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Question 1.

What is solicitation, and how does it differ from conspiracy and attempt?

Question 2.

Joseph is a member of the notorious Crips gang, while Walter is a member of the Aryan Brotherhood. These two organizations are often engaged in violent confrontations, often motivated by racial hatred. One evening, Joseph enters an area of the city within the control of the Aryan Brotherhood and is attacked by Walter. Joseph survives the encounter but is severely beaten. Joseph suffers a broken nose, a broken jaw, severe facial lacerations, and internal bleeding. The prosecutor wants to charge Walter with battery and attempted murder. Walter is challenging the attempted murder charge, claiming that he only wanted "to teach Joseph a lesson" about trespassing on the Brotherhood's land and that he never intended to kill him. Is Walter guilty of attempted murder? Why or why not?
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Criminal Law (Justice Series)
Edition: 2nd
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Answer 1

Solicitation is an inchoate offense that occurs when a person entices, advises, incites, orders, or otherwise encourages someone else to commit a crime. "[T]he essence of criminal solicitation is an attempt [by the solicitor] to induce another to commit a criminal offense." Moreover, it is a requirement that the solicitor intend to hide behind the solicited, or to "work behind the scenes." Anything more than that may elevate a solicitation to something more significant, such as conspiracy or attempt. Solicitation also does not occur if one person uses another as an "innocent instrumentality" in the commission of a crime. Solicitation is also distinguished from conspiracy. In general, solicitation is an attempted conspiracy. It consists of an offer. Usually, conspiracy consists of an agreement—as well as an overt act. But a conspiracy need not be preceded by solicitation; conspiracy can occur at any time and without the requirement that one party solicit the other to commit a crime. Finally, it is important to distinguish solicitation from the crime of attempt. Attempt is very similar to solicitation, but the former usually requires a "slight act" following the agreement or that the solicitation be "proximate" to the intended crime—that is, in close temporal proximity to it.

Answer 2

Answers will vary but answer should include definition of attempt, which is an inchoate offense in which the defendant has the specific intent to commit the underlying offense and takes some action in furtherance of that intent, but is unsuccessful in completing the crime. The prosecution will need to prove the intent (mens rea) for a successful conviction of attempted murder. Because an attempt is not a completed crime, it is more difficult to prove mens rea. There are two parts of the mens rea of attempt: to (1) intend the act and (2) intend the result. To intend the act means the offender must intend to commit some sort of overt act toward completion of the offense. As to intending the result, the defendant must also intend for the substantive crime to occur. Based on the information provided within the question Walter did not intend Joseph to die, Walter has not satisfied the mens rea of attempted murder. Walter will likely be convicted of some other crime, however, as he certainly did something illegal.
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