PastPaperHero | Inchoate crimes; parties

Learning Outcomes

This article explains solicitation as an inchoate crime and aspect of party liability, including:

Identifying the elements of solicitation and the required mental state.
Distinguishing solicitation from attempt and conspiracy on MBE fact patterns, including borderline scenarios where conduct could fit more than one inchoate offense.
Applying the doctrine of merger to solicitation and related offenses, and predicting when solicitation drops out in favor of conspiracy, attempt, or the completed crime.
Evaluating defenses to solicitation, including impossibility and withdrawal/renunciation, with attention to how common-law and MPC approaches appear on the exam.
Analyzing how solicitation interacts with accomplice liability and liability of parties, including when words alone create accomplice responsibility.
Recognizing typical MBE question structures that test solicitation, such as refusals, undercover officers, and legally impossible “crimes.”
Using worked examples to practice issue-spotting and rule application under timed, multiple-choice conditions.

This article also explains strategic exam tips for choosing between solicitation, attempt, and conspiracy where multiple inchoate crimes are implicated, highlights recurring distractor answer choices involving withdrawal and impossibility, and reinforces the doctrinal connections among solicitation, party liability, and substantive offenses. The focus throughout is on clear rule statements, tightly framed hypotheticals, and checklists that support rapid recall and confident elimination of wrong answers on the MBE.

MBE Syllabus

For the MBE, you are required to understand the law of inchoate crimes and the role of parties in criminal liability, with a focus on the following syllabus points:

The definition and elements of solicitation, including act and intent.
How solicitation differs from attempt and conspiracy.
The doctrine of merger as it applies to solicitation and the completed offense.
Defenses to solicitation, including withdrawal and impossibility.
The liability of parties for inchoate offenses, especially the relationship between solicitation and accomplice liability.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following best describes solicitation?
1. An agreement between two or more people to commit a crime.
2. An act that is a substantial step toward committing a crime.
3. Urging, requesting, or commanding another to commit a crime with intent that the crime be committed.
4. A completed criminal offense.
If a defendant solicits another to commit burglary, but the other person refuses, the defendant is:
1. Not guilty of any crime.
2. Guilty of solicitation only.
3. Guilty of conspiracy.
4. Guilty of attempt.
Which defense is generally NOT available to a charge of solicitation?
1. Legal impossibility.
2. Voluntary withdrawal.
3. Lack of intent.
4. The solicited person was acquitted of the substantive offense.

Introduction

Solicitation is one of the three classic inchoate crimes tested on the MBE, along with attempt and conspiracy. Inchoate crimes involve steps taken toward committing a substantive offense, but fall short of completion. Solicitation focuses on the act of encouraging or requesting another to commit a crime, regardless of whether the crime is actually carried out.

Key Term: Inchoate Crime
An offense that punishes conduct directed toward, or preparatory to, the commission of another (substantive) crime, such as solicitation, attempt, or conspiracy.

Key Term: Solicitation
The act of intentionally urging, requesting, or commanding another person to commit a criminal offense, with the purpose that the crime be committed.

On the MBE, solicitation often appears in fact patterns where the defendant uses words (an offer, request, or instruction) to involve someone else in crime—then the plan stalls, is rejected, or develops into attempt, conspiracy, or the completed offense. Recognizing where the law “stops” at solicitation and when liability escalates to other crimes is important.

Elements of Solicitation

To prove solicitation, the prosecution must establish:

The defendant intentionally invited, requested, commanded, or encouraged another person to commit a specific crime.
The defendant had the purpose (specific intent) that the other person commit the crime.

No overt act or agreement is required. The crime is complete once the request or encouragement is made, even if the other person ignores or rejects the solicitation.

Key Term: Specific Intent
The mental state in which the defendant acts with the conscious objective or purpose to bring about a particular result or offense.

Clarifying the Act Requirement

For solicitation, the defendant must engage in communication directed at another individual that goes beyond mere approval of crime. Examples include:

Offering payment to someone to commit an offense.
Instructing someone to commit a crime (“Go burn that building tonight.”).
Encouraging a particular person to commit a crime (“You should steal that car; I’ll pay you if you do.”).

General advocacy of crime to the public (e.g., a political speech praising law-breaking) is not usually treated as solicitation on the MBE; solicitation focuses on targeted requests to a specific person (or identifiable group) to commit a particular crime.

