572: Listen and Learn -- Felony Murder and Causation (Criminal Law)

So, let's start with the felony murder rule.

At its core, the felony murder rule states that a death occurring during the commission of certain felonies can be charged as murder even if the defendant did not intend to kill the victim.

Like murder, felony murder is one, the unlawful killing, two, of a person, three, with malice aforethought.

The distinction lies in what malice aforethought means.

For felony murder, it means the defendant had the intent to commit an inherently dangerous felony and that felony resulted in death.

This means that even if the defendant never intended to kill anyone, they can be convicted of a murder if a death occurs while they committed a felony, provided the defendant meant to commit those felonies.

You might be wondering, which felonies qualify? Depending on the jurisdiction, there are different ways of analyzing this.

Some use a list of enumerated felonies while others consider whether a felony is inherently dangerous.

The enumerated felony approach means the felonies that may be charged as felony murder are listed or enumerated.

The traditional enumerated felonies are burglary, arson, robbery, rape, and kidnapping, sometimes called the BARK felonies, B-A-R-R-K, to help you remember them.

Some jurisdictions add additional crimes like drug trafficking or carjacking to this list.

Under the inherently dangerous felony approach, on the other hand, courts look at whether the underlying felony is inherently dangerous to human life.

There are two major approaches that jurisdictions use to determine if the crime was an inherently dangerous felony.

First and most common, the facts of the case rule.

In this rule, jurisdictions examine the particular facts of the case to determine whether the felony was inherently dangerous.

The second and less common approach is the in the abstract rule, which means the jurisdictions consider only the elements of the underlying crime in the abstract and ignoring the specific facts of the case.

This approach focuses on the elements of the crime itself, not the particular facts of how the defendant committed it.

For example, manufacturing illegal drugs might qualify because the process is inherently dangerous, while theft typically would not because it is not a threat to life.

Now, let's throw in one more twist.

The merger doctrine puts an important limitation on felony murder.

Under the merger doctrine, the underlying felony must be independent of the homicide itself.

In other words, if the felony is simply the means of committing the homicide, it merges with the homicide or becomes one act and cannot serve as the predicate felony for felony murder.

For example, assault cannot serve as the predicate felony for felony murder because assault is typically part of the conduct that causes death.

Let's also talk about the death of a co-felon rule.

Jurisdictions are split on whether the felony murder rule applies when the person killed is one of the people involved in the felony.