Homicide: felony murder

Question 1

Definition

Answer 1

Felony murder is an unintended killing:

• proximately caused by and
• during the commission or attempted commission of

an inherently dangerous felony.

Question 2

Inherently dangerous felony

Answer 2

The dangerous felony must be independent of the killing itself for felony murder to apply—i.e., an aggravated assault that results in death is not felony murder.

The felonies that qualify as inherently dangerous for purposes of felony murder are:

• Burglary;
• Arson;
• Robbery;
• Rape; and
• Arson.

If the death is caused by another felony, misdemeanor manslaughter applies in lieu of felony murder.

Question 3

Inherently dangerous felony: causation

Answer 3

The death must be a foreseeable result or a natural and probable consequence of the felony, caused by the defendant or a co-felon.

Question 4

Agency theory

Answer 4

Most states apply the agency theory when a bystander is killed:

(1) in a justifiable homicide—e.g., when a police officer or victim acts in self-defense or to prevent escape; or
(2) by someone else who is not one of the co-felons.

Under this theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon’s agent (“Redline doctrine”).

Question 5

Merger

Answer 5

The underlying felony merges into the felony-murder conviction.

Question 6

Proximate cause theory

Answer 6

The proximate-cause theory is not the majority rule.

Under the proximate-cause theory, liability may also attach when the death is a direct consequence of the felony, regardless of whether the death was caused by the defendant’s agent.

Question 7

Misdemeanor manslaughter

Answer 7

Under the misdemeanor-manslaughter rule, a killing committed in the commission of a “malum in se” (wrong in itself) misdemeanor is involuntary manslaughter.