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Tuesday, December 27, 2011

Criminal Law: Solicitation/Attempt/Conspiracy Question

The following question was asked in the comments of the blog:

Does solicitation merge with attempt? 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?

Answer:

Let's take this question one point at a time:

Does solicitation merge with attempt? 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?

Let's assume that A solicits B to commit a murder, and though B does not complete the crime, he fulfills the elements of attempted murder. Solicitation merges with attempted murder and both A and B can be found liable for attempted murder. The solicitor, could not, however, be punished for both the solicitation and attempt due to the doctrine of merger.

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?

The person solicited would never be liable for solicitation, as that crime is specific to the person soliciting (ie, the solicitor). Once the solicited person agrees with the solicitor to commit the crime, both can be liable for conspiracy, as the solicitation merges with the crime of 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?

Yes, and this would be analyzed under conspiracy, rather than solicitation. As explained above, both can be liable for conspiracy once there has been an agreement (assuming all elements of conspiracy have been satisfied). Co-conspirators can be held liable for crimes committed by other co-conspirators if the crimes were committed in furtherance of the conspiracy, and were foreseeable. So, assuming that one of the co-conspirators is liable for attempt, provided the crime attempted was in furtherance of the conspiracy, and that the crime was a foreseeable result of the conspiracy, both conspirators can be liable for attempt.


8 comments:

  1. So to further conclude, conspiracy and attempt do not merge?

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    1. My textbook, Professor Ohlin's new 1L Crim. text say that conspiracy and solicitation do not merge. But also I think jurisdictions could differ.

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    2. I've actually seen some disagreement on this as well. I think it's best to understand the differences between these crimes, and for purposes of the MBE most questions seem to assume merger.....

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  2. That's correct; one can be guilty first of conspiring to commit a crime, and then also for attempting to commit it.

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  3. So, if the murder was completed, could the solicitor be charged with solicitation, conspiracy, and murder?

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  4. Solicitation will merge with the completed crime, so the person won't be charged with both solicitation and murder, but charges for both conspiracy and murder (or conspiracy and solicitation) are possible.

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  5. If A solicits B,C,D and E to commit murder, B,C,D and E all refuse, and A commits the murder independent of B,C,D and E. Will all the solicitations merge with the murder?

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  6. When we think about merger we generally think about the people solicited committing the crimes that they were solicited to commit. The hypothetical here is different in a way that it strikes me as better to analyze this as murder by A rather than merger.

    --Sean

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