Merger of Offenses:
Lesser Included Offense:
The crime of solicitation is committed when the defendant advises, encourages, induces or requests another person to either commit a crime or join the defendant in committing a crime. Under the common law, solicitation is a misdemeanor regardless of whether the crime the defendant has encouraged or requested is a misdemeanor or a felony.
As far as the required mens rea is concerned, the defendant can be convicted of solicitation if the prosecution can show that he acted volitionally and with the intent to cause the solicited individual to commit the crime. As far as the actus reus is concerned, the only act required for the crime of solicitation is the advising, encouraging, inducing or requesting of another person to commit the crime. In other words, as soon as the defendant asks another person to commit a crime or encourages him to do so, he has committed the act of solicitation. Solicitation does not require that the person solicited actually commit the crime. In fact, the defendant can be convicted of solicitation even if the person solicited completely ignores the request. See
Rubin stops Clay on the street and asks Clay if he would like to help him rob a bank. Clay keeps walking and doesn’t even bother to answer Rubin’s question. In this case, even though Clay has not so much as acknowledged Rubin, Rubin can be convicted of solicitation because the solicitation was committed simply by the request that Clay help him with the robbery.
The Model Penal Code defines solicitation as the common law does. However, unlike the common law, which called for a lower penalty for solicitation than would be imposed for the solicited crime itself, the Model Penal Code makes solicitation punishable to the same extent as is allowed for the solicited crime.
In the event that a defendant solicits another person to commit a crime and the person he solicits actually commits the crime, the defendant becomes an accessory before the fact and the defendant can therefore be convicted for both the solicitation and for his role as an accessory.
Another important point regarding solicitation is that a solicitation of a person to commit a crime "merges" with the completed crime. A person cannot be convicted of both solicitation to commit a specific crime and the completed crime.
As with attempt, solicitation to commit a crime is a "lesser included offense" of the completed crime. Therefore, a defendant who is put on trial for a murder cannot later be put on trial for soliciting someone else to commit that same murder. Since one offense is a lesser included offense of the other, putting the defendant on trial for both would violate the "double jeopardy" clause of the Fifth Amendment, which prohibits trying a defendant twice for the same offense.