Felony Murder
A killing that occurs during the commission of (or flight from) a dangerous felony is murder, regardless of the actor’s intent to kill — the intent to commit the underlying felony substitutes for the malice required for murder.
Elements / Test
Elements:
- Commission of or attempt to commit a predicate felony (inherently dangerous)
- A killing occurred
- The killing occurred during the commission of or in flight from the felony (res gestae)
- The killing was in furtherance of the felony (agency approach) OR was caused by the felony (proximate cause approach)
Predicate felony — “inherently dangerous” test:
- Abstract test (CA): Felony is inherently dangerous if it cannot be committed without substantial risk of death
- As-committed test (other states): Consider whether this particular felony, as committed on the facts, involved substantial risk of death
Scope — who can be a victim:
- Agency rule (majority): Felony murder only applies when a co-felon causes the killing; killing by police/victim/third party does NOT trigger rule
- Proximate cause rule (minority): Any killing caused by the felon’s conduct — even if victim or third party does the actual killing
Exceptions and Edge Cases
- Merger doctrine: If the predicate felony is an integral part of the killing itself (assault, battery, child abuse), it “merges” with the homicide and cannot serve as the predicate; prevents every assault/battery that results in death from becoming first-degree murder
- Co-felon deaths: Some states allow felony murder when a co-felon is killed by police or victims; most do not (agency rule)
- MPC rejection: MPC creates only a rebuttable presumption of extreme recklessness (not strict liability) when death occurs during dangerous felonies (§ 210.2(1)(b))
- Degree: Most states make felony murder first-degree if the predicate is one of the enumerated violent felonies (BARKSS: burglary, arson, robbery, kidnapping, sexual assault, sodomy)
Policy Rationale
Deterrence — discourages commission of dangerous felonies by imposing murder liability for any resulting death. Critics: imposes strict liability for death; no culpability requirement; disproportionate; MPC position better reflects retributive principles.
Key Cases
| Case | Rule |
|---|---|
| People v. Ireland (Cal. 1969) | Merger doctrine — assault with a deadly weapon cannot be predicate for felony murder |
| People v. Washington | Agency rule — only killings by felons’ own hands trigger felony murder |
| Enmund v. Florida (1982) | 8th Amendment — death penalty for non-triggerman who did not intend death is disproportionate |
| Tison v. Arizona (1987) | Major participation + reckless indifference to human life satisfies 8th Amendment for death penalty |