Factual impossibility solicitation defense lawyer

Impossibility is one of the oldest arguments in the criminal law and one of the most frequently misapplied. The distinction that matters is between factual impossibility, which is generally not a defense, and legal impossibility, which generally is — and the line between them has troubled courts for a century. In solicitation and attempt cases the distinction is not academic; it determines whether conduct is an offence at all. Law Offices Of SRIS, P.C. has practiced since 1997 and Mr. Sris is admitted in Virginia, Maryland, the District of Columbia, New Jersey and New York. Reach our location at (888) 437-7747.

Table of Contents

The Two Categories

Factual impossibility describes the case where the accused intended to commit an offence and did everything he set out to do, but completion was impossible because of a fact he did not know. Reaching into an empty pocket to steal; firing at a bed the intended victim had left. In most American jurisdictions this is not a defense, because the intent and the conduct are both present and only fortuity prevented completion.

Legal impossibility describes the case where the conduct, even if completed exactly as intended, would not have been a crime. A person who believes a lawful act is unlawful and does it commits no offence, however guilty his state of mind. That is generally a defense, because there is no offence to attempt.

The difficulty is that many situations can be characterized either way depending on how the facts are described, and courts have criticised the distinction for exactly that reason. Some jurisdictions have abolished it by statute. Which approach governs is jurisdiction-specific and it is the first thing established.

How It Applies to Solicitation

Solicitation is complete when the request or encouragement is made with the required intent; it does not require that anyone act on it. That structure means impossibility arguments have less purchase than in attempt cases, because the offence is complete at the point of asking regardless of whether the thing asked for could have occurred.

Where the argument does bite is in the elements. If the statute requires that the person solicited have a particular characteriztic — being under a specified age, for instance — and the statute is drafted around the actual existence of that characteriztic rather than around the accused’s belief, then the element is missing. That is a statutory argument rather than an impossibility argument, though it is frequently pleaded under that heading.

What This Means in Practice

The productive analysis is almost always the statute rather than the doctrine. Does the provision charged require a fact that did not exist, or does it require belief? Does the jurisdiction recognize legal impossibility as a defense, or has it been abolished? Is the charge solicitation, attempt, or a completed offence, and does the answer change between them?

An argument framed as impossibility in the abstract rarely succeeds. The same argument framed as a missing element, with the statutory text in hand, is a different proposition.

Collateral Consequences: Employment, Professional License, Security Clearance, Immigration

The proceedings that run alongside a criminal charge apply their own standards and reach their own conclusions. A professional licensing board can act on conduct that produced no conviction, applying a civil standard of proof rather than the criminal one. A security clearance adjudication examines conduct, candour and judgment, and a clearance can be suspended on an allegation alone. An employer may act under its own policies on its own timetable. For a person who is not a United States citizen, an offence in this category can carry immigration consequences that are severe and in some categories effectively automatic; immigration advice should be obtained alongside the criminal defense rather than after it. The firm does not advise on immigration matters and refers that question.

Frequently Asked Questions

What is the difference between factual and legal impossibility?

Factual impossibility is where the accused did everything intended but completion was impossible because of an unknown fact — generally not a defense. Legal impossibility is where the conduct, completed exactly as intended, would not have been a crime — generally a defense, because there is no offence to attempt.

Why do courts criticise the distinction?

Because many situations can be characterized either way depending on how the facts are described, which makes the outcome turn on framing rather than substance. Some jurisdictions have abolished the distinction by statute, so which approach governs has to be established for the specific forum.

Does impossibility help in a solicitation case?

Less than in an attempt case. Solicitation is complete when the request or encouragement is made with the required intent, whether or not anyone acts on it, so the offence does not depend on completion being possible. Where the argument bites is in the elements rather than in the doctrine.

So what is the real argument?

Almost always statutory. Does the provision charged require a fact that did not exist, or does it require only belief? Is the charge solicitation, attempt or a completed offence, and does the analysis change between them? Framed as a missing element with the text in hand, the argument is a different proposition from impossibility in the abstract.

What is renunciation?

A defense available in some jurisdictions where a person voluntarily and completely abandons the criminal purpose before completion. Its availability and its requirements differ substantially between jurisdictions, and it is a separate question from impossibility, examined on its own terms.

Is intent enough on its own?

No. Inchoate offences require both the required intent and conduct satisfying the statute — a substantial step in attempt, or the making of the request in solicitation. A state of mind falling short of the required intent, or conduct amounting only to preparation, is examined separately from any impossibility question.

About Mr. Sris

Mr. Sris is the owner and founder of Law Offices Of SRIS, P.C., which has practiced since 1997. He is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey and New York. Of Counsel attorneys contract directly with the firm and handle matters alongside him.

Speak With Mr. Sris

Impossibility arguments almost always resolve into statutory ones, and the text of the provision charged is where they are won or lost. Request a consultation. Reach our location at (888) 437-7747. Consultations are by appointment.

Last reviewed: August 24, 2026.

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