Criminal Law Class Notes 10/13/03

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

California was a leading state in trying to limit the felony-murder rule at the time these two cases were decided.

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.

If the felony-murder rule had been abolished in California, could Burroughs have been charged with second degree murder? Was the felony-murder rule required to make a plausible case for second degree murder? There was no intent to kill or cause grievous bodily harm. Could the prosecutor have used “depraved heart”? Maybe.

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.

People v. Henderson – There is no intent to kill in this case. The felony is false imprisonment, which is defined as “imprisonment effected by violence, menace, fraud, or deceit”. When we look at this statute in the abstract, we discover that because it uses its terms in the disjunctive (“or”), the crime described can indeed be committed without a high risk of causing death. If you falsely imprison someone by fraud or deceit, you’re probably not going to kill them.

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.

Note 4A

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.

What was the underlying felony in Ireland, cited in Smith? It was assault with a deadly weapon (“A.D.W.”). Why is this a felony for which the felony-murder rule cannot apply? The assault is an integral part of the homicide. Furthermore, this conduct is included in the homicide. Assault with a deadly weapon is not an independent felony. Everything has been “used up”, there’s “nothing left”. So in Ireland, the ADW is included in fact in the homicide. You can’t kill somebody without assaulting them.

What about Wilson? The felony was burglary. What is the common law definition of burglary? It’s “breaking and entering into the dwelling house of another at night with the intent to commit a felony therein”. Wilson intended to carry out an assault.

Dressler says that the prosecutor is trying to find a sneaky way to get the felony-murder rule to kick in. The prosecutor charges Wilson with burglary. The court points out, however, that this is basically ADW inside a house, and thus this is really no different than Ireland. Therefore, this is another case where the felony was an integral part of the homicide and the felony-murder rule cannot apply.

How about the Sears case? This is another burglary, but the prosecutor thought there was something different here than in Wilson. It’s the same as Wilson, except there is a different victim. Sears goes into the house intended to assault X, but instead kills Y. The prosecutor says that this distinguishes this case from Wilson. The court, however, doesn’t buy it and says that this is the same as Wilson. Why doesn’t this change the analysis? If we used the felony-murder rule in this case but not the Wilson case, the defendant would be worse off killing the “wrong” person than if he had killed the “right” person. The court calls this “anomalous”!

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.

None of these felonies fall under the felony-murder rule. What’s different in Burton? The defense is going to come up with a sly argument that armed robbery must merge into homicide too. Armed robbery is basically larceny plus ADW. It’s larceny with a gun! The California Supreme Court says to itself, “We’ve created a monster!” It seems that every felony is going to drop out of the felony-murder rule (with which they wouldn’t be terribly disappointed).

Therefore, 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 Ireland, Wilson, or Sears to commit ADW in a safer way. However, it would seem that we might be able to deter Burton from being a robber and make him become a mere thief. In other words, we don’t want you to steal stuff, but we’d rather have you steal stuff more safely.

Note that this independent purpose must be felonious. Discipline of children is not inherently felonious. It is only felonious if it is assaultive.

Note 2

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 8:30 AM.

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