PastPaperHero | Homicide

Learning Outcomes

This article examines the felony murder rule within homicide law, including:

how malice aforethought is supplied by the intent to commit a qualifying predicate felony, even without intent to kill;
the requirements for a valid predicate felony, with emphasis on BARRK felonies, inherent dangerousness, and the merger/independent-felony limitation;
analysis of when a killing occurs “during” and “in furtherance of” the felony, using temporal scope, temporary safety, and actual and proximate causation principles;
comparison of majority agency theory and minority proximate cause theory for killings by victims, police, and third parties, and the operation of the Redline rule on the death of a co-felon;
rules governing accomplice and co-felon liability, including when personal-motive killings fall outside the common criminal plan;
recognition of common intervening-cause issues, foreseeable reactions by victims and police, and the eggshell-victim principle in exam fact patterns;
evaluation of defenses—such as duress, self-defense, mistake, intoxication, and insanity—that defeat the predicate felony and thereby bar felony murder liability;
strategies for distinguishing felony murder from other forms of murder, manslaughter, and misdemeanor manslaughter on MBE-style multiple-choice questions.

MBE Syllabus

For the MBE, you are required to understand the felony murder doctrine as a basis for establishing malice aforethought for murder, with a focus on the following syllabus points:

Defining the felony murder rule and its purpose within the broader scheme of common law and statutory murder.
Identifying dangerous felonies that typically qualify as predicates (especially the BARRK felonies).
Determining whether the predicate felony is independent of the killing (the “merger” or independent felony limitation).
Assessing whether the death was a natural and probable (foreseeable) result of the felony.
Analyzing temporal scope: whether the killing occurred during the commission, attempt, or immediate flight from the felony, and whether the felons had reached a place of temporary safety.
Applying actual and proximate causation principles, including intervening acts by victims, police, or third parties.
Evaluating liability rules for killings by co-felons versus non-felons (victims, police) and distinguishing the majority agency theory from the minority proximate cause theory.
Considering whether and how defenses to the predicate felony (e.g., duress, self-defense, mistake) affect felony murder liability.
Recognizing the relationship between felony murder, other forms of murder (intent-to-kill, serious-bodily-injury, depraved-heart), and manslaughter (especially misdemeanor manslaughter).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Under the felony murder rule, malice aforethought for murder is implied if a killing occurs during:
1. Any criminal act.
2. The commission or attempted commission of any felony.
3. The commission or attempted commission of a qualifying dangerous felony.
4. A misdemeanor that results in death.
Defendant and Accomplice rob a bank. During their escape, a police officer pursuing them accidentally shoots and kills an innocent bystander. Under the majority (agency) theory, can Defendant be convicted of felony murder for the bystander's death?
1. Yes, because the death occurred during the immediate flight from the felony.
2. Yes, because the death was a foreseeable consequence of the bank robbery.
3. No, because the killing was committed by a non-felon (the police officer).
4. No, because the bystander was not the intended victim of the robbery.
Which of the following felonies is LEAST likely to qualify as a "qualifying dangerous felony" for purposes of the felony murder rule in most jurisdictions?
1. Arson
2. Robbery
3. Burglary
4. Insurance Fraud

Introduction

The felony murder rule is a doctrine that assigns murder liability when a death occurs during the commission, attempted commission, or immediate flight from certain serious felonies. It functions by implying malice aforethought—the mental state required for common law murder—from the defendant’s intent to commit the predicate felony. As a result, a defendant may be convicted of murder even if there was no specific intent to kill, no intent to cause serious bodily harm, and even if the killing was accidental.

Key Term: Felony Murder
A rule imposing murder liability when a death occurs during the commission, attempted commission, or immediate flight from a qualifying felony. The intent to commit the felony supplies the malice aforethought necessary for murder.

Key Term: Malice Aforethought
The mental state for common law murder, satisfied by any of four states of mind: intent to kill, intent to cause serious bodily injury, extreme recklessness (depraved heart), or intent to commit a qualifying dangerous felony (felony murder).

In the traditional common law framework, felony murder is one of the four ways to establish malice aforethought (along with intent to kill, intent to inflict serious bodily injury, and depraved-heart recklessness). In many modern statutes, killings committed during enumerated felonies are classified as first-degree murder. Regardless of legislative labels, the core analytical issues on the MBE are: whether there was a qualifying predicate felony, whether the killing occurred during and in furtherance of that felony, and whether any limitations or defenses cut off felony murder liability.

