Criminal Law (Ward - Final Exam) - Felony-Murder and Causation

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Keyed to Kadish

Felony-Murder (Traditional Rule) - Strict & Qualified Standards

Strict: Felony murder is not limited to foreseeable deaths. As long as the homicide is the direct causal result of the felony, the felony murder rule applies whether or not the the death was a natural or probable consequence of the felony. (People v. Stamp)
Qualified: Felony murder is limited to foreseeable deaths. The felony must be both a 'but for' cause and a proximate cause (natural or probable consequence) of the death. (King v. Commonwealth)

Inherently Dangerous Felony Limitation (Generally)

In general, the inherently dangerous felony rule limits felony-murder only to those felonies which are "inherently dangerous." There are different standards as to how to determine the inherent dangerousness of a felony:
"As Committed" Approach (People v. Stewart)

"Dangerous in abstract" Approach (People v. Phillips)

People v. Stewart

People v. Stewart (The "as committed approach") - Majority

Facts: ∆ (mother of infant child) when on crack binge and neglected to care for her baby, child died. Charged with felony murder for underlying felony of permitting a child to be a habitual sufferer

Holding: While a number of felonies, by their definition, are not inherently dangerous, they may be committed in such a manner as to make them inherently dangerous. Therefore, a fact-finder should consider the facts and circumstances of a particular case to determine if the felony was inherently dangerous in the manner and circumstances committed.

People v. Stamp

Strict (Direct Cause, sans Foreseeability)
People v. Stamp

Facts: ∆ robbed victim at gunpoint. Victim was a 60 year old man with a bad heart, who was made to lay on the ground while ∆ fled. Victim had a heart attack, from fright, and died.

Rule: Felony murder is not limited to foreseeable deaths. As long as the homicide is the direct causal result of the robbery, the felony murder rule applies whether or not the the death was a natural or probable consequence of the robbery. (Thin skull victim)

Regina v. Serné

Qualified Standard (Foreseeability Test)
Regina v. Serné

Facts: ∆ charged with murder of two sons because wilfully set fire to house they were in for insurance purposes

Rule: Any act that is known to be dangerous and likely to cause death, if done for the purpose of committing a felony which causes death, amounts to murder.

Coke Hypos:
Shoot unlawfully at another's fowl and by accident hit a man, this is murder, for the act was unlawful

Merger Doctrine (General Principle)

General Principle: The Merger Doctrine is meant to limit the felony-murder rule's application with certain types of felonious assaults. Its intention is to avoid elevating every felonious assault that ends in death to second-degree murder, which would usurp a substantial amount of homicide law.

e.g. If felony-murder could use assault with a deadly weapon as a predicate felony, no one could be found guilty of involuntary manslaughter if they used a deadly weapon in its commission.

Two Approaches to Merger Doctrine

Two Approaches:

Predicate Felony "included in fact" (Ireland)
a felony-murder instruction may not be properly given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.

Predicate Felony has a "purpose independent" of the homicide (Burton)
The merger doctrine only blocks application of felony-murder in cases where the predicate felony has no purpose independent of the homicide.

Killings not "in furtherance" of the felony (general rule) & three problematic applications

Killings not "in furtherance" of the felony

General Rule: If it can be shown that a killing was not in furtherance of the felony, i.e. the killing did not aid or advance the felony, the felony-murder rule does not apply.

Three Problematic Applications:

Killings after the felony has ended (Gillis)
(e.g. burglar may be involved in a fatal accident after he has successfully made his getaway)
Outcome: Generally, the felony-murder rule may not apply where the killing occurs after the felony has ended. However, there are complications involved in determining when a felony ends.

Killings by cofelons but not in furtherance (Heinlein)
(e.g. one of two men planning to commit arson may, while en route to the fire, rob someone and accidentally kill him; co-felon has gone off on "a frolic of his own.")
Outcome: Generally, the felony-murder rule may not apply where the killing is not in furtherance of the felony, regardless of whether it is committed by the felon, or by a cofelon.

Killings by nonfelons (Canola)
(e.g. a police officer or a victim resisting a robbery may fire a shot that kills a co-felon or an innocent bystander)
Two Approaches
Agency: the doctrine of felony-murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise. (adopted by the court in Canola)
Proximate Cause: felony-murder applies for any death proximately resulting from the unlawful activity, regardless of who kills who

Policy Rationale for Felony Murder (for & against)

Policy Rationale for Felony Murder (for & against)

Arguments for:

Commission of a Felony Increases Culpability (Retributivist)
Knowingly creating a risk of death in the context of another criminal act is more culpable behavior than knowingly creating a risk of death in the context of an innocent or less culpable act

Deterrence of Felonies (Utilitarian)
By holding felons strictly responsible for deaths that may occur during the commission of a felony, it deters people from committing felonies in the first or from allowing felonies to escalate


Arguments against:

Transfering the mens rea from the felony to the murder violates traditional notions of justice
Punishment should always be proportional to the wrong. The principle that a wrongdoer "runs the risk" of their felony obscures the real question: how culpable is the defendant of murder?

