Concept
How the Presumption Operates
Model Penal Code felony murder
How the Presumption Operates
The three conditions covered above (a listed felony, a killing inside the commission, attempt, or flight window, and an actor who is engaged in the felony or is an accomplice) decide when the Code's presumption arises. They leave open what the presumption accomplishes once it arises. That question deserves its own treatment because the presumption is easy to misread as the old felony-murder rule in new clothing. This section first identifies what the presumption stands in for and then shows how a defendant can answer it.
What Is Presumed
The second sentence of § 210.2(1)(b) opens, "Such recklessness and indifference are presumed," and then names the felonies and the actor's relationship to them.1 The word "such" points back to the first sentence, which makes a killing murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. The presumption therefore stands in for two findings that the prosecution would otherwise have to prove. The first is that the actor was reckless, in the Code's sense of consciously disregarding a substantial risk of death. The second is that the recklessness occurred under circumstances showing extreme indifference to the value of human life. Everything else murder requires, including the requirement that the actor caused the death, stays outside the presumption and is taken up in a later section.
A presumption is used here because of how mental states get proved. What an actor was thinking at the moment of a killing is rarely shown directly, so a factfinder usually infers it from the surrounding circumstances.2 The listed felonies are the circumstances in which the Code treats that inference as strong enough to presume, because each is typically a crime in which resistance, confrontation, fire, or flight makes a death a real possibility. The presumption thus lets the prosecution use the felony itself as circumstantial proof of the mental state. That saves the prosecution from reconstructing, from nothing, what the defendant was thinking in the middle of a violent crime.
The presumption also marks the Code's departure from the older rule. The American Law Institute recommended eliminating the felony-murder rule, and the presumption is what the Code offers in its place.3 Because the Code abandoned the traditional doctrine and requires that a murder be purposeful, knowing, or reckless, the presumption keeps a mental-state requirement in place and changes only how that requirement is satisfied.4 A strict-liability offense dispenses with any mental state, so a conviction can rest on conduct alone. Murder under the Code never works that way, and a killing during a listed felony is murder only because recklessness and extreme indifference are presumed to accompany it.
Rebutting the Presumption
The Code's presumption is a rebuttable presumption, meaning the defendant may offer evidence that answers the inference the felony raises.6 Because the presumed facts are recklessness and extreme indifference, the evidence that answers them goes to the actor's own perception of the risk. The defendant may show that he did not consciously disregard a substantial risk of death, or that the circumstances did not manifest extreme indifference to the value of human life. Proof about the felony cannot do that work, since the presumption already assumes the felony, so the defense must speak to what the actor knew, saw, and expected when the killing took place. An accomplice has the same opportunity as the person who caused the death. A driver who joined a robbery after being assured the weapons were unloaded, who watched her partner remove the ammunition, and who had no reason to think it was replaced has an answer directed at exactly the point the presumption supplies.7
The reason the Code leaves this door open traces to a principle about proof of mental state. A dissenting opinion in Montana v. Egelhoff, a case about a Montana statute that kept voluntary-intoxication evidence away from the jury on the question of mental state, reasoned that once a legislature defines an offense with a mental-state element, the defendant may insist that the State prove every element beyond a reasonable doubt. The same opinion reasoned that barring evidence on that element lets a jury impute a mental state the defendant never had.8 That passage comes from a dissent in a case that did not involve felony murder, so it supplies background and not a holding on the Code. It still explains what rebuttability does in the Code's scheme. Recklessness and extreme indifference are what make a killing murder, so a presumption the defendant could never answer would permit a murder conviction on a mental state the defendant may not have possessed. Leaving the presumption open to rebuttal keeps it an inference and keeps it from becoming strict liability.
