April 28, 2025 • 19 mins
Welcome back to the Bar Exam Toolbox podcast! Today we're exploring some complex aspects of criminal law that frequently appear on exams -- the felony murder rule and causation in homicide cases. We have included an analysis of two hypothetical scenarios to illustrate these legal principles.
In this episode, we discuss:
- Review of the felony murder rule
- Which felonies are considered inherently dangerous?
- The death of a co-felon rule
- Causation in homicide cases, and when is the chain of causation broken?
- Analysis of two hypothetical criminal law scenarios
Resources:
- "Listen and Learn" series (https://barexamtoolbox.com/bar-exam-toolbox-podcast-archive-by-topic/bar-exam-toolbox-podcast-explaining-individual-mee-and-california-bar-essay-questions/#listen-learn)
- Podcast Episode 87: Listen and Learn – Homicide (https://barexamtoolbox.com/podcast-episode-87-listen-and-learn-homicide/)
Download the Transcript
(https://barexamtoolbox.com/episode-309-listen-and-learn-felony-murder-and-causation-criminal-law/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today, as part of our "Listen and Learn"series, we are discussing Criminal Law.
Specifically, we're takinga look at homicide again and
delving into felony murder.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:24):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
(00:46):
and we'd love to hear from you.
And with that, let's get started.
Hello, and welcome back tothe "Listen and Learn" series.
Today we will be discussingsubstantive criminal law.
We are looking at crimes againstanother person, specifically
(01:07):
homicide and felony murder.
We've covered the basics of homicidein an earlier episode that we will link
to in the show notes, but today we aretaking it a step further and diving
deeper into some complex aspects ofhomicide law that frequently appear on
exams, specifically the felony murderrule and causation in homicide cases.
(01:28):
If you haven't listened to the previoushomicide episodes yet, you might want
to start there for the basic framework.
We have linked to it in the show notes.
But today we are going to exploresome important nuances that can make
or break your analysis on an exam.
So, let's start withthe felony murder rule.
At its core, the felony murder rulestates that a death occurring during the
(01:50):
commission of certain felonies can becharged as murder, even if the defendant
did not intend to kill the victim.
Like murder, felony murder is,[1] the unlawful killing; [2] of a
person; [3] with malice aforethought.
The distinction lies in what"malice aforethought" means.
For felony murder, it means thedefendant had the intent to commit
(02:12):
an inherently dangerous felony,and that felony resulted in death.
This means that even if the defendantnever intended to kill anyone, they
can be convicted of a murder if adeath occurs while they committed
a felony, provided the defendantmeant to commit those felonies.
You might be wonderingwhich felonies qualify.
(02:32):
Depending on the jurisdiction, thereare different ways of analyzing this.
Some use a list of enumerated felonies,while others consider whether a
felony is inherently dangerous.
The enumerated felony approach meansthe felonies that may be charged as
felony murder are listed, or enumerated.
The traditional enumerated feloniesare burglary, arson, robbery, rape,
(02:54):
and kidnapping, sometimes calledthe BARRK felonies, B-A-R-R-K,
to help you remember them.
Some jurisdictions add additionalcrimes like drug trafficking
or carjacking to this list.
Under the inherently dangerous felonyapproach, on the other hand, courts
look at whether the underlying felonyis inherently dangerous to human life.
(03:16):
There are two major approaches thatjurisdictions use to determine if the
crime was an inherently dangerous felony.
First and most common, the"facts of the case" rule.
In this rule, jurisdictionsexamine the particular facts of
the case to determine whether thefelony was inherently dangerous.
The second and less common approachis the "in the abstract rule", which
(03:37):
means the jurisdictions consideronly the elements of the underlying
crime in the abstract and ignoringthe specific facts of the case.
This approach focuses on the elementsof the crime itself, not the particular
facts of how the defendant committed it.
For example, manufacturing illegaldrugs might qualify, because the
process is inherently dangerous,while theft typically would not,
(04:01):
because it is not a threat to life.
Now, let's throw in one more twist.
The murder doctrine puts an importantlimitation on felony murder.
Under the murder doctrine,the underlying felony must be
independent of the homicide itself.
