CL Felony Murder Question

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
rcharles
Posts: 229
Joined: Thu Dec 04, 2008 1:50 pm

CL Felony Murder Question

Postby rcharles » Mon Dec 13, 2010 8:31 pm

Can malice implied by the felony-murder rule be negated under the doctrine of provocation?

User avatar
180orbust
Posts: 88
Joined: Sat Nov 29, 2008 2:45 pm

Re: CL Felony Murder Question

Postby 180orbust » Mon Dec 13, 2010 8:44 pm

No.

User avatar
kalvano
Posts: 11720
Joined: Mon Sep 07, 2009 2:24 am

Re: CL Felony Murder Question

Postby kalvano » Tue Dec 14, 2010 1:14 am

There doesn't need to be malice at all for felony murder.

User avatar
fathergoose
Posts: 853
Joined: Fri Dec 11, 2009 3:36 pm

Re: CL Felony Murder Question

Postby fathergoose » Tue Dec 14, 2010 1:18 am

kalvano wrote:There doesn't need to be malice at all for felony murder.

This

User avatar
rcharles
Posts: 229
Joined: Thu Dec 04, 2008 1:50 pm

Re: CL Felony Murder Question

Postby rcharles » Tue Dec 14, 2010 1:55 am

kalvano wrote:There doesn't need to be malice at all for felony murder.

Yes, but felony murder itself is what provides the requisite implied malice to raise the crime from manslaughter to murder (D robs the store, V dies of heart attack after D leaves, D is convicted of 1st or 2nd degree murder by virtue of the implied malice aforethought).

Provocation has the opposite effect (W catches spouse cheating and immediately kills him). Although the killing occurred with malice (intent to kill), under the doctrine of provocation, the conviction will be for the lesser charge of voluntary manslaughter.

Suppose then, H breaks into the home (burglary) of his estranged wife (W) to get some of his old belongings. H witnesses W with his best friend. Assume the fact-finder decides the circumstances are sufficient to constitute provocation. H kills W. Can the prosecution then charge H with felony-murder in order to prevent him from asserting a provocation defense?

User avatar
kalvano
Posts: 11720
Joined: Mon Sep 07, 2009 2:24 am

Re: CL Felony Murder Question

Postby kalvano » Tue Dec 14, 2010 2:06 am

You're not looking at felony murder right. There is no malice needed or implied. Felony murder is a transferred intent doctrine. It transfers the intent to commit the predicate felony to the murder. The prosecution can get premeditated murder without having to prove intent to kill.

But most jurisdictions require that the killing be in furtherance of the felony.

It's an interesting hypo, but since the prosecution doesn't have to prove intent to kill, I don't think it would matter.

User avatar
rcharles
Posts: 229
Joined: Thu Dec 04, 2008 1:50 pm

Re: CL Felony Murder Question

Postby rcharles » Tue Dec 14, 2010 2:37 am

kalvano wrote:You're not looking at felony murder right. There is no malice needed or implied. Felony murder is a transferred intent doctrine. It transfers the intent to commit the predicate felony to the murder. The prosecution can get premeditated murder without having to prove intent to kill.

But most jurisdictions require that the killing be in furtherance of the felony.

It's an interesting hypo, but since the prosecution doesn't have to prove intent to kill, I don't think it would matter.


I'm not saying there is any level of mens rea required for a felony murder conviction, but rather that felony murder is a catalyst for the requisite mens rea of common law murder (malice either express or implied).

Dressler writes :"...the more usual explanation is that the intent to commit the felony constitutes the implied malice required for common law murder."

It's just like an intent to commit serious bodily injury or gross recklessness with an extreme indifference to human life are both sufficient to imply malice and secure a conviction for common law murder (absent mitigation to voluntary manslaughter by way of provocation). But I guess you're saying FM operates independently, and since it is necessarily a strict liability offense, a provocation defense fails...

kxz
Posts: 70
Joined: Tue Dec 23, 2008 4:18 pm

Re: CL Felony Murder Question

Postby kxz » Tue Dec 14, 2010 2:53 am

Isn't the only defense to felony-murder is whether you can apply it? I don't seem to recall any other defense. It would be hard to argue provocation for a non-trigger person. The whole reason felony-murder exists is so the prosecution doesn't have to prove any implied malice or mens rea.

random5483
Posts: 684
Joined: Sat Mar 20, 2010 8:17 pm

Re: CL Felony Murder Question

Postby random5483 » Tue Dec 14, 2010 3:45 am

The main defense to felony murder is a defense to the predicate felony.


Ex. Duress is not a defense to murder, but duress is a defense to robbery. If you commit robbery under duress and someone dies during the robbery, the duress will excuse the robbery and without the predicate felony, no felony murder conviction exists.


With regard to the original question, with felony murder, malice is "deemed" to exist. A provocation defense would not work for felony murder because felony murder is generally considered an unintentional killing where the malice is implied.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Yahoo [Bot] and 3 guests