The Felony Murder Rule


("Make the Case")

Drawing on the reading and your own considered opinion and good judgment, make a case for or against the charge of murder brought against the defendants in the following two cases, one from California and involving our good, dear friends, John and Alice, and one from Illinois, involving two young kids, Rock and Hickman, think of the arguments that an attorney on the other side might make as well as the objections that he or she might raise to your arguments in both cases, and respond to those arguments. In making your case, offer what you believe are the most principled arguments you can make.

In thinking of objections to your case, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest point rather than at its weakest, that can only help to strengthen your own opinion and make it that much more persuasive.

The paper should be about five (5) to seven (7) pages in length, preferably typewritten, but it may be longer, if you believe that you need my room to clearly and succinctly expound your views and defend your position. It (the paper) is due on Monday, Feb. 24th, in class.

The Felony Murder Rule

- Rethinking American Criminal Law -

From its inception our criminal justice system has required that two elements be present before imposing liability for the commission of a crime. It must be shown that the defendant had a culpable state of mind and that he committed a bad act, an actus reus. From this we might conclude - not unreasonably one might think - that to convict someone of a crime the state would need to show that the defendant acted with a culpable or blameworthy state of mind, i.e., with the intent to commit the offense against the law. Indeed, if someone kills another human being unintentionally or accidentally, we - or so it seems - quite reasonably hold that person less responsible for the crime than if he had acted with, say, "malice aforethought." Indeed we seem to take this line of reasoning even further, believing that it is proper and/or fair to punish a person more severely the more culpable his or her state of mind.

Nonetheless, as generally accepted, as this principle would appear to be there are several controversial exceptions to it.

The "felony murder rule" is one of those exceptions. Imagine, for example, that the following case has come before you:

John and Alice break into an unoccupied Toyota Van at 8:15 A.M. on a Sunday morning in San Francisco, California. There are eight brand new tires in the Van. John and Alice had already removed four of these tires and loaded them into the trunk of John's Chevy Sedan which was parked a little way down the street when they were spotted by a police officer who saw the two of them rolling two tires each toward the parked car. The officer made a U-turn, John and Alice dropped the tires, jumped into the Chevy, and drove off in an attempt to elude the pursuing officer. In the chase that followed, John, who was driving the Chevy, ran a red light and crashed into another car, severely injuring the other driver.

John and Alice were arrested (neither was hurt in the accident) and were charged with burglary. Several days later the driver of the other vehicle died in the hospital and John and Alice were charged with first-degree murder under the felony-murder rule.

It may seem "fair" to charge John with vehicular homicide. He, after all, was the one who ran the red light. But what about Alice? She was just a passenger. Is she also guilty? To be convicted of first-degree murder it is usually necessary to have acted in a premeditated way or to have committed the murder under circumstances presumed to be premeditated. The felony-murder rule is an exception to these requirements. The rule states simply that if, during the course of the commission of a felony a killing occurs, all accomplices can be charged with murder.

The rule has traditionally been among those offenses imposing, what has been called, strict criminal liability, the key element of which is the refusal to require proof of the actor's state of mind as a prerequisite to liability. No doubt there may be justifications for the creation of strict liability offenses, but criminal defendants should be punished, many have argued, only when they exhibit a blameworthy state of mind for the offense with which they have been charged.

In California the felony-murder rule is restricted to those cases (to those felonies) where the felony is "inherently dangerous to human life." The felony murder rule is not applicable to just any felony. But, in the state of California the crime of burglary is considered to be just such a dangerous felony. However, when the California criminal code was first enacted in 1872, the crime of burglary required a nighttime breaking and entering of a dwelling house and this was the dangerous felony to which the felony-murder rule was originally hitched.

Since then - in this century - California legislators have expanded the contours of burglary, first dropping the requirement of a breaking, then including daytime as well as nighttime entries, and finally, in California, by expanding the "dwellings" that can be entered to include motor vehicles with locked doors. Thus, by entering the Toyota Van with the intent to take the tires, John and Alice could be charged with burglary.

To complicate matters even further, many states, including California, have considered in their application of the felony murder rule killings that occur while escaping from a felony to be under certain specified circumstances "killings that occur 'in perpetration' of a felony." And so the accident at the intersection became a killing in perpetration of a burglary and thus supported a charge of murder, not only against John, who was driving, but against Alice, the passenger, as well. The trial was held and both John and Alice were found guilty of burglary and first-degree murder. Alice may have committed burglary, but is she a murderer as well?

Imagine that a friend calls and asks you whether you would be interested in arguing Alice's appeal or if you think Alice's murder conviction should be affirmed, imagine that you are asked to be the District Attorney for the prosecution to argue the state's case against Alice on appeal.