In other words, if the felony issimply the means of committing the
(04:21):
homicide, it merges with the homicideor becomes one act and cannot serve as
the predicate felony for felony murder.
For example, assault cannot serveas the predicate felony for felony
murder, because assault is typicallypart of the conduct that causes death.
Let's also talk about thedeath of a co-felon rule.
(04:44):
Jurisdictions are split on whetherthe felony murder rule applies
when the person killed is one ofthe people involved in the felony.
The traditional approach called the"agency theory" holds that felony murder
only applies when the death occurs duringand in furtherance of the felony and
is caused by one of the perpetrators.
Under this view, if a security guardshoots and kills one of the robbers during
(05:07):
a bank robbery, the surviving robberscannot be charged with felony murder.
The proximate cause approach would allowfelony murder charges in that situation,
provided the death was a foreseeableconsequence of the dangerous felony.
You might notice that the proximatecause approach looks a lot like tort law.
If so, good eye!
(05:28):
Speaking of causation, thatbrings us to our next topic.
In criminal cases, prosecutors must proveboth actual cause and proximate cause.
If the jury needs to find that adefendant caused the death of another
in a homicide case, that means they needto find the defendant's actions were the
actual cause, meaning the defendant'sconduct was a "but for" cause of death.
(05:51):
In other words, the death would not haveoccurred but for the defendant's actions.
But that's not enough on its own.
The prosecution must also prove proximatecause - that the death was a foreseeable
consequence of the defendant's conduct.
Causation gets especially trickyin homicide cases, where there are
superseding intervening causes betweenthe defendant's conduct and the death.
(06:16):
A superseding intervening cause is athird party's act that occurs between the
defendant's act and the victim's death.
The key question is whether theintervening cause breaks the chain
of causation, usually cutting off thedefendant's liability for the death.
To determine this, courts look atwhether the intervening cause was,
[1] independent of the defendant'swrongful act; [2] unforeseeable.
(06:40):
If the elements are met, theintervening cause breaks the chain
of causation and the defendantcannot be convicted of homicide.
However, if the intervening causewas a foreseeable response to the
defendant's conduct, like the victimreceiving medical treatment, it does
not break the chain of causation.
So let's work through some exam-stylehypotheticals together to see how
(07:02):
these rules play out in practice.
Remember, whenever you're analyzingcriminal law questions, you want to
identify the issues, state the relevantrules, analyze by applying those facts to
your facts, and reach clear conclusions.
Here's our first scenario:
"Dan and Victor plan torob a convenience store.
They have a plan.
Dan will carry a gun, but theyexplicitly agree it's just to
(07:25):
scare people, not to hurt anyone.
When they enter the store, it'smore crowded than they expected.
The clerk, Carl, reaches under thecounter and Dan, thinking Carl is going
for a weapon, fires what he intendsto be a warning shot into the ceiling.
The bullet ricochets and hits acustomer named Ann in the shoulder.
(07:46):
While this is happening, Victorempties the cash register.
Suddenly, an off-duty policeofficer named Paul draws his
weapon and announces himself.
Paul fires at Victor butmisses, instead hitting another
customer, Bob, in the chest.
In their panic to escape, Danand Victor steal Bob's car.
During the high-speed chasethat follows, Victor loses
(08:08):
control and crashes into a tree.
Dan dies instantly.
Two weeks later, Ann, who was hit by thatricocheting bullet, develops a severe
infection during her hospital stay.
Despite receiving standard medicalcare, she dies from the infection.
Bob, who was shot by Officer Pauleventually recovers from his wounds.
(08:28):
What crime can Victor be charged withregarding both Dan's and Ann's deaths?
Discuss."
There are a lot of characters andmoving pieces here, so we need to
break this down systematically.
First, can Victor be convictedof felony murder for Dan's death?
The rule for felony murder statesthat a death occurring during the
(08:49):
commission of certain felonies isautomatically murder, regardless of the
defendant's intent regarding the death.
Remember, however, jurisdictionsare split on whether this
applies to deaths of co-felons.
Under the traditional agency theory,felony murder only applies when the death
is caused by one of the perpetratorsduring and in furtherance of the felony.
(09:11):
Under the proximate cause theory,felony murder applies to any
death that was a foreseeableconsequence of the dangerous felony.
