Unit 16: Depraved Indifference Homicide and Felony Murder


  • Dressler 486-500 (through 31.06)

  • Knoller (CP)

  • Stamp (CP)

  • Howard (CP)

Key Terms: 

  • Extreme recklessness

  • felony murder rule

  • Inherently dangerous felony

  • res gestae


Some jurisdictions treat certain homicides as intentional murder in cases where the prosecution has not proven the defendant’s intent to kill (and even in cases where the defendant in fact lacked an intent to kill).  These offenses are classified as depraved indifference homicide or felony murder.

Depraved Indifference Homicide

The “malice aforethought” element of murder is not always explicit; sometimes it is implied. At common law, murder in which the defendant’s malice aforethought was implied is called “depraved heart” or “depraved indifference” murder, or a variation thereon. This is essentially a more extreme form of reckless homicide, where the degree of disregard for the risk to human life is great enough to bump the offense from involuntary manslaughter to murder. In jurisdictions that grade homicide, this is almost always second-degree murder.

Although there is no clear rule for determining when “extreme recklessness” is satisfied, it must be the case that the actor: (1) created a serious risk of death through his conduct; and (2) failed to properly evaluate that risk while acting. It is also important that the actor knows his conduct creates such a risk.

Felony Murder

When an actor causes the death of another during the commission of a separate felony, the actor may be found guilty of murder, even without a showing of malice or intent. This is called the felony murder rule, which still exists in many jurisdictions. This rule is widely criticized for being overly broad and unnecessarily harsh in punishment, and for being unnecessary for punishing a killing committed during a felony. Despite this, the rule remains on the books in most states – perhaps because it eases prosecutorial burden.

The felony murder rule is often limited in various ways. For instance, it might be limited to inherently dangerous felonies. “Inherently dangerous felonies” can be defined in an abstract or concrete way. In the abstract, the question is whether the felony by its very nature creates a substantial risk of death. Under this approach, felony murder would never attach to theft, because a theft could in the abstract be committed without a significant risk of death. A more concrete approach looks at the particular actions of a specific actor, and asks whether there was a substantial risk of death in that particular instance.

Another limitation to the felony murder rule is the “merger” rule, which requires that the initial felony be independent of the homicide. If the homicide and initial felony are not independent, they are said to “merge,” and so the initial felony cannot be a basis for finding a homicide conviction. For example, suppose Martin negligently causes the death of Stephen. Martin is then guilty of criminally negligent homicide. But, since criminally negligent homicide is a felony, the felony murder rule would bump this offense to the level of murder. Without merger, any type of manslaughter might be bumped up to murder by application of the felony murder rule. The function of these limitations – and any variations on them – will vary by jurisdiction.

The contours of the felony murder rule are constrained by temporal and causal requirements under what is known as the res gestae doctrine.  The res gestae temporal requirement attaches felony murder liability to homicides that occur after the actor reaches the point where he could be prosecuted for an attempt to commit the felony, and at least until all the elements of the felony have been satisfied. The temporal period usually extends beyond completion of the felony, until the initial felony and the homicide are no longer part of “one continuous transaction.”  It thus includes homicides that take place during an escape attempt immediately following the commission of a felony (note that this means the death need not occur spatially near the scene of the crime). This consideration focuses on the conduct that caused the death, rather than the death itself. Thus, if conduct during the commission of a felony leads to someone having a heart attack and dying days later, the felony murder rule might still apply.

Res gestae requirements also encompass causality. That is, the underlying felony must be the cause – actual and proximate – of the homicide. But what happens when the homicide satisfies the causal and temporal requirements, but is caused by a non-felon (e.g., the victim who fires a gun in self-defense and hits a bystander)? Most states will decline to apply the felony murder rule in these cases. The rule will apply, however, if a co-felon caused the homicide. A minority of courts will still apply the felony murder rule in this case, so long as the death was foreseeable.

Consider the following with regards to res gestae. There may be a certain point where the original felonious conduct and the resulting death are too temporally distant for the felony murder rule to apply, though where this line is – if it exists – remains unclear. The case of William Barnes may provide insight into this. Barnes shot officer Barclay in 1966. Barclay died 41 years later. Prosecutors believed Barclay’s death was caused by injuries related to the ’66 shooting, and charged Barnes with murder. However, the jury ultimately acquitted Barnes. What do you think this case tells us about causation? Do you think there were policy considerations going on in the jury’s acquittal? Is this applicable in a felony murder context?

Questions for Review:

Q1: Billy and Claire decide to rob a bank. They enter the bank, fire their guns, and demand money. Although the robbery goes off without a hitch, a citizen hero named Jeff chases after Billy and Claire when they leave, hoping to catch them. He sees them drive away and chases in his car. Unfortunately, Jeff is so focused on Billy and Claire that he isn’t paying attention, and almost immediately hits and kills a pedestrian. Who is liable for the death of the pedestrian, and why?

Q2: Same facts as above, but this time suppose that Jeff is a plain-clothes police officer, and that he does not hit a civilian. Instead, he follows Billy and Claire, unnoticed, to a small house. Jeff calls for backup to help detain Billy and Claire. While Jeff waits, Claire’s sister Alice leaves the house, and Jeff approaches her, believing she is Claire. Alice sees Jeff’s gun and reaches for her own, and so Jeff shoots her. Alice dies. Do Billy and Claire have any liability for the death of Alice?

Q3: Suppose Chris finds a gold mine on her property. She knows there is a lot of gold there, and also that the mine is unstable and not safe. Chris finds people and offers them large sums of money to excavate the gold for her, but does not tell them about the danger. A foreseeable accident occurs in the mine, and several people die. Is Chris liable under an extreme recklessness theory?

Q4: Should the felony murder rule exist? Why or why not?