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VOLUME 6 - CHAPTER 66
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66.4 Distinction Between Attempt And Solicitation

    66.4.1 Defense Theory That The Crime Was A Solicitation Rather Than An Attempt
    66.4.2 Distinction Between Solicitation And Attempt Inapplicable To Perjury

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PRACTICE NOTE: There is much confusion over the distinctions between solicitation, attempt and conspiracy. Under the Model Penal Code, a solicitation may be a "substantial step in a course of conduct planned to culminate in [the] commission of the crime" for the purpose of proving an attempt. (Model Penal Code § 5.01(1)(c) and (2)(g) (1962).)

    "'With respect to the crime of solicitation, the great weight of American authority holds as a general proposition that mere criminal solicitation of another to commit a crime does not itself constitute an attempt.... [T]he definition of attempt and solicitation are not only different, but the offenses are analytically distinct. The gist of criminal solicitation is enticement, whereas an attempt requires an intent to commit a specific crime, an overt act and failure to consummate that crime. This being true, to call solicitation an attempt is to delete the element of overt act.' [Citation.]" (U.S. v. Dolt (6th Cir. 1994) 27 F3d 235, 239.)

    Hence, most courts take the view that the mere act of solicitation does not constitute an attempt to commit the crime solicited. (See People v. Lafontaine (CA 1978) 79 CA3d 176, 183 [144 CR 729] [mere acts of solicitation are not sufficient to constitute an attempt]; People v. Adami (CA 1973) 36 CA3d 452, 456-57 [111 CR 544]; State v. Otto (ID 1981) 629 P2d 646, 649 [the weight of authority is not determinative, but the reasons for that position are compelling]; State v. Cotton (NM 1990) 790 P2d 1050, 1054 [solicitation and attempt are analytically distinct in their elements because solicitation, unlike attempt, is in nature of preparation to commit offense, rather than act or acts in furtherance of offense attempted].)

    "This issue is particularly significant in a jurisdiction where any crime can be the subject of an attempt but only certain crimes can be the subject of solicitation. Given such a jurisdiction, if the crime solicited cannot be the subject of solicitation -- and assuming the solicitee performs no act or at least no act which amounts to an attempt -- the solicitor can be subjected to criminal liability only if the act of solicitation itself is regarded as an attempt. Of course, the imposition of 'attempt' liability under the foregoing circumstances would constitute a circumvention of the apparent legislative intent to the contrary." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th ed. 1996) § 672, pp. 524-26.)

    See also FORECITE National™ 67.3 [Specific Solicitation Statute Preempts General Attempt Possession].

Perkins & Boyce, Criminal Law (Foundation Press, 1982), ch. 6, § 3, p. 650.

Wharton’s Criminal Law (West, 15th ed. 1993) § 672, pp. 524-26.

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].

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VOLUME 6 - CHAPTER 66

PRACTICE NOTE: "[T]he distinction between attempt and solicitation is not applicable to the offenses of perjury and subornation of perjury." (State v. Huff  (NC 1982) 289 SE2d 604, 606.) 

Perkins & Boyce, Criminal Law (Foundation Press, 1982) pp. 651-52.

See generally, FORECITE National™ 305.1.18 [Attempts].

See generally, FORECITE National™ 66.1.8 [Attempt: Federal Circuit Model Instructions And Notes].