Breaking it down, we have a death thatoccurred during an armed robbery - one
of the enumerated BARRK feloniesthat can support felony murder.
Alternatively, it is an inherentlydangerous felony under the facts
of the case approach, as Danbrought a loaded gun to the scene,
(09:34):
regardless of his intent to use it.
And under the abstract approach,the elements of armed robbery,
specifically the "armed" piece, indicatethe act is inherently dangerous.
The crash occurred during anescape phase, which is part of
the commission of the felony, andVictor's actions were the actual and
approximate cause of Dan's death.
(09:55):
However, the death of a co-felon, Dan,was caused by the crash, rather than
by someone trying to stop the robbery.
Under either theory, it is likelyVictor can be charged with Dan's death.
In an agency theory jurisdiction,Victor would be liable for felony
murder because Dan died duringand in furtherance of the felony.
The felony was going on as the twoengaged in the high-speed chase.
(10:18):
Further, Victor, as the drivercaused the death, not a third party.
In a proximate cause jurisdiction,Victor could also be convicted,
because a fatal crash during ahigh-speed escape is a foreseeable
consequence of the armed robbery.
The second issue (10:34):
Can Victor be convicted of felony murder for Ann's death?
The rules at issue here arefelony murder and causation.
We have already found that Victorwas engaged in an enumerated
and inherently dangerous felony.
We know Ann died after being shotby Dan during the felony, but
did Victor cause Ann's death?
For causation, we need both actualcause, which is "but for" causation, and
(10:58):
proximate cause, which is foreseeability.
An intervening cause breaks thechain of causation only if it is,
[1] independent of the defendant'sconduct; and [2] unforeseeable.
The first question is actual cause.
Was Dan's warning shot a "butfor" cause of Ann's death?
Yes.
If Dan hadn't fired that warning shot,Ann wouldn't have been wounded by a bullet
(11:21):
and wouldn't have contracted the infectionthat ultimately led to her death.
But what about proximate cause?
For proximate cause, we need toask, was the death a foreseeable
consequence of the armed robbery?
Well, let's break this down step by step.
First, is a ricocheted bulleta foreseeable consequence
of firing a gun in a store?
(11:41):
Absolutely.
Anytime you discharge a firearm,especially in an enclosed space
with hard surfaces, ricochetsare a foreseeable risk.
But what about the infection?
This is where it gets interesting,since both the gunshot wound and
infection play a role in her death.
Under the traditional rule, medicalcomplications that arise during treatment
don't break the chain of causation.
Think about it this way (12:03):
You cause someone to need medical treatment,
it's foreseeable that somethingmight go wrong during that treatment.
The fact that Ann contractedan infection in the hospital
doesn't change this analysis.
Medical complications, even unusual ones,are considered foreseeable consequences
of injuries that require treatment.
But wait!
(12:24):
Victor didn't fire the shot; Dan did.
Is Victor liable for Dan's actions?
As Dan's co-felon, Victor is liablefor any death caused in furtherance
of their shared criminal enterprise.
We didn't cover accomplice liability inthis lesson, but an accomplice can be
deemed guilty if they participated inthe commission of the felony and intended
(12:45):
for the target felony to be committed,and a killing occurred as a result.
It doesn't matter that Victordidn't fire the shot or that
they agreed not to hurt anyone.
Under the felony murder rule, whenyou agree to commit a dangerous felony
like armed robbery, you're on the hookfor deaths that occur as a result.
Therefore, we can conclude thatVictor could be charged with
(13:08):
felony murder for Ann's death.
The medical complications don'tbreak the chain of causation.
The death occurred during anenumerated felony, and co-felon
liability extends to all deaths causedduring the commission of the felony.
Now let's look at another hypotheticalthat raises some different and fascinating
issues about felony murder and causation.
(13:29):
This one gets into some tricky questionsabout medical complications, multiple
causes, and the scope of felony liability.
So here's our scenario:
"Mike is a drug dealer who decidesto rob his supplier Pete's house.
He knows Pete keeps substantialcash from drug sales and he figures
the house will be empty, since Peteusually makes deliveries at this time.