There is no actual deterrent effect to the Felony-Murder Rule (Utilitarian)
Felony-murder creates a roulette of unforeseeable consequences resulting from a felony, punishing more severely the unlucky felons whose crimes go wrong. Punishment that is not regular and predictable has no deterrent effect, and thus no utilitarian purpose.

People v. Philips

People v. Philips (The dangerous in the abstract approach) - Minority

Facts: (∆) MD in chiropractics told parents he can treat their son better than eye removal surgery. V died 6 months later of eye cancer. ∆ charged with felony-murder with the underlying felony of grand theft.

Holding: The underlying felony should be assessed in the abstract to determine whether it is inherently dangerous (i.e. no specific facts of the case). Felony-murder should only be applied to felonies that are inherently dangerous.
If a felony can be committed in a non-dangerous way, then the felony is not inherently dangerous in the abstract.

Hines v. State

Hines v. State (dangerous per se - two approaches)

Facts: ∆, a convicted felon, was out turkey hunting with friends. He accidentally mistook victim for a turkey behind thick brush and shot and killed him. ∆ charged with felony murder with the underlying felony of possession of a firearm by a convicted felon. At issue was whether this felony was an inherently dangerous activity such that it could sustain a charge of felony-murder.

Holding:
(Majority) A felony is "inherently dangerous" when it is "dangerous per se" or by its circumstances creates a foreseeable risk of death.
(Minority) Facts may establish ∆ was negligent, but do not establish a high probability that death would result, or that he had a "life-threatening state of mind." Felony is inherently dangerous per se or as committed if it carries a high probability that a human death will result.

Ireland

(Merger)
Ireland (included in fact)

Facts: ∆ (intoxicated) shot wife dead. Predicate felony was assault with deadly weapon; charged with felony murder.

Holding: If felony-murder was allowed here all intentional killings by means of use of a deadly weapon would be murder regardless of the circumstances and could never include the lesser offense of manslaughter. Therefore, a felony-murder instruction may not properly be given to the jury when it is based upon a felony that is an integral part of the homicide and is an offense included in fact within the offense charged.

(Ward) State's purpose in using felony-murder was to avoid the diminished capacity defense that may have come into play. Court says: nice try, but no. This would open the flood gates for felony murder to be used to make just about any homicide into a murder. Can't break an intentional murder into a felony and then the act that causes the death. Felony merges with the killing and is therefore one act.

Wilson

(Merger)
Wilson

Facts: Offense was burglary with the intent to commit and assault with a deadly weapon on his ex-wife
Holding: Court held there was no real distinction between assaults committed with deadly weapons indoors or outdoors. Therefore, felony-murder should not be allowed.

Note: Burglary generally does not merge; only in this situation where the intended felony committed is an intentional act that is included in fact with homicide (i.e. assault).

Burton

(Merger)
Burton (focuses on the purpose of the conduct)

Facts: ∆ killed a person in the course of committing an armed robbery. ∆ argued robbery is included in fact within the offense of murder, and therefore under Ireland and Wilson such offense cannot support felony-murder.

Holding: Because armed robbery has an independent felonious purpose (getting the person's money), it is not included in fact within the offense of homicide. Court decides this goes to far, his main intent was that of robbery, homicide happened separate from the felony charged. Independent of any mens rea to kill.
(Ward) Most courts have found that most assaults (w or w/o deadly weapons) are merged.

People v. Robinson (problem with Merger doctrine)

(Merger)
People v. Robertson

Facts: ∆, intending only to scare victim away, shot and killed person he believed was trying to steal his car's hubcaps

(Ward) Problem: ∆ admits independent felonious purpose he's guilty of felony murder; if it's part of the same purpose then it could be involuntary manslaughter. Odd result that points to problems w/ the merger doctrine. Issue of culpability.

Gillis (temporary place of safety)

(not in furtherance)
Lethal act occurs after the felony has ended
Gillis (temporary place of safety)

Facts: ∆ tries to escape cops after the commission of a burglary. During chase ∆ collided with another car killing driver.
Holding: A felon
y continues to be committed during an escape, until the felons reach a temporary place of safety. Therefore, felony-murder applies.

