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.

2. Merger

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.

3. Causation

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.

Intervening Causes in Criminal Law

An intervening cause occurs when there is some interruption between the defendant’s conduct and the ultimate harm or result. See People v. Acosta for a great example.

Here is how to conduct an analysis to determine if a defendant is still liable in the presence of one or more intervening causes:

First, is the intervening cause dependent or independent on the defendant’s conduct? For example, the intervening cause is dependent if it would not have occurred without the defendant’s conduct (e.g. a security guard firing a pistol because the defendant is robbing a bank).

  • If the intervening cause is dependent on the defendant’s conduct, was it foreseeable or unforeseeable?
    • If the intervening cause was foreseeable and dependent then a court can hold the defendant liable if the result was intended or reasonably foreseeable
    • If the intervening cause was unforeseeable (or not a strong foreseeable link) but dependent then a court can hold the defendant liable if the result was sufficiently related to the actor’s conduct to impose liability (or, in the converse, it would not be fair to hold the defendant liable)
  • If the intervening cause is independent of the defendant’s conduct, then the intervening cause was not reasonably foreseeable and there is no sufficient relationship to the defendant’s conduct. Therefore, it is unfair to hold the defendant liable for the result of the intervening cause.
    • This is known as an independent superceding cause

Causation in Criminal Law

Crimes such as homicide, where the result of the defendant’s conduct is a necessary aspect of the crime, may require a causation analysis. The causation analysis will require that the defendant’s conduct be the actual cause and proximate cause in order to find the defendant liable. (See Warner-Lambert holding that the court must find a causal link first before determining whether defendant acted at reckless.)

The defendant’s conduct is the actual cause if “but for” the defendant’s conduct, the result would not have occurred. In order to find proximate cause: (1) the defendant’s conduct must be closely connected to the result, (2) the defendant’s conduct has a significant connection to the result, and (3) the law is justified in imposing liability.

The MPC Section 2.03 states that “conduct is the cause of a result when:

a. It is an antecedent but for which the result in question would not have occurred; and
b. The relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.”

The MPC looks at the cause in fact and then the mens rea. In other words, a court should ask “What was the mens rea towards the actual result?” The MPC does not talk about causation in terms of foreseeability but in terms of remoteness. If the result was too remote or too accidental [MPC Section 2.03(2)(b)], the defendant will not be held liable (looks backwards).

People v. Arzon, 401 NYS 2d 156 (1978)

Case Name: People v. Arzon
Citation: 401 NYS 2d 156

Facts: Arzon was indicted for two counts of murder in the second degree after intentionally setting fire to a couch and a fireman was killed. The fireman was “enveloped by a dense smoke,” which was later discovered to have arisen from another independent fire (an independent intervening cause) that had broken out on the second floor. There was virtually no evidence implicating Arzon in the second fire’s responsibility (although it did originate in arson).

Defendant’s argument: The evidence was insufficient to support Arzon’s murder charge because murder requires a causal link between the underlying crime and the death.

State’s argument: “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, as indeed it can here be said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.”

Holding: Arzon’s motion to dismiss the murder counts was denied.

Reasoning: The Court looked at foreseeability after it determined that the defendant’s conduct was foreseeable. It was foreseeable that firemen would respond to the situation, thus exposing them, to a life-threatening danger. The fire set by Arzon was an indispensable link in the chain of events that resulted in the death. The first and second fire were concurrent causes to the same result.

Compare to People v. Warner-Lambert Co.

People v. Warner-Lambert Co., 51 N.Y.2d 295 (1980)

Case Name: People v. Warner-Lambert Co.
Citation: 51 N.Y.2d 295 (1980)

Facts: Warner-Lambert Co. and its officers/employees were indicted for second-degree manslaughter and criminally negligent homicide. A massive explosion at the corporation’s chewing-gum factory killed and injured employees. Warner-Lambert Co. used two potentially explosive substances (magnesium stearate and liquid nitrogen) and had been warned by their insurance carrier that there was an explosion harzard.

Defendant’s argument: There was no hard proof on what actually triggered the explosion but only speculations by experts that it could have been caused by the manufacturing process. Therefore, foreseeability was not established.

State’s argument: The but-for causation is all that is required for the imposition of criminal liability. There was evidence of a foreseen risk of explosion, the defendant’s failure to remove the risk, and an explosion actually occurring.

Holding: Indictment dismissed.

Reasoning: The defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability. The court focuses on whether there was an actual cause. You must find the “actual cause” before you can establish “foreseeability.”

Compare to People v. Arzon

People v. Acosta, 284 Cal. Rptr. 117 (1991)

Case Name: People v. Acosta
Citation: 284 Cal. Rptr. 117 (1991)

Facts: Two police helicopters crashed, killing three occupants, during a chase of the defendant, Acosta. One of the helicopter pilots violated FAA regulations during the chase.

Defendant’s argument: The helicopter pilot’s FAA violations were a superseding cause of the accident.  Also, it was unforeseeable (highly extraordinary) for a mid-air helicopter crash because the FAA inspector that testified had never heard of one and there was no civil or criminal cases involving a two-helicopter collision.

State’s argument: Acosta’s actions were the actual (“but-for”) cause of the helicopter crash. The proximate cause requirement was fulfilled because it was foreseeable or “a possible consequence which reasonably might have been contemplated.”

Holding: Acosta was the proximate cause but the judgment was reversed because there was insufficient evidence of malice.

Reasoning: The proximate cause requirement was fulfilled because it was foreseeable or “a possible consequence which reasonably might have been contemplated.” That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.

Dissent: The intervening negligent conduct (of the helicopter pilot) and the risk of harm were not foreseeable; therefore, the law does not assign blame. The dissent then quoted Cardozo in Palsgraf v. Long Island R. Co (1928) and stated that the helicopters were not in the “zone of danger.” (Dissent is incorrect because the trier of fact also looks to see if there is a sufficient relationship that the law is justified in imposing liability)