Learning The Felony-Murder Rule from The Good Wife

Rebecca Fishbein

Watching the TV show The Good Wife is actually a pretty effective way to learn some criminal law. Although it definitely presents a simplified version, a compelling drama making concepts manifest as “real world” situations can help people understand on a deeper level than any classroom could.

For example, I credit the episode “Home,” from the show’s first season, with actually teaching me the felony murder rule. The episode’s storyline not only gives a clear outline of the mechanics of the rule, but also goes deep into its heavy public policy implications.

In this episode, the show’s protagonist, Alicia Florrick, agrees to represent a youth named Kenny Chatham. Kenny and his friend Brian had tried to enter their friend’s apartment through a window to get some marijuana, thinking they had permission. Kenny says he ran away when a security guard showed up, but he realizes the next morning that Brian was arrested. Kenny thinks at worst the police are after him too for burglary—perhaps a drug related charge—but to everyone’s shock, he is charged with felony murder. Apparently, the security guard struggled with the boys at some point, and someone shoved him down the stairs, where the guard hit his head and died. And, as Alicia says, “because the guard was killed in the commission of an alleged burglary, it’s felony murder.” Brian enters a plea deal with the government, claiming Kenny shoved the guard, and only Kenny is charged with the felony murder.

The boys definitely lack the specific intent required for first degree murder. Such a charge would require premeditation, which is usually defined as having the mental state to kill, and it would be hard to prove these boys wanted to kill anyone. They also didn’t have the required purpose to kill (deliberation), as they seemingly shoved the guard down the stairs on their way out.  But if this was a murder in the commission of a felony, it becomes first degree murder under the felony murder doctrine, even if the boys lacked premeditation and a deliberate purpose. Under this rule, all accomplices to a felony are guilty of first degree murder, no matter if they had malice (specific intent).

Alicia and her colleagues begin to defend Kenny by trying to prove there was no actual burglary, because Kenny had permission to enter his friend’s apartment. Without the requisite felony, there can be no felony murder. If there was no burglary, whatever Brian did after Kenny left that led the guard to die is not Kenny’s responsibility, because he was not an accomplice to any felony. Note that this is a somewhat simplified view of the rule, because Kenny could still be an accomplice to a murder even if he had already left the scene. It’s likely Alicia was actually trying to break the chain of causation, to show Kenny had enough time to get home before the guard was shoved, showing the murder was unrelated to this “burglary.” But explaining actual and proximate causation to a mass audience is not easy, and the writers took this quick shortcut. In the end, Alicia is successful as she shows Kenny wasn’t even there when the guard was shoved down the stairs, and that the other friend was responsible. There was a significant enough break in the chain of causation to exonerate Kenny, whether or not he’d broken into his friend’s place.

The episode could have made the crime more complicated, thus making the felony murder charge not so clear. There are two other requirements for felony murder that the episode doesn’t even mention: there must be an inherently dangerous felony involved, and there must be causation between the felony and the death. Burglary is traditionally seen as an inherently dangerous felony. Causation is clearly met if the boys really did shove the guard down the stairs. If the crime had not included an inherently dangerous felony, the episode could have shown the lawyers arguing whether or not the actions were inherently dangerous enough to be felony murder. The writers could have also put causation at issue, perhaps changing the fact pattern such that the boys accidentally ran over the security guard on the drive home (which would bring up the question if they ran him over to get away, or if it was an accident unrelated to the burglary). The writers also stay away from the merger doctrine by using a burglary as the felony, instead of an assault where a separate first degree murder charge would be more appropriate.

Instead of going into the details of the felony murder rule, the episode focuses on the serious public policy consequences of having a strict liability homicide in any jurisdiction. The fact that whether Kenny’s friend said he could enter the apartment or not can be the difference between life in prison or innocence is ridiculous to the casual viewer. The fact Kenny can even be charged with first degree premeditated murder without ever seeing or touching the victim or knowing he died seems unreasonable. Even with the most basic understanding of criminal law, people will think some sort of specific intent is required to be guilty of the most serious offenses. But the theory under the felony murder rule is the prosecutor can impute the malice from an intention to commit a dangerous felony to a resulting homicide. The episode thus serves this purpose of the felony murder rule well, as the rule originally existed to give an extra deterrent from committing any felonies. After watching this episode, any rational person will be (even more) cautious of burglary if they could be guilty of murder as well if something goes wrong. It also follows the goal of the rule to make trial simpler: the trial in this episode focuses upon whether or not Kenny was at the scene, instead of entertaining a much wider ranging debate on whether Kenny had the appropriate mental state for manslaughter.

With additional narratives about loyalties to old friends, true friendship, and how to get ahead at work, this episode presents a compelling story that also teaches complicated legal topics at a simple level. While viewers will not understand the technicalities of felony murder, they will definitely think about how our society chooses to charge different crimes and whether our criminal justice system imposes fair penalties. This episode has all viewers questioning felony murder, just as most legal scholars question the rule today.