Sunday, February 5, 2012

Criminal Law: Felony Murder & Proximate Cause

The following question was asked on the Asked & Answered Facebook page @

"I'd be interested to hear your view on the relationship between foreseeability and the felony murder rule. E.g. If during the commission of a burglary, the house owner comes upon the burglar and is so startled that they suffer a heart attack and die. Could the burglar be convicted of felony murder or is this too remote?"


Before I address the specific question asked, I think it's important to review felony murder. Felony murder essentially removes the requirement that a person has to have had the intent to kill or intent to cause serious bodily injury (or recklessness), in order to be guilty of homicide. Rather, the intent to commit the felony is transferred to the intent generally required to be found guilty of homicide (ie, the requirement of malice).

What this means is that one should not consider felony murder if the intent for murder is satisfied, even if the murder occurs during the commission of a felony; one should only consider felony murder if, during the commission of a felony, a death results, and the intent required for murder is not present.

Specifically, the requirements for felony murder are as follows: (1) the defendant must be guilty of the underlying felony; (2) the felony must be distinct from the killing itself; (3) the death must have been caused before the defendant's immediate flight; and (4) death must have been a foreseeable result result of the felony.

Number 4, above, relates to causation. Cause-in-fact simply means that the result would not have occurred but for the defendant's conduct. Proximate cause is a limitation on liability, and provides that defendant will only be guilty of felony murder if the death of the victim was the natural and probable consequence of the the defendant's conduct. As in torts, superseding factors break the chain of causation.

The issue raised in this question regarding whether a person can be guilty of felony murder if, during the commission of an inherently dangerous felony, a victim has a heart attack after being startled by the person committing the felony, requires an analysis of proximate causation. Generally (and on the MBE), a victim's preexisting weakness, even if unforeseeable, will not break the chain of causation, provided that the death itself was foreseeable. Even though the victim may have had a weak heart, the victim was startled, and his heart gave out as a result of being startled. The facts provide for a situation in which cause-in-fact is likely satisfied. In addition, it's foreseeable that a person will be startled if surprised by another committing a felony in his home, and because the law requires us to take our victim as we find him, the fact that a heart attack resulted from the foreseeable reaction is unlikely to shield the defendant from liability under the facts as given.

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