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Felony murder rule

The felony murder rule is a legal doctrine current in some common law countries that broadens the crime of murder in two ways. First, when a victim dies accidentally or without specific intent in the course of an applicable felony, it increases what might have been manslaughter (or even a simple tort) to murder. Second, it makes any participant in such a felony criminally responsible for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an obviously dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.

According to most commentators, the common law rule dates to the twelfth century and took its modern form in the eighteenth century . Because the rule requires no intent to kill, or even to do bodily harm, it has been criticized as unjust .

Accordingly, it has been abolished in the United Kingdom. In some jurisdictions (such as Victoria, Australia), the common law felony-murder rule has been abolished but replaced by a similar statutory provision.


The concept of felony murder originates in the rule of transferred intent, which is older than the limit of legal memory. In its original form, the malicious intent inherent in the commission of any crime, however trivial, was considered to apply to any consequences of that crime, however unintended. Thus, in a classic example, a poacher shoots his arrow at a deer, and hits a boy who was hiding in the bushes. Although he intended no harm to the boy, and did not even suspect his presence, the mens rea of the poaching is transferred to the actus reus of the killing.

Some commentators regard this as a legal fiction whereby the law pretends that the person who intended one wrongful act, also intends all the consequences of that act, however unforeseen. Others regard it as an example of strict liability, whereby a person who chooses to commit a crime is considered absolutely responsible for all the possible consequences of that action. Lord Mustill regards the historical rule as a convergence of these views.


However, the actual situation is not as clear-cut as the above summary implies. In reality, not all felonious actions will apply in most jurisdictions. To "qualify" for the felony murder rule, the felony must present a foreseeable danger to life, and the link between the underlying felony and the death must not be too remote. If the receiver of a forged check has a fatal allergic reaction to the ink, most courts will not hold the forger guilty of murder. Furthermore, the merger doctrine excludes felonies that are presupposed by a murder charge. For example, nearly all murders involve some type of assault, but so do many cases of manslaughter. To count any death that occurred during the course of an assault as felony murder would obliterate a distinction carefully set by the legislature; however, merger may not apply when an assault against one person results in the death of another

To counter the common law style interpretations of what does and does not merge with murder (and thus what does not and does qualify for felony murder), many jurisdictions in the United States explicitly list what offenses qualify. The American Law Institute's Model Penal Code lists robbery, rape or forcible deviant sexual intercourse, arson, burglary, kidnapping, and felonious escape. Federal law specifies additional crimes, including terrorism and carjacking.

There are two schools of thought concerning whose actions can cause the defendant to be guilty of felony murder. Jurisdictions that hold to the agency theory admit only deaths caused by the agents of the crime. Jurisdictions that use the proximate cause theory include any death, even if caused by a bystander or the police, provided that it meets one of several proximate cause tests to determine if the chain of events between the felony and the death was short enough to have legally caused the death.

Felony murder is typically the same grade of murder as premeditated murder. In many jurisdictions, felony murder is a crime for which the death penalty can be imposed, provided that the defendant himself killed, attempted to kill, or intended to kill. For example, three people conspired to commit armed robbery. Two of them went in to the house and committed the robbery, and in the process killed the occupants of the house. The third person sat outside in the getaway car, and he was later convicted of felony murder. But because he himself neither killed, attempted to kill, or intended to kill, he cannot be executed even though he is guilty of felony murder.

By Country

United States

In the United States, felony murder is generally first-degree murder, and often a capital offense. When the government seeks to impose the death penalty on someone convicted of felony murder, the Eighth Amendment imposes additional limitations on the state's power to do so. The death penalty may not be imposed if the defendant is merely a minor participant and did not actually kill or intend to kill. However, the death penalty may be imposed if the defendant is a major participant in the underlying felony and "exhibits extreme indifference to human life".

Every jurisdiction in the United States incorporates some form of the felony murder rule as part of its definition of murder.


Texas' Law of Parties is a variation on the common law Felony-Murder doctrine. Codified in Tex. Penal Code Ann. § 7.02, the law states that a person can be criminally responsible for the actions of another if he or she aids and abets, or conspires with the principal.


Illustrative example

The following example employs general principles of law in the United States for the purpose of illustration.

The Doe Gang attempts to rob a bank. John, Jane and Richard Doe will do the actual robbery. Mary Doe will act as lookout, and Joe Schmoe waits around the corner with the getaway vehicle. Mike Meek is a bank employee who is to make sure the alarm is not sounded. The robbery is a violation of both federal and state law, and can separately be prosecuted under each without incurring double jeopardy. Both jurisdictions employ the felony murder rule: for purposes of this example, we assume that federal law employs the proximate cause theory and state law the agency theory.

During the course of the robbery, the Bank Manager suffers an aortic dissection and dies almost instantly. A teller hits the silent alarm in the confusion. The police arrive, and Mary surrenders promptly. When the police enter the bank, John, Jane and Richard open fire: Jane kills an officer while Richard's wild shot kills John. Joe Schmoe hears the shots and flees. He does not see a child playing in front of the car, and accidentally kills her. Later, officers' bullets kill Richard and the teller behind him. The result of all this carnage is as follows:

  1. Mary is probably not guilty of any felony murder; while she will face charges for the robbery, she will probably not face any other charges, because she surrendered to authorities before any violence.
  2. The manager's death is felony murder, because the robbery may have caused the heart attack.
  3. The officer's death is both first-degree murder for Jane, and felony murder for Joe and Mike, under both federal and state law. Jane may be charged with felony murder as a tactical matter if the ballistics are inconclusive.
  4. John's death is felony murder for all three under federal law and probably state law. Some states might not allow it because he was a participant in the crime.
  5. The teller's death is felony murder for all three survivors under federal, but not state law, because they were killed by a non-participant. Because the officer that killed the teller was not a participant in the felony, under the state's "agency theory" the felons would not be liable for the death because it was not committed "in furtherance of the felony." On the other hand, under the alternative proximate cause theory (in this example, the theory adopted under federal law), it was reasonably foreseeable that an innocent teller would be killed by responding officers' fire, so the felons would be liable for the death. Note that even though Joe had ceased to participate in the robbery at this point, his flight counts as a continuous transaction, so the rule continues to apply.
  6. Richard's death is felony murder under federal, but not state law, for the same reasons. In practice, many prosecutors are reluctant to make the charge when an accomplice is killed by police.
  7. The child's death is felony murder for all three in both federal and state court. Again, the fact that Joe was trying to flee does not mitigate the crime.
  8. Jane is subject to the death penalty, even if the ballistics are inconclusive, because she attempted and intended to kill.
  9. Joe is subject to the death penalty because he killed, albeit accidentally.
  10. Mike escapes the death penalty, because he neither killed nor intended to kill.

See also




  • Binder, Guyora (2004). "The Origins of American Felony Murder Rules". Stanford Law Review


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