On the MBE, fact patterns often highlight the harshness of the rule: a defendant may be treated as a murderer even if the death is entirely accidental or caused by a co-felon. The examiners frequently test whether you can see past the emotional reaction and methodically apply each element and limitation.

On exam questions, a systematic approach helps:

Identify whether the defendant was committing, attempting to commit, or fleeing from a serious felony, particularly one of the BARRK felonies.
Ask whether the death occurred during the felony, attempt, or immediate flight—before the felons reached temporary safety.
Examine who did the killing (felon, co-felon, victim, police, or third party) and which theory the jurisdiction follows (agency or proximate cause).
Check whether the alleged predicate felony is independent of the homicide or merges with it.
Consider whether any defense negates the predicate felony or the causal link to the death.

Key Term: BARRK Felonies
A traditional group of felonies treated as inherently dangerous to life—Burglary, Arson, Robbery, Rape, and Kidnapping—commonly used as predicate felonies for felony murder.

Worked Example 1.1

Defendant decides to burglarize Victim's home. While inside, Defendant accidentally knocks over a heavy lamp, which strikes and kills Victim, who was sleeping on the couch. Defendant had no intent to kill or injure Victim. Can Defendant be convicted of felony murder?

Answer:
Yes, in most jurisdictions. Burglary is a dangerous felony by its nature and is one of the classic BARRK felonies. The killing occurred during the commission of the burglary, and the burglary is independent of the homicide. The intent to commit the burglary supplies implied malice aforethought even though the killing was accidental. The risk of physical harm to occupants during an unlawful nighttime entry is a foreseeable consequence of burglary, satisfying proximate cause.

Elements of Felony Murder

For a defendant to be convicted under the felony murder rule, the prosecution generally must prove:

A valid predicate felony (completed or attempted).
A felony that qualifies as a dangerous felony for this doctrine or is otherwise enumerated by statute.
A felony that is independent of the killing (the “merger” or independent felony limitation).
A killing occurring during the commission, attempted commission, or immediate flight from the felony.
Actual and proximate causation between the felony and the death.

These requirements guard against turning every accidental death during unlawful conduct into murder. On MBE questions, one or more of these elements is usually contested or ambiguous; your task is to identify where the prosecution’s case is weakest.

The Predicate Felony

The state must prove beyond a reasonable doubt that the defendant committed, or at least attempted to commit, the predicate felony. If the defendant has a complete defense to the felony—such as lack of the required mens rea, self-defense, or duress—then the felony element of felony murder fails.

Key Term: Predicate Felony
The base felony (completed or attempted) from which malice is implied for felony murder.

Important points about the predicate felony:

Attempt is enough. The felony need not be completed. Once the conduct reaches the level of attempt (a substantial step under modern law), a death during that attempt can trigger felony murder.
Intent for the felony is required. The defendant must have the mens rea required for the felony itself. If they lack the specific intent element (for example, intent to permanently deprive for robbery or larceny), there is no predicate felony and thus no felony murder.
No merger with the predicate felony. The felony does not “merge” into the felony murder charge. A defendant may typically be convicted of both the predicate felony (e.g., robbery) and the felony murder based on that felony.
Defenses to the predicate felony matter. If the defendant successfully raises duress, necessity, or another defense to the felony, the predicate for felony murder disappears. For example, a person forced at gunpoint to participate in a robbery may have a duress defense to the robbery; without a valid predicate felony, felony murder liability does not attach, although other homicide theories might still be considered on the facts.
No “attempted felony murder.” At common law and in most jurisdictions, there is no separate crime of attempted felony murder, because felony murder already treats accidental deaths as murder. Without a death, the felony murder rule does not apply; the defendant may instead be liable for attempted murder or the predicate felony.

Qualifying Dangerous Felonies

Most jurisdictions limit felony murder to killings that occur during felonies recognized as dangerous for this doctrine or specifically enumerated in a statute. The classic common law list is remembered with the mnemonic BARRK.

Key Term: Qualifying Dangerous Felony
A felony that, by its nature or as defined by statute, carries a high risk of death or serious bodily injury and is therefore eligible to serve as the predicate offense for felony murder.

On the MBE, assume that the following are treated as dangerous felonies unless the question indicates otherwise:

Burglary
Arson
Robbery
Rape
Kidnapping

Some jurisdictions include additional felonies such as:

Major drug trafficking offenses.
Escape from lawful custody.
Certain explosives or firearm offenses.
Terrorism or aircraft hijacking.

