crim2 nov 2

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Felony murder rule

D is guilty of murder if a death results from D's conduct while committing or attempting a felony, even with no intent to kill

Felony murder: does the killing need to be intentional?

No. It covers intentional, knowing, reckless, negligent, and even accidental killings

BRAKERS

The enumerated felonies for felony murder: Burglary, Robbery, Arson, Kidnapping, Escape, Rape, Sex offenses

Felony murder: what replaces the intent to kill?

The intent to commit the underlying felony

Intentional murder, 2nd degree (NYPL 125.25)

With intent to cause the death of a person, D causes the death of that person or a third person

Felony murder: which mens rea does it eliminate?

Only the mens rea as to the death. Everything about the underlying felony must still be proven

Felony murder: 3 things the prosecution still must prove

(1) D committed the act of the underlying felony (2) D had the mens rea for that felony (3) the felony caused the death

Felony murder: first way to understand it

Any act done with intent to commit a felony that causes death is murder

Felony murder: second way to understand it

Any act known to be dangerous to life and likely to cause death, done to commit a felony, that causes death is murder

4 components of criminal liability

Actus reus, mens rea, causation, result

Causation: 2 requirements

Actual cause and legal (proximate) cause

Actual cause

But for D's act, would the result have happened when it did? Necessary but not enough on its own

Legal (proximate) cause

The result was foreseeable and not highly extraordinary

Intervening cause

Anything that happens after D's act but before the result

Superseding cause

An intervening cause strong enough to break the chain. D is no longer the proximate cause and is not liable

Proximate cause: D's contribution was de minimis

No proximate cause

Proximate cause: the intervening cause was a response to D's conduct

Probably still proximate cause

Proximate cause: the intervening cause was independent of D's conduct

Depends on whether it was foreseeable

Proximate cause: D's intended result happened in an unexpected way

Still proximate cause

Proximate cause: a natural event or accident intervenes

Was it so highly extraordinary that D's act is no longer the proximate cause?

Proximate cause: another person's intentional free will act intervenes

Most courts say it breaks the chain. D is not the proximate cause

Sam's gun accidentally fires during a robbery and kills the clerk

Felony murder. Robbery is a BRAKERS felony, Sam intended to rob, and the robbery was the but for and proximate cause of death

5 limitations on felony murder

(1) Enumerated felonies (2) Inherently dangerous felony (3) Merger (4) Res gestae (5) NY affirmative defense

Enumerated felonies limitation

If only listed felonies count, a death during an unlisted felony is not felony murder

Inherently dangerous felony limitation

Felony murder applies only if the underlying felony is inherently dangerous. Enumerated felonies always qualify

Inherently dangerous: majority view

Look at the facts of how the felony was actually committed

Inherently dangerous: minority view

Look at the felony in the abstract. It counts only if it can never be committed without a substantial risk of death

Merger rule

If the felony is not independent of the killing, it merges into the homicide and cannot support felony murder

Independent felony

D had a purpose apart from physically injuring the victim

Why the merger rule exists

Without it, every assault that ends in death would be murder, and intent to kill would never matter

Merger: 4 questions to ask

(1) Was the fatal act the same as the felony? (2) Did D have an independent purpose? (3) Was it an assaultive felony? (4) Is it an enumerated felony?

Res gestae requirement

The killing must happen during and in furtherance of the felony

Res gestae: when does the felony start and end?

Starts once the attempt has begun. Ends only after flight is over

Res gestae: 2 approaches to who did the killing

Agency approach and proximate causation approach

Agency approach

No felony murder if someone other than D or an accomplice did the killing

Proximate causation approach

D is liable for any killing that is the but for and proximate result of the felony, no matter who did the killing

D robs a store and a cop kills a bystander: agency approach

Not felony murder. The cop, not D or an accomplice, did the killing

D robs a store and a cop kills a bystander: proximate causation approach

Felony murder. No robbery means no shootout, and a police shootout is a foreseeable result of an armed robbery

NY affirmative defense to felony murder (NYPL 125.25(3))

A defense for a participant who did not do the killing, if D proves all four elements

NY affirmative defense: 4 elements

D (1) did not commit or aid the killing (2) was not armed (3) had no reason to believe anyone was armed (4) had no reason to believe anyone would cause serious injury or death

Dan waits outside an unarmed burglary, but Sam secretly brings a gun and kills the owner

Dan has the NY affirmative defense. If Dan knew Sam had a gun, the defense fails

Inchoate crime

A crime that is not completed

Attempt

Taking a punishable step toward committing a crime without finishing it

Attempt: 2 elements

Actus reus and mens rea

Why attempt requires an act

The law does not punish guilty thoughts alone

Actus reus of attempt

A substantial step: D crossed from mere preparation into actually beginning the crime

Dangerous proximity test

How close was D to finishing? Remote acts are preparation. Acts near completion are attempt

NYPL definition of attempt

An act done with intent to commit a crime, tending but failing to effect its commission

Mens rea of attempt

Specific intent: D's purpose or conscious object was to cause the result

Maya walks into a store masked and armed to rob it, but is tackled before she says a word

Attempted robbery. She had specific intent and was in dangerous proximity to completing it

Maya buys a ski mask at home and thinks about robbing a store

Not attempt. Mere preparation and guilty thoughts

A death occurs during an attempted robbery

Can still be felony murder, since the rule covers attempted felonies

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