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Help me get this straight in my head:

Can you think of a circumstance where conspiracy (by itself) could be the predicate felony for the felony murder rule, independent of the underlying crime?

Does it matter if the jurisdiction follows Pinkerton?
Does it matter if the jurisdiction restricts the felony murder rule to "inherently dangerous" crimes?


Say A and B conspire to commit armed robbery, and B purchases a warehouse to be used as a hideout (an affirmative act, in case that matters). A police officer staking out the gang falls through a negligently maintained roof hatch and is killed. Can A be found guilty for felony murder?

I suck at crim and my final is Monday. Thus, I am not a Crim law genius. But ya know...I need to know about accomplice vs. conspiracy distinctions and whatnot, since the only crim fact pattern from my prof that I have seen is tough-ish to distinguish. So geniuses, get goin.

prezidentv8 wrote:I suck at crim and my final is Monday. Thus, I am not a Crim law genius. But ya know...I need to know about accomplice vs. conspiracy distinctions and whatnot, since the only crim fact pattern from my prof that I have seen is tough-ish to distinguish. So geniuses, get goin.

I feel good about accomplice and conspiracy liability for crimes, but I have a hard time wrapping my head around the idea of a conspiracy being a crime unto itself that might trigger felony murder liability.

Your post evidences some fundamental knowledge gaps with respect to the FMR.

The FMR ALWAYS either has an explicit list of enumerated predicate felonies (usually that's a higher 'degree' FMR, and conspiracy will or will not be a part of it, though it likely will not be) or an inherently dangerous requirement. Always. 100% of the time.

There are two ways to construe inherently dangerous. One way looks at the face of the statute - is the prohibited conduct inherently dangerous? Obvious examples include bank robbery, arson, etc. The other looks at the circumstances of the crime in question - one can imagine a relatively safe bank robbery (done when nobody was there, without weapons, while wearing snuggly bunny suits, knowing the police were out of town for a police being out of town convention, without breaking any lock... I mean who knows) and a relatively dangerous example of, I don't know, felony wire tapping (you go to tap the wire while strapped with a nuclear device? I'm making shit up).

So, depending on the text, conspiracy will or will not fit. And you would (this will come as a shock) argue both sides and then pick one using policy

(disclaimer: never learned conspiracy/pinkerton, so that might alter its applicability to the FMR. But I know for a fact FMR is either an enumerated predicate felony or an inherently dangerous felony, so your statement about "does it matter if there is an inherently dangerous requirement" is sort of a non-suitor, hence the above reply)

disco_barred wrote:Your post evidences some fundamental knowledge gaps with respect to the FMR.

The FMR ALWAYS either has an explicit list of enumerated predicate felonies (usually that's 1st degree FMR, and conspiracy will or will not be a part of it, though it likely will not be) or an inherently dangerous requirement. Always. 100% of the time.

There are two ways to construe inherently dangerous. One way looks at the face of the statute - is the prohibited conduct inherently dangerous? Obvious examples include bank robbery, arson, etc. The other looks at the circumstances of the crime in question - one can imagine a relatively safe bank robbery (done when nobody was there, without weapons, while wearing snuggly bunny suits, knowing the police were out of town for a police being out of town convention, without breaking any lock... I mean who knows) and a relatively dangerous example of, I don't know, felony wire tapping (you go to tap the wire while strapped with a nuclear device? I'm making shit up).

So, depending on the text, conspiracy will or will not fit. And you would (this will come as a shock) argue both sides and then pick one using policy

I realize all US jurisdictions now limit FMR to inherently dangerous (or have abolished it), and I am familiar with the tests. I'm not unclear on FMR, it's just tangential to my question, so I didn't elaborate.

At common law, before there was an inherently dangerous requirement, could the crime of conspiracy be the predicate felony?

disco_barred wrote:Your post evidences some fundamental knowledge gaps with respect to the FMR.

The FMR ALWAYS either has an explicit list of enumerated predicate felonies (usually that's 1st degree FMR, and conspiracy will or will not be a part of it, though it likely will not be) or an inherently dangerous requirement. Always. 100% of the time.

