Legal Question in Criminal Law in Michigan

Re: Legal impossibility

July 27, 2001

[5] PEOPLE OF THE STATE OF MICHIGAN, PLAINTIFF-APPELLANT,

v.

CHRISTOPHER THOUSAND, DEFENDANT-APPELLEE.

.........

[39] It is notable that "the great majority of jurisdictions have now recognized that legal and factual impossibility are 'logically indistinguishable' . . . and have abolished impossibility as a defense." United States v Hsu, 155 F3d 189, 199 (CA 3, 1998).*fn12 For example, several states have adopted statutory provisions similar to Model Penal Code � 5.01(1),*fn13 which provides:

[40] A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

[41] (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

[42] (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

[43] (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

[44] In other jurisdictions, courts have considered the "impossibility" defense under attempt statutes that did not include language explicitly abolishing the defense. Several of these courts have simply declined to participate in the sterile academic exercise of categorizing a particular set of facts as representing "factual" or "legal" impossibility, and have instead examined solely the words of the applicable attempt statute. See Darnell v State, 92 Nev 680; 558 P2d 624 (1976); State v Moretti, 52 NJ 182, 189; 244 A2d 499 (1968); People v Rojas, 55 Cal 2d 252; 358 P2d 921 (1961).