Monday, June 13, 2011

Criminal Law: Solicitation vs. Attempt


I have a criminal law question for you. On the MBE, for criminal solicitation and attempt, do they follow the common law or the Model Penal Code? If so, what is the rule under it as I have a hard time understanding the difference.



Generally, unless you are told otherwise, the MBE follows the common law. That holds true with both solicitation and attempt.

In regards to solicitation, look out for a fact pattern that presents someone inciting, counseling, advising, urging, or commanding another to commit a crime, with the intent that the person solicited commit the crime. A few other things to note: once the person solicited commits the crime, both that person and the solicitor can be held liable for the crime. In addition, if the person solicited is guilty of attempt, then both the solicitor, and the person solicited can be liable for attempt. There is, however, a merger. This means that if the solicitor is guilty of the completed crime, then he/she cannot also be guilty of solicitation, the solicitation merges with the completed crime.

Attempt is an act done with the intent to commit a crime that falls short of completing the crime. You'll want to ensure that the person charged with attempt committed an act beyond mere preparation for the offense. Oftentimes, this is described as a "substantial step in a course of conduct planned to culminate in the commission of the offense."

Just as in solicitation, attempt merges with the completed crime. Thus, a defendant cannot be found guilty of both attempt and the completed crime. If the crime has been completed, then attempt merges with that crime.

1 comment:

  1. Does solicitation merge with attempt? You say above that if the person solicited attempts the crime, then both the solicitor and the one solicited can be found guilty of attempt. But would they be charged and/or found guilty of just attempt or both solicitation and attempt? Is the person solicited liable for solicitation if he agrees to do it? Or once the person asked agrees, are they both liable for conspiracy and not solicitation, because solicitation merges with conspiracy? And if there is an agreement, could they be liable for conspiracy and attempt if at least one of them took a aubstantial step to attempt/complete the crime? Thanks.