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Felony Murder Rule in Illinois: The Injustice of the Proximate Cause Theory Explored Via Research in Cognitive Psychology

NCJ Number
Journal of Criminal Law and Criminology Volume: 98 Issue: 2 Dated: Winter 2008 Pages: 621-652
Martin Lijtmaer
Date Published
32 pages
This article explores why the proximate cause theory has failed in its alleged purpose to limit the felony murder rule in Illinois and employs cognitive psychology as a means to explain the rule’s expansive application.
The proximate cause theory holds felons accountable for any foreseeable deaths that occur during the commission or attempted commission of a felony. This includes deaths of innocent bystanders caused by third parties. Illinois courts have justified using proximate cause on the ground that the foreseeability requirement would temper the innate harshness of the felony murder rule. However, in practice, it has been applied expansively, extending liability even to those defendants whose actions appeared attenuated from their co-felon’s death. It has led to some anomalous results holding defendants liable for deaths they neither intended, nor could have foreseen happening. This article contributes to the long scholarly tradition of critiquing the felony murder rule of Illinois by focusing on the proximate cause theory and looking at the theory through the lens of cognitive psychology. The hindsight and outcome biases both reveal an inherent frailty in foreseeability inquiries. Thus, the felony murder defendant will be causally linked to a resulting death even if his/her participation in the felony did not directly lead to that death. In summation, there is a failure of the proximate cause theory as a limiting doctrine on the felony murder rule. Whereas the proximate cause theory is supposed to temper the innate harshness of the felony murder rule, in practice it is applied so expansively as to eliminate its limiting purpose.