FYLSE / Criminal Law / Solicitation Definition Forum

[pepa]

Please take a look at the definition of solicitation in Model Penal Code § 5.02 (if it is the applicable law on the exams for solicitation, if not please correct me).

Let's say this is the applicable law. A sends a letter to B, telling him to beat up V. B's roommate, C, reads the letter before B and commits the intended crime. B, the intended solicitee, never saw the letter.

The question here is: Did A commit a solicitation of B?

Does it matter whether the specifically intended solicitee was never solicited? From my understanding, a person must intend the crime be committed by the solicitee when the solicitor commands, encourages, or request the crime. Someone please clarify, thank you.

[cavalier1138]

Let's say this is the applicable law. A sends a letter to B, telling him to beat up V.

Stop there.

Literally every fact that comes after that one is a red herring designed to confuse you. Solicitation is an inchoate crime, which means the solicitation occurred the instant A sent the letter. Whether B receives it, reads it, acts on it, etc. is irrelevant. That information only comes into play if A is charged with the actual battery.

[pepa]

Let's say this is the applicable law. A sends a letter to B, telling him to beat up V.

Stop there.

Literally every fact that comes after that one is a red herring designed to confuse you. Solicitation is an inchoate crime, which means the solicitation occurred the instant A sent the letter. Whether B receives it, reads it, acts on it, etc. is irrelevant. That information only comes into play if A is charged with the actual battery.

Whoops. I meant to ask whether A solicited C. Would the other facts still be considered red herrings? I want to emphasize that the problem focuses on who A solicited, not whether he solicited.

[cavalier1138]

Let's say this is the applicable law. A sends a letter to B, telling him to beat up V.

Stop there.

Literally every fact that comes after that one is a red herring designed to confuse you. Solicitation is an inchoate crime, which means the solicitation occurred the instant A sent the letter. Whether B receives it, reads it, acts on it, etc. is irrelevant. That information only comes into play if A is charged with the actual battery.

Whoops. I meant to ask whether A solicited C. Would the other facts still be considered red herrings? I want to emphasize that the problem focuses on who A solicited, not whether he solicited.

I would still say yes, because of transferred intent. The same thing would apply if A intended to beat up V but accidentally beat up Z. He intended to solicit B, but he solicited C instead.

It's kind of a weird question, because the solicitation charge has nothing to do with whoever ends up committing the crime. The solicitation was complete before the crime was committed.

[SilvermanBarPrep]

You defined the crime well and so then it's just a matter of applying the facts to your definition. In your definition, nothing was said about the solicitee needing to actually commit the crime and so there's no need to consider that when analyzing the definition. It is solicitation if the crime was intended, even if the intended crime never takes place (or if another person commits the intended crime). So if A solicits B to commit a crime, and instead C commits it, A has committed solicitation. And that would also be true if nobody committed the intended crime.

If in fact B did commit the crime then A could be charged either with soliciting B to commit the crime or the crime that B committed, but not both. In other words, if charged with the crime, the charge of solicitation will merge with that charge.

Sean (Silverman Bar Exam Tutoring)