Common Law Solicitation: Definition, Elements, and Defenses

Common law solicitation occupies a distinctive place among inchoate offenses because criminal liability may arise before the requested crime is attempted or completed. A single purposeful request, encouragement, or command can therefore carry significant legal consequences.

Understanding Common law solicitation requires careful attention to conduct, intent, communication, and the particular offense sought. Its boundaries also become important when solicitation overlaps with conspiracy, attempt, or a completed substantive crime.

The Place of Common Law Solicitation in Inchoate Offenses

Common law solicitation is an inchoate offense: a crime that punishes conduct directed toward a future substantive offense before that offense is completed. It addresses the deliberate effort to induce, encourage, request, or command another person to commit a crime.

Its position among inchoate offenses reflects a preventive purpose. Criminal liability may arise when the solicitation is communicated, even if the person approached refuses, never acts, or lacks the ability to carry out the requested offense.

Unlike attempt, solicitation generally does not require a substantial step toward committing the underlying crime. Unlike conspiracy, it traditionally does not require an agreement between two or more persons; the solicitor’s criminal invitation may be sufficient.

Common law solicitation therefore reaches an earlier stage of criminal conduct than many related offenses. Its scope remains limited by the requirement that the defendant intended both the communication and the commission of a specified underlying crime.

The Core Definition of Common Law Solicitation

At common law, solicitation occurs when a person intentionally encourages, commands, requests, or otherwise seeks to persuade another person to commit a crime. The offense is complete when the criminal invitation is communicated; the requested crime need not occur.

Common law solicitation is an inchoate offense because it punishes conduct directed toward future criminal activity. Liability rests on the defendant’s purposeful effort to induce another’s criminal conduct, rather than on any agreement or completed act.

The communication may be oral, written, or conveyed through conduct, provided it expresses a serious effort to procure the crime. Casual discussion, abstract advocacy, or joking language ordinarily does not amount to solicitation without the required criminal purpose.

The Actus Reus of Solicitation

The actus reus of solicitation is the defendant’s act of encouraging, requesting, commanding, or otherwise seeking to persuade another person to commit a crime. The conduct must be directed toward inducing criminal action.

The communication may occur through spoken words, writing, gestures, electronic messages, or an intermediary. No particular formula is required, provided the defendant’s words or conduct convey a serious invitation to engage in unlawful conduct.

For Common law solicitation, the prohibited act is complete when the request or encouragement is made. The person solicited need not agree, take steps toward the offense, or even intend to commit it.

• Mere private thoughts or unexpressed plans are not solicitation.
• General advocacy without a directed request may be insufficient.
• The request must concern conduct that would constitute a crime if carried out.

The Mens Rea Required for Common Law Solicitation

At common law, solicitation required a specific intent that another person commit the solicited crime. The defendant must have purposely encouraged, requested, commanded, or otherwise sought to persuade the other person to engage in criminal conduct.

Mere knowledge that a statement might influence someone to commit an offense was generally insufficient. The prosecution had to show that the defendant desired or intended the requested criminal result, rather than merely discussing, approving, or predicting unlawful conduct.

The defendant also needed the mental state required for the underlying offense. For example, a person who asks another to commit larceny must intend that property be taken and carried away with the intent permanently to deprive its owner.

Common law solicitation is therefore a specific-intent inchoate offense. Recklessness, negligence, vague hostility, or careless language ordinarily does not establish the required mens rea without evidence of a purposeful effort to procure the crime.

The Requirement of a Specific Underlying Crime

Common law solicitation requires that the defendant seek to cause or encourage a particular criminal offense. A vague request to “cause trouble” or “take care of someone” may be insufficient unless the surrounding circumstances clearly identify the intended crime.

The prosecution need not show that the defendant used technical legal terms or described every element of the proposed offense. It must, however, establish that the defendant intended another person to commit conduct constituting a recognized crime, such as murder, arson, robbery, or theft.

The specificity requirement distinguishes Common law solicitation from protected speech, mere angry statements, and generalized discussion of unlawful conduct. Courts may infer the underlying crime from the words used, the relationship between the parties, requested payment, supplied materials, or other contextual evidence.

