Introduction

Same Offense and Lesser-Included Offenses

Introduction

The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."¹ The Fourteenth Amendment makes that guarantee binding on the states as well as the federal government.² Everything the Clause does depends on the two words "same offence," and the Constitution never defines them. The gap matters because criminal statutes overlap constantly. One episode of conduct can violate several provisions at once, and a prosecutor can bring the same provision a second time on facts that look much like the first. If the label on the charge controlled the answer, a prosecutor could try a witness for perjury before the grand jury and then try the same witness for obstruction of justice based on the identical lie, simply by changing the name and citation of the crime.³ The Clause has therefore always required a court to look past the label and decide whether two charges describe one offense or two.

That question sits at the threshold of three separate protections. The Clause bars a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense.⁴ Each protection operates only when the second charge or sentence is for the same offense as the first (and, for the two prosecution bars, only when jeopardy attached in the first proceeding), so a defendant who cannot show sameness gets no help from any of them. The Clause restrains courts and prosecutors rather than legislatures. A legislature remains free to define crimes and set punishments, but once it has done so, courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not pursue that punishment in more than one trial.⁵ The reason for the guarantee differs with the setting. When the state tries a defendant twice, the Clause serves finality: it protects the accused from relitigation of facts underlying an acquittal and from further attempts at punishment after a conviction and sentence. When consecutive sentences are imposed at a single trial, nothing is being relitigated, and the Clause only keeps the court within the punishment the legislature authorized.⁶

The tool courts use to decide sameness comes from Blockburger v. United States: where the same act or transaction violates two distinct statutory provisions, the test for whether there are two offenses or only one is "whether each provision requires proof of a fact which the other does not."⁷ Because the test compares what the statutes require, and not the evidence a prosecutor happens to offer, it yields a single answer that serves both successive prosecutions and cumulative sentences: offenses that are the same for barring consecutive sentences at one trial are necessarily the same for barring a later trial.⁸ The Court put the test to work in Brown v. Ohio, where the question was whether stealing a car and operating the same car without the owner's consent were one offense for double jeopardy purposes.⁹ This chapter follows that path. It begins with the elements comparison itself, shows how the comparison treats greater and lesser offenses, and then adds a second requirement, that the two charges be directed at the same conduct. It then separates successive prosecutions from multiple punishments and ends with the situations in which the second case may go forward anyway. The first step is the Blockburger test.