If you tried to commit a crime and failed only because reality wasn’t what you thought it was, factual impossibility will not get you out of the charge. Courts across the country treat it as no defense at all. Reaching into an empty pocket, pulling the trigger on an unloaded gun, or buying baking soda you believed was cocaine can each support a criminal conviction, because the law measures what you intended and what you did, not whether circumstances happened to save you.
What Factual Impossibility Actually Means
Factual impossibility describes a gap between what the defendant believed and what was actually true. The person acts with full criminal intent and takes concrete steps toward the crime, but some fact they didn’t know about prevents the crime from being completed. The intent is real. The effort is real. Only the outcome fails, and it fails for reasons outside the defendant’s awareness.
The textbook illustrations make the idea clear:
- Reaching into a pocket to steal a wallet, only to find the pocket empty.
- Pulling the trigger to kill someone, when the gun has no ammunition.
- Buying what you think is cocaine, when it is actually baking soda.
- Slipping what you believe is poison into a drink, when the substance is harmless.
In each case, the defendant did everything a successful criminal would have done. The failure came from external circumstances, not from hesitation or a change of heart.
Why Courts Refuse to Treat It as a Defense
The reasoning is straightforward. A person who pulls the trigger on what they believe is a loaded gun is just as dangerous as a person whose gun actually fires. The only difference is luck, and criminal law is not built to reward luck.
Rejecting the defense also preserves deterrence. If people could escape liability simply because their chosen method happened not to work, the threat of punishment would drop out of the calculation whenever a criminal wasn’t certain of success, which is most of the time. And it lets the justice system step in before someone refines their approach and gets it right on the next attempt. The person who unknowingly bought fake drugs is very likely to try to buy real ones next.
Federal courts have been especially blunt. The Sixth Circuit has upheld convictions for attempting to possess controlled substances even when the substance turned out to be fake, reasoning that Congress intended to eliminate the impossibility defense in federal drug cases.1United States Court of Appeals for the Sixth Circuit. Sixth Circuit Pattern Criminal Jury Instructions – Chapter 5.00 Attempts Federal pattern jury instructions in the First Circuit state the rule in the same plain terms. The Model Penal Code, which has shaped criminal law in most states, goes further and eliminates impossibility as a defense outright: a person is guilty of attempt if they act with criminal intent and engage in conduct that would be a crime “if the attendant circumstances were as he believes them to be.”2United States District Court for the District of Massachusetts. Pattern Jury Instructions: Attempt
How This Plays Out in an Attempt Charge
Criminal attempt has two elements: intent to commit a specific crime, and a substantial step toward carrying it out. The substantial step has to go beyond mere preparation and must strongly corroborate the defendant’s criminal intent.1United States Court of Appeals for the Sixth Circuit. Sixth Circuit Pattern Criminal Jury Instructions – Chapter 5.00 Attempts
In courts following the MPC framework, the substantial step is judged against what the defendant believed the circumstances to be, not what they actually were. A jury may be told to consider whether the defendant “engaged in a purposeful act that, under the circumstances as he believed them to be, amounted to a substantial step toward the commission of that crime.”2United States District Court for the District of Massachusetts. Pattern Jury Instructions: Attempt That language bakes the rejection of factual impossibility right into the standard.
If you are charged with attempted drug possession after buying baking soda, the prosecution still has real work to do. It must prove you genuinely believed you were buying drugs and that you took a substantial step toward possessing them. The jury will be told that the substance turning out to be fake is no defense, but the government must still prove you actually thought it was real.1United States Court of Appeals for the Sixth Circuit. Sixth Circuit Pattern Criminal Jury Instructions – Chapter 5.00 Attempts In federal court, attempt penalties are generally comparable to those for the completed offense, so the consequences are not academic.
How This Plays Out in a Conspiracy Charge
Conspiracy requires an agreement between two or more people to commit a crime and, in most cases, at least one overt act in furtherance of that agreement.3United States District Court for the District of Massachusetts. Criminal Pattern Jury Instructions – Conspiracy Like attempt, it focuses on the agreement and the intent, not on whether the plan worked.
If you and a partner agree to rob a warehouse full of electronics, and unbeknown to you the warehouse was emptied by police the day before, the conspiracy charge still stands. The agreement existed, the intent was real, and overt acts were taken. The Supreme Court has made clear that a conspiracy does not automatically end because the government has secretly defeated its objective, and impossibility is not a defense.3United States District Court for the District of Massachusetts. Criminal Pattern Jury Instructions – Conspiracy Some specific conspiracy statutes, including the federal drug conspiracy provision, don’t even require proof of an overt act, lowering the bar for prosecution further still.
The One Narrow Escape: Inherently Impossible Conduct
The Model Penal Code preserves one small opening. Section 5.05(2) lets courts reduce an attempt charge, or dismiss it entirely, when the conduct is “so inherently unlikely to result or culminate in the commission of a crime” that neither the conduct nor the defendant presents a genuine public danger. The classic example is trying to kill someone through a voodoo curse. Shooting at an empty bed does not qualify, because the method itself is deadly and only the circumstances prevented harm.
Courts almost never invoke this provision. It exists to prevent absurd applications of the broader rule, not to open a routine defense.
Factual Impossibility Compared to Legal Impossibility
Legal impossibility is a different situation and gets different treatment. With factual impossibility, the intended act would be a crime if the facts were as the defendant believed. With legal impossibility, the intended act would not be a crime at all, no matter what the defendant believed.
Two scenarios show the split. First: you receive goods you believe are stolen, but they were purchased legitimately. You intended to commit the crime of receiving stolen property, and only an unknown fact prevented it. That is factual impossibility, and it will not save you. Second: you hold a poker game in Las Vegas believing gambling is illegal there. Even if police arrived, no crime occurred, because gambling is legal in that jurisdiction. Your belief that you were breaking the law does not turn lawful conduct into a crime. That is pure legal impossibility, and it typically is a valid defense.
The line between the two categories has proven hard to draw in practice, and different courts have classified nearly identical conduct differently. That instability is a large part of why the MPC and most modern jurisdictions have moved away from the distinction and simply ask whether the defendant intended a crime and took a substantial step toward it.
A Defense That Can Actually Work: Voluntary Abandonment
Since factual impossibility will not help, the defense worth knowing about is voluntary abandonment. Under the MPC and many state statutes, a person who voluntarily and completely gives up a criminal plan before completing the crime may have a valid defense to attempt or conspiracy charges. The law wants to reward people who genuinely change their minds and walk away.
Two conditions do most of the work. The abandonment has to be voluntary, meaning it reflects a real change of heart rather than a strategic retreat. Stopping because you noticed the police watching, decided the target was too hard, or planned to come back later with a different victim does not count. It also has to be complete. Courts are skeptical of abandonment claims, and the defendant carries the burden of proving one.
Timing matters too. Once you have completed every element of conspiracy, or taken every step toward completing the underlying crime, there may be nothing left to abandon. The defense fits the person who walks away mid-plan, not the person whose plan ran its course and simply failed.