Introduction

Felony Murder Under the Code

Introduction

The familiar common-law idea is that a death occurring during a dangerous felony is murder, whatever the defendant intended about the death. The Model Penal Code has no freestanding rule of that kind. It reaches many of the same killings through its general definition of murder, which opens by providing that, except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when the listed conditions are met.¹ The condition that matters here sits in § 210.2(1)(b), under which a homicide is murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.² Nothing in that sentence mentions felonies at all. It describes a mental state, and the prosecution ordinarily has to prove it from the circumstances of the killing.

Felony murder enters the Code through the second sentence of the same clause. That sentence presumes the recklessness and the extreme indifference whenever the actor is committing, attempting, or fleeing from robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape, and the presumption reaches an accomplice as well as the person who did the killing.³ A presumption is a shortcut to a mental state. Proof that the death occurred during one of those felonies stands in for direct proof that the actor consciously ran an extreme risk of death, yet the element being established remains the mental state that murder requires.

The first question on facts like these is whether the Code treats the killing as murder automatically. It does not. The robbery gives the prosecution a presumption that recklessness and extreme indifference were present, the prosecution must still prove that the robber caused the death, and the defense has an opportunity to answer the presumption, as later sections show. This reading covers the Code's version only; the common-law rule is touched later for contrast. Because the presumption stands in for particular findings, you need to know what those findings are before you study what triggers the presumption and how a defendant rebuts it. That means beginning with how § 210.2 defines murder.⁴