Grady v. Corbin, 495 U.S. 508 (1990)
Grady v. Corbin, 495 U.S. 508 (1990)
508
110 S.Ct. 2084
109 L.Ed.2d 548
Syllabus
After respondent Corbin's automobile struck oncoming vehicles on a New
York highway, causing the death of one person and injury to another, he
was served with two uniform traffic tickets directing him to appear at a
Town Justice Court. One ticket charged him with the misdemeanor of
driving while intoxicated, and the other charged him with failing to keep
to the right of the median. When Corbin pleaded guilty to the traffic
tickets in the Town Justice Court, the presiding judge was not informed of
the fatality or of a pending homicide investigation. Subsequently, a grand
jury indicted Corbin, charging him with, among other things, reckless
manslaughter, criminally negligent homicide, and third-degree reckless
assault. A bill of particulars identified the three reckless or negligent acts
on which the prosecution would rely to prove the charges: (1) operating a
motor vehicle on a public highway in an intoxicated condition; (2) failing
to keep right of the median; and (3) driving at a speed too fast for the
weather and road conditions. Corbin's motion to dismiss the indictment
on, inter alia, constitutional double jeopardy grounds was denied by the
County Court. He then sought a writ of prohibition barring prosecution,
which was denied by the Appellate Division. However, the State Court of
Appeals reversed, finding that the State's intention to "rely on the prior
traffic offenses as the acts necessary to prove the homicide and assault
charges" violated this Court's "pointed" dictum in Illinois v. Vitale, 447
U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228, that if two successive
prosecutions were not barred by the test of Blockburger v. United States,
284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, the second
We have long held, see Blockburger v. United States, 284 U.S. 299, 304, 52
S.Ct. 180, 182, 76 L.Ed. 306 (1932), that the Double Jeopardy Clause of the
Fifth Amendment1 prohibits successive prosecutions for the same criminal act
or transaction under two criminal statutes whenever each statute does not
"requir[e] proof of a fact which the other does not." In Illinois v. Vitale, 447
U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), we suggested that even if
two successive prosecutions were not barred by the Blockburger test, the
second prosecution would be barred if the prosecution sought to establish an
essential element of the second crime by proving the conduct for which the
defendant was convicted in the first prosecution. Today we adopt the
suggestion set forth in Vitale. We hold that 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.2 I
2
Three days later, ADA Frank Chase began gathering evidence for a homicide
prosecution in connection with the accident. "Despite his active involvement in
building a homicide case against [Corbin], however, Chase did not attempt to
ascertain the date [Corbin] was scheduled to appear in Town Justice Court on
the traffic tickets, nor did he inform either the Town Justice Court or the
Assistant District Attorney covering that court about his pending
investigation." In re Corbin v. Hillery, 74 N.Y.2d 279, 284, 545 N.Y.S.2d 71,
73, 543 N.E.2d 714, 716 (1989). Thus, ADA Mark Glick never mentioned
Brenda Dirago's death in the statement of readiness for trial and other pretrial
pleadings he submitted to respondent and the LaGrange Town Justice Court on
October 14, 1987. App. 5-10.
information. 4 The presiding judge accepted his guilty plea, but because the
District Attorney's office had not submitted a sentencing recommendation, the
judge postponed sentencing until November 17, 1987, when an ADA Attorney
was scheduled to be present in court. The ADA present at sentencing on that
date, Heidi Sauter, was unaware that there had been a fatality, was unable to
locate the case file, and had not spoken to ADA Glick about the case.
Nevertheless, she did not seek an adjournment so that she could ascertain the
facts necessary to make an informed sentencing recommendation. 74 N.Y.2d, at
284, 545 N.Y.S.2d, at 73, 543 N.E.2d, at 716. Instead, she recommended a
"minimum sentence,"5 and the presiding judge sentenced Corbin to a $350 fine,
a $10 surcharge, and a 6-month license revocation. App. 12.