Non-violent property or regulatory offenses like embezzlement, forgery, or insurance fraud typically do not qualify. If an answer choice treats a clearly non-dangerous felony as a valid predicate without the question specifying a special statute, that answer is usually wrong.

Key Term: Inherently Dangerous Felony
A felony that, by its very nature, cannot be committed without creating a substantial risk that someone will be killed (for example, armed robbery or arson of an occupied building).

Two approaches are used (you will occasionally see them described in MBE questions):

Abstract approach: The court looks to the felony “in the abstract,” examining the statute’s elements to see whether the crime can ordinarily be committed without risking human life. If the statute can be violated in a safe way, the felony may be deemed not inherently dangerous, even if the defendant in this case acted in a dangerous manner.
Fact-specific approach: The court looks at how the felony was actually carried out in the case. If the defendant’s particular conduct during the felony was dangerous to life, the felony can support felony murder.

The exam usually tells you whether a particular felony counts as a predicate. Unless the question explicitly raises this distinction, do not get lost in debating abstract versus fact-specific approaches; rely on whether the felony is clearly BARRK-like or clearly non-violent.

Felony Independent of the Killing (Merger Limitation)

The predicate felony must have a purpose independent of causing the fatal injury. Felonies that are simply different labels for the assaultive conduct that caused the victim’s death—such as aggravated assault or battery—generally cannot serve as predicate felonies for felony murder. This is often called the independent felony or “merger” limitation.

Key Term: Independent Felony (Merger Limitation)
The rule that the predicate felony for felony murder must be separate from and independent of the homicidal assault, to prevent bootstrapping every aggravated assault homicide into felony murder.

Policy rationale: if assaultive felonies could serve as the predicate, virtually every homicide could be recast as felony murder, making the specific malice requirements for murder meaningless and obliterating the distinction between murder and manslaughter.

Typical applications:

Using robbery (taking property by force) as the predicate for a killing during the robbery is permitted because robbery’s objective is theft, not simply injuring the victim.
Using burglary to steal property as the predicate for a killing during the burglary is permitted because the primary goal is unlawful entry and theft.
Using aggravated assault as the predicate for a killing that results from that very assault is not permitted; the assault merges with the homicide. Liability is evaluated under intent-to-kill, intent-to-cause-serious-bodily-injury, or depraved-heart murder doctrines instead.

Borderline situations sometimes appear on the exam:

Crimes like felony child abuse or felony domestic violence may look both assaultive and independent. Some jurisdictions treat them as merging felonies, while others (emphasizing the seriousness and repeated nature of the abuse) allow them as predicates. On the MBE, the facts or answer choices usually signal the correct approach.

Worked Example 1.2

Defendant punches Victim repeatedly with a metal pipe intending to seriously injure him. Victim dies from the blows. The jurisdiction defines aggravated assault as a felony. Can aggravated assault serve as the predicate felony for felony murder?

Answer:
No. Here, the alleged predicate felony (aggravated assault) is the very assaultive conduct that caused the victim’s death; it is not independent of the homicide. Under the merger limitation, assaultive felonies generally cannot be used as predicates for felony murder. Defendant may still be guilty of murder based on intent to inflict serious bodily injury or depraved-heart recklessness, but not felony murder.

Killing During the Felony

The killing must take place during the commission or attempted commission of the felony, or in the immediate flight from it. This involves both a temporal analysis (when the felony begins and ends) and a situational analysis (whether the killing is sufficiently connected to and in furtherance of the felony).

Temporal Scope and Temporary Safety

The felony is generally deemed to begin when the defendant’s conduct reaches the point of attempt and continues until the defendant has reached a place of temporary safety.

Key Term: Temporary Safety
A point at which felons have escaped immediate pursuit and reached a location where they are no longer actively fleeing from the crime scene; felony murder liability usually ends once temporary safety is achieved.

Key temporal rules:

The felony begins once the defendant has taken a substantial step toward committing the felony (attempt).
The felony continues through the actual commission and immediate escape or flight.
The felony ends when the felons have successfully escaped and reached temporary safety (for example, back home and no longer being pursued or actively in flight).

Indicators that the felons have reached temporary safety include:

They have left the scene and are no longer being pursued.
They have divided or hidden the proceeds of the crime.
They have returned to normal activities not connected with the crime or escape.

