Solicitation is an inchoate crime that involves seeking out another person to engage in a criminal act. A defendant may be charged with solicitation if he or she requests or induces another person to commit an act that would amount to a felony. The two elements of solicitation are the intent to have someone else commit a crime and an act committed in furtherance of convincing another person to commit a crime.
In order to establish the first element of a solicitation, a prosecutor must show that the defendant affirmatively intended to have another commit a crime. This means that an individual may not be charged with solicitation for mistakenly asking another to commit a crime, often because the individual does not realize that the act is itself a crime. For instance, assume a man believes that his neighbor agreed to let him borrow his car to go to the store. However, the neighbor did not actually consent to his borrowing of the car. The man asks his wife to get the car. This would not be a solicitation; although it might be considered a theft. One is not guilty of soliciting because the man did not realize that taking the car was a crime.
Act of Solicitation
All that is required is that the individual encourage or convince another in some way to commit a crime. This can take the form of a request, suggestion or encouragement to complete the crime. It can also involve commanding, forcing, or inducing the other person to commit the crime. When finding conspiracy or attempt, which require an additional act in furtherance of the crime itself, solicitation does not require that the solicited party does not need to act.Taking it a step further, should the solicited individual’s condict lead to the actual commission of the crime, the solicitor may be liable not only for solicitation, but also for aiding and abetting the crime as an accessory before the fact. The defendant cannot, however, be charged with solicitation and the crime itself. The government must choose its crime to be charges. If found guilty of both, then the solicitation merges with the completed crime and in effect disappears.