Academic journal article Missouri Law Review

The Missouri Felony Murder Rule's Merger Limitation: A Doctrine in Limbo

Academic journal article Missouri Law Review

The Missouri Felony Murder Rule's Merger Limitation: A Doctrine in Limbo

Article excerpt


American criminal law is riddled with peculiarities that are decidedly "American" in nature. The United States plots its own course while other common law countries, like England, abolish certain forms of criminal liability (1) and punishments, (2) or establish mandatory protocols for criminal interrogations. (3) Among the most prominent of America's legal eccentricities is its continued use of the felony murder rule. It casts a broad shadow over America's criminal justice system by drastically increasing the punishment for criminal activity that is often less culpable than other offenses not prosecuted under the felony murder rule. (4) Many see it as a form of strict liability when a death results in the course of one's felonious activities. (5)

Historically, the felony murder rule was unnecessary under common law felonies because all felonies were punishable by death. (6) As justice systems migrated away from that blanket form of punishment, it was important to recognize when a killing was a murder, and thus punishable through the harshest means available under the law. (7) The felony murder rule developed as a means to effectively punish those who caused another's death during the course of a felonious action. (8) The rationale was that those who caused a death while committing a felony should face greater punishment for their wrongful conduct than those who commit felonies without causing a death. (9)

This new rule presented a problem. One who kills another person under the influence of a sudden heat of passion commits a felony: manslaughter. (10) Thus, the wrongdoer caused a death while committing a felony. (11) Therefore, felony murder must apply. (12) Under this interpretation, felony murder risks obliterating the crime of manslaughter because all manslaughter becomes punishable as felony murder. (13) As a result, the felony murder rule had to be limited in some manner. (14) The courts rapidly recognized the flaw and made it clear that such an absurd result could not stand: the crime of manslaughter would "merge" with the killing. (15) For the same reasons, a lesser degree of murder could not serve as the felony upon which a charge of felony murder was predicated. (16) Thus, the merger limitation of the felony murder rule was born, but felony murder continued to have a broad hold on punishments for killings other than murder.

Imagine a circumstance where a man finds his wife in bed with another man. Distraught, and unable to think clearly, he grabs a heavy object from the dresser and bludgeons both of them to death in the heat of passion. Every first-year law student recognizes this as manslaughter. (17) But, what if the prosecutor chooses to not charge it as manslaughter? (18) What if, instead, the prosecutor charges the defendant with a non-killing felony, such as assault with a deadly weapon? (19) Now, a killing occurred during the course of a felony other than manslaughter--the underlying felony is the assault, not the killing itself. (20) Can the defendant who committed a textbook manslaughter instead be charged with murder via the felony murder rule? In the vast majority of states, the answer is, "No." (21)

Most states, almost since the emergence of the felony murder rule, have limited by statute what felonies may serve as predicate--or underlying--felonies. (21) Some states limit the application of felony murder to those felonies inherently "dangerous to life," or they limit them to an enumerated list of felonies. (23) In many states, the merger doctrine applies to "assaultive" felonies and prevents application of the felony murder rule to killings that occur in the course of an assaultive felony. (24) The merger doctrine requires the actor have an independent, felonious purpose, other than causing bodily harm or death to the victim. (25)

Unfortunately, recent case law in Missouri obliterated the merger doctrine. (26) This Note aims to expose the faulty reasoning applied by Missouri courts in abrogating the merger doctrine. …

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