At common law, solicitation commonly concerned felonies, though modern statutes often extend liability to solicitation of designated misdemeanors. The applicable jurisdiction’s law determines which underlying offenses support a solicitation charge.

Identifying the crime the defendant sought to promote

A solicitation charge must be tied to a particular substantive offense that the defendant intended another person to commit. The prosecution must identify that offense with enough clarity to show the request or encouragement was directed toward criminal conduct.

The underlying crime need not always be described with technical precision in the defendant’s words. A request to “burn down the warehouse for insurance money,” for example, may demonstrate an intent to procure arson, even without naming the offense.

Courts examine the surrounding circumstances, including the defendant’s statements, instructions, offered payment, selected target, and proposed method. Vague statements of anger or general approval of wrongdoing ordinarily do not establish the required connection to an identifiable crime.

In Common law solicitation, the defendant must intend both to induce the other person’s conduct and to promote the commission of the specified offense. If the evidence supports only a lawful purpose, a joke, or an undefined unlawful act, solicitation liability may not arise.

Solicitation of felonies and misdemeanors at common law

At common law, solicitation was generally treated as a misdemeanor, even when the defendant urged another person to commit a felony. The offense was complete upon the prohibited request, encouragement, or command; the requested crime need not occur.

The seriousness of the solicited offense still mattered in identifying the conduct and determining whether the defendant possessed the required criminal purpose. Common examples included requests to commit:

• Murder, arson, robbery, or another felony;
• Perjury or obstruction-related misconduct;
• Certain misdemeanors involving public order or morality.

Common law solicitation could also arise from urging a misdemeanor, although historical treatment varied across jurisdictions and offenses. Courts commonly required that the proposed conduct itself be criminal, rather than merely unethical, tortious, or socially disfavored.

Modern statutes often alter the common-law approach by grading solicitation according to the gravity of the crime solicited. In common law analysis, however, the solicitation offense remained distinct from the felony or misdemeanor the defendant sought to bring about.

Communication and Receipt of the Solicitation

At common law, solicitation required that the defendant communicate an encouragement, request, command, or other inducement to another person to commit a crime. Mere private thoughts, plans, or preparations were not enough.

The communication could occur through spoken words, writing, gestures, or an intermediary, provided it conveyed a genuine effort to persuade another person to engage in criminal conduct.

• A direct request delivered to the intended person generally satisfies the requirement.
• A message sent through another may suffice if it is intended to reach the prospective offender.
• Words that are vague, conditional, or made in jest may not establish solicitation without supporting context.

Receipt is commonly treated as necessary because an unreceived letter, voicemail, or message has not yet induced or attempted to induce another person. Under Common law solicitation, the offense is generally complete when the criminal invitation reaches the person solicited, even if that person refuses, ignores it, or reports it to law enforcement.

The Role of the Person Solicited

At common law, solicitation is complete when the defendant intentionally encourages, requests, commands, or otherwise seeks to persuade another person to commit a specified crime. The person solicited need not agree, act, or possess criminal intent.

A refusal by the recipient does not defeat liability. For example, a person who asks another to commit arson may be guilty of common law solicitation even if the recipient immediately declines or reports the request to police.

The solicited person may be an undercover officer, an informant, or someone legally incapable of committing the proposed offense. Their inability or unwillingness generally does not negate the solicitor’s culpable purpose, provided the defendant intended that the crime be committed.

If the recipient agrees to participate, the facts may support a separate conspiracy charge, depending on the jurisdiction and applicable common-law principles. If the recipient takes steps toward committing the offense, attempt or completed-crime liability may also arise.

Common Law Solicitation Compared With Conspiracy

Common law solicitation is complete when a person intentionally encourages, requests, or commands another to commit a crime with the required criminal purpose. No agreement by the recipient is necessary.

Conspiracy, by contrast, requires an agreement between at least two persons to pursue an unlawful objective. At common law, the agreement itself generally completed the conspiracy; an overt act was not traditionally required.