If a death occurs after the felons have clearly reached a place of safety, felony murder typically does not apply, although other homicide theories might.

Worked Example 1.3

Defendant and Accomplice rob a jewelry store at gunpoint and flee in a car. Ten minutes later, still fleeing and chased by police, Defendant runs a red light and kills a pedestrian. After successfully evading the police and arriving home, Defendant’s gun accidentally discharges while he is cleaning it hours later, killing a roommate. For which death(s) is felony murder most likely?

Answer:
The pedestrian’s death is likely felony murder. Defendant was still in immediate flight from the robbery and had not reached a place of temporary safety; the risky escape driving is a natural and probable consequence of an armed robbery. The roommate’s death occurs after Defendant has returned home and is no longer fleeing, so the robbery is complete. That later accidental killing is not felony murder, though it may support another homicide charge depending on the facts.

Causation

Felony murder requires that the felony be both the actual and proximate cause of the death.

Key Term: Actual Cause
A cause-in-fact requirement satisfied when, but for the defendant’s commission (or attempted commission) of the felony, the victim would not have died when and how they did.

Key Term: Proximate Cause
A legal causation requirement that limits liability to deaths that are a natural and probable (reasonably foreseeable) consequence of the defendant’s acts, not the result of highly unusual or independent intervening events.

Key Term: Natural and Probable Consequence
A result that ordinarily flows from the conduct in question—one that a reasonable person in the defendant’s position would foresee as likely to occur, even if the precise manner or victim is unexpected.

Actual cause (“but for” cause) is usually straightforward: but for the decision to commit or attempt the felony, the victim would not have been in the situation that led to the death.

Proximate cause is often the contested element. The death must be a natural and probable consequence of the felony—i.e., reasonably foreseeable, not the result of a highly extraordinary or remote intervening event.

Common causation patterns:

Deaths directly caused by the felons’ use of force (for example, shooting a clerk during a robbery) are almost always foreseeable.
Deaths during high-speed escapes (for example, collisions with pedestrians or other vehicles) are typically foreseeable.
Stress-related deaths (for example, a victim’s heart attack) may be foreseeable if the felony was particularly terrifying or violent, especially when the victim has a known vulnerability.
Medical negligence in treating felony-inflicted injuries usually does not break the chain unless it is grossly abnormal or the sole cause of death.

Intervening acts—such as medical malpractice, victim resistance, or actions by police—usually do not break the chain of causation if they are normal reactions to the dangers created by the felony. Only highly unusual, independent acts (for example, a freak natural disaster or intentional, unrelated attack by a third party completely independent of the felony) are likely to cut off liability.

The “eggshell victim” principle also applies: the defendant takes the victim as they find them. If a victim with a fragile health condition dies from stress or minor force that would not kill a healthy person, felony murder liability still may attach if the reaction is within the general type of harm risked by the felony.

Worked Example 1.4

During an armed robbery of a grocery store, Customer panics, runs toward the exit, slips, hits his head, and dies. Defendant never fires the gun or touches Customer. Does felony murder apply?

Answer:
Likely yes. Defendant’s armed robbery created a dangerous and chaotic situation. Customer’s panicked attempt to flee and accidental fall are typical, foreseeable reactions to an armed felony. The robbery is both a but-for cause and a proximate cause of the death, so felony murder liability is appropriate.

Liability of Co-Felons and Accomplices

Felony murder liability extends to all participants in the qualifying felony—principals and accomplices—when certain conditions are met.

General rule:

A felon is liable for a killing committed by a co-felon if:
- The killing is committed in furtherance of the felony, and
- The killing is a natural and probable result of committing the felony.

Killings in furtherance of the felony include:

Shooting a store clerk who reaches for a weapon during a robbery.
Killing a security guard to facilitate escape from a burglary.
Killing a witness to avoid immediate reporting of the crime.

Killings outside the felony’s scope:

If a co-felon acts from a personal motive unrelated to the felony (for example, shooting a personal enemy encountered during the robbery who posed no threat to the plan), other felons may not be liable for felony murder because the killing is not in furtherance of the common design.

Accomplice liability principles also matter. A person who intentionally aids, encourages, or facilitates the felony with the requisite mental state (often intent that the crime be committed) is treated as a co-felon for felony murder purposes. Mere presence at the scene or knowledge of the felony, without purposeful assistance, is not enough.

