Causation and Strict Liability

Causation and Strict Liability

The earlier sections of this chapter showed how the intent to commit a felony stands in for malice, which felonies qualify, and when a death counts as occurring during the felony. Those requirements leave one link unaddressed: the connection between the felony and the death itself. Felony murder fills that gap with two rules that seem to pull against each other. The felony must have caused the death, yet once it did, the felon answers for the death whether or not anyone could have predicted it. The sections below take the causal requirement first, then the strict-liability rule it limits, and finally the best-known product of the two together, the felon's responsibility for a victim who proves unusually fragile.

A Separate Causal Requirement

The felony intent supplies the mental element of murder and nothing else. Under the felony-murder rule, an intent to commit a felony supplies implied malice.¹ The doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony, but murder remains the unlawful killing of a human being, so the substituted malice must attach to a death the defendant actually brought about.² That is why People v. Stamp frames the question as whether the homicide is "the direct causal result of the robbery."³ The malice substitution answers the question about the defendant's mind, and the causal requirement answers the separate question whether the defendant's felony produced the death.

The causal link has the same two layers as causation elsewhere in homicide. Cause in fact asks whether the death would have happened when and as it did without the felony. Legal cause then asks whether the death is a result the law will charge to the felon, and it excludes a death produced by an unforeseeable coincidence or by an abnormal response to the felony.⁴ It is tempting to think that, because felony murder borders on strict liability, cause in fact is all the prosecution needs, but these ordinary limits on legal cause apply to it as they do to every other homicide, and the link must run to the conduct that makes the act a felony.⁵

The reason for insisting on causation even where fault toward the death is not required comes from what strict liability is for. A rule that holds a person answerable without proof of fault works only by giving that person a reason to take care, and care is possible only against risks the person's own conduct creates. A robber can take care about a gun discharging in a struggle, and an arsonist about a fire spreading, but neither can take care about an event that has nothing to do with how the felony is carried out. The Model Penal Code commentary quoted in State v. Martin makes the point with a robber who steps into a bank just as an employee, pushing the burglar alarm button, is electrocuted: the robber is not liable for that death, because strict liability aims to secure extreme care and gains nothing from liability for improbable results.⁶

Arson shows where the line falls. A person who sets fire to an occupied house is guilty of felony murder when a firefighter dies battling the blaze, because deaths of that kind are neither unforeseeable nor the product of abnormal events, but the arsonist is unlikely to answer for a firefighter who falls from the truck on the way back to the station after the fire is out.⁷ The fire is a but-for cause of both deaths, since it is what called the firefighters out, so cause in fact does not separate them. Legal cause does: the first death is the fire's own danger at work, while the second is an ordinary mishap that follows the fire only in time.

Liability Without Foreseeability

Once the causal link exists, the felon's liability does not depend on whether the death was foreseeable. Stamp holds that the felony-murder doctrine is not limited to foreseeable deaths: a felon is strictly liable for all killings committed by the felon or accomplices in the course of the felony, and as long as the homicide is the direct causal result of the robbery, the rule applies whether or not the death was a natural or probable consequence of it.⁹ Strict liability in this setting means liability without proof that the felon intended the death, recklessly risked it, or negligently overlooked it; the only fault the prosecution must show is the fault in the felony.¹⁰

The rule exists to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit.¹¹ That purpose explains why foreseeability is not an element. Accidental killings are unplanned by definition, so a requirement that the death have been foreseeable would excuse many of the very deaths the rule targets and would leave the felon with little reason to take extra care. Strict responsibility works the other way: a felon who knows in advance that any death directly caused by the felony will be charged as murder has a reason to avoid risk-creating choices, such as loaded weapons and physical struggles, before they arise. In People v. Burton the California Supreme Court described the enumerated felonies as carrying a clear legislative warning, and it explained that the legislature judged this deterrent purpose to outweigh the usual practice of examining each killer's state of mind.¹²