(13:52):
Mike brings his younger brother Larryalong to help carry whatever they
steal, but things don't go as planned.
When they break in, they find Peteat home with a customer named Steve.
Pete reaches for what Mikethinks is a weapon, though it
turns out to be just his phone.
Mike shoots Pete in the leg, then grabsPete's gun collection and the cash.
(14:12):
As Mike and Larry are trying toleave, Steve attempts to stop them.
During the struggle, one of thestolen guns accidentally goes
off, hitting Steve in the chest.
Meanwhile, Pete makes what turnsout to be a fatal decision.
Instead of calling an ambulance,because he doesn't want police
investigating his drug operation, hetries to drive himself to the hospital.
(14:35):
He passes out while drivingand crashes into a tree.
At the hospital, doctors discoverPete has a rare blood condition that
makes bleeding much more severe.
Despite receiving proper medicalcare, Pete dies three days later
from complications related to theleg wound and his blood condition.
Can Mike or Larry be foundliable for Pete's death?
(14:56):
Steve's?
Discuss."
Let's break this down systematically,starting with Pete's death.
The first issue we need to addressis whether Mike, and potentially
Larry, can be held liable for Pete'sdeath under felony murder principles.
The rule for felony murder, as wediscussed earlier, is that a death
occurring during certain feloniesconstitutes murder regardless of the
(15:18):
defendant's intent regarding the death.
We also need to considerour causation rules.
Remember, we need both actual andproximate cause, and an intervening
cause breaks the chain of causationonly if it's independent, unforeseeable,
and the sole cause of death.
Analyzing Pete's death, we haveseveral complex causation issues.
(15:39):
First, there's a clear actualcausation: But for Mike shooting Pete
in the leg, Pete wouldn't have beendriving to the hospital, wouldn't have
crashed, and wouldn't have triggeredthe bleed that caused his death.
But the proximate causeanalysis is trickier.
We have multiple intervening events.
Pete's decision to drive himselfrather than to call an ambulance,
(16:00):
the car crash, and the previouslyunknown blood condition.
So, would a reasonable person foreseethat shooting someone in the leg
would lead to them driving themselvesto the hospital and crashing?
This is debatable.
While seeking medical attention iscertainly foreseeable, Pete's specific
decision to avoid calling an ambulancedue to his illegal drug operation
(16:20):
might break the chain of causation.
His decision was independent of Mike'sconduct and arguably unforeseeable.
Most people would call an ambulancefor a gunshot wound, although
perhaps, not most drug dealers.
The blood condition addsanother layer of complexity.
Under traditional rules, while unusualmedical conditions of the victim
(16:40):
generally don't break causation, youtake your victim as you find them.
Remember the "eggshellskull rule" from torts?
This situation is different because thecondition is combined with Pete's own
decision to drive himself to the hospital.
The condition on its own, however,does not break proximate causation.
The court could go either way on this one,so it's a good opportunity for you to flex
(17:03):
your legal writing muscle and argue yourbest case, showing that you understand
the strengths of both arguments.
Now let's examine Steve's death, whichpresents a cleaner felony murder analysis.
The issues here are whether theaccidental discharge during escape
still counts as felony murder, and westill need to discuss whether Larry
can be held liable for either deathdespite his limited involvement.
(17:27):
Steve was shot during thecommission of the felony - right
in the middle of it, actually.
The felony was inherently dangerous.
Though they thought they wouldbe committing a burglary, it
turned into an armed robberywhen Steve and Mike were home.
Either way, burglary and robbery areboth enumerated felonies in BARRK and
inherently dangerous, factually and inthe abstract, as discussed previously.
(17:50):
Now you might think, "But the gun wentoff accidentally." In fact, it doesn't
matter that the gun went off accidentally.
That's actually one of the core purposesof the felony murder rule - to hold
felons responsible for accidentaldeaths during dangerous felonies.
Analyzing Larry's liability, althoughhe never agreed to violence, he did
(18:10):
agree to participate in a dangerousfelony involving stolen guns.
The fact that he didn't personally handlethe gun that killed Steve doesn't matter.
Once you join in a dangerous felony,you're liable for the deaths that
occurred during its commission.
Again, accomplice liability.