Withdrawal can limit liability:

If an accomplice effectively withdraws from the felony before it begins—by communicating their withdrawal to co-felons and taking reasonable steps to neutralize their prior assistance—they may avoid liability for subsequent felony murder.
Withdrawal after the felony has already started typically will not avoid liability for killings that occur while the felony is still ongoing.

Worked Example 1.5

A and B agree to rob a convenience store. During the robbery, A empties the cash register while B sees an old rival in the store and, acting on a personal grudge, shoots and kills the rival, who is unarmed and not interfering with the robbery. Is A liable for felony murder?

Answer:
In many jurisdictions, no. B’s killing was motivated by a personal vendetta and not in furtherance of the agreed-upon robbery. While A remains liable for robbery, the homicide may not be a natural and probable consequence of the planned felony from A’s standpoint. A could still face other charges (for example, conspiracy liability depending on jurisdiction), but felony murder liability is doubtful on these facts.

Limitations on Felony Murder Liability

Several important limitations narrow the scope of the felony murder rule on the exam. These limitations are heavily tested because they prevent automatic application of felony murder whenever a felony and a death appear in the same fact pattern.

Death of a Co-Felon (Redline Rule)

In most jurisdictions, the felony murder rule does not apply when the person killed is one of the co-felons and the fatal act is committed by a victim or by police officers resisting the felony or trying to apprehend the felons. This is often referred to as the Redline rule.

Key Term: Redline Rule
The majority rule that a surviving felon is not liable for felony murder when a non-felon (victim or police) kills a co-felon during the felony or immediate flight.

Rationale:

The killing of the co-felon by a victim or police is treated as a justifiable or excusable homicide.
Courts are reluctant to impute murder liability for the death of a person who is part of the criminal enterprise and whose killing is carried out by lawful resistance.

If one co-felon intentionally kills another co-felon (for example, over the division of loot) during the felony, the killer can be guilty of murder directly, but using the felony to impose felony murder for the death of the co-felon is disfavored under the Redline rule. The killer’s liability is better analyzed under intent-to-kill or serious-bodily-injury murder.

Worked Example 1.6

Defendant and Accomplice attempt an armed robbery of a bank. A security guard fires at them, killing Accomplice. Under the majority rule, can Defendant be convicted of felony murder for Accomplice’s death?

Answer:
No. Under the Redline rule, Defendant is not liable for felony murder when a non-felon (here, the security guard) kills a co-felon during the felony. The guard’s act is justified resistance to the robbery, and courts do not impose murder liability for the death of a co-felon in this scenario.

Killings by Non-Felons (Police or Victim)

Jurisdictions are split regarding felony murder liability when the fatal act is committed by someone other than the defendant or a co-felon, such as a police officer or the victim.

Key Term: Agency Theory
The majority rule that limits felony murder liability to killings committed by the defendant or an accomplice (an “agent”) acting in furtherance of the felony; killings by non-felons (victims, police, bystanders) do not qualify.

Key Term: Proximate Cause Theory
The minority rule that imposes felony murder liability for any death proximately resulting from the felony, regardless of whether the fatal act was committed by a felon or a non-felon, so long as the death is a foreseeable consequence of the felony.

Under the agency theory (majority):

The killing must be done by a felon or someone acting as the felons’ agent.
If a victim or police officer shoots and kills an innocent bystander while resisting the felony, the felons are not guilty of felony murder because the shooter is not their agent.
The victim’s or police officer’s death may still be felony murder if caused by a felon (for example, the felon shoots at the officer).

Under the proximate cause theory (minority):

The focus is on whether the felony set in motion a chain of events that proximately caused the death.
If a victim or police officer kills a bystander while responding to the felony, the felons can be guilty of felony murder because the death is a foreseeable consequence of committing a dangerous felony.
Some courts applying this theory have also imposed liability when a victim is used as a human shield and is killed by police gunfire, reasoning that placing the victim in harm’s way is part of the felons’ dangerous conduct.

On the MBE, the fact pattern or answer choices usually signal which theory applies. Always identify the shooter and ask whether that person is a felon, a co-felon, or a non-felon.

Worked Example 1.7

Defendant (D) and Accomplice (A) rob a convenience store. As they flee, a store clerk (C) fires a gun at them, misses, and accidentally kills Bystander (B). Assume robbery is a qualifying dangerous felony. Can D be convicted of felony murder for B's death?