"Temporary place of safety" - somewhat unclear standard; determined on a case-by-case basis.

Heinlein

(not in furtherance)
Killings by cofelons but not in furtherance (i.e. unconnected)
Heinlein

Facts: 3 guys were raping V. V slapped ∆1, enraging him. ∆1 stabbed V. Other two ∆s charged with felony-murder.

Holding: Other two felons were not guilty of felony murder because ∆1's unanticipated actions, not in furtherance of the common plan, could not be attributed to them.

Canola

(not in furtherance)
Killings by nonfelons
Canola

Facts: The ∆, along with three confederates, was in the process of robbing a store when the owner of the store, in an attempt to resist the robbery, engaged in a physical "skirmish" with one of the four robbers. Another one of the robbers began shooting and the store owner shot back. Both the store owner and the felon were killed. ∆ charged with the murder of both under felony-murder rule.

Holding: Gradations of criminal liability should accord with the degree of moral culpability for the actor's conduct. The court applied the traditional agency theory which holds that only where murders committed by cofelons or someone acting in concert with a co-felon can the felony-murder rule be applied. Thus, ∆ guilty for death of store-owner, not guilty for death of co-felon.

Shield Cases (exception to rule on killings by nonfelons)

Exception: Shield Cases (e.g. felons are escaping after the act, jump into car and use innocent person as a shield, innocent person is killed by third party)

The use of another person as a shield was still in furtherance of the crime, and thus even though killing was by someone else, the agency theory still applies.

Factual Cause (But-for)

(Causation)
Factual Cause (But-for): The harm would not have occurred in the absence of ∆'s act.

Note: If ∆'s action caused V to die even a millisecond before it otherwise would have happened, then ∆ can still be liable, under the but-for causation standard.

Proximate Cause (two differing tests)

(Causation)
Proximate Cause
In General, the common law test for proximate cause is whether the harm was a reasonably foreseeable consequence of ∆'s conduct. The two following tests differ in how they limit this principle:

Highly Extraordinary Result (Acosta)
∆'s conduct must be the proximate cause of the harm, insomuch as it was a foreseeable consequence that he might have reasonably contemplated, and was not a highly extraordinary result.

Sufficiently Direct Cause (Arzon)
An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions.

Subsequent Human Actions: where V intended to produce the result

(Causation)
Subsequent Human Actions
(1) where V intended to produce the result

Foreseeability test for causation doesn't apply to these cases because the second person's actions are seen as a superseding cause creating a new chain of causation.

Exception: Only subsequent human actions that are voluntary or "free, deliberate and informed" human actions are treated outside of casual law. (e.g. actions taken under duress do not cut off causal chain)

Subsequent Human Actions: where V did not intend but risked the harm

(Causation)
Subsequent Human Actions
(2) where V did not intend but risked the harm

Direct causal connection standard (Root)

Foreseeability Standard (McFadden)

People v. Acosta

(Proximate Cause Generally)
People v. Acosta (Highly Extraordinary)

Facts: ∆ stole a vehicle and was chased by the police. During the chase, two police helicopters collided due to pilot negligence, and three people died. ∆ charged with murder.

Holding: Causation found. ∆'s conduct must be the proximate cause of the harm, insomuch as it was a foreseeable consequence that he might have reasonably contemplated, and was not a highly extraordinary result.

Note: in this case, the helicopter collision is not found to be an extraordinary result because the court defines the scope of the event broadly: the ∆ should have foresaw that given the heat of such a chase, vehicle operators may act in a negligent manner and injuries or death might result.

People v. Arzon

(Proximate Cause Generally)
People v. Arzon (Sufficiently Direct)

Facts: ∆ set fire to a couch on the fifth floor of an abandoned building. Firemen responded, but had to retreat from the fifth floor blaze. In retreat, they found their path blocked by a second story fire, of separate and unknown origin. One firefighter died. ∆ charged with murder.

Holding: Causation found. An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions.

People v. Kibbe

(Proximate Cause Generally)
People v. Kibbe (reasonably should have been foreseen)

Facts: ∆s abandoned their intoxicated robbery victim in subfreezing temperatures with none of his external clothing. Instead of freezing to death, victim was killed by a passing truck. ∆s charged with murder.

Holding: Causation found. ∆'s conduct was a "sufficiently direct cause." It is not necessary that the ultimate harm be intended by the actor, it will suffice if it can be said beyond a reasonable doubt that the ultimate harm, is something which should have been foreseen as being reasonably related to the acts of the accused.