The cases bear this out for accidental killings. In Commonwealth v. Griffith, an armed robber's gun discharged accidentally while the store owner, who had come out of a back room with a baseball bat, was striking him, and the owner died; the court held that the claim of accident was of no consequence to a felony-murder conviction.¹³ In People v. Anderson, a defendant who drove a car taken in a robbery through a closing gate and ran over its owner claimed the death was an accident, and the court observed that the only intent felony murder requires is the specific intent to commit the underlying felony, so an accidental death is irrelevant when the robbery itself was intentional.¹⁴

Because liability attaches to the result, it can turn on a matter outside the felon's control. A concurring opinion in Commonwealth v. Brown observed that a defendant who accidentally drops a firearm during a felony and shoots someone is guilty of both the felony and felony murder if the shot proves fatal, but only of the felony if the victim survives.¹⁵ The concurrence offered that outcome as a reason to abandon the rule, a theme the last section of this chapter takes up, but as a description of what the rule does it is accurate.

Jurisdictions describe the outer limit of this strict liability in different words. Stamp speaks of a direct causal result and disclaims any foreseeability requirement.¹⁶ New Jersey applies a probable-consequence test to felony murder, under which the alarm-button electrocution would fall outside the rule.¹⁷ Massachusetts speaks of natural and probable consequences yet treats death from the stress of an armed robbery as meeting that test.¹⁸ The vocabularies therefore agree on fright deaths and on deaths that flow directly from the felony, and they are likely to diverge, if at all, only where the result is improbable.

Taking the Victim as Found

The best-known application of these two rules is the death of a victim who was already ill. In People v. Stamp, which the last section used to show the timing element, a robbery victim with advanced atherosclerosis was robbed at gunpoint and made to lie on the floor for about ten minutes, and he then collapsed and died of a heart attack.²⁰ Three physicians testified that some immediate upset must have precipitated the seizure and that, but for the robbery, there would have been no fatal attack at that time, while opposing expert testimony held that fright could not be shown fatal with reasonable medical certainty.²¹ The court held the evidence sufficient to show that but for the robbery the victim would not have experienced the fright that brought on the attack, because a reviewing court assumes every fact supporting the verdict that the jury could reasonably have found.²²

On those facts the rule is that a victim's predisposing physical condition, and the robber's ignorance of it, do not destroy the robber's responsibility so long as the condition is not the only substantial factor bringing about the death.²³ The court added that so long as life is shortened by the felonious act, it does not matter that the victim might have died soon anyway, and it summed up the consequence this way: "the robber takes his victim as he finds him."²⁴ The reasons follow from the structure of the rule. Every person dies eventually, so whether the victim would have died anyway can never be the test; the question is whether the felony hastened the death, and a hastened death is a caused death. The felon also chooses the confrontation but not the victim's constitution, and cannot learn the victim's health before acting. If liability required a healthy victim, responsibility would turn on a fact the felon can neither know nor influence, and the people most likely to die of fright, the elderly and the ill, would receive the least protection from the rule.

The condition defeats liability only when the felony contributed nothing of substance. In Stamp the defendants asked for an instruction that a conviction is unwarranted when the sole proximate cause of death was the victim's own negligent or reckless conduct. The court said refusing it could be justified because the evidence would not have let the jury find such conduct was the sole cause, and it found the proximate-cause instructions actually given more complete and accurate.²⁵ Change one fact and the instruction would have mattered: had the physicians testified that the attack would have struck at that hour with or without the robbery, the fright would have added nothing, the disease would have been the only substantial factor, and the chain would fail.

Exam stems often set a trap by describing a gentle felon. Students lose this issue when they treat the robber's gentleness as a defense. A robber who uses a toy pistol and means to inflict only economic harm is still guilty of felony murder if a victim dies of fright, because the question is whether the felony caused the death, and the felon's wish to avoid physical harm is not part of that question.²⁶