Answer:
The result depends on the jurisdiction. Under the majority (agency) theory, D is not guilty of felony murder because the fatal shot was fired by C, who is not acting as D’s agent. Under the minority (proximate cause) theory, D may be guilty of felony murder because B’s death is a foreseeable consequence of initiating an armed robbery that predictably provokes gunfire, and the robbery is a proximate cause of the death.

Additional Limitations and Defenses

Beyond the Redline and agency/proximate cause issues, several other limitations and defenses frequently appear in MBE questions.

Felony ends before the killing. If the felony and immediate flight are clearly over (for example, the felon has reached temporary safety), a later death is not felony murder. The killing must occur during the felony or its immediate flight.
Felony not classified as dangerous or not enumerated. If the predicate felony is non-violent (for example, simple fraud or regulatory offenses) and the jurisdiction limits felony murder to dangerous or listed felonies, the doctrine does not apply.
Felony not in furtherance of the killing. Co-felons are not liable for killings that are clearly outside the scope of the planned felony and motivated by unrelated personal reasons, as illustrated in Worked Example 1.5.
Intervening causes. Highly abnormal intervening events—such as a third party’s independent, intentional crime unrelated to the felony—may break the chain of proximate cause and bar felony murder.

Defenses that negate the predicate felony are particularly significant.

Key Term: Misdemeanor Manslaughter
A form of involuntary manslaughter in which an unintentional killing occurs during the commission of a misdemeanor or a non-dangerous felony that does not qualify for felony murder, assuming actual and proximate causation.

Key defenses and their impact:

Duress. Duress is not a defense to intentional murder, but it can be a defense to the predicate felony in a felony murder case. If the defendant’s participation in the felony is excused by duress (for example, they were threatened with immediate serious bodily harm if they refused), felony murder liability is usually unavailable because there is no culpable predicate felony.
Self-defense. If the would-be “felon” was in fact lawfully defending herself and no crime was committed (for example, using reasonable non-deadly force against an aggressor), there is no predicate felony and felony murder cannot apply. Conversely, if the defendant’s use of force exceeds what is necessary, they might still be committing a felony assault, but the merger limitation may then prevent use of that assault as a predicate.
Mistake of fact or intoxication. Where such defenses negate the specific intent required for the predicate felony (for example, intent to steal for robbery or burglary), the predicate felony may fail. Without the intent to commit the felony, there is no felony murder, though a lesser homicide (such as manslaughter or depraved-heart murder) might still be possible.
Insanity or lack of capacity. If a defendant is legally insane at the time of the felony, the felony itself is not established, so felony murder cannot apply.

Relationship to other homicide doctrines:

If felony murder is unavailable (for example, because the felony is not classified as dangerous or merges with the homicide), the same facts may still support:
- Intent-to-kill murder.
- Intent-to-cause-serious-bodily-injury murder.
- Depraved-heart murder (extreme recklessness).
- Voluntary or involuntary manslaughter, depending on the mental state and circumstances.
If the predicate unlawful act is only a misdemeanor or a non-dangerous felony, but a death results, the prosecution may pursue misdemeanor manslaughter instead of felony murder.

Worked Example 1.8

A gang leader threatens to kill X unless X participates in an armed robbery. Terrified, X agrees. During the robbery, the leader fires a shot at the ceiling to scare customers, and a bullet fragment fatally injures a customer. X is charged with felony murder as an accomplice to the robbery. X raises duress as a defense. How does this affect felony murder liability?

Answer:
Duress is not a defense to intentional murder, but it can be a defense to the predicate felony of robbery. If the jury finds that X reasonably believed he faced an imminent threat of death or serious bodily harm unless he participated in the robbery, X may be acquitted of the robbery. Without a valid predicate felony as to X, felony murder liability for the customer’s death does not attach to him, even though the leader may still be guilty of felony murder.

Worked Example 1.9

Defendant commits a non-violent felony of insurance fraud by staging a fake car theft. Unknown to Defendant, an acquaintance decides to help by secretly burning the car so the damage will look convincing. The fire spreads to a nearby house and kills an occupant. Prosecutors charge Defendant with felony murder based on insurance fraud. Is felony murder appropriate?

