criminal law-felony murder of co-felon Forum

[leeyatong]

hi, could someone help me to kick out a confusion in my head? thanks. when we do the MBE questions, there are some questions about the felony murder. there are 3 types:

1. A and B are co-felon, then during the robbery, B is killed by the police or bank teller, then is A liable for the felony murder for the death of co-felon B? some materials said yes, some said no...I feel confused.

2. A and B are co-felon, during the robbery, the victim or police is killed by A or B, so the answer is A or B is liable for the co-felon's killing of the police because of the agency rule? right?

3. A and B are co-felons, during the robbery, the victim is killed by the police, A and B is not liable for the death of the victim by the police, right?

[Borris]

You are right and wrong at the same time - I think your confusion comes from the fact that there are 2 theories for felony murder used by different states:

(1) As a general rule, no liability for death of a co-felon;

(2) the "proximate cause" theory provides that if one co-felon "proximately" causes a victim's death, ALL co-felons are vicariously guilty of felony murder, even if the actual killing is committed by a third party (i.e. police officer, security guard, bystander).

(3) the "agency" theory, which basically says that co-felon's are agents of each other, and that therefore one co-felon will be guilty of felony murder if killing committed is by another co-felon (not third parties).

[leeyatong]

Thanks so much

[John---]

You are right and wrong at the same time - I think your confusion comes from the fact that there are 2 theories for felony murder used by different states:

(1) As a general rule, no liability for death of a co-felon;

(2) the "proximate cause" theory provides that if one co-felon "proximately" causes a victim's death, ALL co-felons are vicariously guilty of felony murder, even if the actual killing is committed by a third party (i.e. police officer, security guard, bystander).

(3) the "agency" theory, which basically says that co-felon's are agents of each other, and that therefore one co-felon will be guilty of felony murder if killing committed is by another co-felon (not third parties).

Hi Borris. Could you give me an example under number 2?

[Borris]

You are right and wrong at the same time - I think your confusion comes from the fact that there are 2 theories for felony murder used by different states:

(1) As a general rule, no liability for death of a co-felon;

(2) the "proximate cause" theory provides that if one co-felon "proximately" causes a victim's death, ALL co-felons are vicariously guilty of felony murder, even if the actual killing is committed by a third party (i.e. police officer, security guard, bystander).

(3) the "agency" theory, which basically says that co-felon's are agents of each other, and that therefore one co-felon will be guilty of felony murder if killing committed is by another co-felon (not third parties).

Hi Borris. Could you give me an example under number 2?

Sure - just look for fact scenarios where a death occurs during the commission of a felony, but where the death was not caused (directly) by a co-felon but rather by someone else.

For example: Armed robbery of bank by felon 1 and felon 2 (co-felons). One walks into the store points his gun at the cashier and demands money from the till. The second co-felon is keeping watch out the front. Police arrive at the scene and co-felon 1 turns and opens fire on police. Police officer returns fire but misses felon 1 and the bullet hits and kills an innocent bank customer standing nearby. Under the "proximate cause" theory, both felon 1 and felon 2 would be guilty of murder of the bank customer, even though it was actually the police officer that fired the fatal shot (effectively saying that the felony was a proximate cause of the bank customer's death). Under the "agency" theory, felon 1 and felon 2 would not be guilty of murder.

[John---]

You are right and wrong at the same time - I think your confusion comes from the fact that there are 2 theories for felony murder used by different states:

(1) As a general rule, no liability for death of a co-felon;

(2) the "proximate cause" theory provides that if one co-felon "proximately" causes a victim's death, ALL co-felons are vicariously guilty of felony murder, even if the actual killing is committed by a third party (i.e. police officer, security guard, bystander).

(3) the "agency" theory, which basically says that co-felon's are agents of each other, and that therefore one co-felon will be guilty of felony murder if killing committed is by another co-felon (not third parties).

Hi Borris. Could you give me an example under number 2?

Sure - just look for fact scenarios where a death occurs during the commission of a felony, but where the death was not caused (directly) by a co-felon but rather by someone else.

For example: Armed robbery of bank by felon 1 and felon 2 (co-felons). One walks into the store points his gun at the cashier and demands money from the till. The second co-felon is keeping watch out the front. Police arrive at the scene and co-felon 1 turns and opens fire on police. Police officer returns fire but misses felon 1 and the bullet hits and kills an innocent bank customer standing nearby. Under the "proximate cause" theory, both felon 1 and felon 2 would be guilty of murder of the bank customer, even though it was actually the police officer that fired the fatal shot (effectively saying that the felony was a proximate cause of the bank customer's death). Under the "agency" theory, felon 1 and felon 2 would not be guilty of murder.

Awesome. Thank you!