Felony murder rule
Encyclopedia
The rule of felony murder is a legal doctrine
in some common law
jurisdictions that broadens the crime of murder
in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony
, what might have been manslaughter
is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.
According to some commentators, the common law
rule dates to the twelfth century and took its modern form in the eighteenth century. Critics of the rule argue that the rule is unjust because it requires no intent to kill. In favor of the rule it can be argued that the rule affirms for principle of the sanctity of human life by imposing harsher penalties for crimes that destroy human life.
The rule has been abolished in England and Wales
and in Northern Ireland
. In some jurisdictions (such as Victoria, Australia), the common law felony murder rule has been abolished, but has been replaced by a similar statutory provision.
, which is older than the limit of legal memory. In its original form, the malicious intent inherent in the commission of any crime, however trivial, was considered to apply to any consequences of that crime, however unintended. Thus, in a classic example, a poacher
shoots his arrow at a deer, and hits a boy who was hiding in the bushes. Although he intended no harm to the boy, and did not even suspect his presence, the mens rea
of the poaching is transferred to the actus reus
of the killing.
Some commentators regard this as a legal fiction
whereby the law pretends that the person who intended one wrongful act, also intends all the consequences of that act, however unforeseen. Others regard it as an example of strict liability
, whereby a person who chooses to commit a crime is considered absolutely responsible for all the possible consequences of that action. Lord Mustill regards the historical rule as a convergence of these views.
check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder. Furthermore, the merger doctrine
excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault
, but so do many cases of manslaughter
. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.
To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States
explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery
, rape
or forcible deviant sexual intercourse, arson
, burglary
, and felonious escape. Federal
law specifies additional crimes, including terrorism
, kidnapping
, and carjacking
.
There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause
tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death.
Felony murder is typically the same grade of murder as premeditated murder. In many jurisdictions, felony murder is a crime for which the death penalty can be imposed, provided that the defendant himself killed, attempted to kill, or intended to kill. For example, three people conspired to commit armed robbery. Two of them went in to the house and committed the robbery, and in the process killed the occupants of the house. The third person sat outside in the getaway car, and he was later convicted of felony murder. But because he himself neither killed, attempted to kill, nor intended to kill, he cannot be executed even though he is guilty of felony murder.
by section 4 of the Criminal Justice Act 1964 which codified the mens rea
for murder
as intention to kill or seriously injure another person.
The rule was abolished in England and Wales
by section 1 of the Homicide Act 1957
, and in Northern Ireland
by section 8 of the Criminal Justice Act (Northern Ireland) 1966; but its effect is partly preserved by changes in the law concerning murder. In England and Wales, the definition of murder requires only an intent to cause grievous bodily harm to the victim, rather than specific intent to kill; the effect is the same as that of the felony murder rule applied to crimes of personal violence, though not to all felonies.
Scotland -
There is no equivalent to the felony murder rule in Scots Law
which has also never had a specific concept of felonies in the previous style of English Law.
have a felony murder rule,
under which felony murder is generally first degree murder. In 24 of those states, it is a capital offense. When the government seeks to impose the death penalty on someone convicted of felony murder
, the Eighth Amendment
has been interpreted so as to impose additional limitations on the state power. The death penalty may not be imposed if the defendant is merely a minor participant
and did not actually kill or intend to kill. However, the death penalty may be imposed if the defendant is a major participant
in the underlying felony and "exhibits extreme indifference to human life".
The Model Penal Code
does not include the felony murder rule, but allows the commission of a felony to raise a presumption of extreme indifference to the value of human life. Thus, the felony murder rule is effectively used as a rule of evidence
.
Most states recognize the merger doctrine, which holds that a criminal assault
cannot serve as the predicate felony for the felony murder rule.
By individual jurisdiction
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
in some common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions that broadens the crime of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
, what might have been manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.
According to some commentators, the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule dates to the twelfth century and took its modern form in the eighteenth century. Critics of the rule argue that the rule is unjust because it requires no intent to kill. In favor of the rule it can be argued that the rule affirms for principle of the sanctity of human life by imposing harsher penalties for crimes that destroy human life.
The rule has been abolished in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. In some jurisdictions (such as Victoria, Australia), the common law felony murder rule has been abolished, but has been replaced by a similar statutory provision.