Answer:
Probably not. Insurance fraud is not a qualifying dangerous felony in most jurisdictions; it does not inherently create a substantial risk of death, and it is typically not among enumerated predicates. Moreover, the acquaintance’s decision to commit arson is an independent, unforeseeable intervening act that goes beyond what Defendant planned. The proper analysis is whether Defendant is liable for fraud (and possibly for aiding or abetting the arson if he later ratified it), but felony murder is unlikely on these facts.

Worked Example 1.10

During a residential burglary, Burglar ties up the homeowner and leaves him on the floor while he ransacks the house. The homeowner suffers from severe heart disease. The stress of the incident triggers a heart attack, and the homeowner dies before medical help arrives. Burglar argues that he did not intend to hurt the homeowner and that the heart condition was an unforeseeable “eggshell” trait. Is felony murder available?

Answer:
Yes, in most jurisdictions. Burglary is a BARRK felony and thus a qualifying dangerous felony. The homeowner’s death from stress is a natural and probable consequence of a violent, terrorizing home invasion, even if Burglar did not know of the heart condition. The eggshell victim rule applies: a defendant takes the victim as they find them. The burglary is both the actual and proximate cause of death, so felony murder liability is appropriate.

Exam Warning

When analyzing felony murder on the MBE:

Identify who performed the fatal act. Under the majority agency theory, killings by non-felons (victims, police) do not create felony murder liability. Under the proximate cause theory, they may.
Ask whether the predicate felony is independent of the fatal assault or whether it merges. Assaultive felonies usually cannot serve as predicates.
Confirm that the killing occurred during the felony or immediate flight, before the felons reach temporary safety.
Evaluate causation, including intervening acts. Ordinary responses to the felony (flight, resistance, medical treatment) typically do not break the chain.
Consider whether any defense eliminates the predicate felony (duress, self-defense, mistake, insanity), thereby eliminating felony murder.
Distinguish felony murder from misdemeanor manslaughter when the predicate unlawful act is only a misdemeanor or non-dangerous felony.

Misidentifying the shooter, overlooking the merger limitation, or assuming that any death during a crime triggers felony murder are frequent sources of error in exam questions.

Key Point Checklist

This article has covered the following key knowledge points:

Felony murder is one of the four traditional ways to establish malice aforethought for murder.
The doctrine implies malice from the intent to commit a qualifying predicate felony, even where the killing is accidental.
The predicate felony must usually be a qualifying dangerous felony or one specifically enumerated by statute, commonly the BARRK felonies (Burglary, Arson, Robbery, Rape, Kidnapping).
Courts sometimes analyze whether a felony is “inherently dangerous” either in the abstract (by statutory elements) or as committed in the particular case.
The predicate felony must be independent of the homicide; assaultive felonies typically merge and cannot serve as the predicate.
The killing must occur during the commission, attempt, or immediate flight from the felony, before the felons reach temporary safety.
Actual and proximate causation must connect the felony to the death; the death must be a natural and probable (foreseeable) result of the felony, and ordinary reactions by victims or police usually do not break the chain.
All co-felons and accomplices can be liable for killings by other felons when the killing is in furtherance of the felony and a natural and probable consequence of the criminal plan.
Personal-motive killings by a co-felon, not in furtherance of the common design, may fall outside the felony murder rule for other participants.
Under the Redline rule, felons are generally not liable for the death of a co-felon killed by a victim or police officer resisting or responding to the felony.
Under the majority agency theory, felony murder requires that the killing be committed by a felon or an accomplice; killings by non-felons (victims, police, bystanders) do not qualify.
Under the minority proximate cause theory, felons may be liable for any death proximately resulting from the felony, regardless of who performs the fatal act, if the death is foreseeable.
Defenses that defeat the predicate felony (such as duress, self-defense, insanity, or lack of specific intent) usually eliminate felony murder liability, though other homicide charges may remain.
When the predicate unlawful act is only a misdemeanor or a non-dangerous felony, a resulting unintentional death may be prosecuted as misdemeanor manslaughter rather than felony murder.
Burglary and other predicate felonies do not merge into felony murder; a defendant may usually be convicted of both the felony and felony murder.

Key Terms and Concepts

Felony Murder
Malice Aforethought
Predicate Felony
Qualifying Dangerous Felony
BARRK Felonies
Inherently Dangerous Felony
Independent Felony (Merger Limitation)
Temporary Safety
Actual Cause
Proximate Cause
Natural and Probable Consequence
Agency Theory
Proximate Cause Theory
Redline Rule
Misdemeanor Manslaughter

Homicide - Felony murder