Also known as: Blockburger test · Blockburger rule · Blockburger doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A test for determining whether two criminal offenses are the same for double jeopardy purposes. Each offense must require proof of an element the other does not.
Bei Bai faced trial for ordering the discharge of oily waste into coastal waters. After acquittal the government charged falsification of the ship's oil record book based on the same voyage. The court denied the motion to dismiss because the falsification charge required proof of a knowing false entry that the discharge offense did not.
Bradley Banks completed a prison term for a sex offense. The state then sought civil commitment under a statute requiring proof of a mental abnormality and future dangerousness. The court held the commitment proceeding did not trigger double jeopardy because it was not a criminal prosecution under the Blockburger framework.
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Brittany Bell was acquitted of robbing one poker player. The state then prosecuted her for robbing a second player during the same holdup. The court denied dismissal because the second charge required proof of a taking from a different victim that the first charge did not.
Boubacar Bah was convicted of a drug offense. The state later sought an enhanced sentence based on brandishing a firearm during the same incident. The court ruled that treating brandishing as a separate offense would violate double jeopardy under the same-elements analysis.
Brendan Burns pleaded guilty to an immigration violation. The government later sought a longer sentence based on a prior conviction for an aggravated felony. The court held that the prior conviction was a sentencing factor rather than a distinct offense under the same-elements test.
Benjamin Brooks was convicted of conspiring to distribute narcotics. The government then prosecuted the completed distribution arising from the same agreement. The court permitted both convictions because the distribution charge required proof of an actual transfer that the conspiracy charge did not.
The test compares the statutory elements of each offense. If each requires proof of a fact the other does not, the offenses are distinct even when they arise from identical conduct.
Supporting sources
No. The test focuses solely on statutory elements rather than the underlying facts or evidence. Overlapping conduct does not bar a second prosecution when each offense contains a unique element.
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Yes. When the legislature clearly intends separate punishments, cumulative sentences may be imposed in a single proceeding even if the offenses would otherwise be considered the same under the elements test.
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The lesser included offense fails the test because its elements are wholly contained within the greater offense. Double jeopardy therefore bars a later prosecution for the lesser included offense after conviction on the greater.
Supporting sources
…separate prosecution, if it is for an aggravated offense, likely would be barred altogether by the Double Jeopardy Clause. Blockburger v. United States , 284 U. S. 299 (1932) (government cannot prosecute for separate offenses unless each offense has at least one element that the other does not). The majority may be…