Clarifying the Intent Requirement

Specific intent has two dimensions here:

The defendant must intend to communicate the request.
The defendant must intend that the solicited crime actually be committed.

Jokes, angry outbursts with no real desire that the crime occur, or “tests” of another’s loyalty where the solicitor does not want the crime committed typically lack the required intent.

Scope and Application

Solicitation applies to all substantive crimes, including felonies and certain misdemeanors. The offense is committed even if the person solicited is not capable of committing the crime (e.g., an undercover officer, a child, or a person who lacks mental capacity).

Solicitation is often tested in scenarios where the defendant's conduct stops after the request, or where the solicited person refuses or is unable to carry out the crime. It can also be the starting point for chains of liability that expand into conspiracy, attempt, and accomplice liability.

Key points about the scope:

Rejection is irrelevant: The crime does not depend on the solicited person’s response.
No requirement that the crime be possible in fact: As long as what the defendant intends is a crime, the offense is complete (impossibility issues are addressed below).
No requirement that the solicited person be criminally responsible: Soliciting a police officer, or someone with a personal defense (like insanity), still suffices.

Worked Example 1.1

A asks B to set fire to a rival's warehouse. B refuses and walks away. Has A committed a crime?

Answer:
Yes. A is guilty of solicitation to commit arson. The crime is complete when A intentionally requests B to commit arson, regardless of B's response.

Consequences When the Solicitation “Goes Nowhere”

On many MBE questions, the solicited person simply refuses, laughs, or reports the plan to police. In those situations:

The solicitor is still guilty of solicitation.
There is no conspiracy, because there is no agreement.
There is no attempt, because there is no substantial step toward the target crime.

This is exactly the scenario in Question 2 of the Test Your Knowledge section: the correct answer is “guilty of solicitation only.”

Relationship to Attempt and Conspiracy

Solicitation is distinct from attempt and conspiracy:

Solicitation requires only the act of asking or encouraging another to commit a crime, with intent that the crime be committed. There is no requirement for a substantial step or for agreement.
Attempt requires a specific intent to commit the substantive crime plus a substantial step toward the commission of the crime, beyond mere preparation or encouragement.
Conspiracy requires an agreement between two or more persons to commit a crime, plus (in most jurisdictions) an overt act in furtherance of the agreement.

Key Term: Conspiracy
An agreement between two or more persons to commit a criminal offense, with intent that the crime be committed, and (in most jurisdictions) an overt act in furtherance of the agreement.

On the MBE, solicitation is frequently the starting point of a fact pattern that then develops into conspiracy or attempt:

If the other person agrees, solicitation generally merges into conspiracy.
If the other person acts toward committing the crime (and the solicitor shares the intent), liability may also include attempt or the completed offense.

Worked Example 1.2

C asks D to rob a bank. D agrees, and they plan the details. Before the robbery occurs, police arrest both. What crimes have been committed?

Answer:
C and D are guilty of conspiracy to commit robbery. The solicitation merges into the conspiracy, so C is not separately guilty of solicitation.

Comparing the Three Inchoate Crimes on the MBE

A helpful way to think about the differences:

Solicitation: “Please commit this crime for me.” (words to another)
Conspiracy: “Let’s commit this crime together.” (agreement)
Attempt: “I am actually starting the crime.” (substantial step)

A single fact pattern can implicate all three, but under the merger doctrine, not all will ultimately support separate convictions.

Merger Doctrine

Key Term: Merger (Inchoate Crimes)
The doctrine that prevents a defendant from being convicted of both solicitation and the completed offense or a greater inchoate offense (such as conspiracy or attempt) based on the same conduct.

Solicitation merges into more serious inchoate or completed offenses based on the same target crime:

If the solicited person agrees to commit the crime, the solicitor is guilty of conspiracy, and the solicitation merges into the conspiracy.
If the solicited person attempts or actually commits the crime, the solicitor may be liable for attempt or the completed crime as an accomplice, and the solicitation merges.
A defendant cannot be convicted of both solicitation and a greater inchoate offense (attempt or conspiracy) or the completed offense for the same target crime.

Exam Warning

On the MBE, if the person solicited actually commits the crime, the solicitor is guilty as an accomplice to the substantive offense, not solicitation. If the solicitor and the solicited person agree to commit the crime, the solicitor is guilty of conspiracy, not solicitation.

