In defending the crime of attempted theft when the defendant steals something that is being given away (i.e., it is free), your best attempt defense is going to be factual impossibility.

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Factual impossibility is not a defense to the crime of attempt because the crime lies in the intent and the steps taken towards committing the crime, not in the actual completion of the crime. In this scenario, the intent to commit theft can still exist even if the item was free.

In Defending the Crime of Attempted Theft When the Defendant