5
Two months later, on January 19, 1988, a grand jury investigating the October
3, 1987, accident indicted Corbin, charging him with reckless manslaughter,
second-degree vehicular manslaughter, and criminally negligent homicide for
causing the death of Brenda Dirago; third-degree reckless assault for causing
physical injury to Daniel Dirago; and driving while intoxicated. The
prosecution filed a bill of particulars that identified the three reckless or
negligent acts on which it would rely to prove the homicide and assault
charges: (1) operating a motor vehicle on a public highway in an intoxicated
condition, (2) failing to keep right of the median, and (3) driving approximately
45 to 50 miles per hour in heavy rain, "which was a speed too fast for the
weather and road conditions then pending." App. 20. Respondent moved to
dismiss the indictment on statutory and constitutional double jeopardy grounds.
After a hearing, the Dutchess County Court denied respondent's motion, ruling
that the failure of Corbin or his counsel to inform the Town Justice Court at the
time of the guilty plea that Corbin had been involved in a fatal accident
constituted a "material misrepresentation of fact" that "was prejudicial to the
administration of justice."6 App. to Pet. for Cert. 8c.
The facts and contentions raised here mirror almost exactly those raised in this
Court 10 years ago in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65
L.Ed.2d 228 (1980). Like Thomas Corbin, John Vitale allegedly caused a fatal
car accident. A police officer at the scene issued Vitale a traffic citation
charging him with failure to reduce speed to avoid an accident in violation of
11-601(a) of the Illinois Vehicle Code. Vitale was convicted of that offense and
sentenced to pay a $15 fine. The day after his conviction, the State charged
Vitale with two counts of involuntary manslaughter based on his reckless
driving. Vitale argued that this subsequent prosecution was barred by the
Double Jeopardy Clause.
This Court held that the second prosecution was not barred under the traditional
Blockburger test because each offense "require[d] proof of a fact which the
other [did] not." See Blockburger, 284 U.S., at 304, 52 S.Ct., at 182. Although
involuntary manslaughter required proof of a death, failure to reduce speed did
not. Likewise, failure to slow was not a statutory element of involuntary
manslaughter. Vitale, supra, at 418-419, 100 S.Ct., at 2266. Thus, the
subsequent prosecution survived the Blockburger test.
But the Court did not stop at that point. Justice WHITE, writing for the Court,
added that, even though the two prosecutions did not violate the Blockburger
test:
10
"[I]t may be that to sustain its manslaughter case the State may find it necessary
to prove a failure to slow or to rely on conduct necessarily involving such
failure; it may concede as much prior to trial. In that case, because Vitale has
already been convicted for conduct that is a necessary element of the more
serious crime for which he has been charged, his claim of double jeopardy
would be substantial under Brown [v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53
L.Ed.2d 187 (1977),] and our later decision in Harris v. Oklahoma, 433 U.S.
682 [97 S.Ct. 2912, 53 L.Ed.2d 1054] (1977)." 447 U.S., at 420, 100 S.Ct., at
2267.
11
We believe that this analysis is correct and governs this case. 7 To determine
whether a subsequent prosecution is barred by the Double Jeopardy Clause, a
court must first apply the traditional Blockburger test. If application of that test
reveals that the offenses have identical statutory elements or that one is a lesser
included offense of the other, then the inquiry must cease, and the subsequent
prosecution is barred. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225,
53 L.Ed.2d 187 (1977).
12
The State argues that this should be the last step in the inquiry and that the
Double Jeopardy Clause permits successive prosecutions whenever the offenses
charged satisfy the Blockburger test. We disagree. The Double Jeopardy Clause
embodies three protections: "It protects against a second prosecution for the
same offense after acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against multiple punishments for
the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The Blockburger test was
developed "in the context of multiple punishments imposed in a single
prosecution." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407,
2411, 85 L.Ed.2d 764 (1985). In that context, "the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359,
366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). See also Brown, supra, at 165,
97 S.Ct., at 2225. The Blockburger test is simply a "rule of statutory
construction," a guide to determining whether the legislature intended multiple
punishments.8 Hunter, supra, at 366, 103 S.Ct., at 678.
13
14
"The underlying idea, one that is deeply ingrained in at least the AngloAmerican system of jurisprudence, is that the State with all its resources and
power should not be allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety and
insecurity. . . ." Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2
L.Ed.2d 199 (1957).
15
Jeopardy Clause "prevents the State from honing its trial strategies and
perfecting its evidence through successive attempts at conviction"); Ashe v.
