Delaware does not allow a felony murder charge when a co-perpetrator is killed by a victim or bystander*

DELAWARE — Not allowing* a felony murder charge when a co-perpetrator is killed is established in case law.

Delaware Code – Section 636: MURDER IN THE FIRST DEGREE

(a) A person is guilty of murder in the first degree when:

  1. The person intentionally causes the death of another person;
  2. While engaged in the commission of, or attempt to commit, or flight after committing or attempting         to commit any felony, the person recklessly causes the death of another person.
  3. The person intentionally causes another person to commit suicide by force or duress;
  4. The person recklessly causes the death of a law-enforcement officer, corrections employee or fire fighter while such officer is in the lawful performance of duties;
  5. The person causes the death of another person by the use of or detonation of any bomb or similar destructive device;
  6. The person causes the death of another person in order to avoid or prevent the lawful arrest of any person, or in the course of and in furtherance of the commission or attempted commission of escape in the second degree or escape after conviction.

(b) Murder in the first degree is a class A felony and shall be punished as provided in § 4209 of this title.

Case law that establishes this in Delaware*


The Synopsis demonstrates that the General Assembly passed the amendment in order to be consistent with the felony murder rule of a majority of states.   Although many states in the first half of the twentieth century adopted the rule that any death occurring during the commission of, or escape from, the felony constituted felony murder, the trend thereafter has been decidedly in favor of the agency theory.33  Thus, of the jurisdictions that have considered the question, the vast majority maintain that the felony murder rule cannot be used to impose murder liability on a defendant when the lethal act is committed by a person other than the felon or his accomplices.34  A minority of jurisdictions have adopted the so-called “proximate cause” theory of felony murder urged by the State.   Under that theory, a defendant is liable for “any death proximately resulting from the unlawful activity-notwithstanding the fact that the killing was by one resisting the crime.” 35  The Synopsis does not refer to the minority rule.

The Synopsis to the 2004 amendment indicates that the amendment was intended only to target the Williams requirement that the murder occur to facilitate commission of the felony.36  Significantly, the Synopsis also states that “other aspects of the present judicial interpretation of Delaware’s felony murder rule would remain unaffected by this Act.” 37  Although the agency theory is not explicitly identified as one of the retained “present judicial interpretations,” the General Assembly’s clearly expressed intent to follow the majority rule of felony murder demonstrates to us that it did not intend to supersede the agency theory with the rule adopted only by a minority of States.

Finally, nothing in the Synopsis shows that the General Assembly considered the merits of the agency theory or the proximate cause theory.   The concepts are not even mentioned in the Synopsis.   Justifications do exist for continuing the agency theory.   Those justifications would be subject to consideration by the General Assembly if a proposal to repeal the agency theory had been clearly presented to it.   For example, the historical justification for the felony murder rule has been “to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” 38  If felons are criminally liable for murder (and a mandatory life sentence) for any death occurring during the commission of, or escape from, the felony, felons become strictly liable for killings by others not engaged in the felony.39  This gives “felons ․ little incentive to refrain from using a gun against an armed victim or a pursuing police officer, since they will be held liable for any deaths that ensue regardless of whether the felons fire any shots themselves.” 40  “By limiting liability [for felony murder] to the acts of defendants and their accomplices, the agency theory limits liability to the consequences of acts that are at least putatively within the defendant’s control.” 41  As a result, unlike the proximate cause theory, the agency theory gives felons incentives to refrain from using a deadly weapon.   Although the General Assembly certainly may reject the agency theory if it chooses to do so, we do not discern any legislative intent to supersede the agency theory of felony murder by the 2004 amendment.

Link to the Delaware Statute — HERE

Link to the Delaware Case Law — HERE

* The Delaware law was not directly referenced in the Court of Appeals for West Virginia ruling that has been the basis for our research.  The cases we have found have been referred to by other cases.

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