Double Jeopardy - Lower Courts

Thousands of lower court cases have applied the Blockburger lesser-included offense test to federal offenses and to offenses from all fifty states. Assault with intent to murder, for example, is a different offense from assault with a dangerous weapon (each requires proof of an element that the other does not). Burglary, which requires entry into a structure, is a different offense from larceny committed inside the structure (one can commit burglary without committing larceny and vice versa). But larceny is the same offense as grand larceny (larceny of property over a certain value), and assault is the same offense as assault with intent to rape or assault with intent to murder.

Lower courts generally recognize that Blockburger is just a presumption when applied to multiple punishment in a single trial. For example, Blockburger often pronounces different kinds of homicide offenses to be different double jeopardy offenses. The offense of homicide by auto is not the same Blockburger offense as intentional murder. The latter requires proof of intent to kill while the former requires proof that the killing was done by auto. Blockburger thus permits two homicide convictions for one killing (an intentional killing by means of an auto). Perhaps, however, the number of homicide offenses is better correlated with the number of victims than the number of superficially distinct statutes.

Dozens of lower courts have wrestled with this issue. Most have concluded, by one means or another, that the legislature did not intend to authorize two homicide convictions for killing a single victim. These courts thus use actual legislative intent to rebut the presumption about intent that is created by Blockburger.