Felony Murder

Felony murder deviates from the normal grading of homicide based upon mens rea. If a person commits a robbery, and someone dies as a result, the person is guilty of first degree murder even though he did not have the mens rea otherwise required for first degree murder. He did not plan for someone to die, and he may well not have wanted anyone to die. For this reason, he does not have the mens rea for second degree murder, or even, perhaps, reckless homicide. If someone dies as the result of a robbery, there is a good chance the person is otherwise guilty of negligent homicide, a crime that can bring as little punishment as probation in some jurisdictions.

But because the defendant intentionally committed the robbery, it does not matter that he lacked mens rea for the killing. He is guilty of murder, and for robbery, usually first degree murder.

Felony murder is controversial and in many instances unjust because it escalates what would be negligent homicide into murder. Imagine the person who drives the getaway car for a robbery. The driver might not even realize his co-conspirator is armed. The co-conspirator goes into the store, robs it with a gun, and the gun goes off and kills the store owner. The driver, waiting outside, is guilty of robbery because of aiding and abetting (and the Pinkerton doctrine). He is also guilty of first degree murder under the felony murder rule.

Below, we will consider three main aspects of felony murder. First, what is the rule for causation; does the death simply have to happen during the felony, or as a result of it, or is there some other test. Relatedly, as hinted at above, does the defendant have to be present? Second, we will consider second degree felony murder for "unenumerated" felonies--those felonies not specifically listed in the statute for first degree felony murder such as robbery. Finally, we will consider the merger rule.