A solicitation may develop into conspiracy if the person solicited accepts the proposal and both parties form the required agreement. A rejected request remains solicitation, assuming the other elements are proved.

The offenses also protect against different stages of criminal collaboration. Common law solicitation addresses the effort to induce crime, while conspiracy addresses the heightened danger created when multiple people unite behind a criminal plan.

Common Law Solicitation Compared With Criminal Attempt

Common law solicitation is complete when a person, with the required intent, encourages, requests, or commands another to commit a specific crime. No further conduct toward the offense is required after the solicitation is communicated.

Criminal attempt, by contrast, requires the defendant to take conduct beyond mere preparation that comes sufficiently close to committing the target offense. The defendant must intend the completed crime and perform an overt, dangerous, or proximate act under the applicable common-law test.

The distinction often depends on who acts. A person who asks another to commit arson may be guilty of Common law solicitation immediately. If that person personally obtains materials and moves toward setting the fire, the conduct may instead support an attempt charge.

Solicitation can precede attempt, but the offenses do not require identical proof. Attempt focuses on the defendant’s own movement toward completion, whereas solicitation focuses on inducing another person to commit the crime.

Merger and Multiple-Offense Issues

At common law, solicitation was generally treated as a completed inchoate offense once the defendant encouraged, requested, or commanded another person to commit a crime with the required intent.

• If the solicited crime was completed, solicitation ordinarily merged into the completed substantive offense. The defendant could be punished for the completed crime rather than separately for the preliminary solicitation.

• If the solicitation produced an agreement between two or more culpable persons, the conduct could support conspiracy. Traditional common-law principles often treated solicitation as merging into conspiracy because conspiracy required the additional element of agreement.

• If conduct moved beyond encouragement toward direct execution of the offense, attempt liability may arise. Whether separate convictions or punishments are permitted depends on the jurisdiction’s merger rules, statutory provisions, and double-jeopardy analysis.

Common law solicitation therefore requires careful charge analysis: prosecutors must identify whether the facts establish only solicitation, or whether later conduct has created conspiracy, attempt, or a completed offense.

Whether solicitation merges into the completed offense

At common law, solicitation was generally treated as a separate inchoate offense completed when the defendant encouraged, requested, or commanded another person to commit a crime. The later completion of the solicited offense raised merger concerns.

• If the solicited crime was completed, common-law principles generally treated solicitation as merging into the completed substantive offense.
• The defendant could ordinarily be punished for the completed crime rather than separately punished for the preliminary solicitation.
• This approach prevents cumulative punishment for conduct that is absorbed into the more serious completed offense.

The result may depend on jurisdictional statutes and modern criminal codes, many of which modify common-law merger rules. Courts also distinguish between punishment for a completed offense and liability for independent crimes arising from the same conduct.

Where the solicited crime is not completed, Common law solicitation may remain chargeable, subject to rules governing later conspiracy or attempt liability.

Relationship to conspiracy and attempt charges

At common law, solicitation may develop into conspiracy or attempt, but each offense has distinct elements. Prosecutors may charge more than one inchoate offense when the evidence supports each charge, subject to applicable merger and double-jeopardy principles.

• Solicitation becomes conspiracy when the person solicited agrees to participate in the planned crime. The agreement, rather than any further act, traditionally supplies the basis for conspiracy.

• Solicitation may also be followed by attempt if the defendant or another participant takes conduct sufficiently close to completing the intended offense. Mere preparation generally does not establish attempt at common law.

Common law solicitation does not automatically merge into conspiracy or attempt merely because later conduct occurs. However, courts and statutes vary in their treatment of cumulative convictions and punishment. Where the solicitation is wholly absorbed by a proven agreement or attempted crime, merger rules may limit separate convictions or sentences.

Defenses and Limitations in Solicitation Cases

At common law, solicitation was generally complete when the defendant intentionally encouraged, requested, or commanded another person to commit a specified crime. A later change of mind ordinarily did not erase liability once the communication was made.

