Can Impossibility Be a Defense in Attempt to Commit Crime?

11-8-2008:

Abstract:
As a full-time professor of law and one actively teaching the Substantive Criminal Law, one of my favorite topics is the discussion of Impossibility as a defense. It is one of those rare topics, so intellectually-fascinating, that the gruesome quality of the underlying criminal episode can be forgotten.

The topic of Impossibility as a defense to an inchoate crime, most particularly to Attempt, has been the topic of academic debate by the classic thinkers of the English common law, to early minds shaping the American common law-- such as the great Professor Wharton. It is interesting to note in passing that the most successful and influential American lawyer-novelist, Erle Stanley Gardner, utilized the topic of Legal Impossibility in at least one of his novels (The Case of the Caretaker's Cat (1935)).

In a recent opinion authored by Judge Grignon of Division Five, California Court of Appeal, the central issue was whether Impossibility is a defense to the crime of Attempted Rape. As surprising as it may seem, the court noted, it was a case of first impression. ..Source.. by Jeremy M. Miller, Chapman University - School of Law