Impossible attempts are situations in which an actor fails to consummate a substantive crime because he is mistaken about attendant circumstances. Professor Robbins divides mistakes regarding circumstances into three categories: mistakes of fact, mistakes of law, and mistakes of mixed fact and law. Courts and commentators disagree primarily over the identification and treatment of mixed fact law cases. Professor Robbins surveys each category of mistake. He then examines the objective, subjective, and hybrid approaches to dealing with the mixed fact/law category. The objective approach requires an objective manifestation of the actor's intent before conviction is allowed. The subjective approach permits convictions based on intent alone. Under the hybrid approach, the individual's acts must independently evince an intent to commit a specific crime before conviction is allowed. Professor Robbins concludes that the hybrid approach strikes the optimal balance between crime prevention and freedom from unwarranted interference by law- enforcement authorities. Noting the growing acceptance of the hybrid approach, he proposes a model criminal-attempt statute that codifies it. The exploits of Lady Eldon, Mr. Fact and Mr. Law, the murderous Haitian voodoo doctor, the soldier who shot an enemy mistakenly believing that he was his sergeant, the individual who shot a tree stump mistakenly believing that it was his enemy, and the larcenous professor who mistakenly "stole" his own umbrella6 have long baffled courts and commentators.
Attempting the Impossible: The Emerging Consensus,
Harvard Journal on Legislation
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/416