This hypothetical really shows us howcomplex these cases can get when we have
(18:32):
multiple participants, intervening actsby the victim, and medical complications.
It's crucial to analyze each deathseparately and methodically work
through both the felony murder andcausation elements for each defendant.
That's all we have time for today.
Keep reviewing substantive criminallaw and practicing hypos, and
soon you'll be able to crank outcriminal law questions in your sleep.
(18:55):
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
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If you have any questions or comments,please don't hesitate to reach out to
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Or you can always contactus via our website contact
(19:17):
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today, as part of our "Listen and Learn"series, we are discussing Criminal Law.
Specifically, we're takinga look at homicide again and
delving into felony murder.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
effectively, stay sane, and hopefullypass and move on with your life.
(00:24):
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
(00:46):
and we'd love to hear from you.
And with that, let's get started.
Hello, and welcome back tothe "Listen and Learn" series.
Today we will be discussingsubstantive criminal law.
We are looking at crimes againstanother person, specifically
(01:07):
homicide and felony murder.
We've covered the basics of homicidein an earlier episode that we will link
to in the show notes, but today we aretaking it a step further and diving
deeper into some complex aspects ofhomicide law that frequently appear on
exams, specifically the felony murderrule and causation in homicide cases.
(01:28):
If you haven't listened to the previoushomicide episodes yet, you might want
to start there for the basic framework.
We have linked to it in the show notes.
But today we are going to exploresome important nuances that can make
or break your analysis on an exam.
So, let's start withthe felony murder rule.
At its core, the felony murder rulestates that a death occurring during the
(01:50):
commission of certain felonies can becharged as murder, even if the defendant
did not intend to kill the victim.
Like murder, felony murder is,[1] the unlawful killing; [2] of a
person; [3] with malice aforethought.
The distinction lies in what"malice aforethought" means.
For felony murder, it means thedefendant had the intent to commit
(02:12):
an inherently dangerous felony,and that felony resulted in death.
This means that even if the defendantnever intended to kill anyone, they
can be convicted of a murder if adeath occurs while they committed
a felony, provided the defendantmeant to commit those felonies.
You might be wonderingwhich felonies qualify.
(02:32):
Depending on the jurisdiction, thereare different ways of analyzing this.
Some use a list of enumerated felonies,while others consider whether a
felony is inherently dangerous.
The enumerated felony approach meansthe felonies that may be charged as
felony murder are listed, or enumerated.
The traditional enumerated feloniesare burglary, arson, robbery, rape,
(02:54):
and kidnapping, sometimes calledthe BARRK felonies, B-A-R-R-K,
to help you remember them.
Some jurisdictions add additionalcrimes like drug trafficking
or carjacking to this list.
Under the inherently dangerous felonyapproach, on the other hand, courts
look at whether the underlying felonyis inherently dangerous to human life.
(03:16):
There are two major approaches thatjurisdictions use to determine if the
crime was an inherently dangerous felony.
First and most common, the"facts of the case" rule.
In this rule, jurisdictionsexamine the particular facts of
the case to determine whether thefelony was inherently dangerous.
The second and less common approachis the "in the abstract rule", which
(03:37):
means the jurisdictions consideronly the elements of the underlying
crime in the abstract and ignoringthe specific facts of the case.
This approach focuses on the elementsof the crime itself, not the particular
facts of how the defendant committed it.
For example, manufacturing illegaldrugs might qualify, because the
process is inherently dangerous,while theft typically would not,
(04:01):
because it is not a threat to life.
Now, let's throw in one more twist.
The murder doctrine puts an importantlimitation on felony murder.
Under the murder doctrine,the underlying felony must be
independent of the homicide itself.
In other words, if the felony issimply the means of committing the
(04:21):
homicide, it merges with the homicideor becomes one act and cannot serve as
the predicate felony for felony murder.
For example, assault cannot serveas the predicate felony for felony
murder, because assault is typicallypart of the conduct that causes death.
Let's also talk about thedeath of a co-felon rule.
(04:44):
Jurisdictions are split on whetherthe felony murder rule applies
when the person killed is one ofthe people involved in the felony.
