495 U.S. 508 (1990)
On October 3, 1987, Thomas Corbin drove his automobile across the double yellow line of Route 55 in LaGrange, New York, striking two oncoming vehicles.1 Brenda Dirago, driver of the second vehicle struck, died from her injuries while her husband Daniel sustained serious injuries.2 That evening Corbin received two uniform traffic tickets charging him with driving while intoxicated in violation of N.Y. Veh. & Traf. Law § 1192(3) and failing to keep right of the median in violation of § 1120(a).3 A blood test performed at the hospital showed a blood alcohol level of 0.19 percent.4
Three days later an assistant district attorney began gathering evidence for a homicide prosecution.5 He did not determine the date of Corbin's scheduled appearance in Town Justice Court or notify that court or the assigned prosecutor about the pending investigation.6 On October 27, 1987, Corbin pleaded guilty to the two traffic tickets in the LaGrange Town Justice Court when no member of the District Attorney's office was present.7 The presiding judge accepted the plea and later sentenced Corbin to a $350 fine, a $10 surcharge, and a six-month license revocation.8
On January 19, 1988, a grand jury indicted Corbin on charges of reckless manslaughter, second-degree vehicular manslaughter, criminally negligent homicide for causing Brenda Dirago's death, third-degree reckless assault for injuring Daniel Dirago, and driving while intoxicated.9 The prosecution's bill of particulars identified three reckless or negligent acts it would rely upon: operating a motor vehicle while intoxicated, failing to keep right of the median, and driving 45 to 50 miles per hour in heavy rain.10
Corbin moved to dismiss the indictment on double jeopardy grounds.11 The Dutchess County Court denied the motion after a hearing.12 The Appellate Division denied Corbin's petition for a writ of prohibition without opinion.13 The New York Court of Appeals reversed.14 The Supreme Court granted certiorari.15
Whether the Double Jeopardy Clause bars a subsequent prosecution if the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted?16
The Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.17 This rule extends the protection beyond the Blockburger test to address the burdens of multiple trials in successive prosecutions.18
Yes. The established facts show that on October 3, 1987, Thomas Corbin drove across the double yellow line striking two vehicles, resulting in Brenda Dirago's death and injuries to Daniel Dirago.19 That evening he received traffic tickets for driving while intoxicated under N.Y. Veh. & Traf. Law § 1192(3) and failing to keep right of the median under § 1120(a), to which he pleaded guilty on October 27, 1987, and was sentenced.20 The January 19, 1988 indictment charged reckless manslaughter, vehicular manslaughter, criminally negligent homicide, reckless assault, and driving while intoxicated.21 The bill of particulars identified the three acts the prosecution would rely on as operating while intoxicated, failing to keep right of the median, and driving too fast for conditions.22 By its own pleadings the State admitted it would prove the entirety of the conduct for which Corbin was already convicted to establish essential elements of the homicide and assault offenses.23 The New York Court of Appeals properly granted the writ of prohibition barring the successive prosecution.24
The facts establish that an assistant district attorney began gathering evidence for a homicide prosecution three days after the accident but failed to notify the Town Justice Court or the assigned prosecutor about the pending investigation.25 No member of the District Attorney's office was present when Corbin pleaded guilty, and the sentencing assistant was unaware of the fatality.26 These procedural lapses do not excuse the constitutional violation.27 The bill of particulars remains binding on the State and directly triggers the double jeopardy bar under the conduct test.28
Application of the rule to these named facts confirms that the subsequent prosecution requires proof of the same conduct already prosecuted in the traffic offenses.29 The Double Jeopardy Clause therefore bars the homicide and assault charges.30
The subsequent prosecution is barred by the Double Jeopardy Clause.31
Related opinions on this issue
Justice O'Connor dissented on the ground that the majority's new test is inconsistent with Dowling v. United States, decided earlier the same Term.32 She noted that in Dowling the Court permitted introduction of evidence of a prior acquitted robbery to prove identity in a later bank robbery prosecution.33 Under the Grady test, that same evidence would be barred because it would prove conduct constituting an offense already prosecuted.34
O'Connor concluded that the inconsistency shows the Court has strayed from a proper interpretation of the Double Jeopardy Clause's scope and that Dowling correctly delineated its protection.35
Joined by Chief Justice Rehnquist And Justice Kennedy
Justice Scalia, joined by the Chief Justice and Justice Kennedy, dissented on the ground that the Double Jeopardy Clause protects only against twice being put in jeopardy for the same offense, not the same conduct. He argued that Blockburger remains the proper test and that the majority's conduct-based rule lacks support in text, history, or precedent.36 Scalia further contended that the new test is unworkable in practice.
It requires courts to determine whether evidence in the second trial will prove the prior offense. This leads to absurd results and forces prosecutors to join all charges in a single proceeding.37
Whether the Blockburger test provides the exclusive standard for determining when successive prosecutions violate the Double Jeopardy Clause?38
The Blockburger test is not the exclusive standard for determining whether successive prosecutions violate the Double Jeopardy Clause.39 Although Blockburger serves as a rule of statutory construction for multiple punishments in a single proceeding, successive prosecutions raise additional concerns about repeated attempts to convict and the burdens on the defendant that require an independent conduct-based inquiry.40
No. The established facts demonstrate that the traffic offenses and the later homicide and assault charges may satisfy Blockburger because each requires proof of a fact the other does not.41 Nevertheless, the Court held that the Double Jeopardy Clause demands more in the successive-prosecution context.42 The bill of particulars reveals that the State will prove the previously prosecuted conduct of driving while intoxicated and failing to keep right of the median to establish essential elements of the new charges.43 These independent concerns about rehearsing proof and subjecting the defendant to multiple trials require application of the conduct test even when Blockburger is satisfied.44
The Blockburger test is not the exclusive standard for successive prosecutions.45
Related opinions on this issue
Joined by Chief Justice Rehnquist And Justice Kennedy
Justice Scalia maintained that Blockburger furnishes the established test for determining whether successive prosecutions are for the same offense.46 He argued that the Clause's text protects against twice being put in jeopardy for the same offense and that historical common-law pleas of autrefois acquit and convict support the elements-based approach.47 Scalia rejected the majority's expansion as a departure from clear precedent that will require all charges arising from a single occurrence to be joined in one indictment.48
Whether a bill of particulars that identifies prior traffic offenses as the acts necessary to prove later homicide and assault charges triggers double jeopardy protection?49
A bill of particulars that identifies prior traffic offenses as the acts necessary to prove later homicide and assault charges triggers double jeopardy protection because the statement of the prosecution's theory of proof is binding on the State and demonstrates that the government will prove conduct already prosecuted.50
Yes. The established facts show that the prosecution filed a bill of particulars on January 25, 1988, stating it would prove the defendant operated a motor vehicle while intoxicated, failed to keep right of the median, and drove too fast for conditions.5152 This binding document expressly identifies the conduct for which Corbin had already been convicted as the acts necessary to establish the essential elements of the homicide and assault charges.53 Because the State has admitted through its pleadings that it will prove the entirety of the previously prosecuted conduct, the Double Jeopardy Clause bars the successive prosecution.54
The bill of particulars triggers double jeopardy protection and bars the subsequent prosecution.55