TUTORIAL #3 Felony Murder &Causation

FELONY MURDER  General Rule: If death occurs during commission of felony = murder If death occurs during commission of felony = murder Special felonies (BARKRM) = M1Special felonies (BARKRM) = M1 All other qualifying felonies = M2All other qualifying felonies = M2  Note: Felony murder is a substitute for malice Felony murder is a substitute for malice Use felony murder after you apply traditional intent approach Use felony murder after you apply traditional intent approach

RATIONALE FOR FELONY MURDER RULE  Historical  Already up to no good  Want felons to be extra careful

CRITICISMS OF FELONY MURDER RULE  Legal fiction  All felonies are no longer punishable by death  Bad luck principle  If want to deter, increase penalty for all felonies

Limitations on Felony Murder Rule  “Inherently Dangerous” felony (FM2)  Independent felony (FM2)  During the course of and in furtherance of the felony (All FM)

Limitation #1 Inherently Dangerous Felony  In abstract[Phillips; Satchell] High probability of death when commission of felony? High probability of death when commission of felony?  As applied [Stewart] Was this felony dangerous as committed? Was this felony dangerous as committed?

Limitation #2 Independent Felony (i.e., “merger rule”)  Is the felony an integral step toward killing someone? Look at definition of felony Look at definition of felony Does it already require proof of malice (“under circumstances likely to cause grievous bodily harm”) [Smith] Does it already require proof of malice (“under circumstances likely to cause grievous bodily harm”) [Smith] Is there a separate purpose in committing felony? (e.g., robbery, arson] Is there a separate purpose in committing felony? (e.g., robbery, arson]

Limitation #3 “During the course of and in furtherance of the felony”  During course of felony Planning  Escape Planning  Escape  In furtherance of felony Agency theory Agency theory Proximate cause theory Proximate cause theory Provocative Act / Vicarious liability doctrine Provocative Act / Vicarious liability doctrine

HYPO #1  Intent Approach to Homicide M1 – Premeditation? M2 – Intent to kill, cause GBH, gross recklessness? VM – Heat of Passion? Inv. M – Gross Negligence / Recklessness

Felony Murder Approach  Identify underlying felony Insurance fraud Insurance fraud Arson Arson  General Rule  Limitations Inherently dangerous? Inherently dangerous? Independent? Independent? During course of and in furtherance? During course of and in furtherance?

MISDEMEANOR MANSLAUGHTER  General Rule: Death occurring during commission of non-felony = Inv. Mansl  Limitations: Dangerous Dangerous Malum per se Malum per se Proximately related Proximately related

CAUSATION  A.R. + M.R. =======  Result

Transferred Intent  Intent transfers to victim who is harmed  Issue? Punished for harm intended or harm caused?

CAUSATION  But for / Actual Cause Link in chain of causation Link in chain of causation  Proximate cause / Legal Cause “Sufficiently direct” cause “Sufficiently direct” cause

BUT FOR CAUSE [Acosta]  Need not be only cause  Need not be last cause  Any link in chain of causation

PROXIMATE CAUSE  Harm foreseeable? (obj.) Manner doesn’t have to be foreseeable (e.g., Kibbe) Manner doesn’t have to be foreseeable (e.g., Kibbe)  Intervening Act? (Superseding?) Act foreseeable? Act foreseeable? Who could best control? Who could best control? Who do we want to punish? (policy) Who do we want to punish? (policy)

Intervening Acts  Acts of Nature Routine – Don’t break chain Routine – Don’t break chain Extraordinary – Superseding Extraordinary – Superseding

Intervening Acts  Acts by Another Person Victims Victims Conditions – Don’t break chainConditions – Don’t break chain Acts -- Depends on who had controlActs -- Depends on who had control Medical Care Medical Care Ordinary neglect – Doesn’t break chainOrdinary neglect – Doesn’t break chain Gross neglect/ intentional maltreatment -- supersedingGross neglect/ intentional maltreatment -- superseding

Intervening Acts  Additional Perpetrator Related -- Doesn’t break chain Related -- Doesn’t break chain Unrelated -- May be “independent,” intervening act Unrelated -- May be “independent,” intervening act

Complentary Human Action [Joint enterprise]  Drag racers  Russian roulette  “Mutual encouragement”

Hypo #2 [Death of Jack]  A.R.  M.R. M1 M1 M2 M2 VM VM Inv M Inv M  Felony-murder Inherently dangerous Inherently dangerous Independent Independent During course of During course of  Causation But for But for Proximate cause Proximate cause

HYPO #2 [Death of Jill]  A.R.  M.R.  Causation But for Proximate cause Intervening Acts Car not starting? Hans negligent driving? Foreseeable? Who want to blame?