Felony Murder: A Checklist

Of the 4 types of malice aforethought that will form the basis for a valid charge of murder on the MBE, the intent to commit an inherently dangerous felony (ie, felony murder) tends to be the trickiest. Keep the following important points in mind when faced with a felony murder fact pattern.

--The felony forming the basis of a charge of felony murder must be one that is inherently dangerous. The common felonies to look for are burglary, arson, robbery, rape and kidnapping.

--The defendant must be guilty of the underlying felony to be guilty of felony murder.

--The felony must be distinct from the killing itself. So, if during the commission of a felony, defendant points a gun at a store clerk and kills the clerk, that should be analyzed under intent to kill murder, rather than felony murder.

--The death must have been caused before the defendant's immediate flight from the felony. Once the defendant has reached a place of temporary safety, you should no longer analyze subsequent killings under felony murder (unless, of course, defendant commits a later felony).

--The agency theory states that defendant is not liable for felony murder when an innocent party is killed during the commission of the felony unless the killer is the defendant or an agent of the defendant. (So, for example, defendant would not be liable if, while robbing a bank, a victim shoots at defendant and accidentally kills an innocent party.)

--The proximate cause theory broadens the scope of liability, making defendant liable even if an innocent party kills another, if the killing is a proximate cause of the felony.

--The Redline theory states that defendant is not liable if a co-felon is killed during the commission of the felony. (So, for example if defendant 1 and defendant 2 rob a bank, and a victim kills defendant 2 during the commission of the felony, defendant 1 will not be charged with the murder of defendant 2.

**Note that the three above theories vary by jurisdiction, so apply the theory stated in the fact pattern if any theory is provided within a given question.