The traditional approach called the"agency theory" holds that felony murder
only applies when the death occurs duringand in furtherance of the felony and
is caused by one of the perpetrators.
Under this view, if a security guardshoots and kills one of the robbers during
(05:07):
a bank robbery, the surviving robberscannot be charged with felony murder.
The proximate cause approach would allowfelony murder charges in that situation,
provided the death was a foreseeableconsequence of the dangerous felony.
You might notice that the proximatecause approach looks a lot like tort law.
If so, good eye!
(05:28):
Speaking of causation, thatbrings us to our next topic.
In criminal cases, prosecutors must proveboth actual cause and proximate cause.
If the jury needs to find that adefendant caused the death of another
in a homicide case, that means they needto find the defendant's actions were the
actual cause, meaning the defendant'sconduct was a "but for" cause of death.
(05:51):
In other words, the death would not haveoccurred but for the defendant's actions.
But that's not enough on its own.
The prosecution must also prove proximatecause - that the death was a foreseeable
consequence of the defendant's conduct.
Causation gets especially trickyin homicide cases, where there are
superseding intervening causes betweenthe defendant's conduct and the death.
(06:16):
A superseding intervening cause is athird party's act that occurs between the
defendant's act and the victim's death.
The key question is whether theintervening cause breaks the chain
of causation, usually cutting off thedefendant's liability for the death.
To determine this, courts look atwhether the intervening cause was,
[1] independent of the defendant'swrongful act; [2] unforeseeable.
(06:40):
If the elements are met, theintervening cause breaks the chain
of causation and the defendantcannot be convicted of homicide.
However, if the intervening causewas a foreseeable response to the
defendant's conduct, like the victimreceiving medical treatment, it does
not break the chain of causation.
So let's work through some exam-stylehypotheticals together to see how
(07:02):
these rules play out in practice.
Remember, whenever you're analyzingcriminal law questions, you want to
identify the issues, state the relevantrules, analyze by applying those facts to
your facts, and reach clear conclusions.
Here's our first scenario:
"Dan and Victor plan torob a convenience store.
They have a plan.
Dan will carry a gun, but theyexplicitly agree it's just to
(07:25):
scare people, not to hurt anyone.
When they enter the store, it'smore crowded than they expected.
The clerk, Carl, reaches under thecounter and Dan, thinking Carl is going
for a weapon, fires what he intendsto be a warning shot into the ceiling.
The bullet ricochets and hits acustomer named Ann in the shoulder.
(07:46):
While this is happening, Victorempties the cash register.
Suddenly, an off-duty policeofficer named Paul draws his
weapon and announces himself.
Paul fires at Victor butmisses, instead hitting another
customer, Bob, in the chest.
In their panic to escape, Danand Victor steal Bob's car.
During the high-speed chasethat follows, Victor loses
(08:08):
control and crashes into a tree.
Dan dies instantly.
Two weeks later, Ann, who was hit by thatricocheting bullet, develops a severe
infection during her hospital stay.
Despite receiving standard medicalcare, she dies from the infection.
Bob, who was shot by Officer Pauleventually recovers from his wounds.
(08:28):
What crime can Victor be charged withregarding both Dan's and Ann's deaths?
Discuss."
There are a lot of characters andmoving pieces here, so we need to
break this down systematically.
First, can Victor be convictedof felony murder for Dan's death?
The rule for felony murder statesthat a death occurring during the
(08:49):
commission of certain felonies isautomatically murder, regardless of the
defendant's intent regarding the death.
Remember, however, jurisdictionsare split on whether this
applies to deaths of co-felons.
Under the traditional agency theory,felony murder only applies when the death
is caused by one of the perpetratorsduring and in furtherance of the felony.
(09:11):
Under the proximate cause theory,felony murder applies to any
death that was a foreseeableconsequence of the dangerous felony.
Breaking it down, we have a death thatoccurred during an armed robbery - one
of the enumerated BARRK feloniesthat can support felony murder.
Alternatively, it is an inherentlydangerous felony under the facts
of the case approach, as Danbrought a loaded gun to the scene,
(09:34):
regardless of his intent to use it.
And under the abstract approach,the elements of armed robbery,
specifically the "armed" piece, indicatethe act is inherently dangerous.
