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Double Jeopardy

What Constitutes The Same Offense

The final question that courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are geared toward the same offense. Jeopardy may already have attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to reprosecute a defendant or to impose multiple punishments.

At common law, a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts were committed during that episode. Under current law, a proliferation of overlapping and related offenses may be prosecuted as separate crimes stemming from the same set of circumstances. For example, an individual who has 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 has significantly enlarged prosecutors' discretion over the charging process.

The U.S. Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), in which it wrote that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not require. 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 within a pair or group of offenses, each has at least one mutually exclusive element. If any one offense is wholly subsumed by another, such as a lesser included offense, the two offenses are deemed to be the same, and punishment is allowed for only one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But courts have used several other methods to determine whether successive prosecutions apply the same offense. COLLATERAL ESTOPPEL, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the U.S. Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men during a poker game. A jury had already acquitted the defendant of robbing one of the other players. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, it was disallowed because the defendant had already been declared not guilty of essentially the same crime.

The "same-transaction" analysis, which many state courts use to bar successive prosecutions, requires the prosecution to join all offenses that were committed during a continuous interval and that both share a common factual basis and display a single goal or intent. Although Justices WILLIAM J. BRENNAN JR., WILLIAM O. DOUGLAS, and THURGOOD MARSHALL endorsed the same-transaction test, no federal court has ever adopted it.

State and federal courts have employed the "actual-evidence" test in order to preclude successive prosecutions for the same offense. Unlike Blockburger, which demands that courts examine the statutory elements of proof, the actual-evidence test requires courts to compare the evidence that actually has been introduced during the first trial with the evidence that the prosecution seeks to introduce at the second one. The offenses are considered to be same when the evidence that is necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same-conduct" analysis, the government is forbidden to prosecute an individual twice for the same criminal behavior, regardless of the actual evidence introduced during trial or the statutory elements of the offense. In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the U.S. Supreme Court applied this analysis to prevent a prosecution for a vehicular HOMICIDE that resulted from drunk driving, when he earlier

Former L.A. police officer Stacey Koon was acquitted of criminal charges in the beating of motorist Rodney King but was found guilty of violating King's civil rights in a federal case.

had been convicted of driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's NEGLIGENCE without proof of his intoxication. Although Grady was abandoned by the Supreme Court three years later, the same-conduct analysis is still used by state courts when they interpret their own constitutions and statutes.

The dual-sovereignty doctrine received national attention during the early 1990s, when two Los Angeles police officers were convicted in federal court for violating the CIVIL RIGHTS of RODNEY KING during a brutal, videotaped beating, even though they previously had been acquitted in state court for excessive use of force (United States v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), aff'd, 34 F.3d 1416 (9th Cir. 1994), rehearing denied 45 F.3d 1303). Although many observers believed that the officers had been tried twice for the same offense, the convictions were upheld on appeal over double jeopardy objections. Under the dual-sovereignty doctrine, the appellate court ruled, a defendant who violates the laws of two sovereigns, even if by a single act, has committed two distinct offenses, punishable by both authorities.

The dual-sovereignty doctrine is designed to vindicate the interest that each sovereign claims in promoting peace and dignity within its forum, and permits state and federal governments to prosecute someone for the same behavior after either has already done so. A defendant also may be prosecuted successively by two states for the same act or omission. In Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387 (1985), the U.S. Supreme Court held that successive prosecutions by the states of Georgia and Alabama based upon the same offense did not violate the Double Jeopardy Clause. In Heath, the defendant had committed murder in the state of Alabama but had taken the body to Georgia, where Georgia officials eventually found it. Both states prosecuted Heath and convicted him of murder for the same action, and the U.S. Supreme Court allowed the convictions to stand.

Some limitations apply to the dual-sovereignty doctrine. Successive prosecutions by a state and one of its political subdivisions (such as a county, city, or village) are not permitted, because these entities are deemed to be one sovereign. Moreover, federal and state authorities may not achieve a second prosecution by manipulating the criminal justice system, sometimes called a "sham prosecution." Although this exception to the dual sovereignty doctrine has been cited in several cases, it is seldom invoked.

The U.S. DEPARTMENT OF JUSTICE has developed an internal restriction on pursuing a prosecution after state prosecution has failed. Federal prosecutors under this restriction may only pursue a second prosecution for compelling reasons, and the prosecutor must obtain prior approval from the assistant attorney general prior to bringing the prosecution. This restriction is called the "Petite policy," named after the U.S. Supreme Court's decision in Petite v. United States, 361 U.S. 529, 80 S. Ct. 45, 4 L. Ed. 2d 490 (1960), which involved the prosecution of an individual in two federal district courts for what amounted to the same offense. Although the Petite policy appears in the Department of Justice's manual, criminal defendants may not rely upon this restriction if a federal prosecutor fails to adhere to the department's guidelines.

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