Courts and legal scholars draw a distinction between two categories of impossibility: "factual impossibility" and "legal impossibility." It has been said that, at common law, legal impossibility is a defense to a charge of attempt, but factual impossibility is not.
Deputy William Liczbinski was assigned by the Wayne County Sheriff's Department to conduct an undercover investigation for the department's Internet Crimes Bureau. Liczbinski was instructed to pose as a minor and log onto "chat rooms" on the Internet for the purpose of identifying persons using the Internet as a means for engaging in criminal activity. On December 8, 1998, while using the screen name "Bekka," Liczbinski was approached by defendant, who was using the screen name "Mr. Auto-Mag," in an Internet chat room. Defendant described himself as a twenty-three-year-old male from Warren, and Bekka described herself as a fourteen-year old female from Detroit. Defendant invited Bekka to come see him at his house for the purpose of engaging in sexual activity. Bekka replied that she wanted to do so, and defendant cautioned her that they had to be careful, because he could "go to jail." Following a preliminary examination, defendant was bound over for trial on charges of solicitation to commit third degree criminal sexual conduct, MCL 750.157b(3)(a) and 750.520d(1)(a), attempted distribution of obscene material to a minor, MCL 750.92 and 722.675, and child sexually abusive activity, MCL 750.145c(2).
Was it legally impossible for the Defendant to commit the charge of solicitation?
The Court held that although they do not agree with the circuit court or the Court of Appeals that "legal impossibility" was properly invoked by defendant as a defense to the charge of solicitation, they nevertheless affirmed the dismissal of this charge. There is no evidence that defendant solicited anyone "to commit a felony" or "to do or omit to do an act which if completed would constitute a felony."