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Double Jeopardy: What Constitutes the Same Offense

Created by FindLaw's team of legal writers and editors.

The constitutional protections against double jeopardy are meant to prevent repeat prosecutions or punishments for the "same offense." Generally, the state or federal government may not charge you a second time for the same offense if the first case has been adjudicated (meaning it has reached a conclusion, such as a verdict). This may sound fairly straightforward, but what does -- and doesn't -- constitute the same offense isn't always as obvious as it may seem.

The following explains how courts determine what constitutes the same offense for purposes of defendants' constitutional protection against double jeopardy.

The Same Offense: From Common Law to Modern Charging Procedures

Per common law, a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But in time, with the increase of overlapping and related offenses, it became more common for the government to prosecute defendants for several different crimes stemming from the same set of circumstances.

For example, an individual who's stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development gave prosecutors much more discretion over the charging process -- quite a bit, actually -- before the Supreme Court would intervene.

The Blockburger Test: Does Each Offense Require a Fact the Other Does Not?

The Supreme Court curbed this discretion in Blockburger v. United States, resulting in the aptly named Blockburger Test. The Court said that the government may prosecute an individual for more than one criminal offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not.

Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that each offense has at least one mutually exclusive element. If any one offense is completely subsumed by another (charging theft along with robbery, for example), the two offenses are deemed the same, and punishment is allowed only for one.

Beyond Blockburger: Collateral Estoppel and More

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But several other methods have been used by courts to determine whether successive prosecutions are for the same offense, including the following.

Collateral Estoppel

Collateral estoppel prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment.

In Ashe v. Swenson, the Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men at a poker game when a jury had already acquitted him of robbing another one of the six. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, the government here wasn't allowed to rehearse its case and secure a conviction against a person already declared not guilty of essentially the same crime.

Same Transaction Analysis

The "same transaction" analysis requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.

Actual Evidence Test

Both state and federal courts have employed the "actual evidence" test to bar successive prosecutions for a single offense. Unlike Blockburger, which examines the statutory elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced at the second. Criminal offenses are characterized as the same offense when the evidence necessary to support a conviction for one would be sufficient to support a conviction for the other.

Same Conduct Analysis

Under the "same conduct" analysis the government may not prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced during trial or the statutory elements of the offense.

For example, this analysis has been applied to prevent prosecuting someone for vehicular homicide resulting from drunk driving, when the defendant had been earlier convicted for a DUI. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. The Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.

Protect Your Freedom From Double Jeopardy: Contact an Attorney Today

Double jeopardy is not a simple concept and knowing what constitutes the same offense may not be clear, depending on your situation and the facts of your case. However, if it applies, it may very well determine the outcome in your case. Learn more about double jeopardy and how it can impact you by contacting an experienced criminal defense lawyer in your area.

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