Introduction

Successive Prosecutions by Other Sovereigns

Introduction

A single act can violate the criminal law of more than one sovereign, meaning a government with its own power to define and punish crimes, such as two states or a state and the federal government. Each sovereign decides for itself whether to prosecute, and nothing forces them to act together or in any particular order. A defendant may therefore already have been tried by one sovereign when the other decides to proceed, and the law needs a rule that says whether the first proceeding closes the door on the second.

The Model Penal Code answers with two provisions that work as a pair. Section 1.10 provides that when conduct is an offense within the concurrent jurisdiction of this State and of the United States or another State, a prosecution in that other jurisdiction bars a later prosecution here in two defined circumstances.¹ The first is a prior acquittal or conviction based on the same conduct, subject to two exceptions. The second is a prior termination in the defendant's favor that necessarily required a determination inconsistent with a fact the later prosecution must establish.² Section 1.10 supplies only the affirmative bar, because Section 1.11 takes certain cases back out of it. Under Section 1.11 a prosecution is not a bar within the meaning of Sections 1.08, 1.09 and 1.10 when the former prosecution was before a court lacking jurisdiction, when the defendant procured it without the knowledge of the appropriate prosecuting officer in order to avoid the sentence that might otherwise follow, or when it produced a conviction later held invalid on habeas corpus, coram nobis, or similar process.³ The first of these, Section 1.11(1), is the exception tested most directly: a former prosecution before a court that lacked jurisdiction over the defendant or the offense is no bar.⁴ The logic is that a court with no authority over the case cannot render a judgment that binds anyone, and treating its proceeding as a bar would let a defendant convert an ineffective trial into permanent immunity.

The lesson follows that structure in order. It first explains why overlapping jurisdiction creates the issue at all, then teaches the affirmative bar of Section 1.10 with its two routes and its exceptions, and then turns to the three exceptions in Section 1.11, giving the lack-of-jurisdiction exception the closest attention. After that it shows how state codes borrow from the Model Code, which is a proposal for legislatures and binds no one until a state enacts it, so that a careful answer states the Model Code rule and then checks the governing statute. It ends with a repeatable method for running the whole analysis on a fact pattern. Every step of that method depends on a threshold question, and the first section takes it up: when do two sovereigns actually share jurisdiction over the same conduct?