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Criminal Law
Rutgers University, Newark School of Law
Jones, Charles

Felony Murder (compare MPC 210.2(1)(b))
At common law,
1.)      a person who in the
2.)      commission of any felony
3.)      caused
4.)      a killing is liable for felony murder
Reflecting the common law but substantially restricting it, one typical modern statutory rule for felony murder that
1.)      the defendant, while committing or attempting to commit
2.)      a designated dangerous felony (Burglary, Arson, Robbery, Rape, Escape, Kidnapping)
3.)      in the course of and in the furtherance of such a crime or immediate flight therefrom
4.)      causes, both factually (but-for) and legally (proximately)
5.)      the death of a person who is not a participant
Cannot merge and it must not be an “integral part of the crime”
People v. Phillips (CA)(eye cancer) – “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case”
People v. Gilbert -“Conscious disregard for life.”
People v. Stewart – look at the particular facts
Smith – felony not integral
Two theories: 1.) Agency or 2.) Proximate
1.)      Foreseeability
2.)      Inherently dangerous
a.       Abstract (Phillips)
b.       Proximate (Stewart)
3.)      Merger
4.)      Independent Felonious (Smith)
Intentional Murder
At common law,
1.)      an intent to cause the death of a specific person
2.)      expressed in
3.)      a voluntary criminal law act
4.)      that causes, both factually (but-for) and legally (proximately),
5.)      the death of another person
The MPC rule is identical except that “purposely” substitutes the intent to kill and means a conscious objective to kill.
MPC approach is that the actual result be “not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or gravity of his offense.” 
Common Law is was it reasonably foreseeable or were there superseding causes where the chain of causation was broken
Modern Felony Murder Defense (affirmative)
The MPC and the modern statutory affirmative defense in some states, require that the defendant prove that he
1.)      did not commit the killing in any way solicit, request, command, cause, or aid in the killing.,
2.)      was not armed with a deadly weapon,
3.)      had no reasonable ground to believe that any other participant was armed with a deadly weapon, and
4.)      had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury
Premeditated and Deliberated Murder
This murder requires a mens rea of
1.)      intent to kill
2.)      plus premeditation and deliberation
3.)      actualized in a conduct that
4.)      causes, both factually and legally
5.)      the death of another person
C/L 1st degree:
a.       willful
b.       premeditated
c.       deliberate
d.       expressed malice aforethought
C/L 2nd degree:
a.       willful
b.       implied malice aforethought
c.       without premeditation/deliberation
Compare Guthrie  with Anderson
1.)      motive
2.)      planning
3.)      manner of killing
Extreme Reckless Murder
At common law,
1.)      under the circumstances envincing a depraved (MPC: extreme) indifference to human life
2.)      reckles

felony escape from a prison where a guard is killed by an accomplice.
d.       CA viewed this in the abstract and found it to not be inherently dangerous in People v. Lopez.
Implied malice aforethought for using a shield.
Vicarious Liability
Taylor v. Superior Court – CA 1970
Holding: Court held that when ∆ or his accomplice, w/a conscious disregard for life, intentionally commits an act that’s likely to cause death, & his V or a police officer kills in reasonable response to such an act, ∆ is guilty of murder thru vicariously liability b/c agency theory would bar liability. (Provocative conduct of felon may be sufficient to conclude there was a conscious disregard for human life.) Since the killing here was to thwart the felony whereas felony murder applied where the death occurs in the perpetration of the felony. Vicarious liability here would be enough given the behavior here since in some ways that initiated the offense.
Implied malice- felons’ conduct was sufficiently provocative to support a finding of implied malice in V’s actions.
People v. Antick à role of the decedent felon’s behavior examined in light of the felony murder rule (MODIFIES TAYLOR)
The court held that neither theory applied since the killing was not committed by a confederate in the furtherance of the felony but rather in the escape from being caught.