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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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Friday, March 12, 2010

1 - Crimes – Preliminary Crimes (Introduction)

1 - Crimes – Preliminary Crimes (Introduction)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

In this session, we’ll start the topic of preliminary crimes.

The preliminary crimes are solicitation, conspiracy and attempt. The key to all three is to understand how they fit together on a timeline. The first step is solicitation (someone asks another to commit a crime), the next step is conspiracy (the other person asked actually agrees), and the final step is attempt (there is an act with the intent to commit the crime which goes beyond mere asking or agreeing, and is an act sufficient to qualify as attempt). So the timeline is: 

     -> Ask/Solicitation -> Agree/Conspiracy -> Act/Attempt ->

How to handle preliminary crimes on an essay. Should the target crime come first or should the preliminary crime come first?

I'm not sure that there is a "best" answer. It is probably more important to pick a strategy and stick with it.

Here's what makes sense to me. When I'm reading an essay question, I will look for a situation where a defendant has not yet completed a target crime and make a note of it. Then I will know and remember to consider solicitation, conspiracy and attempt. Quite often, though, this may be the case with multiple defendants where one completes the crime and one does not.

The best method here, I think, is to go in the order of the call of the question. If that is not clear, then go in chronological order of crimes/defendants. It is most important to deal with one defendant at a time -- go through all of his crimes before you move on to the next defendant. One fairly good expert said, "If you discuss the crimes in chronological order, this would generally mean that a preliminary crime would be discussed first."

A colleague of mine said, "(1) Always follow the order of the question and (2) if the call of the question is defendant by defendant, then any order of discussing the crimes is probably okay. If all else fails, the two most common methods of choosing order of discussion of crimes is either chronological (which crime occurred first, second, etc. in the fact pattern) or by order of importance (murder/homicide crimes first and then all lesser crimes later). Choosing whether to discuss conspiracy or larceny first is really just a coin flip."

Here is another colleague: "And, in this order, solicitation, attempt and conspiracy, then the target crimes. And you can roll over the definitions of the target crimes from the preliminary if you set it up right."

Most of the time, one cannot be "guilty" of committing both the target crime and the preliminary crime, so I would personally deal with the target crime first. However, if it is clear that a defendant did not complete murder, and was not vicariously liable for the death of the victim, then all you may have is one of the preliminary crimes.

So, pick your strategy and then use it so you don't have to think about it when you are actually taking the exam.

In the next crimes session, we’ll talk about solicitation.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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