However, merger applies offense by offense. A defendant can be convicted of:

Conspiracy and the completed offense; and
The completed offense as an accomplice, without a separate solicitation conviction.

Worked Example 1.3

G offers H $5,000 to kill V. This is solicitation. H agrees, and they plan the killing. H later kills V. What are G’s liabilities?

Answer:
G is guilty of conspiracy to commit murder and murder as an accomplice. The original solicitation merges into these greater offenses, so G is not separately convicted of solicitation.

Note that G can be convicted of both conspiracy and murder; merger prevents only stacking solicitation on top of those offenses for the same planned killing.

Defenses to Solicitation

Because solicitation is a specific-intent crime, any defense that negates the required mental state may defeat liability. MBE questions commonly test three areas: withdrawal/renunciation, impossibility, and lack of intent.

Withdrawal or Renunciation

At common law, withdrawal is not a defense to solicitation. The crime is complete the moment the request is made.
Later changing one’s mind and telling the person not to commit the crime does not erase the solicitation.

Some modern statutes and the Model Penal Code recognize a limited defense of renunciation if the defendant voluntarily and completely renounces the criminal purpose and prevents the commission of the crime (for example, by persuading the solicited person not to act or by notifying authorities). When such a statute is in play in a question, the facts usually make that clear.

Even where renunciation is not a defense to the solicitation charge:

Effective withdrawal can cut off accomplice liability for crimes committed after the withdrawal, if the defendant takes reasonable steps to neutralize the prior encouragement.

Key Term: Withdrawal (Renunciation)
A later change of heart in which the solicitor attempts to undo or abandon the plan. It generally does not negate the completed solicitation, though in some jurisdictions a complete and voluntary renunciation that prevents the crime may be a statutory defense or may prevent later accomplice liability.

Impossibility

Key Term: Legal Impossibility
A situation in which the defendant believes they are asking another to commit a crime, but the requested act is not actually criminal under the law.

Key Term: Factual Impossibility
A situation in which the requested crime would be a crime if the facts were as the defendant believed them to be, but unknown facts make completion impossible in the particular case.

Legal impossibility is a defense to solicitation. If the requested act is not a crime at all, there is no solicitation.
Factual impossibility is not a defense. If the defendant believes the act would be criminal and acts with the required intent, the solicitation stands even if completion is impossible due to facts unknown to the defendant.

Worked Example 1.4

E asks F to steal a car, but the car is actually a decoy owned by police. F refuses. Is E guilty of solicitation?

Answer:
Yes. Factual impossibility (the car could not be stolen because it is a police decoy) is not a defense. E is guilty of solicitation because the request was made with intent that the crime be committed.

Worked Example 1.5

D encourages a friend to commit the “crime” of chewing gum in a public park, believing (wrongly) that this is illegal. The friend refuses. Can D be convicted of solicitation?

Answer:
No. Chewing gum is not a crime, so this is a case of legal impossibility. Because the requested act is not actually criminal, there is no solicitation.

Lack of Intent

Because solicitation requires purpose that the crime be committed, the following will generally defeat liability:

The defendant did not truly desire that the crime occur (e.g., obvious sarcasm without any real intention).
The defendant believed in good faith that the conduct requested was lawful (this can overlap with legal impossibility).
The defendant lacked capacity to form the specific intent (e.g., extreme intoxication in jurisdictions that allow voluntary intoxication to negate specific intent, or certain mental conditions under insanity rules).

This is why “lack of intent” is a valid defense option in Question 3, whereas “voluntary withdrawal” typically is not.

Effect of the Solicited Person’s Acquittal

The solicited person’s acquittal of the substantive offense does not bar a prosecution for solicitation. Solicitation is a separate crime that focuses on the solicitor’s conduct and intent. Thus, answer choice (d) in Question 3 (“The solicited person was acquitted of the substantive offense”) is not generally a defense to solicitation.

Worked Example 1.6

J asks K to kill J’s business partner. K attempts the killing but fails and is later acquitted of attempted murder due to an insanity defense. Can J be convicted of solicitation?

Answer:
Yes. K’s acquittal on insanity grounds does not affect J’s liability for solicitation. Solicitation depends on J’s own conduct in urging K to commit murder with the intent that K do so.

