Felony-Murder is charged to a defendant when a homicide occurs as the defendant is committing or attempting a felony. A felony-murder charge can only be brought if (1) the underlying felony is inherently dangerous, (2) the felony and murder are two separate offenses in order to avoid merger, and (3) the defendant’s felony has a casual link to the murder.
1. Inherently dangerous
Most common law crimes can be considered inherently dangerous. Examples of inherently dangerous felonies are arson, burglary, kidnapping, and rape. However, if a crime has not been labeled inherently dangerous either through common law or the legislture, courts turn to two different tests to determine whether the underlying felony was inherently dangerous:
(a) In abstract
Under this test, a court asks whether a situation could exist where serious bodily injury or death would not have been foreseeable when the defendant committed the felony. This test focuses on the mens rea and was applied in People v. Phillips; however, it is followed by a minority of jurisdictions.
(b) As perpetrated
Under this test, a court looks at the commission of the felony in the particular circumstances and asks, “was the felon careful enough to avoid an inherently dangerous felony?” This test focuses on the actus reus. Most jurisdictions use this test.
The felony and murder must be two separate offenses otherwise the felony “merges” with the murder and the defendant cannot be charged with felony-murder. This question is really one of statutory construction.
To ensure that the felony and murder are two separate offenses, a court first does an “included in fact analysis.” Two separate offenses do not exist if all of the evidence that will be presented, by the state, in order to prove the felony is the same evidence that is needed in order to prove the homicide. Specifically, the evidence required to prove the “integral” elements of the two offenses.
A court will also look to ensure that an independent felonious purpose exists (See People v. Burton). This means that the felony must have a purpose other than serious bodily injury or death (because the purpose of murder is serious bodily injury or death). This is a legal conclusion which is not determined from the perpetrators perspective. If an independent felonious purpose exists then you cannot merge because we must have two separate offenses and the defendant can be charged with felony-murder.
Two different analysis have been propagated by courts to determine if the felony the defendant committed had a casual link to the homicide.
(a) Proximate cause analysis
This analysis limited the application of felony-murder to the natural and probable consequences of the underlying felony; in other words the foreseeable consequences of the felony. Under this analysis, the court will make a factual inquiry and look at the specific conduct the defendant committed. The defendant’s felony must be a sufficiently direct cause of the homicide. (See Warner-Lambert). This proximate cause analysis was done under the old common law and is only still used by a minority of jurisdictions.
(b) “In the furtherance of“
This is a different type of causation analysis where the court looks at a joint plan or underlying felony from a general intent perspective instead of the conduct (a specific intent perspective). The court asks whether or not the death was in furtherance of the joint plan or underlying felony. If the defendant was not the direct cause, he must be a member of a joint group that commits the underlying cause. The “in furtherance” test is the modern analysis and now used by a majority of jurisdictions.
Again, a felony-murder charge can only be brought if (1) the underlying felony is inherently dangerous, (2) the felony and murder are two separate offenses in order to avoid merger, and (3) the defendant’s felony has a casual link to the murder.