Swenson, 397 U.S. 436, 447, 90 S.Ct. 1189, 1196, 25 L.Ed.2d 469 (1970) (the
State conceded that, after the defendant was acquitted in one trial, the
prosecutor did, at a subsequent trial, "what every good attorney would dohe
refined his presentation in light of the turn of events at the first trial"); Hoag v.
New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958) (after an alleged
robber was acquitted, the State altered its presentation of proof in a subsequent,
related trialcalling only the witness who had testified most favorably in the
first trialand obtained a conviction). Even when a State can bring multiple
charges against an individual under Blockburger, a tremendous additional
burden is placed on that defendant if he must face each of the charges in a
separate proceeding.
16
17
"The Blockburger test is not the only standard for determining whether
successive prosecutions impermissibly involve the same offense. Even if two
offenses are sufficiently different to permit the imposition of consecutive
sentences, successive prosecutions will be barred in some circumstances where
the second prosecution requires the relitigation of factual issues already
resolved by the first." 432 U.S., at 166-167, n. 6, 97 S.Ct., at 2226, n. 6.
18
Justice Powell, writing for the Court in Brown, provided two examples. In Ashe
v. Swenson, supra, the Court had held that the Double Jeopardy Clause barred a
prosecution for robbing a participant in a poker game because the defendant's
acquittal in a previous trial for robbing a different participant in the same poker
game had conclusively established that he was not present at the robbery. In In
re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Court had held
that a conviction for cohabiting with two wives over a 21/2-year period barred
a subsequent prosecution for adultery with one of the wives on the day
following the end of that period. Although application of the Blockburger test
would have permitted the imposition of consecutive sentences in both cases, the
Double Jeopardy Clause nonetheless barred these successive prosecutions.
Brown, supra, at 166-167, n. 6, 97 S.Ct., at 2226, n. 6.
19
Harris, the defendant was first convicted of felony murder after his companion
shot a grocery store clerk in the course of a robbery. The State then indicted
and convicted him for robbery with a firearm. The two prosecutions were not
for the "same offense" under Blockburger since, as a statutory matter, felony
murder could be established by proof of any felony, not just robbery, and
robbery with a firearm did not require proof of a death. Nevertheless, because
the State admitted that " 'it was necessary for all the ingredients of the
underlying felony of Robbery with Firearms to be proved' " in the felonymurder trial, the Court unanimously held that the subsequent prosecution was
barred by the Double Jeopardy Clause. Harris, supra, at 682-683, and n., 97
S.Ct., at 2913, and n. (quoting Brief in Opposition 4). See also Payne v.
Virginia, 468 U.S. 1062, 104 S.Ct. 3573, 82 L.Ed.2d 801 (1984). As we later
described our reasoning: "[W]e did not consider the crime generally described
as felony murder as a separate offense distinct from its various elements.
Rather, we treated a killing in the course of a robbery as itself a separate
statutory offense, and the robbery as a species of lesser-included offense."
Vitale, 447 U.S., at 420, 100 S.Ct., at 2267.
20
These cases all recognized that a technical comparison of the elements of the
two offenses as required by Blockburger does not protect defendants
sufficiently from the burdens of multiple trials. This case similarly
demonstrates the limitations of the Blockburger analysis. If Blockburger
constituted the entire double jeopardy inquiry in the context of successive
prosecutions, the State could try Corbin in four consecutive trials: for failure to
keep right of the median, for driving while intoxicated, for assault, and for
homicide. 10 Tr. of Oral Arg. 17-18. The State could improve its presentation of
proof with each trial, assessing which witnesses gave the most persuasive
testimony, which documents had the greatest impact, and which opening and
closing arguments most persuaded the jurors. Corbin would be forced either to
contest each of these trials or to plead guilty to avoid the harassment and
expense.
21
S.Ct. 668, 107 L.Ed.2d 708 (1990). On the other hand, a State cannot avoid the
dictates of the Double Jeopardy Clause merely by altering in successive
prosecutions the evidence offered to prove the same conduct. For example, if
two bystanders had witnessed Corbin's accident, it would make no difference to
our double jeopardy analysis if the State called one witness to testify in the first
trial that Corbin's vehicle crossed the median (or if nobody testified in the first
trial because Corbin, as he did, pleaded guilty) and called the other witness to
testify to the same conduct in the second trial.