Parties to Solicitation

Only the person who makes the request or encouragement is guilty of solicitation. The person solicited is not guilty of solicitation, but may be guilty of attempt, conspiracy, or the substantive offense if they proceed further.

Key Term: Accomplice
A person who intentionally aids, encourages, or assists another in committing a crime, with the purpose that the crime be committed.

In other words:

The solicitor is the only potential offender under the crime of solicitation.
The solicited person can be:
- Completely innocent (if they refuse and do nothing else),
- Guilty of attempt (if they start the crime but do not finish), or
- Guilty of the completed offense.

The solicited person may also become a co-conspirator if they agree to commit the crime with the solicitor and (in most jurisdictions) an overt act is performed.

Worked Example 1.7

L offers M $2,000 to burglarize a jewelry store. M agrees and buys tools, but is arrested before entering the store. What crimes, if any, apply?

Answer:
L is guilty of conspiracy to commit burglary (the agreement plus M’s purchase of tools as an overt act). The original solicitation merges into the conspiracy. M is guilty of conspiracy and attempted burglary (if the jurisdiction’s substantial-step standard is met). M is not guilty of solicitation because M did not solicit the crime—L did.

Solicitation and Accomplice Liability

If the solicited person commits the crime, the solicitor may be liable as an accomplice to the substantive offense. The solicitor is not guilty of solicitation in this scenario, due to merger.

The important connections:

Words alone can create accomplice liability. If a person’s encouragement or request plays a role in causing another to commit a crime, that is sufficient “aid” or “encouragement” for accomplice liability, provided the person has the requisite intent.
When the planned crime is committed, the prosecutor will typically charge the original solicitor as an accomplice to the substantive offense (and possibly as a conspirator), not as a solicitor.

Worked Example 1.8

N asks O to commit arson. N says, “You should burn that competitor’s store; I’ll pay you afterward.” N then moves abroad and takes no further steps. O later burns the store. How is N liable?

Answer:
N’s initial request and promise of payment constitutes encouragement with the intent that arson be committed. When O actually commits arson, N is liable as an accomplice to arson. The solicitation merges into the completed offense, so N is not separately convicted of solicitation.

Role of Withdrawal in Accomplice Liability

Although withdrawal generally does not negate the completed crime of solicitation, it may affect later liability:

If the solicitor, before the crime occurs, effectively withdraws encouragement (e.g., clearly tells the solicited person not to proceed and informs authorities), some jurisdictions treat this as sufficient to cut off accomplice liability for the future offense.
The solicitor, however, remains liable for the solicitation itself unless a specific statutory renunciation defense applies.

Revision Tip

Always check whether the facts support attempt, conspiracy, or the completed crime. If so, solicitation merges and is not a separate offense. Then ask whether the solicitor’s early words support accomplice liability for any substantive crimes committed.

Key Point Checklist

This article has covered the following key knowledge points:

Solicitation is the intentional urging or requesting of another to commit a crime, with specific intent that the crime be committed.
The crime of solicitation is complete upon the request; no agreement, overt act, or actual commission of the crime is required.
The solicited person’s refusal or inability to commit the crime is not a defense.
Solicitation applies even when the person solicited is an undercover officer or otherwise incapable of committing the offense.
Solicitation merges into conspiracy, attempt, or the completed offense if those crimes occur for the same target crime.
When the solicited person commits the crime, the solicitor is typically liable as an accomplice and possibly as a conspirator, not as a separate solicitor.
Withdrawal is generally not a defense to the completed offense of solicitation, though timely renunciation may limit later accomplice or conspiracy liability and is a statutory defense in some jurisdictions.
Legal impossibility is a defense to solicitation; factual impossibility is not.
Lack of specific intent (including sincere jokes, obvious sarcasm, or honest belief that the act is lawful) defeats solicitation.
Only the solicitor is guilty of solicitation; the person solicited may be guilty of attempt, conspiracy, or the substantive offense if they proceed further.

Key Terms and Concepts

Inchoate Crime
Solicitation
Specific Intent
Merger (Inchoate Crimes)
Conspiracy
Accomplice
Legal Impossibility
Factual Impossibility
Withdrawal (Renunciation)

Inchoate crimes; parties - Solicitation