Origin
The concept of felony murder originates in the rule of transferred intentTransferred intent
Transferred intent describes the fact that intent can be transferred between victims, between torts, or both. In tort law, there are generally five areas in which transferred intent is applicable: battery, assault, false imprisonment, trespass to land, and trespass to chattels...
, which is older than the limit of legal memory. In its original form, the malicious intent inherent in the commission of any crime, however trivial, was considered to apply to any consequences of that crime, however unintended. Thus, in a classic example, a poacher
Poaching
Poaching is the illegal taking of wild plants or animals contrary to local and international conservation and wildlife management laws. Violations of hunting laws and regulations are normally punishable by law and, collectively, such violations are known as poaching.It may be illegal and in...
shoots his arrow at a deer, and hits a boy who was hiding in the bushes. Although he intended no harm to the boy, and did not even suspect his presence, the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
of the poaching is transferred to the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of the killing.
Some commentators regard this as a legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
whereby the law pretends that the person who intended one wrongful act, also intends all the consequences of that act, however unforeseen. Others regard it as an example of strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
, whereby a person who chooses to commit a crime is considered absolutely responsible for all the possible consequences of that action. Lord Mustill regards the historical rule as a convergence of these views.
Description
In reality, situations are not as simple as the above summary suggests. Not all felonies will apply in most jurisdictions. To "qualify" for felony murder, the underlying felony must present a foreseeable danger to life, and the link between the felony and the death must not be too remote. If the receiver of a forgedForgery
Forgery is the process of making, adapting, or imitating objects, statistics, or documents with the intent to deceive. Copies, studio replicas, and reproductions are not considered forgeries, though they may later become forgeries through knowing and willful misrepresentations. Forging money or...
check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder. Furthermore, the merger doctrine
Lesser included offense
A lesser included offense, in criminal law, is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime....
excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
, but so do many cases of manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another.
To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
, rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
or forcible deviant sexual intercourse, arson
Arson
Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
, burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
, and felonious escape. Federal
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
law specifies additional crimes, including terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
, kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
, and carjacking
Carjacking
Carjacking is a form of hijacking, where the crime is of stealing a motor vehicle and so also armed assault when the vehicle is occupied. Historically, such as in the rash of semi-trailer truck hijackings during the 1960s, the general term hijacking was used for that type of vehicle abduction,...
.
There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death.
Felony murder is typically the same grade of murder as premeditated murder. In many jurisdictions, felony murder is a crime for which the death penalty can be imposed, provided that the defendant himself killed, attempted to kill, or intended to kill. For example, three people conspired to commit armed robbery. Two of them went in to the house and committed the robbery, and in the process killed the occupants of the house. The third person sat outside in the getaway car, and he was later convicted of felony murder. But because he himself neither killed, attempted to kill, nor intended to kill, he cannot be executed even though he is guilty of felony murder.
Ireland
The rule was abolished in the Republic of IrelandRepublic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
by section 4 of the Criminal Justice Act 1964 which codified the mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
for murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
as intention to kill or seriously injure another person.
United Kingdom
England and Wales, Northern Ireland -The rule was abolished in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
by section 1 of the Homicide Act 1957
Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
, and in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
by section 8 of the Criminal Justice Act (Northern Ireland) 1966; but its effect is partly preserved by changes in the law concerning murder. In England and Wales, the definition of murder requires only an intent to cause grievous bodily harm to the victim, rather than specific intent to kill; the effect is the same as that of the felony murder rule applied to crimes of personal violence, though not to all felonies.
Scotland -
There is no equivalent to the felony murder rule in Scots Law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
which has also never had a specific concept of felonies in the previous style of English Law.
United States
, 46 states in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
have a felony murder rule,
under which felony murder is generally first degree murder. In 24 of those states, it is a capital offense. When the government seeks to impose the death penalty on someone convicted of felony murder
Felony Murder and the Death Penalty
The Eighth Amendment to the United States Constitution does not prohibit imposing the death penalty for felony murder. The Supreme Court of the United States has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v...
