Homicide - Felony murder

Learning Outcomes

This article examines the Felony Murder rule within Homicide law. It details the elements required to establish felony murder, including the concept of implied malice, the types of qualifying felonies, causation requirements, and recognized limitations on the rule's application. After reading this article, you will be able to identify situations where the felony murder rule applies, distinguish it from other types of homicide, and analyze common defenses and limitations relevant to MBE-style questions.

MBE Syllabus

For the MBE, you are required to understand the felony murder doctrine as a basis for establishing malice aforethought for murder. This includes knowing its elements, limitations, and application in various factual scenarios. You should be prepared to:

  • Define the felony murder rule and its purpose.
  • Identify the inherently dangerous felonies that typically qualify (e.g., BARRK felonies).
  • Analyze whether the predicate felony is independent of the killing.
  • Determine if the death was a foreseeable result of the felony.
  • Assess causation issues, including when the killing occurs during the commission, attempt, or immediate flight from the felony.
  • Apply rules regarding the death of a co-felon.
  • Distinguish between the agency theory and proximate cause theory regarding liability for killings by non-felons (e.g., police, victims).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under the felony murder rule, malice aforethought for murder is implied if a killing occurs during:
    1. Any criminal act.
    2. The commission or attempted commission of any felony.
    3. The commission or attempted commission of an inherently dangerous felony.
    4. A misdemeanor that results in death.
  2. Defendant and Accomplice rob a bank. During their escape, a police officer pursuing them accidentally shoots and kills an innocent bystander. Under the majority (agency) theory, can Defendant be convicted of felony murder for the bystander's death?
    1. Yes, because the death occurred during the immediate flight from the felony.
    2. Yes, because the death was a foreseeable consequence of the bank robbery.
    3. No, because the killing was committed by a non-felon (the police officer).
    4. No, because the bystander was not the intended victim of the robbery.
  3. Which of the following felonies is LEAST likely to qualify as an "inherently dangerous felony" for purposes of the felony murder rule in most jurisdictions?
    1. Arson
    2. Robbery
    3. Burglary
    4. Insurance Fraud

Introduction

The felony murder rule is a legal doctrine that assigns criminal liability for murder when a death occurs during the commission, attempted commission, or immediate flight from certain serious felonies. It operates by implying malice aforethought, the mental state typically required for common law murder, from the defendant's intent to commit the predicate felony. This means a defendant can be convicted of murder even if they did not specifically intend to kill or cause serious bodily harm, and even if the killing was accidental.

The rule is controversial and its application varies by jurisdiction, but for the MBE, you must understand its core principles and common limitations. It typically applies only to felonies deemed "inherently dangerous."

Key Term: Felony Murder A rule imposing murder liability on a defendant if a death occurs during the commission, attempted commission, or immediate flight from an inherently dangerous felony. Malice aforethought is implied from the intent to commit the felony.

Elements of Felony Murder

For a defendant to be convicted under the felony murder rule, the prosecution generally must prove:

  1. A Valid Predicate Felony: The defendant must have committed or attempted to commit a predicate felony.
  2. Inherently Dangerous Felony: The felony must typically be classified as inherently dangerous (often referred to as BARRK felonies: Burglary, Arson, Rape, Robbery, Kidnapping).
  3. Felony Independent of the Killing: The purpose of the predicate felony must be independent of the homicide.
  4. Killing During Felony: The killing must take place during the commission or attempted commission of the felony, or in the immediate flight therefrom.
  5. Causation: The felony must be the legal cause (both actual and proximate) of the death.

The Predicate Felony

The prosecution must prove beyond a reasonable doubt that the defendant committed (or attempted to commit) the predicate felony. If the defendant has a valid defense to the predicate felony (e.g., lack of intent), this negates an essential element of felony murder.

Inherently Dangerous Felonies

Most jurisdictions limit the felony murder rule to killings that occur during felonies recognized as "inherently dangerous" or "forcible." While specific lists vary, the most commonly included felonies are Burglary, Arson, Rape, Robbery, and Kidnapping (often remembered by the mnemonic BARRK). Other felonies involving a foreseeable risk of serious physical harm may also qualify depending on the jurisdiction.

Key Term: Inherently Dangerous Felony A felony considered by its nature to involve a high risk of death or serious bodily injury, commonly required as the predicate offense for the felony murder rule (e.g., BARRK felonies).

