Impossibility of fact is no defense to attempt
Occurs when D intends to commit a crime, but some fact prevents the D from succeeding
"But for that fact, the crime would have been committed"
D wants to kill people with bomb, but bomb wont explode or people have been evacuated
D wants to kill with anthrax, but unbeknownst to her, the anthrax is talcum powder
D wants to distribute cocaine, but unbeknownst to her, it turns out to be refined sugar mixed with flour
Factual impossibilities (failed bomb, talcum powder, refined sugar) preclude the target crime from being achieved
but for that fact, the crime would have occurred
Difference of Analysis & Lynchpin of the Two
Turns on D's Intent
Ask the question
1) What does D intend to do?
a) To Commit a Crime that is in fact a crime, but D is unaware of some fact that prevents him from carrying out his/her intent
D fails at his intent due to some fact
To Put it Mildly: Look for a D who basically sucks at being a criminal!!
b) To commit a crime that is in fact not a crime, but D does not know this
D succeeds in carrying out his intent, but has not committed a crime
Defense (in some jurisdictions)
Consider our drug dealer
1) Intends to sell cocaine to a buyer, which unbeknownst to him, is sugar
The act the D wanted to commit (sell cocaine) was prohibited under criminal law, but the D was unable to accomplish his intent because of some fact unknown to the D
Factual Impossibility! No Defense
2) Intends to sell refined sugar to a buyer who in fact is drug dealer
The Act the D intended to commit (sell sugar ) was not a crime, so fact that he attempted to sell it to a drug dealer (or even an undercover officer posing as a drug dealer), makes the attempt Legally Impossible!!
D has a defense of L/I because even if he did everything he intended, he would not have committed a crime
Might have done something stupid that would normally get him killed, but he has not committed a crime
How does a pattern and history of abuse affect the Imminence Requirement in SD analysis
SD is limited to those situations where the D faces imminent, or immediate, threat of physical harm
In which the D is allowed to defend themselves until the threat no longer exists.
And if the threat is to life or GBH, then the D is justified in committing a homicide to guard himself.
Objective standard was strictly applied, requiring that the threat be present at the very moment that the defendant defends themselves
Required CERTAINTY: Which didn't make sense b/c you can be wrong and still be reasonable under modern SD law
Now, the test is whether a reasonable person would have believed the threat from the victim was imminent
A preemptive strike is illegal force used to soon while a retaliation against a successful aggressor is illegal force used too late
"immediate danger, such must be instantly met, such that cannot be guarded by calling for the assistance of others for protection."
MPC: 3.04: "immediately necessary for the purpose of protecting himself against the use of unlawful force. . . on the present occasion."
There must be no alternative to using force against the other person
if the threat is not imminent, then the D is required to use alternative, usually lawful, measures to avoid the conflict
Non-Confrontational B/W Cases
Ct says, "where torture appears interminable and escape impossible, the belief that only death of the batterer can provide relief may be reasonable in the mind of the person of ordinary firmness"