Solicitation

A person commits the offense of solicitation if he or she, with the intent that a capital or a first degree felony be committed, requests, commands, or attempts to induce another person to commit the felony or to make the other person a party to the felony.

A capital or a first degree felony does not need to committed in order for a person to be convicted of solicitation. But, the act of solicitation must occur. The act of solicitation must be a positive act.

A person cannot be convicted of the offense of solicitation on the uncorroborated testimony of the person whom he or she solicited. There must be independent evidence of the act of solicitation. However, a defendant can corroborate the act of solicitation through his or her own testimony.

The fact that the person who was solicited was not criminally responsible, was not prosecuted, or was acquitted of the underlying felony is not a defense to the offense of solicitation. Also, the fact that a defendant was legally incapable of committing the offense in his or her individual capacity is not a defense. Furthermore, the fact that the felony was committed is not a defense.

It is an affirmative defense to the offense of solicitation that a defendant made a voluntary and a complete renunciation of the underlying felony or countermanded the solicitation. The renunciation or the countermanding of the solicitation must take place prior to the commission of the underlying felony. The defendant must also take further affirmative action to prevent the commission of the underlying felony. Renunciation is not voluntary if it is motivated by circumstances that increase the probability of being detected or that make the underlying felony more difficult to commit. Renunciation is also not voluntary if it is merely a decision to postpone the commission of the underlying felony. Evidence of renunciation is most often used at the penalty stage of a trial in order to reduce a defendant's punishment for the solicitation.

The act that is solicited by a defendant must either be the underlying felony or must make the other person a party to the commission of the underlying felony.

In some states, a person can be convicted of the offense of solicitation if he or she, with the intent that a felony be committed, requests, commands, or attempts to induce a child to engage in conduct that would constitute the felony or would make the child a party to the felony.

The offense of solicitation is normally punished one category lower than the underlying felony. In other words, if the underlying felony is a capital felony, the offense is punished as a first degree felony. If the underlying felony is a first degree felony, the offense is punished as a second-degree felony.

Copyright 2007 LexisNexis, a division of Reed Elsevier Inc.