Felony Murder Question Forum

[amk110]

I've done about 1500 MBE questions, and I think this may be the first one that's actually compelled me to make a post in protest of getting it wrong in hopes that someone can explain it to me.

I'm referring to question #29 in the ever popular "Strategies and Tactics for the MBE."

This question involves a husband and wife who are accosted by a burglar while outside of their apartment building. He forces them inside, ties them up, and proceeds to burgle the place. He flees the building, and is apprehended by security guards. The question then goes on to mention that he's arrested. After all this, the husband suffers a massive heart attack while straining to free himself from his ties.

D is on the hook for felony murder.

Why exactly?

The BARBRI long outline specifically states that there's a foreseeability requirement for the death. And gives an example of an arson in which the building owner has a heart attack and dies as an unforeseeable consequence of the felony. Even accepting that the above death would be foreseeable, how did it occur during or in furtherance of the commission of the felony? Would not being arrested by police count as the felon having "reached a place of temporary safety?"

[THE_U]

Copy and paste the question. Hard to analyze the problem without that.

[encore1101]

The husband's heart attack was caused by trying to free himself from the restraints.
The restraints were used in furtherance of the burglary.

Even if the final consequence (death) occurred after the defendant was arrested, it was caused by something that he did in furtherance of the crime.

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

[KTnKT]

The only thing I've got is that the heart attack came from trying to untie the ties. So the burglar was still part of the cause. If the guy was freed and then later was retelling the story and had a heart attack, it would be less connected.

[jrass]

She (no reason to assume the burglar is male - this is sexism, and there are many skilled female burglars out there who have fought hard to be where they are today) tied them up to help her complete the robbery. The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms) was in furtherance of the crime. The fact the husband didn't try to untie herself until much later is irrelevant.

[amk110]

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

It seems foreseeable that someone might die from injuries sustained from a hit to the head with a lead pipe sufficient to put the victim in a coma.

How on earth is it foreseeable that someone might give themselves a heart attack while straining to untie binds?

[jrass]

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

It seems foreseeable that someone might die from injuries sustained from a hit to the head with a lead pipe sufficient to put the victim in a coma.

How on earth is it foreseeable that someone might give themselves a heart attack while straining to untie binds?

It's foreseeable if you break into a place and tie people up that they'll freak out. Depending on age and appearance, a heart attack may look pretty likely. Like if Ron Rivera rushes 4 against Peyton Manning (both gender neutral names) on Sunday, given her age it's likely that Ms. Manning will have a heart attack and Ms. Rivera will be the proximate clause of her heart attack.

[amk110]

Yes, as you said, depending on age and appearance. None of which were described in the fact pattern.

I maintain that this question is faulty. It involves too much of a judgment call as to whether the death was foreseeable, and whether it even occurred during the commission of or in furtherance of the felony.

[FinallyPassedTheBar]

For the MBE, I think it is foreseeable someone might have a medical condition exposed due to being tied up and restrained in their movement. Starting from that viewpoint, IMO it is not a leap to say it is foreseeable that someone might die of a heart attack in that situation.

[encore1101]

Yes, as you said, depending on age and appearance. None of which were described in the fact pattern.

I maintain that this question is faulty. It involves too much of a judgment call as to whether the death was foreseeable, and whether it even occurred during the commission of or in furtherance of the felony.

The death does not need to occur during the commission of the felony. Only the act that causes the death.

Suppose I burglarize your house, and you confront me, so I shoot you in the leg and run away. I get caught almost immediately after, and you're taken to the hospital, but a few days later, you die from your wounds.

I've still committed felony-murder. I caused your death, even if it wasn't immediate.

The foreseeability comes in whether the underlying felony creates a "foreseeable" risk of death, not necessarily the individual facts of the case. For example, felony auto stripping is not a crime that typically involves injury or a risk of death, whereas burglary of someone's home creates a foreseeable risk of death, regardless of the circumstances that actually caused the death. That's why most jurisdictions have enumerated specific felonies that can form the basis of felony murder.

edit: https://www.law.cornell.edu/wex/felony_murder_rule

edit 2: http://blogs.findlaw.com/blotter/2013/0 ... -rule.html ("Unlike other kinds of murder, in felony murder there's no requirement that the suspect intended to cause death, or that his actions were likely to kill another person.")

[jrass]

Yes, as you said, depending on age and appearance. None of which were described in the fact pattern.

I maintain that this question is faulty. It involves too much of a judgment call as to whether the death was foreseeable, and whether it even occurred during the commission of or in furtherance of the felony.

I think a person of any age having a heart attack in that situation is foreseeable. You don't know who has a heart condition, and how common heart attacks are.

During the Gulf War, Saddam couldn't hit back against America so he decided to randomly strike Israel because like most Muslim leaders, he was committed to the Israeli-Palestinian peace process and knew that exterminating Israelis would make Israeli-Palestinian peace easier to achieve. As fate would have it, the scuds all missed and the only victims died from heart attacks.

