What Constitutes the Same Offense Under Double Jeopardy?

The constitutional protection against double jeopardy prevents repeat prosecutions or punishments for the same offense. Generally, the state or federal government may not charge you again for the same offense if the first case was adjudicated. "The same offense" may sound fairly straightforward, but what constitutes the same offense is not always as apparent as it may seem.

This article explains:

• What double jeopardy is
• How courts determine what constitutes "the same offense"
• The Blockburger test
• Other tests that courts use to determine "the same offense"

Double Jeopardy Explained

The Fifth Amendment to the United States Constitution provides various protections. The double jeopardy clause in the U.S. Constitution states that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb." This prevents the government from prosecuting criminal defendants more than once for the same offense.

Double jeopardy attaches when the judge swears the jury in or when the first witness testifies before the court. That's after they have taken the stand and been sworn in. Compare the examples below as to when double jeopardy applies.

Suppose law enforcement charges Cole with burglary. Law enforcement also charges Cole with the lesser included offense of trespassing. Cole's criminal trial takes place in a state district court. The jury acquits Cole of his criminal charges at the end of his jury trial. An acquittal means the jury found him not guilty. Cole's criminal case is over, and he walks free. The government may file an appeal to the appellate court, in limited situations, based on state law, but it cannot prosecute Cole again for those offenses.

Now suppose that a police officer arrests Cole for a different burglary one week later. Authorities again charge him with the lesser included offense of trespassing. Cole is again tried for his alleged crimes. Cole's criminal defense attorney argues at the trial court that Cole's constitutional rights and double jeopardy protections prevent the government from prosecuting him for the second burglary. Cole's attorney is wrong. The government can prosecute Cole because the second burglary is a different offense from the first burglary.

What happens if the criminal prosecution ends in a mistrial? The government can usually pursue another criminal prosecution for the same offense. A mistrial can occur in several ways. For example, in United States v. Ruiz-Quezada (2021), a judge declared a mistrial because a juror disregarded instructions not to do outside research about the case.

Another reason a judge may declare a mistrial is a hung jury, in which the jury cannot reach a unanimous verdict. Subject to exceptions, the government can typically request a retrial, and the new trial will occur later.

Does Each Offense Require a Fact the Other Does Not?

Under common law, a single episode of criminal behavior produced only one prosecution. It did not matter how many wrongful acts the suspect committed during that episode. Over time, the government began prosecuting defendants for several crimes from the same event.

The Supreme Court curbed this discretion in Blockburger v. United States (1932), resulting in what became known as the Blockburger test.

The Blockburger test requires courts to consider multiple things. First, the court must examine the statutory elements of each offense. The court must examine these elements without regard to the actual evidence that the prosecution will introduce at trial. Second, the prosecution must demonstrate that each offense has at least one different element. If one offense entirely subsumes another, the two offenses are deemed the same for purposes of a double jeopardy analysis.

Beyond Blockburger: Collateral Estoppel and More

The Blockburger test is the only way courts determine whether cumulative punishments are allowed. However, courts have used several other methods to determine whether prosecutions are for the same offense. These methods include:

Collateral Estoppel

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

In Ashe v. Swenson (1970), the government accused the defendant of robbing a group of poker players. A jury previously acquitted him of robbing one of the six players. The defendant was then brought to trial for robbing a different victim in the group of poker players. The same victims — who were unable to identify the defendant in the first trial — testified much more confidently about his identity in the second trial. Ashe was convicted.

 Blockburger would have permitted the second prosecution because two different victims were involved. However, the government was not allowed to make its case and convict a person already declared not guilty of essentially the same crime.

Note that if Ashe had been acquitted in the first case due to an issue not related to identification, the second prosecution involving the other victims would have likely been deemed proper.

'Same Transaction' Analysis

The "same transaction" analysis requires the prosecution to join all offenses committed during a continuous period. The offenses must share a common factual basis and display a single goal or intent. This analysis was born out of Supreme Court Justice William Brennan's concurrence in Brown v. Ohio (1977). However, no federal court has ever adopted this test, as noted by Justice Antonin Scalia in United States v. Dixon (1993).

'Actual Evidence' Test

Both state and federal courts have employed the "actual evidence" test to bar successive prosecutions for a single offense. The "actual evidence" test requires courts to compare the following:

• The evidence actually introduced during the first trial
• The evidence the prosecution seeks to introduce at the second trial

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 could not prosecute an individual twice for the same criminal behavior. The actual evidence introduced during the trial and the statutory elements of the offense would not matter.

Courts applied this analysis to prevent prosecuting someone for vehicular homicide (Grady v. Corbin). The defendant was charged with and pleaded guilty to two traffic charges — driving while intoxicated (DUI) and failing to keep to the right of a median. At that time, the presiding judge was not aware of forthcoming additional charges related to more serious offenses that were under investigation.

The state subsequently charged the defendant with offenses related to the death of a person (homicide and manslaughter) and injury to a person (assault) in one of the other vehicles. The defendant argued that double jeopardy prevented the subsequent prosecution for these charges.

In its 1990 decision, the Supreme Court agreed with the defendant. The court held that because the state intended to rely on the two previously charged traffic offenses in its subsequent prosecution for a second time, the second prosecution was barred. Specifically, in the second prosecution, the state had to establish essential elements of the homicide and assault offenses. That meant proving the defendant was driving while intoxicated and failed to keep right of the median.

Because the charges in the second prosecution required the state to prove an essential element of which the defendant had already been convicted in the first prosecution, double jeopardy barred the second prosecution. Of note, a court would have permitted the second prosecution had the state been able to prove the driver's negligence without proof of his intoxication.

The effect of Grady thus added another test to the double jeopardy analysis. Not only did the “same elements" Blockburger test still apply, but the “same conduct" analysis of Grady also applied.

The Supreme Court applied the "same conduct" analysis for three years before abandoning it in United States v. Dixon (1993). There, the court consolidated two cases. In both cases, the respondents were tried for criminal contempt. They had both violated court orders that prevented them from engaging in certain conduct. Their respective conduct was later the subject of a criminal prosecution. The issue before the court was whether double jeopardy barred the subsequent criminal prosecutions.

The court overruled Grady. The justices determined that the “same conduct" test in Grady lacked constitutional roots and was inconsistent with the court's precedent.

Protect Your Freedom From Double Jeopardy: Contact an Attorney Today

Double jeopardy is a complex concept. An attorney can clarify what constitutes the same offense, depending on your situation and the facts of your case. However, if double jeopardy applies, it may determine the outcome in your case. A criminal defense attorney can help you understand the following:

• Double jeopardy purposes and application to your case
• Criminal law basics
• State versus federal law regarding criminal proceedings
• Differences between state court and federal court criminal trials
• Related offenses, including greater offenses and lesser-included offenses
• Fifth Amendment right to due process

Learn more about double jeopardy and how it can impact you by contacting an experienced criminal defense lawyer.