There are two ways to construe inherently dangerous. One way looks at the face of the statute - is the prohibited conduct inherently dangerous? Obvious examples include bank robbery, arson, etc. The other looks at the circumstances of the crime in question - one can imagine a relatively safe bank robbery (done when nobody was there, without weapons, while wearing snuggly bunny suits, knowing the police were out of town for a police being out of town convention, without breaking any lock... I mean who knows) and a relatively dangerous example of, I don't know, felony wire tapping (you go to tap the wire while strapped with a nuclear device? I'm making shit up).

So, depending on the text, conspiracy will or will not fit. And you would (this will come as a shock) argue both sides and then pick one using policy

(disclaimer: never learned conspiracy/pinkerton, so that might alter its applicability to the FMR. But I know for a fact FMR is either an enumerated predicate felony or an inherently dangerous felony, so your statement about "does it matter if there is an inherently dangerous requirement" is sort of a non-suitor, hence the above reply)

So maybe the distinction could rest on "Conspiracy to do X" as committed vs "Conspiracy to do X" in the abstract as within the FMR?

Renzo wrote:At common law, before there was an inherently dangerous requirement, could the crime of conspiracy be the predicate felony?

zuh? If you're imaging an FMR definition that reads "If while committing / fleeing a felony you cause the death of X" with no enumeration or IDR, then my guess is there would be causation issues... but that might get into nuance of conspiracy that I'm not familiar with, so I'll back out now.

Renzo wrote:Help me get this straight in my head:

Can you think of a circumstance where conspiracy (by itself) could be the predicate felony for the felony murder rule, independent of the underlying crime?

Does it matter if the jurisdiction follows Pinkerton?
Does it matter if the jurisdiction restricts the felony murder rule to "inherently dangerous" crimes?


Say A and B conspire to commit armed robbery, and B purchases a warehouse to be used as a hideout (an affirmative act, in case that matters). A police officer staking out the gang falls through a negligently maintained roof hatch and is killed. Can A be found guilty for felony murder?

I didn't study conspiracy but I am pretty sure that in order to be convicted under the FMR, a necessary requisite is the commission of an actual felony. I am also fairly certain that in order to be convicted under the FMR, the death of the person has to be related to the commission of the felony (i.e. a bystander shot in crossfire). Regardless I really don't think your hypo would qualify as a felony murder, unless they (A+B) were both assisting another who actually caused the death of another while committing the armed robbery.

Not sure if that was helpful.

I appreciate the responses, but I need someone who knows conspiracy. Conspiracy (in some jurisdictions) is a crime unto itself, so that you could be convicted both of a crime AND the conspiracy to commit that same crime. In most jurisdictions "conspiracy" is a felony--but I don't know if it can be a predicate felony.

So I echo that in reality this would never come up since all actual felony murder statutes have inherently dangerous and/or specifically delineated felonies requirements (though, I suppose, you could consider conspiracy to commit an inherently dangerous felony an inherently dangerous felony in and of itself).

But, let's suspend our disbelief for a second and just talk theoretically. Also, let's assume, say, the guy buying the warehouse for the robbery backed his car into the PO (not recklessly or negligently) to avoid causation issues.

If that's the case, I don't see what would theoretically stop you from finding felony murder on the basis of conspiracy. You can't say "no, because it's inchoate" because attempt counts for felony murder, and technically conspiracy is its own felony (but, not under the MPC). There are huge practical problems since conspiracy is an ongoing crime (i.e., D would be convicted of felony murder if he caused anyone's death during the conspiracy, which might last for months) and there are tons of policy arguments for why it's stupid to count conspiracy as a predicate felony, but I don't see a literal bar on your theory.


FYI, this has been treated before by actual courts - the resounding answer is "no" because of the reasons in the first paragraph.

caselaw.findlaw.com/data2/californiastatecases/b117926.doc

--LinkRemoved--


Edit: I do not see how Pinkerton could possibly matter, unless you're trying to convict not the guy who bought the warehouse, but the non-present co-conspirator of the guy who bought the warehouse. In that case, I imagine the answer would be, yes, you can convict they guy sitting on his couch who's a co-conspirator if you can convict the guy renting the warehouse, if the jurisdiction adopts Pinkerton, and if the felony murder is reasonably foreseeable (which would probably be a big problem).

imchuckbass58 wrote:So I echo that in reality this would never come up since all actual felony murder statutes have inherently dangerous and/or specifically delineated felonies requirements (though, I suppose, you could consider conspiracy to commit an inherently dangerous felony an inherently dangerous felony in and of itself).

