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The Differences Between Solicitation of Another to Commit a Crime and a Conspiracy to Commit a Crime

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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.

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Criminal attempt occurs when you take a “substantial step” leading to a criminal act with the intention of eventually completing it. Picking the lock on someone’s car can constitute attempted grand theft auto, for example, even if you are caught before you actually steal the car. “Casing out” a bank prior to a robbery, on the other hand, may or may not be considered a sufficiently “substantial” step to constitute criminal attempt. It is no defense to a contempt charge that you were attempting to do something impossible. If you attempt to kill someone by setting fire to their home, for example, it is no defense that they were out of town at the time. Further, if you attempt to commit a crime that qualifies for life imprisonment, such as murder, you can be imprisoned for 1 to 30 years. If you attempt to complete another felony, you could be imprisoned for anywhere from one year to half the maximum sentence that applies to the completed felony. If you attempt to commit a misdemeanor you could go to jail for at least one year. Conspiracy is committed when at least two people agree to perform a criminal act, as long as at least one person in the conspiracy commits an “overt act” leading to completion of the crime. You can be convicted of conspiracy even if your co-conspirator commits the overt act (such as buying a gun) while you did nothing but agree to commit the crime. You can avoid a conspiracy conviction if you can show that you withdrew from the conspiracy before the overt act took place.

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Under the “rule of consistency” or the “bilateral” approach, there must be two guilty minds. Both parties to the conspiracy must sincerely agree to commit the crime. In a two-person conspiracy, if one co-conspirator is acquitted, then the other co-conspirator cannot be guilty of conspiracy. Without an agreement, there can be no conspiracy. However, this applies only when two alleged co-conspirators are tried for the same crime in the same trial for the same conspiracy. If one is acquitted, perforce, the other must be acquitted as well as a conspiracy requires at least two guilty participants.[12] If they are tried separately and the first co-conspirator is acquitted or is never charged, then the second co-conspirator can still be charged with conspiracy. After all, the evidence may be stronger against one person than the other or different juries might not read the evidence in the same manner. That one is acquitted does not necessarily mean that there is insufficient evidence that they both conspired for purposes of convicting the second conspirator. Under the unilateral approach, which was adopted by the Model Penal Code and some of the states, only one person needs to have a guilty mind (Paul Marcus). So, for example, a person can be guilty of conspiracy even if the other party is an undercover police officer or other party that has no intention of carrying out the criminal actions contemplated. Most jurisdictions require that, in addition to agreeing to commit a crime, at least one member of the conspiracy must take an action in furtherance of the illegal objective. This requirement of an “overt act” serves to distinguish mere talk from a plan that contemplates the performance of illegal activity. Typically, any act taken in furtherance of the conspiracy will be sufficient, but some states requires that the defendant take a more substantial step (Martin H. Pritikin,2005).

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In a word, statutes on inchoate crimes provide that individuals may be held criminally responsible for the intent to commit a crime, even if the crime is not actually committed. Inchoate crimes require that an individual have the intent to commit the criminal act and that they take some step to achieve the goal. Attempt, conspiracy, and solicitation are all inchoate crimes.

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Paul Marcus, Prosecution and Defense of Criminal Conspiracy Cases, § 1.04 (Matthew Bender, Rev. Ed.)

Martin H. Pritikin, Toward Coherence in Civil Conspiracy Law: A Proposal to Abolish the Agent's Immunity Rule, 84 Neb. L. Rev. 1, 6-7 (2005).

Berry v. State, 996 So.2d 782 (2008).

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The Differences Between Solicitation of Another to Commit a Crime and a Conspiracy to Commit a Crime
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