22
23
24
By its own pleadings, the State has admitted that it will prove the entirety of the
conduct for which Corbin was convicted driving while intoxicated and failing
to keep right of the median to establish essential elements of the homicide and
assault offenses. Therefore, the Double Jeopardy Clause bars this successive
prosecution, and the New York Court of Appeals properly granted respondent's
petition for a writ of prohibition. This holding would not bar a subsequent
prosecution on the homicide and assault charges if the bill of particulars
revealed that the State would not rely on proving the conduct for which Corbin
had already been convicted (i.e., if the State relied solely on Corbin's driving
too fast in heavy rain to establish recklessness or negligence).15 III
25
26
27
Affirmed.
28
29
I agree with much of what Justice SCALIA says in his dissenting opinion. I
write separately, however, to note that my dissent is premised primarily on my
view that the inconsistency between the Court's opinion today and Dowling v.
United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), decided
earlier this Term, indicates that the Court has strayed from a proper
interpretation of the scope of the Double Jeopardy Clause.
30
Jeopardy Clause did not bar the introduction of the evidence: Because the prior
acquittal did not necessarily represent a jury determination that Dowling was
not the masked man who had entered the witness' home, the testimony was
admissible in the second trial to prove identity. Id., at 348-352, 110 S.Ct., at
672-674.
31
The Court's ruling today effectively renders our holding in Dowling a nullity in
many circumstances. If a situation identical to that in Dowling arose after
today's decision, a conscientious judge attempting to apply the test enunciated
by the Court, ante, at 510, 521, would probably conclude that the witness'
testimony was barred by the Double Jeopardy Clause. The record in Dowling
indicated that the Government was offering the eyewitness testimony to
establish the defendant's identity, "an essential element of an offense charged in
[the subsequent] prosecution," ante, at 521, and that the testimony would likely
"prove conduct that constitutes an offense for which the defendant has already
been prosecuted." Ibid. See App. in Dowling v. United States, O.T. 1989, No.
88-6025, pp. 15-29. Under the Court's reasoning, the Government's attempt to
introduce the eyewitness testimony would bar the second prosecution of
Dowling for bank robbery. As a practical matter, this means that the same
evidence ruled admissible in Dowling is barred by Grady.
32
33
34
35
The State of New York seeks to prosecute respondent a second time for the
actions that he took at 6:35 p.m. on October 3, 1987. If the Double Jeopardy
Clause guaranteed the right not to be twice put in jeopardy for the same
conduct, it would bar this second prosecution. But that Clause guarantees only
the right not to be twice put in jeopardy for the same offense, and has been
interpreted since its inception, as was its common-law antecedent, to permit a
prosecution based upon the same acts but for a different crime. The Court today
holds otherwise, departing from clear text and clear precedent with no
justification except the citation of dictum in a recent case (dictum that was
similarly unsupported, and inconclusive to boot). The effects of this innovation
upon our criminal justice system are likely to be substantial. In practice, it will
require prosecutors to observe a rule we have explicitly rejected in principle:
that all charges arising out of a single occurrence must be joined in a single
indictment. Because respondent is not being prosecuted for the same offense
for which he was previously prosecuted, I would reverse the judgment.
36
* The Double Jeopardy Clause, made applicable to the States by the Fourteenth
Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23
L.Ed.2d 707 (1969), provides: "[N]or shall any person be subject for the same
offence to be twice put in jeopardy of life or limb." U.S. Const., Amdt. 5. It "
'protect[s] an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.' " Burks v. United
States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978), quoting
Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199
(1957). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182,
76 L.Ed. 306 (1932), we summarized the test for determining whether conduct
violating two distinct statutory provisions constitutes the "same offence" for
double jeopardy purposes:
37
"The applicable rule is that where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not. Gavieres v. United States, 220 U.S.
338, 342 [31 S.Ct. 421, 422, 55 L.Ed. 489 (1911) ], and authorities cited. In that
case this court quoted from and adopted the language of the Supreme Court of
Massachusetts in Morey v. Commonwealth, 108 Mass. 433 [ (1871) ]: 'A single
act may be an offense against two statutes; and if each statute requires proof of
an additional fact which the other does not, an acquittal or conviction under
either statute does not exempt thedefendant from prosecution and punishment
under the other.' " Ibid.
