[T5qYkHWQ]

How was it entrapment?

Although Napolitano is citing entrapment in his exchange with O'Reilly, it seemed to me by his answers and arguments that he's erroneously conflating the legal defences of 'entrapment' with 'impossibility.'

Factual Impossibility

A "factual" impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to commit although the defendant is unaware of this when the attempt is made.[3] In People v. Lee Kong, 95 Cal. 666, 30 P. 800 (1892), the defendant was found guilty for attempted murder for shooting at a hole in the roof, believing his victim to be there, and indeed, where his victim had been only moments before but was not at the time of the shooting.[3] Another case involving the defense of factual impossibility is Commonwealth v. Johnson, 167 A. 344, 348 (Pa. 1933) in which a wife intended to put arsenic in her husband's coffee but by mistake added the customary sugar instead. Later she felt repentant and confessed her acts to the police. She was arrested, tried, and convicted of attempted murder.[3] In United States v. Thomas, 13 U.S.C.M.A. 278 (1962) the court held that men who believed they were raping a drunken, unconscious woman were guilty of attempted rape, even though the woman was actually dead at the time sexual intercourse took place.[1][4]

[edit]Legal Impossibility

An act that is considered legally impossible to commit is traditionally considered a valid defense for a person who was being prosecuted for a criminal attempt. An attempt is considered to be a "legal" impossibility when the defendant has completed all of his intended acts, but his acts fail to fulfill all the required in elements of a crime in common law. Mistakes of law has proved a successful defense. An example of a failed attempt of law is a person who shoots a tree stump; that person can not be prosecuted for attempted murder as there is no manifest intent to kill by shooting a stump. The underlying rationale is that attempting to do what is not a crime is not attempting to commit a crime.[5]

However, "legal" and "factual" mistakes are not mutually exclusive. A borderline case is that of a person who shot a stuffed deer, thinking it was alive as was the case in State v. Guffey, (1953) in which a person was originally convicted for attempting to kill a protected animal out of season. In a debatable reversal, an appellate judge threw out the conviction on the basis that it is no crime to shoot a stuffed deer out of season.[1][3] Impossibility defense - Wikipedia, the free encyclopedia

Factual impossibility was not traditionally accepted at common law whilst legal impossibility was and remains so today but in a much more restrictive manner.

Legal impossibility is a traditional common law defense to a charge of an attempted crime. Legal impossibility arises when a person believes she is committing a crime, but the act is, in fact, lawful. For example, a person may believe she is receiving stolen goods, but the goods are in fact not stolen.

A different form of legal impossibility (Known as "hybrid legal impossibility") comes into play when an actor's goal is illegal, but commission of the crime is impossible due to a factual mistake regarding the legal status of one of the attendant circumstances of one of the elements of the crime. For example, a man attempting to bribe someone whom he mistakenly believes is a juror is not liable for attempted bribery of a juror. On the other hand, some jurisdictions may find the actor guilty of attempt. For example, under the Model Penal Code, the defendant can be guilty of the attempted crime if the facts being the way she thought they were would indeed make it a crime; however, she would not be guilty of the completed crime, because the crime was never completed.

The legal impossibility defense is a valid defense for attempt in nearly every jurisdiction.

See also impossibility defense. Legal impossibility - Wikipedia, the free encyclopedia

For example, if a person decides to fish in a pond believing that fishing is prohibited there but it actually is permitted, that is full legal impossibility because the act itself is not a crime, even though the person had the bad intentions to violate such a prohibition believing it existed when he/she did it.

But, to use an classic example from the movie A Few Good Men:

Kaffee: It was oregano, Dave, it was a dime bag of oregano.
Lieutenant Dave Spradling: Yeah, well, your client thought it was marijuana.
Kaffee: My client's a moron, that's not against the law.

. . . that's no longer an accepted impossibility defence in most if not all American jurisdictions now thanks to adoptions of the Model Penal Code and other statutory or court abolitions of that application of the defence. Today a pothead who buys a dime bag of oregano believing it was pot is guilty of attempted purchase of marijuana so long as the action being sought is illegal.

The wiki explanation is even a bit inaccurate because if, for example, cops set up a 'sting' operation for stolen goods, that's really 'hybrid legal impossibility' at play and it's no longer an accepted defence to claim that the goods were in fact not really stolen. It's the same with other kinds of 'stings' like with the kind on To Catch a Predator where the actors and/or cops are posing as minors but they are really over the legal age.

Since prosecutions don't bother to charge people with attempts for things that aren't actually crimes, it's pretty much a defence that nobody sees in court anymore because you can't argue the rest anymore insofar as the oregano purchasing pothead, etc.