Impossibility as a Defense to Attempt

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Two types of impossibility defenses exist: legal impossibility, which can function as a defense to attempt, and factual impossibility, which generally cannot. Legal impossibility means that the defendant believes what he or she is attempting to do is illegal, when it is not. Factual impossibility means that the defendant could not complete the crime attempted because the factsare not as he or she believes them to be. The Model Penal Code disallows factual impossibility as a defense by stating that conduct is an attempt when the defendant “purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be” (Model Penal Code § 5.01(1) (a)).