The crash occurred during anescape phase, which is part of
the commission of the felony, andVictor's actions were the actual and
approximate cause of Dan's death.
(09:55):
However, the death of a co-felon, Dan,was caused by the crash, rather than
by someone trying to stop the robbery.
Under either theory, it is likelyVictor can be charged with Dan's death.
In an agency theory jurisdiction,Victor would be liable for felony
murder because Dan died duringand in furtherance of the felony.
The felony was going on as the twoengaged in the high-speed chase.
(10:18):
Further, Victor, as the drivercaused the death, not a third party.
In a proximate cause jurisdiction,Victor could also be convicted,
because a fatal crash during ahigh-speed escape is a foreseeable
consequence of the armed robbery.
The second issue (10:34):
Can Victor be convicted of felony murder for Ann's death?
The rules at issue here arefelony murder and causation.
We have already found that Victorwas engaged in an enumerated
and inherently dangerous felony.
We know Ann died after being shotby Dan during the felony, but
did Victor cause Ann's death?
For causation, we need both actualcause, which is "but for" causation, and
(10:58):
proximate cause, which is foreseeability.
An intervening cause breaks thechain of causation only if it is,
[1] independent of the defendant'sconduct; and [2] unforeseeable.
The first question is actual cause.
Was Dan's warning shot a "butfor" cause of Ann's death?
Yes.
If Dan hadn't fired that warning shot,Ann wouldn't have been wounded by a bullet
(11:21):
and wouldn't have contracted the infectionthat ultimately led to her death.
But what about proximate cause?
For proximate cause, we need toask, was the death a foreseeable
consequence of the armed robbery?
Well, let's break this down step by step.
First, is a ricocheted bulleta foreseeable consequence
of firing a gun in a store?
(11:41):
Absolutely.
Anytime you discharge a firearm,especially in an enclosed space
with hard surfaces, ricochetsare a foreseeable risk.
But what about the infection?
This is where it gets interesting,since both the gunshot wound and
infection play a role in her death.
Under the traditional rule, medicalcomplications that arise during treatment
don't break the chain of causation.
Think about it this way (12:03):
You cause someone to need medical treatment,
it's foreseeable that somethingmight go wrong during that treatment.
The fact that Ann contractedan infection in the hospital
doesn't change this analysis.
Medical complications, even unusual ones,are considered foreseeable consequences
of injuries that require treatment.
But wait!
(12:24):
Victor didn't fire the shot; Dan did.
Is Victor liable for Dan's actions?
As Dan's co-felon, Victor is liablefor any death caused in furtherance
of their shared criminal enterprise.
We didn't cover accomplice liability inthis lesson, but an accomplice can be
deemed guilty if they participated inthe commission of the felony and intended
(12:45):
for the target felony to be committed,and a killing occurred as a result.
It doesn't matter that Victordidn't fire the shot or that
they agreed not to hurt anyone.
Under the felony murder rule, whenyou agree to commit a dangerous felony
like armed robbery, you're on the hookfor deaths that occur as a result.
Therefore, we can conclude thatVictor could be charged with
(13:08):
felony murder for Ann's death.
The medical complications don'tbreak the chain of causation.
The death occurred during anenumerated felony, and co-felon
liability extends to all deaths causedduring the commission of the felony.
Now let's look at another hypotheticalthat raises some different and fascinating
issues about felony murder and causation.
(13:29):
This one gets into some tricky questionsabout medical complications, multiple
causes, and the scope of felony liability.
So here's our scenario:
"Mike is a drug dealer who decidesto rob his supplier Pete's house.
He knows Pete keeps substantialcash from drug sales and he figures
the house will be empty, since Peteusually makes deliveries at this time.
(13:52):
Mike brings his younger brother Larryalong to help carry whatever they
steal, but things don't go as planned.
When they break in, they find Peteat home with a customer named Steve.
Pete reaches for what Mikethinks is a weapon, though it
turns out to be just his phone.
Mike shoots Pete in the leg, then grabsPete's gun collection and the cash.
(14:12):
As Mike and Larry are trying toleave, Steve attempts to stop them.
During the struggle, one of thestolen guns accidentally goes
off, hitting Steve in the chest.
