Judicial Notebook

A criminal defendant's nightmare: the possibility that you were convicted of a crime because of a typo. In Chrones v. Pulido (Docket #07-544, ruling below at 487 F.3d 669), the defendant was convicted of robbery and felony murder. He waited in his car at a gas station while his uncle shot and killed the store clerk and stole the cash register, which he later gave to the defendant to empty.

To find a defendant guilty of felony murder, the jury needs to find the defendant guilty of the underlying felony--robbery in this case. If the murder was committed in the course of the robbery, then intent to commit the felony of robbery is transferred to the murder. If there are multiple perpetrators and only one shooter, all of the perpetrators are held equally responsible for the murder if they all participated in the underlying felony.

Thus, the felony-murder rule asks jurors to hold all participants in the felony equally responsible for the murder, even if they had no intent to commit such a crime. In the aforementioned case, now on the docket of the Supreme Court, the jury was given instructions that contained a typographical error: including an "or" instead of an "and." The "and" would have made it clear that the defendant's participation in the robbery had to be contemporaneous with the murder. The "or" may have allowed the jury to find that he joined the crime only after the murder, calling into question whether the jury understood that the defendant had to participate in the felony during the murder.

One aspect of this case that psychological research could illuminate is whether jurors understand and correctly apply felony-murder instructions, even without typos. Research demonstrates that juries don't generally understand instructions, especially death-penalty instructions. Unfortunately, there is little empirical research on jurors' ability to correctly apply instructions in cases such as Chrones v. Pulido. The specific aspect of the instructions the court must consider is the instruction requiring that the felony is contemporaneous with the murder. Focus on this specific requirement assumes that it would be influential in the jury's decision-making. However, there is also little research on what aspects of felony murder are influential in jury decision-making. Psychological research on each of these issues would assist the Supreme Court in its approach to this case. The case raises additional questions about jurors' understanding of felony murder, including their common-sense understanding of culpability in these cases. The lower court reasoned that errors in the instructions may have confused the jurors. If they were confused by the instructions, then they may have relied on their common-sense understanding of felony murder in their decision-making.

Luckily, psychological research has investigated this aspect of jury decision-making in felony-murder cases, and this research has used a variety of scenarios, including some in which participation in the felony was not contemporaneous with the murder. Overall, this research indicates that jurors are not likely to hold all participants in the felony equally responsible for felony murder. In fact, jurors are more likely to punish felony-murder defendants proportionally to their involvement in the crime.

The bottom line from this research is that jurors do not tend to convict defendants of murder unless they find a high degree of participation, high control over the outcome and murderous intent. Considering that the case before the Supreme Court involves the conviction of a non-triggerman participant in a felony murder, it could be important for the justices to understand jurors' commonsense notions about non-triggermen in felony-murder cases.

Although prior psychological research on felony murder could assist the Supreme Court in its decision, additional research in this controversial area is needed. Research indicates that jurors are likely to determine guilt and punishment proportional to involvement and intent. However, there has been little research on jurors' basic understanding of felony-murder instructions or on the relative importance of various pieces of evidence, such as the information about contemporaneousness that was the focus of this case. More research in these areas would be helpful in deciding cases like this and in making policies that help jurors perform their duties.


"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).