People v. Warner-Lambert

(Proximate Cause Generally)
People v. Warner-Lambert (Distinguished from Arzon)

Facts: Hazardous, negligent conditions in a manufacturing plant owned by ∆ present danger of explosion. Explosion occurs, and people die. Explosion was not merely foreseeable, but foresaw and warned of by insurance company. The exact circumstances of ignition are unknown.

Holding: No causation. As the exact circumstances of ignition are unknown, it cannot be determined whether ∆'s conduct is a sufficiently direct cause of death.

People v. Campbell

(Subsequent Human Actions: Intended to Produce the Result - Suicide Cases)
People v. Campbell

Facts: ∆ got V drunk and encouraged V to kill himself. ∆ gave V a gun and bullets and then left him alone. V killed himself.

Holding: Homicide is the killing of another human being by another, suicide, by definition, excludes homicide. Hoping someone will kill themselves, without any present intention to actually kill the person, does not meet the degree of intention requisite to a charge of murder.

Policy: Ct. places high value on human agency (V's actions of their own volition) and autonomy (Vs have free choice)

People v. Kevorkian

(Subsequent Human Actions: Intended to Produce the Result - Suicide Cases)
People v. Kevorkian

Facts: Two women, both suffering from painful diseases, sought ∆'s assistance (specifically the use of his "suicide machine") in ending their lives. The device worked for one woman, the other woman was given a container of carbon monoxide and a mask and was instructed on how to use it. Both woman successfully committed suicide. ∆ indicted on two counts of murder.

Rule: A conviction for murder is proper if a ∆ participates in the final overt act that causes the death of another but not if the ∆ is merely involved in the events leading up to the commission of the final overt act. (i.e. only if participated in the act, not if only promoted the means)

Promote the Means vs. Participate in the Act

(Subsequent Human Actions: Intended to Produce the Result - Suicide Cases)
Promote the Means vs. Participate in the Act

Promote the Means:
(Roberts) ∆'s wife was suffering from a terminal disease, wife requested ∆ provide her with poison so she could kill herself. ∆ put a glass with poison next to her bed and she drank it. ∆ charged with murder.
Note: This case was under old common law rule where assisting suicide was murder -- therefore, found guilty. Would not have been found guilty under Kevorkian

Participate in the Act:
(Sexson) There was a suicide agreement between ∆ and his wife (V). ∆ held gun for V so that she could pull the trigger and kill herself, but then chickened out and didn't kill himself. ∆ charged with murder.
Court found this act to be actively performing in the suicide, and thus upheld ∆'s conviction for murder.

Root

(Recklessly Risk the Result)
Root (direct causal connection standard)

Facts: ∆ and V were racing on a highway. V attempted to pass ∆ in the oncoming traffic lane and ran head-on into a truck and died. ∆ was charged with involuntary manslaughter.

Holding: The decision by V to swerve into the other lane was made of his own free will and with full knowledge of the dangerous conditions created by ∆'s reckless conduct, and therefore was the direct cause. Therefore, ∆ not guilty of involuntary manslaughter.

Dissent: But-for ∆'s engaging in the race, and being reckless, death wouldn't have occurred. V's response was normal in the situation, and thus foreseeable

McFadden

(Recklessly Risk the Result)
McFadden (foreseeability standard)

Facts: ∆ and other person (X) were racing on a highway. X lost control and collided with another car, killing an innocent passenger in the car and himself. ∆ charged with two counts of involuntary manslaughter.

Holding: Causation found. Court rejects Root's more stringent "direct causal connection" standard and instead applies the foreseeability standard of ordinary proximate cause principles in determining whether causation has been met. (i.e. recklessness not enough to cut off the causal chain)

Kern

(Recklessly Risk the Result)
Kern

Facts: white youths (∆s) assault several African-American men and chase them. Trying to escape, victim ran across a highway and was killed by a passing car. ∆s charged with manslaughter.

Holding: Causation found. The only reasonable alternative left to victim was to seek safety by fleeing across the highway. That the victim, under duress, chose the wrong escape route is not enough to say that ∆'s conduct was not a sufficiently direct cause of his death.

Atencio

(Recklessly Risk the Result)
Atencio

Facts: Victim was killed when he put a gun to his head and fired during a game of Russian Roulette with ∆s. Prior to victim's fatal action, both ∆s had themselves "taken turns," without firing the gun. ∆s charged with manslaughter.

Holding: Causation found. Mutual participation in a reckless enterprise is enough to hold any one participant criminally responsible for the death of any other participant arising out of the reckless conduct required by the enterprise.

The court distinguishes Russian Roulette cases from drag racing, saying that in the latter there is some element of skill controlling the outcome, while in the former there is only luck.

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