CRS Annotated Constitution
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“For the Same Offence”
Sometimes as difficult as determining when a defendant has been placed in jeopardy is determining whether he was placed in jeopardy for the same offense. As noted previously, the same conduct may violate the laws of two different sovereigns, and a defendant may be proceeded against by both because each may have different interests to serve.134 The same conduct may transgress two or more different statutes, because laws reach lesser and greater parts of one item of conduct, or may violate the same statute more than once, as when one robs several people in a group at the same time.
Legislative Discretion as to Multiple Sentences.—It frequently happens that one activity of a criminal nature will violate one or more laws or that one or more violations may be charged.135 Although the question is not totally free of doubt, it appears that the double jeopardy clause does not limit the legislative power to split a single transaction into separate crimes so as to give the[p.1298]prosecution a choice of charges that may be tried in one proceeding, thereby making multiple punishments possible for essentially one transaction.136 “Where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and . . . . the trial court or jury may impose cumulative punishment under such statutes in a single trial.”137 The clause does, however, create a rule of construction, a presumption against the judiciary imposing multiple punishments for the same transaction unless Congress has “spoken in language that is clear and definite”138 to pronounce its intent that multiple punishments indeed be imposed. The commonly used test in determining whether Congress would have wanted to punish as separate offenses conduct occurring in the same transaction, absent otherwise clearly expressed intent, is the “same evidence” rule. The rule, announced in Blockburger v. United States,139 “is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Thus, in Gore v. United States,140 the Court held that defendant’s one act of selling narcotics had violated three distinct criminal statutes, each of which required proof of a fact not required by the oth[p.1299]ers; prosecuting him on all three counts in the same proceeding was therefore permissible.141 So too, the same evidence rule does not upset the “established doctrine” that, for double jeopardy purposes, “a conspiracy to commit a crime is a separate offense from the crime itself,”142 or the related principle that Congress may prescribe that predicate offenses and “continuing criminal enterprise” are separate offenses.143 On the other hand, in Whalen v. United States,144 the Court determined that a defendant could not be separately punished for rape and for killing the same victim in the perpetration of the rape, because it is not the case that each statute requires proof of a fact that the other does not, and no indication existed in the statutes and the legislative history that Congress wanted the separate offenses punished.145 In this as in other areas, a guilty plea ordinarily precludes collateral attack.146
Successive Prosecutions for “the Same Offense.”—Successive prosecutions raise fundamental double jeopardy concerns extending beyond those raised by enhanced and multiple punishments. It is more burdensome for a defendant to face charges in separate proceedings, and if those proceedings are strung out over a lengthy period the defendant is forced to live in a continuing state of uncertainty. At the same time, multiple prosecutions allow the state to hone its trial strategies through successive attempts at[p.1300]conviction.147 In Brown v. Ohio,148 the Court, apparently for the first time, applied the same evidence test to bar successive prosecutions in state court for different statutory offenses involving the same conduct. The defendant had been convicted of “joyriding,” of operating a motor vehicle without the owner’s consent, and was then prosecuted and convicted of stealing the same automobile. Because the state courts had conceded that joyriding was a lesser included offense of auto theft, the Court observed that each offense required the same proof and for double jeopardy purposes met the Blockburger test. The second conviction was overturned.149 Application of the same principles resulted in a holding that a prior conviction of failing to reduce speed to avoid an accident did not preclude a second trial for involuntary manslaughter, inasmuch as failing to reduce speed was not a necessary element of the statutory offense of manslaughter, unless the prosecution in the second trial had to prove failing to reduce speed to establish this particular offense.150
Supplement: [P. 1300, substitute for the two sentences immediately following n.150:]
In 1990, the Court modified the Brown approach, stating that the appropriate focus is on same conduct rather than same evidence.4 That interpretation held sway only three years, however, before being repudiated as “wrong in principle [and] unstable in application.” 5
Supplement: [P. 1301, add to text following n.154:]
For double jeopardy purposes, a defendant is “punished . . . only for the offense of which [he] is convicted”; a later prosecution or later punishment is not barred simply because the underlying criminal activity has been considered at sentencing for a different offense.6 Similarly, recidivism–based sentence enhancement does not constitute multiple punishment for the “same” prior offense, but instead is a stiffened penalty for the later crime.7
The “Same Transaction” Problem.—The same conduct may also give rise to multiple offenses in a way that would satisfy the Blockburger test if that conduct victimizes two or more individuals, and therefore constitutes a separate offense as to each of them. In Hoag v. New Jersey,155 before the double jeopardy clause was applied to the States, the Court found no due process problem in successive trials arising out of a tavern hold–up in which five customers were robbed. Ashe v. Swenson,156 however, presented the Court with the Hoag fact situation directly under the double jeopardy clause. The defendant had been acquitted at trial of robbing one player in a poker game; the defense offered no testimony and did not contest evidence that a robbery had taken place and that each of the players had lost money. A second trial was held on a charge that the defendant had robbed a second of the seven poker players, and on the basis of stronger identification testimony the defendant was convicted. Reversing the conviction, the Court held that the doctrine of collateral estoppel157 was a constitutional rule made applicable to the States through the double jeopardy clause. Because the only basis upon which the jury could have acquitted the defendant at his first trial was a finding that he was not present at the robbery, hence was not one of the robbers, the State could not relitigate that issue; with that issue settled, there could be no conviction.158 Several Justices would have gone further and required a compulsory joinder of all charges against a defendant[p.1302]growing out of a single criminal act, occurrence, episode, or transaction, except where a crime is not discovered until prosecution arising from the same transaction has begun or where the same jurisdiction does not have cognizance of all the crimes.159 But the Court has “steadfastly refused to adopt the ‘single transaction’ view of the Double Jeopardy Clause.”160
Supplement: [P. 1299, add to n.142:]
But cf. Rutledge v. United States, 517 U.S. 292 (1996) ( 21 U.S.C. § 846, prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848, so there are not two separate offenses).
Supplement: [P. 1301, add to n.154:]
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