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

No.

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

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

This

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?

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.

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...

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.

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.