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Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. This Article exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. This Article reviews statutes and reported case law on felony murder in the federal system and in every state from the Revolution to the end of the nineteenth century. It argues that early felony murder rules almost always conditioned murder liability on causing death with fault, even if they did not explicitly require proof of a culpable mental state with respect to death. It also challenges the assumptions that early American criminal law was unified by its derivation from English law. The common law was authoritative in the colonies only in so far as locally received and adapted. English criminal law was viewed with suspicion in the new republic and colonial criminal law was quickly replaced with new legislation in most jurisdictions. Felony murder liability derived from these statutes, not from earlier common law rules.

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Stanford Law Review

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