Meanwhile, Pete makes what turnsout to be a fatal decision.
Instead of calling an ambulance,because he doesn't want police
investigating his drug operation, hetries to drive himself to the hospital.
(14:35):
He passes out while drivingand crashes into a tree.
At the hospital, doctors discoverPete has a rare blood condition that
makes bleeding much more severe.
Despite receiving proper medicalcare, Pete dies three days later
from complications related to theleg wound and his blood condition.
Can Mike or Larry be foundliable for Pete's death?
(14:56):
Steve's?
Discuss."
Let's break this down systematically,starting with Pete's death.
The first issue we need to addressis whether Mike, and potentially
Larry, can be held liable for Pete'sdeath under felony murder principles.
The rule for felony murder, as wediscussed earlier, is that a death
occurring during certain feloniesconstitutes murder regardless of the
(15:18):
defendant's intent regarding the death.
We also need to considerour causation rules.
Remember, we need both actual andproximate cause, and an intervening
cause breaks the chain of causationonly if it's independent, unforeseeable,
and the sole cause of death.
Analyzing Pete's death, we haveseveral complex causation issues.
(15:39):
First, there's a clear actualcausation: But for Mike shooting Pete
in the leg, Pete wouldn't have beendriving to the hospital, wouldn't have
crashed, and wouldn't have triggeredthe bleed that caused his death.
But the proximate causeanalysis is trickier.
We have multiple intervening events.
Pete's decision to drive himselfrather than to call an ambulance,
(16:00):
the car crash, and the previouslyunknown blood condition.
So, would a reasonable person foreseethat shooting someone in the leg
would lead to them driving themselvesto the hospital and crashing?
This is debatable.
While seeking medical attention iscertainly foreseeable, Pete's specific
decision to avoid calling an ambulancedue to his illegal drug operation
(16:20):
might break the chain of causation.
His decision was independent of Mike'sconduct and arguably unforeseeable.
Most people would call an ambulancefor a gunshot wound, although
perhaps, not most drug dealers.
The blood condition addsanother layer of complexity.
Under traditional rules, while unusualmedical conditions of the victim
(16:40):
generally don't break causation, youtake your victim as you find them.
Remember the "eggshellskull rule" from torts?
This situation is different because thecondition is combined with Pete's own
decision to drive himself to the hospital.
The condition on its own, however,does not break proximate causation.
The court could go either way on this one,so it's a good opportunity for you to flex
(17:03):
your legal writing muscle and argue yourbest case, showing that you understand
the strengths of both arguments.
Now let's examine Steve's death, whichpresents a cleaner felony murder analysis.
The issues here are whether theaccidental discharge during escape
still counts as felony murder, and westill need to discuss whether Larry
can be held liable for either deathdespite his limited involvement.
(17:27):
Steve was shot during thecommission of the felony - right
in the middle of it, actually.
The felony was inherently dangerous.
Though they thought they wouldbe committing a burglary, it
turned into an armed robberywhen Steve and Mike were home.
Either way, burglary and robbery areboth enumerated felonies in BARRK and
inherently dangerous, factually and inthe abstract, as discussed previously.
(17:50):
Now you might think, "But the gun wentoff accidentally." In fact, it doesn't
matter that the gun went off accidentally.
That's actually one of the core purposesof the felony murder rule - to hold
felons responsible for accidentaldeaths during dangerous felonies.
Analyzing Larry's liability, althoughhe never agreed to violence, he did
(18:10):
agree to participate in a dangerousfelony involving stolen guns.
The fact that he didn't personally handlethe gun that killed Steve doesn't matter.
Once you join in a dangerous felony,you're liable for the deaths that
occurred during its commission.
Again, accomplice liability.
This hypothetical really shows us howcomplex these cases can get when we have
(18:32):
multiple participants, intervening actsby the victim, and medical complications.
It's crucial to analyze each deathseparately and methodically work
through both the felony murder andcausation elements for each defendant.
That's all we have time for today.
Keep reviewing substantive criminallaw and practicing hypos, and
soon you'll be able to crank outcriminal law questions in your sleep.
(18:55):
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
Lee or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
Or you can always contactus via our website contact
(19:17):
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
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