Criminal Law

Death during the Commission of a Felony

By Janet Portman, Attorney
The felony murder rule elevates killings that occur during the commission of a felony to murders. Several limitations apply to this old and arguably unnecessary theory.

“A death that occurs during the commission or attempted commission of any felony constitutes murder” is the classic definition of the felony murder doctrine. This doctrine has been roundly criticized and narrowed by commentators and legislators, yet it still exists in some form or other in nearly all states. Modern statutes make it first-degree murder when the death occurs during very serious, specified felonies, such as rape, robbery, burglary, and arson. Deaths occurring during the commission of all other felonies become second-degree murder.

Unintentional Death

The rule applies whether the felon kills intentionally, recklessly, or even accidentally; and even when the death was unforeseeable. For example, a robber whose gun discharges by mistake, killing a bystander, can be charged with felony murder. And, a killing by a codefendant can be attributed to the defendant, as when one of two robbers kills a victim, then is himself killed– the surviving partner can be charged with felony murder.

As these examples illustrate, a perpetrator can end-up charged with murder in the most attenuated circumstances. The problem here is that normally, first-degree murder requires that the prosecutor prove that the defendant intended the death and had a state of mind called “malice.” Broadly speaking, malice is evidence of a “depraved heart,” or an evil state of mind. Prosecutors get around the malice requirement by arguing that the intention that propelled the underlying felony constituted “implied malice.”

The Rationale Behind the Felony Murder Rule

Several theories attempt to justify the felony murder rule, though they find little support in legal scholarship. The most common one is to claim that the felony murder rule deters crime. This theory argues that if would-be felons realized that they’ll face murder charges if an accidental death happens during the offense, these folks will re-think their crime plans (or at least commit their offenses more carefully). The trouble is, reason doesn’t support this argument (how does one deter an unintended act?). And, no empirical data supports this argument.

Limits on the Rule: All Felonies?

As noted earlier, modern laws differentiate between inherently dangerous, serious felonies, and all others. First-degree murder applies to deaths occurring in the former group, second-degree to those in the latter.

Some courts identify “inherently dangerous” crimes by analyzing them in the abstract, and asking whether by their very nature, there’s a substantial likelihood that a killing will result. Other courts examine the facts of the individual cases before them, and decide on a case-by-case basis whether, given the circumstances and the defendant’s conduct, the death should be considered first- or second-degree murder.

Limits on the Rule: No Bootstrapping

Courts in many states will not allow prosecutors to charge felony murder when the underlying felony is part of, or depends on, the killing. For example, imagine a husband who discovers his wife in bed with another person and, enraged, shoots that person. Normally, the husband would be guilty of voluntary manslaughter (an intentional killing done in the heat of passion), a felony. But because a death occurred during the commission of a felony (the manslaughter), might the prosecutor now charge murder? If that were allowed, the crime of voluntary manslaughter would disappear, which is not a result that the legislature or the courts intended.

Limits on the Rule: When Must the Death Occur?

The felony murder rule typically has a time and distance limit. The time period generally begins when the accused’s actions have progressed at least to the point where he could be charged with an attempt at the crime, and it lasts until the perpetrator has reached a place of apparent safety. So, for example, someone killed while the criminal makes his getaway would expose the criminal to the felony murder rule. Importantly, the time component is marked by when the killing occurs, not when death occurs. For example, felony murder could be charged when an elderly person is shot during the crime incident but lingers for ten days, long after the crime is over, before succumbing to her injuries. Her assailant could be charged with felony murder.

Limits on the Rule: When Non-Felons Kill

Targets of assaults, robberies, and other crimes very often fight back, sometimes with weapons and with resulting homicides. What role should the felony murder rule play when, for example, a victim shoots back and kills one of multiple assailants, or accidentally kills a bystander? May surviving assailants be charged under the felony murder rule for these deaths?

These deaths certainly occurred during the commission of a felony – but they did not occur in furtherance of it, which is the limiting consideration that many courts will apply to scenarios like this. Courts that adopt this approach will apply it to a killing committed by a policeman or a bystander, too, and will not allow a charge of felony murder. But notice that this limit applies only to non-felons. When an accomplice of the defendant does the killing, the killer is considered an agent of the defendant, who becomes responsible for the agent’s acts.

Questions for Your Attorney

  • My partner died when our meth lab blew up. Can I be charged with felony murder?
  • The friend to whom I loaned my car drove it while drunk and caused a fatal accident. Can I be charged with felony murder?
  • My husband was confronted by a drunk at a bar, who frightened him terribly. That night, he had a heart attack and died several days later. Can the drunk be charged with felony murder?

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