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.
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 model answer
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. But the decisive fact is who fired the fatal shot. The security guard, a non-felon resisting the robbery, pulled the trigger. Under the agency theory, that breaks the felony-murder attribution step because the killing was not performed by either felon or their accomplice. The prosecution will argue that Lina died because the robbers set the whole violent chain in motion and that an armed confrontation made death foreseeable. That is the logic of the proximate-cause theory, which some jurisdictions adopt. But the prompt points back to the common-law model unless otherwise stated, and the classic common-law exam trap rejects felony-murder liability for killings by resisting victims or officers. Nina and Omar remain liable for robbery and perhaps other offenses, but under the common-law agency approach they are not guilty of felony murder for Lina's death.
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.
Numbered reasoning steps
- Identify the qualifying felony first.
- Ask whether the death occurred during the felony or immediate flight.
- Separate agency theory from proximate-cause theory before choosing a result.
- Use the prompt's common-law cue to reject broader statutory alternatives unless supplied.
- Conclude with the specific reason attribution fails: the killer was a non-felon.
Why wrong answers fail
That ignores the agency-versus-proximate-cause split. Common-law style questions usually require attribution to a felon or co-felon.
The guard's justification may matter to the guard, but the separate question is whether the felons can be charged with felony murder.
Victim status does not answer the attribution question. The real issue is who caused the death under the governing felony-murder theory.
Foreseeability matters under proximate-cause jurisdictions, but the prompt points to the common-law agency approach unless otherwise stated.
Issue-spotting checklist
- Name the felony and verify it is one that can support felony murder.
- Confirm the death occurred during the felony or immediate flight.
- Ask who caused the killing before announcing the rule.
- Use agency theory by default when the prompt points to common-law felony murder.
- Mention proximate-cause theory only as a variation after giving the main answer.
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.