But, let's suspend our disbelief for a second and just talk theoretically. Also, let's assume, say, the guy buying the warehouse for the robbery backed his car into the PO (not recklessly or negligently) to avoid causation issues.

If that's the case, I don't see what would theoretically stop you from finding felony murder on the basis of conspiracy. You can't say "no, because it's inchoate" because attempt counts for felony murder, and technically conspiracy is its own felony (but, not under the MPC). There are huge practical problems since conspiracy is an ongoing crime (i.e., D would be convicted of felony murder if he caused anyone's death during the conspiracy, which might last for months) and there are tons of policy arguments for why it's stupid to count conspiracy as a predicate felony, but I don't see a literal bar on your theory.


FYI, this has been treated before by actual courts - the resounding answer is "no" because of the reasons in the first paragraph.

caselaw.findlaw.com/data2/californiastatecases/b117926.doc

--LinkRemoved--


Edit: I do not see how Pinkerton could possibly matter, unless you're trying to convict not the guy who bought the warehouse, but the non-present co-conspirator of the guy who bought the warehouse. In that case, I imagine the answer would be, yes, you can convict they guy sitting on his couch who's a co-conspirator if you can convict the guy renting the warehouse, if the jurisdiction adopts Pinkerton, and if the felony murder is reasonably foreseeable (which would probably be a big problem).

That's the most perfect answer anyone could have possibly given me.

You, sir, are a true Crim Law genius.

Ok, I have another one. We didn't cover this at all (and its not the Dressler book) , but I'm curious.

If one commits a burglary in order to kill someone inside, the burglary merges for purposed of the FMR, but can they still be convicted of both murder and burglary. Are they guilty of two crimes, as with conspiracy, or is the burglary treated as an inchoate crime despite having been statutorily defined, so that it goes away once the felonious purpose has been achieved?

In the real world, felony + death = FMR!

Grad_Student wrote:In the real world, felony + death = FMR!

WIpe that smiley off your face. There's nothing funny about this bullshit... not at least until finals are over. Then we can yuck it up.

.

presh wrote:

Renzo wrote:Ok, I have another one. We didn't cover this at all (and its not the Dressler book) , but I'm curious.

If one commits a burglary in order to kill someone inside, the burglary merges for purposed of the FMR, but can they still be convicted of both murder and burglary. Are they guilty of two crimes, as with conspiracy, or is the burglary treated as an inchoate crime despite having been statutorily defined, so that it goes away once the felonious purpose has been achieved?

Oh, one I know!

The answer is no. Burglary does not merge. Think of it in relation to something like larceny. Even if you commit burglary in order to get into the building and commit larceny, the burglary will not merge and you will be charged with both burglary and larceny. So yes, that person is guilty of two crimes.

It is possible I could be wrong, but I don't think burglary ever merges. It will always be a separate felony.

Sounds right to me.

Renzo wrote:Ok, I have another one. We didn't cover this at all (and its not the Dressler book) , but I'm curious.

If one commits a burglary in order to kill someone inside, the burglary merges for purposed of the FMR, but can they still be convicted of both murder and burglary. Are they guilty of two crimes, as with conspiracy, or is the burglary treated as an inchoate crime despite having been statutorily defined, so that it goes away once the felonious purpose has been achieved?

There is actually a split over whether the burglary merges, Renzo. I don't know how your professor covered the merger rule, but there are two separate theories regarding it. The first theory states that a felony will merge unless there is an independent felonious purpose. Therefore, if a death occurred in the context of a burglary, the felony murder rule would still apply. However, if the person assaulted an individual and that resulted in a death, the FMR would merge with the assault. The other theory, which is a minority rule, concludes that if the felony was included in fact with the killing that the FMR does not apply. In this instance, if a person perpetrated a burglary with the intent of assaulting someone and that assault resulted in death, the FMR would not apply because the burglary was "included in fact" with the underlying felony that caused the death.

So, in short, it can go either way depending on your jurisdiction.