Which type of impossibility is a defense to conspiracy?

Which type of impossibility is a defense to conspiracy?

• A. Factual impossibility is a defense to conspiracy.
• B. Legal impossibility is a defense to conspiracy.
• C. Both factual and legal impossibility are defenses to conspiracy.
• D. Neither type of impossibility is a defense to conspiracy.

Answer: (B)

The essence of conspiracy liability is the presence of an unlawful objective and an agreement to pursue it. A defense based on impossibility looks at whether the plan could ever be illegal to begin with. Legal impossibility occurs when the act the conspirators intend would not be illegal under the law, no matter how it is carried out, so there is no unlawful objective to deter or punish. In that sense, conspiracy liability can fail because the crime the parties set out to commit simply isn’t a crime to begin with. Factual impossibility, on the other hand, concerns what actually happened or the conditions on the ground. Even if the planned act would have failed due to factual circumstances, the existence of the agreement to commit a crime and the intent to pursue it can still satisfy conspiracy, so factual impossibility does not defeat conspiracy liability.

The essence of conspiracy liability is the presence of an unlawful objective and an agreement to pursue it. A defense based on impossibility looks at whether the plan could ever be illegal to begin with. Legal impossibility occurs when the act the conspirators intend would not be illegal under the law, no matter how it is carried out, so there is no unlawful objective to deter or punish. In that sense, conspiracy liability can fail because the crime the parties set out to commit simply isn’t a crime to begin with. Factual impossibility, on the other hand, concerns what actually happened or the conditions on the ground. Even if the planned act would have failed due to factual circumstances, the existence of the agreement to commit a crime and the intent to pursue it can still satisfy conspiracy, so factual impossibility does not defeat conspiracy liability.