Law Class Notes
These cases are really hard!
At common law, the felony-murder rule is a pure, absolute rule. Any killing that occurs during the attempted commission of a felony would trigger this rule. However, this rule is controversial, and so courts have tried to find ways to limit the rule. These are judge-made limits.
Some jurisdictions keep the common law rule. Other jurisdictions have imposed certain limitations on the rule.
We shall focus on the two most common exceptions to the rule:
1. The “inherently dangerous felony” limitation
2. The merger rule
The “inherently dangerous felony” limitation – People v. Burroughs
Burroughs was an “alternative medicine practitioner”. He treated a leukemia patient with tea, lights, and massages. The massages caused his abdomen to rupture. Burroughs was prosecuted for second degree murder.
the felony-murder rule had been abolished in
The felony-murder rule is not necessary here, but it makes life easier for the prosecutor.
What would have been the biggest obstacle to the prosecutor in this case on these facts if he had sought to convict on “depraved heart” murder? It would be difficult to prove that Burroughs was aware of the risk. In fact, the evidence seems to show that he truly believed he could cure people.
Dressler finds this argument pretty thin. He’s not worried about having sufficient evidence to prove to a jury beyond a reasonable doubt that Burroughs was aware of the risk that his treatments could fail spectacularly.
How does the court cut off the felony-murder theory? The court finds that practicing medicine without a license is not “inherently dangerous”.
What steps does the court take to determine this? The court first looks at the statute and decides in the abstract whether this is an inherently dangerous felony. Next, the court asks: how dangerous must a felony be in order to be inherently dangerous?
What is the standard the court uses? The court considers whether an offense may be committed without a “high probability” of loss of life.
Courts seem to set a high standard with language like “high probability”, but it doesn’t seem like that’s what they mean. They seem to really mean sort of a “high expectation value of harm”.
Given the way the statute reads, how can the court conclude that this is not an “inherently dangerous felony”? The court finds that you can violate the statute without any risk of causing death. For example, you could make someone’s mental illness worse without killing them.
As long as you can imagine a way that a crime can be committed without creating a substantial risk of death, the crime in question is not inherently dangerous.
Does this limitation make sense? We have previously discussed arguments in favor of the felony-murder rule. What’s the best utilitarian rationale for the felony-murder rule? We want to give felons an incentive to commit their felonies safely. “Okay, we haven’t deterred you from committing this felony, but please try not to cause death while you’re committing the felony.” What if this rule actually had this effect? Wouldn’t we want to encourage safer felons committing safer felonies?
So, the underlying rationale is that we’re sending a message to felons that we want them to commit their felonies safely. Again, does this limitation make sense?
Let’s say someone commits felony pickpocketing. Under this limitation, we wouldn’t apply the felony-murder rule to pickpocketing.
Dressler says if we accept the felony-murder rule, and we accept that the previously stated justification for this rule (safe felons, safe felonies) is the best one, then it makes sense to exempt the pickpocket from the felony-murder rule.
Is the result right in Burroughs? Could we really convince Burroughs to commit this felony in a safer way? Maybe we could persuade Burroughs to stay away from terminally ill patients. Maybe we could persuade Burroughs not to advise his patients not to see their regular doctor anymore. We can imagine that the felony-murder threat could have influenced Burroughs to do what he did in a safer way. Dressler thus suggests that this limitation shouldn’t have been applied in this case.
Is possession of a concealed firearm inherently dangerous? This is a very common statute. Once you’ve been convicted of a felony, you basically lose the right to possess a concealed firearm. What the California Supreme Court said was that white collar felons carrying concealed firearms are no more dangerous than just regular folks carrying concealed firearms. So their answer was no, carrying a concealed firearms is not inherently dangerous because it could be done in a matter no more dangerous than the average schmoe carrying around a firearm.
The “independent felony” or “merger” limitation – People v. Smith
At common law, what crime are you guilty of if you commit a “heat of passion” homicide, for example, immediately after observing adultery? It’s classic voluntary manslaughter. But wait a minute. Voluntary manslaughter is a felony! I’ve just committed a felony, and I’ve caused a death during the commission of the felony. Isn’t this felony murder? This is why we need the independent felony or merger limitation. Without such a limitation, there would be no such crime as manslaughter, and that’s clearly not what the legislature intended.
was the underlying felony in
says that the prosecutor is trying to find a sneaky way to get the felony-murder
rule to kick in. The prosecutor charges
about the Sears case? This is
another burglary, but the prosecutor thought there was something different here
But, Dressler suggests, the felony-murder rule itself is anomalous. What if the underlying felony was larceny? The felony-murder rule would apply in that case, whereas it wouldn’t if there was killing going on.
of these felonies fall under the felony-murder rule. What’s different in
the California Supreme Court adds a caveat: if a felony has an “independent
felonious purpose”, it can be used with the felony-murder rule. It doesn’t make any sense to tell
Note that this independent purpose must be felonious. Discipline of children is not inherently felonious. It is only felonious if it is assaultive.
If a state applies both the “inherently dangerous” limitation and the merger limitation, what’s left? The most dangerous felonies are excluded and the least dangerous felonies are excluded. This would include felonies that are inherently dangerous, but not assaultive. Robbery may fall in this gap.
Note that a court that doesn’t want to apply the felony-murder rule can knock out pretty much all the felonies it wants by applying these two limitations.
Over half of the California Supreme Court got voted out for opposition to the death penalty! What would Scalia say?
The writing assignment
It should be self-explanatory. Yow! 20 hours! If you have questions, put them on TWEN.
Work on it in a disciplined, steady way. Try to get it done early!
Tomorrow, we start on rape. Friday, we’ll have a trial that will start at .