store, which Melissa enters, does not ask for identification and she successfully buys rat poison.
Melissa probably wasn`t trying to illegally buy rat poison from the first store she entered. Melissa`s act of buying rat poison is legal under the circumstances. Therefore, her erroneous belief that she is attempting to commit a crime does not transform that legal act into an illegal act. See the example with Melissa and Matthew in section 8 “Test of Res Ipsa Loquitur”.