You should feel free to expand upon the "facts" of this case as outlined above in order to explore how a change in this or that fact might affect your answer. To imagine, for example, that Alice had no reasonable ground to believe that John would "run" the red light nor did she urge John to do so. She did not say, at that moment, just before John "ran" the light, "Come on, John. Faster! Faster!" Or "come on, John step on it!" Would it make any difference to your defense, if she had?

Imagine, too, that Alice did not have, in her possession, a deadly weapon. If she did, would this make a difference to how you would argue the case? Why?

And what about the felony-murder rule itself? Can it be justified? Do its justifications, if justifications there were, outweigh our departing from the requirement of a showing in criminal cases that a defendant had a culpable or blameworthy state of mind before he or she can be said to have committed a crime? Do you think Alice deserves to be treated as a murderer?

Make a case for or against finding Alice guilty of murder, offer what you believe are the best arguments that the attorney for the "other" side might make, and respond to them. (Read the ACTUAL CASE: PEOPLE v. FULLER (1978)

Then consider the following earlier case:

As they emerged from a burglary at a liquor warehouse, Rock and Hickman were surprised by police officers. They attempted to escape by running to a wooded area on the opposite side of the parking lot next to the warehouse. One of the police officers spotted them, then lost sight of them. A few seconds later the police officer saw a man running with a handgun towards some bushes at the northwest corner of the parking lot. He ordered the man to "drop it." When his warning was not heeded, he fired his shotgun at the individual, who later turned out to be Detective Lotscheider from the police force. Lotscheider was killed by the blast from his fellow police officer's shotgun.

One half-hour later Rock and Hickman were arrested as they were walking on a street approximately two and a half blocks from the warehouse. Neither was carrying a weapon. After a trial Rock and Hickman were found guilty of burglary, criminal damage to property, and murder. Rock and Hickman filed a motion to arrest the judgment of murder that was granted. On appeal, however, the Appellate Court of Illinois reversed this decision, finding Rock and Hickman guilty of murder under the felony-murder doctrine, which holds that all accomplices in a felony are chargeable with murder, if a killing occurs during the course of the commission of a felony.

As already mentioned, generally speaking, to be convicted of murder, one must either have acted with the intent to kill, or have exhibited extreme recklessness with regard to a human life, say, by emptying a loaded revolver into a crowded room. To be convicted of first degree murder, it is usually necessary to have acted in a premeditated fashion, or that the killing have taken place under circumstances presumed to be premeditated, for example, by administering poison. The felony-murder doctrine is an exception to these requirements. As the court stated, at the time of their arrest two and half blocks away from the "scene" of the break-in, "neither of the defendants had a weapon on his person." In the mad dash through the San Francisco streets one of the defendants, in that case, John did act recklessly and caused the death of another human being. But here one police officer shot another. Did not the police officer's act break the causal chain set in motion by Rock and Hickman when they entered the warehouse?

Imagine that Rock and Hickman appeal their case all the way to the Illinois Supreme Court. Imagine, too, that you have appointed to the bench and that you are one of the Justices who must decide this case. What is your opinion? You have ten days to think about it and write it up. It is to be delivered along with the opinions of the other Justices on the Court on Monday, February 24th. Do you think Rock and Hickman should be found guilty of murder? Should a defendant face murder charges when a police officer accidentally or mistakenly kills someone else? Should it matter if that victim is bystander, one of the suspects, or a police officer? If so, why, on what grounds? Read the ACTUAL CASE: PEOPLE v. HICKMAN (1974)

Should the application of the felony murder be applied depend on a defendant's degree of participation in the crime? Think back to Alice, sitting in the passenger seat. Should she be held equally guilty of murder, along with John who recklessly drove through a red light? If not, why not? If so, why?

Should it matter what an accomplice knew about the intentions of his or her partner? In Tison v. Arizona (1986) the U. S. Supreme Court upheld the conviction of two brothers for murder. The Tison brothers helped their father escape from prison and then stole a car and drove into the Arizona desert. The father shot and killed all the occupants of the car (a mother, a father, their two year-old daughter and their fifteen year-old niece). The father died of exposure and evidence later revealed that the two Tison brothers had no intention of killing the passengers. Thus, they, at least, did not have the requisite mens rea (intent). Nonetheless the High Court upheld their conviction for murder under Arizona's felony murder rule. See Alan Dershowitz, "Capital Punishment for the Sins of their Father" in THE BEST DEFENSE, pp. 289-318. Read the ACTUAL CASE: TISON v. ARIZONA (1986)

Make an argument for or against the felony murder rule in light of your opinion in the Alice and John and the Rock and Hickman cases. Does the rule undermine basic notions about individual responsibility and proportionate punishment in our seeking to administer criminal justice? How might the rule be defended? And if you find yourself opposed to the rule, how would you respond to the best defenses of the "rule."

Finally, in 1957 England abolished the felony murder rule. What do you think? Should the United States do likewise?

Prepared: February 12, 2003 - 5:02:29 PM
Edited and Updated, February 13, 2003

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