The presumption is an inference about mental state and carries no verdict with it, so a listed felony does not make the killing murder by itself. If the factfinder is persuaded by the rebuttal evidence, the felony no longer supplies the mental state, and the homicide is murder only if the remaining proof establishes recklessness and extreme indifference by the route the first sentence of § 210.2(1)(b) describes.9 Where the evidence leaves something less, such as inattention to a risk the actor never actually perceived, the killing falls short of the Code's murder category and may amount to a lesser grade of criminal homicide.10 Evidence that someone else fired the shot, or that the defendant took no part in the felony, raises accomplice status or causation, which are separate questions from answering the presumption.
What Is Presumed
The second sentence of § 210.2(1)(b) begins with the words "Such recklessness and indifference are presumed" and then names the listed felonies and the actor's relationship to them.12 The word "such" points back to the first sentence, which makes a killing murder when it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. The presumption therefore creates no new category of murder. Once the felony is shown, it supplies mental-state findings that the first sentence already requires, and it leaves every other element of the offense where it was.
The first finding concerns what the actor perceived, and the second concerns what the circumstances reveal about the actor's attitude toward human life. The second does the grading work. A killing that is merely reckless, or only negligent, is manslaughter, so extreme indifference is what lifts a reckless killing into the murder category.15 Courts describing the Code often compress the presumption into a single phrase. The Michigan Supreme Court, in People v. Aaron, summarized it as a rebuttable presumption of recklessness manifesting extreme indifference to the value of human life when the actor is in the commission of, an attempt at, or flight from a listed felony.16 That shorthand is accurate, but it hides the fact that two findings sit inside it. An answer that mentions only recklessness leaves out the finding that makes the killing murder, which is why each presumed finding is separate.
The reason for a presumption lies in how mental states get proved. What an actor was thinking in the middle of a violent crime is almost never shown directly, so a factfinder ordinarily infers it from the surrounding circumstances. The listed felonies are the circumstances in which the Code treats that inference as strong enough to presume. Robbery, arson, burglary, and the others typically involve victims or occupants who may resist, fire that may spread, or flight under pressure, so an actor who goes ahead is likely aware of a risk of death and indifferent to it. The drafters concluded that the probability of the required finding in such cases is high enough to warrant the presumption, while insisting that liability still depends on the finding itself.17 The presumption thus lets the felony serve as circumstantial proof of both mental states, and the offense remains murder defined by a mental state, not a status acquired by committing a felony.
The practical effect is a saving of proof. Once the prosecution shows an enumerated felony, an actor within the Code's timing and participation limits, and a killing the actor caused, it does not need separate evidence of what the actor consciously perceived or how indifferent the actor was to human life.
That design reflects a choice the legislature was free to make differently. Concurring in the judgment in Montana v. Egelhoff, a case about a state statute that barred voluntary-intoxication evidence on mental state, Justice Ginsburg observed that states have wide latitude in defining the elements of criminal offenses, including how much moral culpability an offense requires.18 A legislature using that latitude could have made a killing during a listed felony murder outright and dispensed with any mental state. The Code instead kept recklessness and extreme indifference as the elements of this form of murder and reached the felony only through a presumption about them, which is why the provision describes murder and not a status crime.19
The presumption is an aid to the prosecution and is not the only route to murder. When the actor was not engaged in a listed felony, or the killing falls outside the timing or participation limits, no presumption arises, and the prosecution may still try to prove both findings directly under the first sentence of § 210.2(1)(b).20 A drug seller who is not committing a listed felony, and who supplies an unusually large dose to a buyer he knows has overdosed before, shows the pattern. If the buyer dies, the sale triggers no presumption, but a jury might still find that the seller consciously disregarded the risk, and the homicide would then be manslaughter or murder depending on whether extreme indifference is proved.21 Failing to qualify for the presumption therefore removes only the shortcut, and the prosecution continues with the burden of proving the mental state itself. How a defendant can answer the presumption when it does arise is the subject of the next subsection.
Rebutting the Presumption
The second sentence of § 210.2(1)(b) creates a rebuttable presumption, meaning the defendant may offer evidence that answers the two findings the felony raises.23 A footnote in Mullaney v. Wilbur, written about a different issue, describes presumptions in general terms. They let the prosecution establish a fact by proving other facts, they in effect require the defendant to present some evidence contesting the presumed fact, and because they shift that burden of production they must satisfy due process.24 That passage is background and not a holding about the Code, but it explains the posture the Code creates. Once the prosecution proves the felony facts, the next move belongs to the defendant.
Rebuttability keeps the presumption consistent with the rest of the Code. The Code abandoned the traditional felony-murder doctrine and requires that a murder be purposeful, knowing, or reckless, so it keeps a mental-state requirement even when a death occurs during a felony.25 A presumption that no evidence could answer would let the felony alone establish murder, which is strict liability under another name. Two reasons support leaving the door open. The functional reason is that the presumption rests on what is true of the typical listed felony, where resistance, fire, or flight makes death a real possibility, and a typical case is not every case. Rebuttal lets the atypical defendant show that the inference fails on the actual facts. The grading reason is that murder is the Code's most serious homicide, so a defendant whose conduct did not manifest extreme indifference to human life should be graded by the evidence about that conduct, whatever the felony's label.
Because the presumed facts concern the actor's own mind, the evidence that answers them must concern it too. The defendant may show that he did not consciously disregard a substantial risk of death, or that the circumstances did not manifest extreme indifference to the value of human life.26 Evidence about the felony itself cannot do this work, since the presumption already assumes the felony. What helps is evidence of what the actor knew, saw, and expected: precautions taken before the crime, assurances received along the way, and the reasons the actor had to believe nobody was in danger.
That pair follows the pattern the Code's arson presumption usually produces. When the predicate felony is arson, the presumption of recklessness arises, but the defendant can ordinarily rebut it unless the defendant knew the fire would be more dangerous than anyone would expect.27 The knowledge carries the weight because it is the very thing the presumed finding describes. An actor who knows that people are inside has perceived the risk of death and gone ahead, which is conscious disregard, while an actor who reasonably believes the building empty has no such perception to answer for.
Two outcomes are possible, and the rest of the analysis depends on which one occurs. The presumption survives when the defendant offers no answer, or an answer that leaves the factfinder unpersuaded, so that the felony continues to supply both findings and murder remains available. The presumption is rebutted when the defendant's evidence raises enough doubt about conscious disregard or extreme indifference that the felony can no longer be relied on to supply them. New Hampshire's statute, as described in a footnote to People v. Burroughs, states the first outcome expressly: if the presumption of recklessness and extreme indifference is not rebutted, the defendant is guilty of second degree murder.28 That is one state's grading choice and not a statement of what the Code itself provides, but it shows how a rebuttable presumption is meant to function, with an unanswered presumption leaving murder in place.
Winning the rebuttal changes the route to a verdict without ending the case. The presumption is a shortcut to two mental-state findings, so once it is answered, a rebutted presumption leaves the prosecution free to prove a lesser homicide or to prove murder directly under the first sentence of § 210.2(1)(b).29 If the remaining evidence shows both conscious disregard of a substantial risk of death and circumstances manifesting extreme indifference, the killing is still murder, though no longer by presumption. If it shows conscious disregard without extreme indifference, the natural fallback is reckless manslaughter under § 210.3(1)(a).30 A seller who hands over an unusually large dose to a buyer known to have overdosed before shows how this works without any felony-murder theory, because a jury might find conscious disregard of the risk and return manslaughter or murder depending on what else the evidence shows.31 Where the evidence shows only that the actor failed to notice a risk, neither extreme-indifference murder nor reckless manslaughter fits, since each requires that the actor actually perceived the risk.
Several arguments that feel like rebuttal belong elsewhere, because they do not touch the actor's mental state. A victim's carelessness, such as a responder's own misjudgment, is relatively unimportant in a felony-death case under the Code, and the defendant's opening is an argument that the defendant did not cause the death.32 The Code's causation inquiry asks whether the way the harm came about is too remote or accidental to have a just bearing on the actor's responsibility, and on close facts a jury may go either way.33 That inquiry is the subject of the next section.