Renunciation or withdrawal was therefore not a complete common-law defense. A defendant’s effort to retract the request might be relevant to intent or sentencing, but it did not ordinarily undo an already completed solicitation.

The prosecution must prove a genuine purpose to promote the underlying offense. Statements made in jest, anger, or hypothetical discussion may not establish the required criminal intent, depending on the surrounding circumstances.

Impossibility may limit liability where the facts show no intended crime could occur or no true criminal purpose existed. In Common law solicitation, however, the solicited person’s refusal, inability, or lack of intent does not itself absolve the solicitor.

Renunciation and withdrawal at common law

At common law, solicitation was generally complete when the defendant intentionally encouraged, requested, or commanded another person to commit a crime. A later change of heart ordinarily did not erase liability for Common law solicitation.

Renunciation could still matter evidentially. Prompt, voluntary efforts to dissuade the person solicited may support an argument that the defendant lacked the required intent when speaking, although they do not ordinarily constitute a complete common-law defense.

Withdrawal has greater significance once a solicitation develops into conspiracy. A conspirator may withdraw from future acts by clearly communicating withdrawal to co-conspirators, but remains liable for the conspiracy already formed.

Modern statutes sometimes recognize voluntary and complete renunciation as an affirmative defense when the solicitor prevents the intended crime. That approach reflects statutory reform rather than the traditional common-law rule.

Impossibility and the absence of criminal intent

Impossibility generally does not defeat common law solicitation when the defendant intended that another person commit a crime. The offense is complete upon the unlawful request, encouragement, or command; success in carrying out the proposed crime is unnecessary.

Factual impossibility—such as asking someone to steal property that has already been removed—ordinarily does not negate liability if the defendant believed the circumstances would permit the crime. The solicitation reflects the prohibited purpose to bring about criminal conduct.

A different result may follow where the requested conduct would not constitute a crime under the circumstances as the defendant believed them to be. Traditional common-law treatment of legal impossibility was more protective, though modern statutes often limit that distinction.

Absence of criminal intent defeats Common law solicitation. The prosecution must prove that the defendant purposely sought to promote or facilitate a specific offense. Jokes, idle remarks, vague approval of wrongdoing, or statements lacking a genuine criminal purpose do not satisfy this mens rea requirement.

Evidentiary Issues in Proving Solicitation

Proving solicitation ordinarily depends on evidence that the defendant intentionally urged, requested, commanded, or encouraged another person to commit a particular crime. The prosecution must establish both the communication and the defendant’s purpose through admissible, reliable evidence.

Direct evidence may include testimony from the person solicited, recordings, text messages, emails, letters, or statements made to witnesses. Ambiguous language can create difficulty, because lawful advice, casual discussion, or mere approval of wrongdoing does not necessarily constitute solicitation.

Circumstantial evidence may help show intent, such as detailed planning, payment offers, provision of weapons, repeated communications, or efforts to conceal the request. Yet those facts must support an inference that the defendant sought the commission of the identified offense.

In Common law solicitation cases, credibility disputes are frequent when proof rests primarily on one witness’s account. Courts must also apply ordinary evidentiary rules concerning hearsay, authentication of digital communications, relevance, and unfair prejudice.

Applying Common Law Solicitation to Criminal Liability Analysis

A criminal liability analysis begins by identifying a request, encouragement, command, or other communication intended to induce another person to commit a particular crime. The facts must show more than abstract discussion, anger, or a conditional statement lacking genuine inducement.

The analysis then examines mens rea. The defendant must have intended that the solicited person commit the identified offense, while also possessing the mental state required for that offense. The prosecution must connect the communication to a sufficiently specific unlawful objective.

Common law solicitation is generally complete when the inducement is communicated and received; acceptance, performance, or success is not required. Evidence may include spoken words, messages, surrounding conduct, prior relationships, and circumstances showing whether the statement was seriously intended.

Liability analysis should also test whether later events support separate offenses. If the recipient agrees, conspiracy may arise; if either party takes sufficient steps toward the crime, attempt or completed-offense charges may become available, subject to applicable merger principles.