When your life is in danger your heart accelerates, and if the person shooting or launching bombs is an idiot it's conceivable that the heart attack casualties will outnumber the bomb casualties.

[NUDad]

The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms).

"Husband and wife" are gender neutral terms? Not in the English language.

Webster's dictionary:

husband, n. A male partner in a marriage.
wife, n. A female partner in a marriage.

[FinallyPassedTheBar]

The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms).

"Husband and wife" are gender neutral terms? Not in the English language.

Webster's dictionary:

husband, n. A male partner in a marriage.
wife, n. A female partner in a marriage.

Those are antiquated definitions rooted in traditionally sexist society. (I'm sort of half joking here...but still)

[jrass]

The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms).

"Husband and wife" are gender neutral terms? Not in the English language.

Webster's dictionary:

husband, n. A male partner in a marriage.
wife, n. A female partner in a marriage.

There's precedent in Western society for the government to overrule the dictionary: http://www.telegraph.co.uk/news/politic ... onary.html. In this regard Websters is not only wrong, but possibly illegal.

[NUDad]

The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms).

"Husband and wife" are gender neutral terms? Not in the English language.

Webster's dictionary:

husband, n. A male partner in a marriage.
wife, n. A female partner in a marriage.

Those are antiquated definitions rooted in traditionally sexist society. (I'm sort of half joking here...but still)

Antiquated? 99% of the population uses those definitions.

[jrass]

The restraining and interaction with the husband and wife (who we also don't know are male and female as these are gender neutral terms).

"Husband and wife" are gender neutral terms? Not in the English language.

Webster's dictionary:

husband, n. A male partner in a marriage.
wife, n. A female partner in a marriage.

Those are antiquated definitions rooted in traditionally sexist society. (I'm sort of half joking here...but still)

Antiquated? 99% of the population uses those definitions.

That's because 99% of people are sexist and are passing on their antiquated genes. Eventually the modern 1% will become the 99% and then these terms will be appropriately gender neutral the way God (substitute No God if the term "God" offends you or Dog if you are dyslexic) intended.

[bluesplitter]

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

It seems foreseeable that someone might die from injuries sustained from a hit to the head with a lead pipe sufficient to put the victim in a coma.

How on earth is it foreseeable that someone might give themselves a heart attack while straining to untie binds?

I think this one is tricky, but maybe easy if u think about it this way.

What if burglar tied them up and gagged them, and one of them chokes. Boom felony murder.

Same with being tied up. The guy died because of a direct connection to the burglary.

The same will be true if victim was locked up the in the freezer and forgotten in the hotel in the Shining, and they starve becsuse no one came to get them.

Don't use tort "foreseeable" standard....use " how can we get him guilty" standard

[encore1101]

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

It seems foreseeable that someone might die from injuries sustained from a hit to the head with a lead pipe sufficient to put the victim in a coma.

How on earth is it foreseeable that someone might give themselves a heart attack while straining to untie binds?

In determining "foreseeability," you don't consider the specific mechanism by which the victim died.

You're mixing up "causes the death of a non-participant" with foreseeability. Felony-murder contemplates that some crimes are so inherently dangerous, that it is foreseeable that a non-participant would die, someway, somehow, regardless of the specific mechanism of death. But the question isn't, "Is the method by which the non-participant died foreseeable?" The question is, "Was it foreseeable that a non-participant would die, regardless of how?"

If you're a torts guy, it's almost like negligence per se, where the act is so dangerous that you're automatically on the hook for the results.

Let's go back to my earlier "auto stripping" example. Let's say the defendant is trying to rub the VIN off a car (assume, for the sake of this example, it's a felony), when he's confronted by the owner. They struggle, and the defendant pushes the owner onto the ground, causing the owner to hit his head on the floor. The owner later dies from his injuries.

Can the defendant be charged with felony-murder? No, because "auto stripping" is not typically a crime where the death of a non-participant is foreseeable.

Does that mean the defendant is off the hook for the murder? No, he still faces manslaughter charges. He just won't be charged with the enhanced crime of felony-murder.

[jrass]

Imagine if the defendant, instead, struck the husband with a iron pipe on the head to effectuate the burglary, and the husband went into a coma. A month later, after the defendant was already arrested and charged, etc., the husband dies from the injuries. That would also count as felony murder, even though the final consequence occurred a month after the burglary ended.

It seems foreseeable that someone might die from injuries sustained from a hit to the head with a lead pipe sufficient to put the victim in a coma.

How on earth is it foreseeable that someone might give themselves a heart attack while straining to untie binds?

I think this one is tricky, but maybe easy if u think about it this way.

What if burglar tied them up and gagged them, and one of them chokes. Boom felony murder.

Same with being tied up. The guy died because of a direct connection to the burglary.

The same will be true if victim was locked up the in the freezer and forgotten in the hotel in the Shining, and they starve becsuse no one came to get them.