, the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
has been interpreted so as to impose additional limitations on the state power. The death penalty may not be imposed if the defendant is merely a minor participant
Enmund v. Florida
Enmund v. Florida, , is a United States Supreme Court case was a 5-4 decision in which the United States Supreme Court applied its capital proportionality principle to set aside the death penalty for the driver of a getaway car in a robbery-murder of an elderly Florida couple.-Background:While...
and did not actually kill or intend to kill. However, the death penalty may be imposed if the defendant is a major participant
Tison v. Arizona
Tison v. Arizona, like Enmund v. Florida, was a 5-4 decision in which the United States Supreme Court qualified the rule it set forth in Enmund...
in the underlying felony and "exhibits extreme indifference to human life".
The Model Penal Code
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...
does not include the felony murder rule, but allows the commission of a felony to raise a presumption of extreme indifference to the value of human life. Thus, the felony murder rule is effectively used as a rule of evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
.
Most states recognize the merger doctrine, which holds that a criminal assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
cannot serve as the predicate felony for the felony murder rule.
By individual jurisdiction
|
Felony murder rule (Hawaii) In the state of Hawaii, the common law felony murder rule has been completely abolished.-Hawaii Revised Statutes §707-701:In Hawaii Revised States §707-701, the Hawaii State Legislature noted the critical history of the felony murder rule and the severe limitation of it in the Model Penal Code... Felony murder rule (Kansas) In the state of Kansas, the common law felony murder rule has been codified in K.S.A. 21-3401. The statute defines first degree murder as, among other things, homicide in the commission of, attempt to commit, or escape from an inherently dangerous felony. Inherently dangerous felonies are defined... Felony murder rule (Kentucky) In the state of Kentucky, the common law felony murder rule has been completely abolished.-KRS § 507.020:The Kentucky Legislature abolished the felony murder rule with the enactment of Kentucky Revised Statutes § 507.020... |
Felony murder rule (Michigan) The felony murder rule was abolished in the state of Michigan by the 1980 decision People v. Aaron. The court reasoned that the commission of a felony should only be used as a grading factor between first and second degree murder, and not something that could independently make an offense... Felony murder rule (New Hampshire) In the state of New Hampshire, the common law formulation of the felony murder rule has been replaced by the Model Penal Code's formulation of the rule.... |
Felony murder rule (New Mexico) In the state of New Mexico, the common law felony murder rule is codified in N.M. Stat. Ann. § 30-2-1.-Judicial interpretations:The rule was narrowed in State v. Ortega, where the court held that the perpetrator must have the same mens rea as one who commits murder.... Felony murder rule (New York) In the state of New York, the common law felony murder rule has been codified in New York Penal Code § 125.25. The New York version of the rule provides that a death occurring during the commission of a felony becomes second degree murder.... Felony murder rule (Oregon) In the state of Oregon, the common law felony murder rule has been codified in Oregon Revised Statutes § 163.115.-Murder:Under § 163.115, anyone in a group or alone that commits or attempts to commit a predicate felony, and in furtherance of the crime or in the immediate flight therefrom causes the... Felony murder rule (Pennsylvania) Pennsylvania was the first state to differentiate the crime of "murder" into degrees based upon the culpability of the perpetrator. See, e.g. , Criminal Law: Cases and Materials 231-32 Pennsylvania was the first state to differentiate the crime of "murder" into degrees based upon the culpability... |
Felony murder rule (Texas) Texas' felony murder rule, known as the law of parties, is a variation on the common law felony murder rule. Codified in Texas Penal Code § 7.02, the law states that a person can be criminally responsible for the actions of another if he or she aids and abets, or conspires with the principal... Felony murder rule (Wisconsin) In Wisconsin, the felony murder rule is found in Wis. Stat. Sec. 940.03 and was last revised in 2005. Generally, the statute applies to dangerous felonies, felonies that have a propensity to cause great bodily harm, or those that involve a dangerous weapon or even a facade of a weapon... |
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External links
- New York Times on the felony murder rule as "a distinctively American legal doctrine"
- CBS News story on the felony murder rule in California (Brandon Hein case)
- Prisons Foundation objections to the rule
- Arizona Supreme Court on the rule and the death penalty
- The case of Lisl Auman of Colorado, charged with felony murder for a killing that took place during an ongoing crime for which she was already in custody Jeff Kass, Rocky Mountain News March 18, 2001; "Lawyers debate centuries-old legal concept."