Felony Murder

Felony Murder Rule: a death caused during the commission of (or immediate flight from) a qualifying felony is murder—no separate mens rea as to the killing is required beyond the intent to commit the underlying felony.

Limitations on Felony Murder

  • Limited predicate felonies (universal): typically rape, robbery, arson, burglary, kidnapping (the "BARRK" felonies).
  • Causation (universal): both but-for AND proximate cause.
  • Who is the killer (jurx. split):
    • Agency theory (majority): only when ∆ or accomplice directly causes the death.
    • Proximate cause theory (minority): foreseeable death by anyone, including police or victims.
  • Protected persons (jurx. split):
    • Some: only when innocent person killed.
    • Others: felon vs. felon also covered.
  • Temporal Scope: jury question whether killing occurred during the felony or during immediate flight, OR after ∆ reached "place of temporary safety."
    • Factors: physical distance, time interval, possession of fruits, police pursuit.
    • See People v. Portillo.
  • Causal connection between the felony and the act resulting in death.
  • Merger doctrine: the underlying felony cannot be one that "merges" with the killing (e.g., assault), or felony murder would swallow most homicides.

Mens Rea

  • CL Felony Murder: NO additional mens rea required beyond intent to commit the felony. See State v. Blair, 228 P.3d 564 (2010).
  • MPC § 210.2: rebuttable presumption of extreme recklessness when homicide occurs during enumerated felonies.

Cases: