Concept

Working a Problem

Model Penal Code felony murder

Working a Problem

The rules taught in the earlier sections fit together in a fixed order, and a felony-murder question under the Code is worked best by following that order. The order tracks dependence, since each question makes sense only after the one before it has been answered. Causation and a qualifying mental-state route come first, because the second sentence of § 210.2(1)(b) supplies recklessness and extreme indifference and nothing more.¹ The trigger conditions, a listed felony and a participant inside the time window, come next, because they decide whether there is a presumption to apply. Rebuttal comes last, because a defendant can answer only a presumption that has already arisen. Reasoning straight from the felony to the verdict skips those dependencies and rebuilds the common-law shortcut that the Code's presumption was drafted to replace.

Exam Analysis Steps

Because each question depends on the answer to the one before it, the analysis runs as follows:

Identify whether the facts show a criminal homicide caused by the actor, which requires the death of another human being, conduct that is a but-for cause of that death, and a causal path that is not so remote or accidental that it lacks a just bearing on the actor's responsibility.²
Ask whether murder is available without any presumption under § 210.2(1)(a), because the prosecution can prove that the actor killed purposely or knowingly.³
Ask whether the underlying felony is one of those listed in the statute (robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape), and whether the actor was engaged in its commission, in an attempt, or in flight afterward, or was an accomplice.⁴
If the felony is listed and the actor is inside that window, apply the presumption that the killing was reckless and was committed under circumstances manifesting extreme indifference to the value of human life.⁵
Ask whether the defendant has evidence that undercuts the presumed recklessness or the presumed extreme indifference, and if the presumption falls, decide which lesser homicide the remaining proof supports, manslaughter for recklessness and negligent homicide for negligence.⁶

Step two sits before step three because proof of purpose or knowledge makes the presumption unnecessary, and in that case the felony is only the setting for the killing. A failure at step three leaves the prosecution a narrower route to murder. The first sentence of § 210.2(1)(b) still makes a killing murder when the prosecution itself proves recklessness under circumstances manifesting extreme indifference to the value of human life, with no help from the felony.⁷ The question after a failed trigger is therefore what the prosecution can prove directly, and that is the same question that governs every killing outside the list.

In that pattern the presumption carries the whole mental-state case. Nothing in the facts proves what Dray perceived, and the listed felony stands in for that finding until the defendant produces evidence to the contrary.⁸ Step five is where the same felony can lead to a different result, as a change in the facts shows.

Three outcomes are then possible, and the evidence chooses among them. Ordinary recklessness, meaning conscious disregard of a substantial risk of death, is enough for manslaughter, and the further judgment whether that recklessness manifests extreme indifference to the value of human life is left to the trier of fact.⁹ If the evidence shows only that the actor should have perceived the risk, the offense is negligent homicide.¹⁰ If it shows neither, the death yields no homicide liability, although the burglary itself remains punishable. The causal question at step one also stays open in this variation, since a death that follows a startled confrontation may be so remote or accidental that it lacks a just bearing on responsibility, and in a close case the jury decides that.¹¹

Hypothetical Illustration

Lena lifts a power drill from a hardware store during business hours, walks out the front door unnoticed, and drives home. Once she is inside with the door locked, the store's owner, who followed her, bangs on the door and demands the drill. Lena shoves the door shut against him, and he stumbles backward off the porch step and dies. Assume the causal link to her conduct is established. At step two, nothing suggests that she aimed to kill or knew that death was practically certain. At step three the analysis stops, because theft is not an enumerated felony and, in any event, the theft ended when she reached home, so she was not in its commission, in an attempt, or in flight. No presumption arises, and murder would require direct proof that she consciously disregarded a substantial risk of death under circumstances manifesting extreme indifference to the value of human life.

The theft pattern fails at step three for two independent reasons. The felony is not on the list, and the felony was over when the death occurred, so Lena was neither engaged in it nor in flight from it.¹² Either gap alone keeps the presumption from arising, and an analysis of a closely similar theft reaches the same result, since the offense is not dangerous in itself and the felony is finished once the thief is home and safe.¹³ Murder is not foreclosed, because the prosecution may still try to prove extreme indifference directly. A shove at a door against a person standing on a step is a poor fit for that standard, though, so the likelier results are manslaughter on proof of conscious disregard, negligent homicide on proof of negligence, or no homicide on proof of neither.¹⁴

Placed side by side, the two patterns show which fact does the sorting. In each, a death follows a property crime, and in each the prosecution lacks direct proof of purpose or knowledge. The difference lies at step three: a listed felony in progress puts the contest at step five, where the defendant must answer a presumption that already exists, while an unlisted or finished felony leaves the prosecution to prove extreme indifference with no help from the felony.¹⁵

The last step is grading. Section 210.2(2) makes murder a felony of the first degree, and the text also contains a bracketed cross-reference to death sentencing under § 210.6.¹⁶ A successful rebuttal at step five lowers the grade, because manslaughter is a felony of the second degree and negligent homicide is a felony of the third degree.¹⁷ That ladder is why rebuttal matters in practice. The same death is a first-degree felony if the presumption stands and a second- or third-degree felony if it falls to a lesser mental state.

Working a Problem

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