Criminal Law sample analysis
MBE Criminal Law Felony Murder Agency Theory Trap
Review a felony-murder question testing agency theory, proximate-cause theory, and whether a death caused by a non-felon can be attributed to the felons.
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Fact pattern
Nina and Omar agreed to rob a jewelry store at gunpoint. During the robbery, the store's armed security guard fired at Omar as the robbers fled. The guard missed Omar but fatally struck Lina, a shopper standing near the exit. Nina and Omar are charged with felony murder under a statute that follows the common-law enumerated-felony rule unless otherwise stated. The prosecutor argues that Lina died during the commission of an armed robbery and that both robbers are therefore guilty of felony murder. The defense responds that the fatal shot was fired by the security guard, not by either felon.
Quick answer
Under the common-law agency-theory approach, Nina and Omar should not be convicted of felony murder because the fatal shot was fired by a non-felon resisting the robbery. Felony murder imposes murder liability when a death occurs during the commission or attempted commission of a qualifying felony, but jurisdictions differ on whose act can supply the killing. Under the agency theory, the killing must be committed by the felon or a co-felon acting in furtherance of the felony. A killing by a victim, police officer, or other non-felon resisting the crime is not attributed to the felons. By contrast, the proximate-cause theory is broader and can hold felons liable for any foreseeable death proximately resulting from the felony, even if a non-felon caused it. When an exam says the statute tracks the common-law structure unless otherwise stated, the agency-theory answer is usually the better choice.
IRAC analysis
Under the common-law felony-murder framework, can Nina and Omar be convicted of felony murder when a resisting non-felon fired the shot that killed Lina?
Felony murder imposes murder liability when a death occurs during the commission or attempted commission of a qualifying felony, but jurisdictions differ on whose act can supply the killing. Under the agency theory, the killing must be committed by the felon or a co-felon acting in furtherance of the felony. A killing by a victim, police officer, or other non-felon resisting the crime is not attributed to the felons. By contrast, the proximate-cause theory is broader and can hold felons liable for any foreseeable death proximately resulting from the felony, even if a non-felon caused it. When an exam says the statute tracks the common-law structure unless otherwise stated, the agency-theory answer is usually the better choice.
Nina and Omar committed an enumerated felony: armed robbery. Lina's death also occurred during the robbery and flight sequence…
Primary law and source anchors
- Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958) Classic agency-theory authority rejecting felony-murder liability when a police officer kills a co-felon.
- State v. Canola, 374 A.2d 20 (N.J. 1977) Agency-theory case refusing felony-murder attribution for killings by resisting victims or non-felons.
- Model Penal Code Section 210.2(1)(b) Modern statutory treatment of killings in the course of certain felonies, often contrasted with common-law agency rules.
- Pinkerton v. United States, 328 U.S. 640 (1946) Useful contrast showing liability for acts of confederates, not acts of resisting non-felons.