Look, there are two questions here and they are not the same question.
The first is: Do the facts of this case as known to us support a charge of felony murder? The answer to this is pretty clearly “yes.” The perpetrators commit a felony, during the course of which, or directly after, the death of another person occurs under circumstances that justify tying the death to the actions of the perpetrators. (And just as an aside, in my state the charge of felony murder could just as easily rest on a charge of felony evasion of a police officer as the underlying felony, instead of or in addition to felony theft. This of course raises questions regarding whether anyone but the driver is actually evading, or can halt the evasion, but again is certainly enough to support the charge).
The second question is: Should the defendants be found guilty of felony murder? This is more problematic, and it’s reasonable that some people would conclude the answer is “no” on the grounds that the cause of death was actually the failure to wear a seatbelt, not the high-speed chase. But even those who have weighed in on the “no” side should be able to see this is a very problematic argument to make: First, you are arguing that the factual cause of death was the lack of restraint and not the speed (the speed being caused by the perpetrators’ flight), or a combination of both factors, and that may be difficult to prove. Second, you are placing the blame for the death on the dead officer and not on the criminals he died attempting to apprehend – a tough sell to a jury.
Is felony murder an appropriate charge under these circumstances? Yes. Should the defendants be convicted of felony murder under these circumstances? Maybe. That would depend on showing that the officer would not have been killed but for his failure to wear a seatbelt – a question none of us posting to this message board have any way of knowing the answer to.
The felony murder rule has been described by the court in my jurisdiction as “in for a penny, in for a pound.” If you allow yourself to to be involved in the commission of a serious crime, you will be held responsible for all deaths occurring as a consequence of the crime or the flight therefrom, without regard to whether you individually did the act that caused the death or deaths. As BERYL correctly said, “The charge is appropriate and the jury will decide.”
BUT . . .
BERYL –
This is incorrect. Lesser included offenses are rarely explicitly set forth as such in statutes. For example, a definition of second-degree assault will differ on its face from first-degree assault, but it will rarely also say “second degree assault is a lesser-included offense of first-degree assault.” Sometimes you can tell if one charge is a LIO of another just by looking at the two – as is the case for first and second degree assault – but if there is any question regarding whether Offense A is a LIO of Offense B, the answer will be provided by a court. So it is most certainly the province of case law to determine LIOs if there is any question regarding them, and to state otherwise is simply wrong.
And BERYL – the “Issue Rule Analysis Conclusion” method is indeed to preferred method for writing bar exams, but many of us are no longer writing (or grading) bar exams. We still apply the law to the facts, of course, but if we are doing our jobs correctly, we do not assume facts not in evidence. And I would respectfully add that since you were not merely wrong but wildly wrong in immediately dismissing theft as a possibly triggering felony charge, you might do well to refrain from presuming to grade the legal analyses presented. That way you will avoid the obligation to give yourself a big fat “F” on lesser-included offenses and triggering felonies.