Felony Independent of the Killing

The felony must have a purpose independent of causing the injury or death. Felonies such as assault or battery often cannot serve as the predicate felony because the assaultive conduct is the act that causes death. This limitation prevents bootstrapping lesser homicide charges (like manslaughter based on assault) into murder via the felony murder rule.

Killing During the Felony

The killing must occur during the commission of the felony, an attempt to commit the felony, or the immediate flight from the felony.

  • Temporal Scope: The felony is generally deemed to start when the defendant could be convicted of attempt and continues until the defendant reaches a place of "temporary safety." Deaths caused after the felon has reached temporary safety are typically not felony murder.
  • Causation: The felony must be the "but for" cause (actual cause) and the proximate cause (legal cause) of the death. The death must be a foreseeable result of committing the felony.

Worked Example 1.1

Defendant decides to burglarize Victim's home. While inside, Defendant accidentally knocks over a heavy lamp, which strikes and kills Victim, who was sleeping on the couch. Defendant had no intent to kill or injure Victim. Can Defendant be convicted of felony murder?

Answer: Yes, likely. Burglary is an inherently dangerous felony (BARRK). The killing occurred during the commission of the burglary. The intent to commit the burglary supplies the implied malice aforethought for murder, even though the killing was accidental. The death was a foreseeable result of the dangerous felony of burglary (e.g., confronting an occupant).

Limitations on Felony Murder Liability

Several important limitations restrict the scope of the felony murder rule.

Death of a Co-Felon

In most jurisdictions, the felony murder rule does not apply if the person killed is one of the co-felons, and the killing is committed by the victim or by police officers attempting to prevent the felony or apprehend the felons. The rationale is that the co-felon's death is considered a justifiable homicide by the victim or police, and liability should not extend to the surviving felons.

Killings by Non-Felons (Police or Victim)

Jurisdictions are split regarding felony murder liability when the fatal shot or act is performed by someone other than the defendant or a co-felon (e.g., by a police officer or the felony victim).

  • Agency Theory (Majority Rule): The killing must be committed by one of the felons or their "agents" (accomplices). If the killing is committed by the victim resisting the felony or by police officers attempting to apprehend the felons, the defendants are not liable for felony murder.
  • Proximate Cause Theory (Minority Rule): Under this view, the felons are liable for deaths caused by anyone during the commission of the felony, provided the death is a direct and foreseeable consequence (proximate result) of the felony. The identity of the shooter (felon, police, victim) is irrelevant.

Key Term: Agency Theory The majority rule limiting felony murder liability to killings committed by the defendant or an accomplice (agent) acting in furtherance of the principal felony. Killings by police or victims do not qualify.

Key Term: Proximate Cause Theory The minority rule extending felony murder liability to any death proximately resulting from the felony, regardless of whether the fatal act was committed by the defendant, an accomplice, police, or the victim.

Worked Example 1.2

Defendant (D) and Accomplice (A) rob a convenience store. As they flee, a store clerk (C) fires a gun at them, misses, and accidentally kills Bystander (B). Assume robbery is an inherently dangerous felony. Can D be convicted of felony murder for B's death?

Answer: It depends on the jurisdiction's approach.

  • Under the majority (agency) theory, D would not be guilty of felony murder. The fatal shot was fired by C, the clerk, who is not D's agent.
  • Under the minority (proximate cause) theory, D could be guilty of felony murder. B's death was arguably a direct and foreseeable consequence of the inherently dangerous felony of robbery initiated by D and A.

Exam Warning

Pay close attention to who committed the fatal act. If committed by a non-felon (police officer, victim), the defendant is generally NOT liable for felony murder under the majority agency theory. However, if the jurisdiction follows the proximate cause theory (which the MBE question would likely specify), liability could attach.

Key Point Checklist

This article has covered the following key knowledge points:

  • Felony murder implies malice aforethought from the intent to commit a predicate inherently dangerous felony.
  • The predicate felony must typically be inherently dangerous (e.g., BARRK: Burglary, Arson, Rape, Robbery, Kidnapping).
  • The felony must be independent of the killing itself.
  • The death must occur during the commission, attempt, or immediate flight from the felony.
  • The felony must be the actual and proximate cause of the death.
  • Defendants are generally not liable for the death of a co-felon killed by police or the victim.
  • Under the majority agency theory, defendants are not liable for killings committed by non-felons (police, victims).
  • Under the minority proximate cause theory, defendants may be liable for killings committed by non-felons if the death is a foreseeable result of the felony.

Key Terms and Concepts

  • Felony Murder
  • Inherently Dangerous Felony
  • Agency Theory
  • Proximate Cause Theory
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