Don't use tort "foreseeable" standard....use " how can we get him guilty" standard

How do you know it's a guy? I discussed employment discrimination on every bar essay and the mpt and passed. It's a good way to pick up points across the board. Car crashes, breaches of contract, felony murder, all opps to tout your ED knowledge.

[amk110]

Yes, as you said, depending on age and appearance. None of which were described in the fact pattern.

I maintain that this question is faulty. It involves too much of a judgment call as to whether the death was foreseeable, and whether it even occurred during the commission of or in furtherance of the felony.

The death does not need to occur during the commission of the felony. Only the act that causes the death.

Suppose I burglarize your house, and you confront me, so I shoot you in the leg and run away. I get caught almost immediately after, and you're taken to the hospital, but a few days later, you die from your wounds.

I've still committed felony-murder. I caused your death, even if it wasn't immediate.

The foreseeability comes in whether the underlying felony creates a "foreseeable" risk of death, not necessarily the individual facts of the case. For example, felony auto stripping is not a crime that typically involves injury or a risk of death, whereas burglary of someone's home creates a foreseeable risk of death, regardless of the circumstances that actually caused the death. That's why most jurisdictions have enumerated specific felonies that can form the basis of felony murder.

edit: https://www.law.cornell.edu/wex/felony_murder_rule

edit 2: http://blogs.findlaw.com/blotter/2013/0 ... -rule.html ("Unlike other kinds of murder, in felony murder there's no requirement that the suspect intended to cause death, or that his actions were likely to kill another person.")

I appreciate your taking the time to explain this. If the rule operates as you're describing, BARBRI should definitely change their outlines and CMR, as these both specifically state, in boldface, that the felony murder rule requires "that the deaths occur during the commission of, or in furtherance of, the underlying felony." And goes on to specifically state that the "deaths must be foreseeable."

I still don't think that a death occurring after the felony has been completed, and the perpetrator arrested, can be classified as one occurring "during" the felony (as it happened after). I guess the question turns on whether the death occurred "in furtherance" of the felony.

I fully maintain that this question is stupid. The answer choice should have been qualified in some fashion. "D can be found guilty of burglary, and murder IF...." rather than the absolute statement that he "is guilty of burglary and murder."

Also, why is this thread derailed into a discussion of gender specific terms? Completely off topic.

[kraeton]

Nothing will prepare you for questions like these if you don't actually do a ton of questions to test the parameters of these specific rules. Even a comprehensive memorization of the rule won't prepare you for questions like these. Kinda surprised you haven't come across similar problems after 1500 questions. I have to say though, using Themis, our outline actually makes it pretty clear that basically anything that goes wrong in a felony murder is the felon's fault, and you shouldn't take the word "foreseeable" too literally.

The parameter of foreseeability is perhaps even stranger in torts re: supervening or non-supervening event questions, where it's maintained that a Defendant who negligently broke Plaintiff's leg by bumping into her with his car is then liable for further damages if Plaintiff then goes to a doctor to get it checked out who was negligent and due to medical malpractice, let's say uh... she had to get her leg amputated.

So you have a situation where negligent Defendant admittedly broke P's leg, but is now liable (unless I'm wrong about all this) for a fuck'n amputated leg. (Granted, joint and several liability + standard comparative negligence Jx will make his damage proportional to the harm he committed... theoretically), but the BAR EXAM won't go that deep and the answer will likely be in the very straightforward form of:

"Yeah bro, Defendant's liable for an amputated leg, since the harm of medical malpractice in the aftermath of your initial negligence is foreseeable), and is thus not a foreseeable supervening event"

I mean... it's clearly not, right? But... yeah.

[GrizzlyWintergreen]

It seems unlikely you will see more than one felony murder MBE question.

It seems unlikely you will see felony murder tested on an MEE essay.

If you are testing in a state that doesn't administer the MBE/MEE/UBE then who knows.

[landshoes]

if you want to understand this you will need to review:

--the specific meaning of "in furtherance" as it relates to felony murder
--the specific meaning of "foreseeability" as it relates to felony murder
--the meaning of "repose" in relation to felony murder and/or when a felony is actually over (it's not when the felon is arrested)

[jrass]

The trick with the bar exam is you don't need to stress about the law. You could just talk about whatever facts seem shady, and just type a ton. The examiners don't really read the answers the way law professors read exams. These people are brought in from the public, and grading your test for a very small sum, and they get paid the same regardless of how long they spend.

A lot of the examiners probably don't even know what the question they're grading, and are grading the quality of your essay so you can make stuff up. Not only laws but entire facts. The fact pattern talks about a contract dispute? Add a gun victim to the mix, and maximize the points. If it's about inheriting a famous statue and you don't know wills but know crim, have the statue get stolen and the plaintiff burns in a fire so you can make it about felony murder. You just have to give the impression you know what you're talking about. If you have length and a decent MBE, nobody's really reading your essays. You really just have something on the page, and whether you have laws there or your takeout order, it's not that relevant.