Concept

Choosing the Right Bar

Model Penal Code former jeopardy

Choosing the Right Bar

The former-jeopardy provisions of the Code lean on one another heavily, so a fact pattern is handled most reliably by moving through them in a fixed order. The reason is structural. Sections 1.09(1) and 1.10(1) each open by requiring that the first prosecution have resulted in an acquittal or in a conviction as defined in § 1.08, so the definitions taught for § 1.08 serve as the threshold for most of what follows.¹ Section 1.09(1)(b) borrows in the same way from § 1.07, because it bars a later prosecution for any offense that should have been tried in the first prosecution under that section.² An analysis that skips a step therefore risks applying a section whose borrowed definition was never checked.

Exam Analysis Steps

Each step asks a narrower question than the one before it, so the method works as a series of filters, and each step points back to the section where its rule was taught. The steps are these:

Decide whether the problem concerns convictions entered at a single trial, which § 1.07(1) limits, or a later prosecution after an earlier one has ended, which falls under §§ 1.08 through 1.10.
Ask how the first prosecution ended: in an acquittal, in a conviction as defined in § 1.08(3), in a qualifying final order for the defendant under § 1.08(2), or in an improper termination under §§ 1.08(4) and 1.09(3).³
Identify the second prosecution as one for the same statutory provision on the same facts under § 1.08, for a different offense under § 1.09, or for the same conduct after another jurisdiction's judgment under § 1.10.
Find the route the facts fit within that section, then apply the exceptions that qualify the same-conduct routes: different facts and harms, or an offense not yet consummated, under § 1.09(1)(c)(i)-(ii), or the parallel exceptions in § 1.10(1)(a)-(b).⁴
Finish by checking § 1.11 for a court lacking jurisdiction, a fraudulently procured prosecution, or a conviction later held invalid.

The second step does the sorting work, because it decides which sections are available at all. A first prosecution that ended in a verdict of not guilty or in a conviction opens the ordinary routes of §§ 1.08 through 1.10, while one that was cut off after the first witness was sworn and before verdict has to be tested as an improper termination, since it produced neither an acquittal nor a conviction. Students who begin by comparing the two offenses tend to lose the issue by skipping how the first prosecution ended, because a comparison of offenses means nothing until the first case has been shown to qualify.⁵ The fifth step comes last for the reason § 1.11 was taught last: it removes a bar only after one of the earlier sections has otherwise attached.

Hypothetical Illustration

D pleads guilty to burglary, and the court accepts the plea. The prosecutor, who knew of the theft of items taken in that burglary and could have joined the theft in the same court, later charges D with theft. Run in order: the question concerns a later prosecution, so § 1.07(1) is not the issue; the accepted plea is a conviction under § 1.08(3), which satisfies the threshold; theft is a different offense, so § 1.09 supplies the route; and because the prosecutor knew of the theft and could have joined it in the same court, the theft should have been tried in the first prosecution under § 1.09(1)(b). The facts show no court-ordered separate trial and no § 1.11 circumstance, so the prosecution is barred.⁶

Change the setting. D is acquitted in this State of robbery, and the same conduct also violated a federal statute with an interstate commerce element. The third step offers no route to a bar. Section 1.10 governs this State's later prosecutions after another jurisdiction's judgment, and the Code limits only this State's own prosecutions, so it does not bar a federal prosecution.⁷

The two scenes differ in more than one fact, so they show two different endings to the same sequence. The first passes every filter and ends in a bar. The second fails at the third step, because the cross-jurisdiction route runs in one direction only, from another jurisdiction's judgment toward a later prosecution in this State. A state code can restrict what its own prosecutors do, which is why the direction of the second prosecution has to be identified before any exception is tested.⁸

Choosing the Right Bar

Endnotes9