38
53 L.Ed.2d 187 (1977). This test focuses on the statutory elements of the two
crimes with which a defendant has been charged, not on the proof that is
offered or relied upon to secure a conviction. "If each [statute] requires proof of
a fact that the other does not, the Blockburger test is satisfied, notwithstanding
a substantial overlap in the proof offered to establish the crimes." Iannelli v.
United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293-94, n. 17, 43
L.Ed.2d 616 (1975); see also Gore v. United States, 357 U.S. 386, 78 S.Ct.
1280, 2 L.Ed.2d 1405 (1958); American Tobacco Co. v. United States, 328 U.S.
781, 788-789, 66 S.Ct. 1125, 1129, 90 L.Ed. 1575 (1946).
39
40
Subject to the Harris and Ashe exceptions, I would adhere to the Blockburger
rule that successive prosecutions under two different statutes do not constitute
double jeopardy if each statutory crime contains an element that the other does
not, regardless of the overlap between the proof required for each prosecution
in the particular case. That rule best gives effect to the language of the Clause,
which protects individuals from being twice put in jeopardy "for the same
offence," not for the same conduct or actions. "Offence" was commonly
understood in 1791 to mean "transgression," that is, "the Violation or Breaking
of a Law." Dictionarium Britannicum (Bailey ed. 1730); see also J. Kersey, A
New English Dictionary (1702); 2 T. Sheridan, A General Dictionary of the
English Language (1780); J. Walker, A Critical Pronouncing Dictionary
(1791); 2 N. Webster, An American Dictionary of the English Language
(1828). If the same conduct violates two (or more) laws, then each offense may
be separately prosecuted. Of course, this is not to say that two criminal
provisions create "distinct" offenses simply by appearing under separate
statutory headings; but if each contains an element the other does not, i.e., if it
is possible to violate each one without violating the other, then they cannot
constitute the "same offence."
41
Another textual element also supports the Blockburger test. Since the Double
Jeopardy Clause protects the defendant from being "twice put in jeopardy," i.e.,
made to stand trial (see, e.g., Respublica v. Shaffer, 1 Dall. 236, 237, 1 L.Ed.
116 (Pa.1788)), for the "same offence," it presupposes that sameness can be
determined before the second trial. Otherwise, the Clause would have
prohibited a second "conviction" or "sentence" for the same offense. A court
can always determine, before trial, whether the second prosecution involves the
"same offence" in the Blockburger sense, since the Constitution entitles the
defendant "to be informed of the nature and cause of the accusation." Amdt. 6.
But since the Constitution does not entitle the defendant to be informed of the
evidence against him, the Court's "proof-of-same-conduct" test will be
implementable before trial only if the indictment happens to show that the same
evidence is at issue, or only if the jurisdiction's rules of criminal procedure
happen to require the prosecution to submit a bill of particulars that cannot be
exceeded. More often than not, in other words, the Court's test will not succeed
in preventing the defendant from being tried twice.
42
Relying on text alone, therefore, one would conclude that the Double Jeopardy
Clause meant what Blockburger said. But there is in addition a wealth of
historical evidence to the same effect. The Clause was based on the English
common-law pleas of auterfoits acquit and auterfoits convict, which pleas were
valid only "upon a prosecution for the same identical act and crime." 4 W.
Blackstone, Commentaries 330 (1769) (emphasis added). In that respect they
differed from the plea of auterfoits attaint, which could be invoked by any
person under a sentence of death "whether it be for the same or any other
felony." Ibid.
43
The English practice, as understood in 1791, did not recognize auterfoits acquit
and auterfoits convict as good pleas against successive prosecutions for crimes
whose elements were distinct, even though based on the same act. An acquittal
or conviction for larceny, for example, did not bar a trial for trespass based on
"the same taking, because Trespass and Larceny are Offences of a different
Nature, and the Judgment for the one entirely differs from that for the other." 2
W. Hawkins, Pleas of the Crown, ch. 36, 7, p. 376 (4th ed. 1762); see also id.,
ch. 35, 5, at 371. Sir Matthew Hale described the rule in similar terms:
44
"If A. commit a burglary in the county of B. and likewise at the same time steal
goods out of the house, if he be indicted of larciny for the goods and acquitted,
yet he may be indicted for the burglary notwithstanding the acquittal.
45
"And e converso, if indicted for the burglary and acquitted, yet he may be
indicted of the larciny, for they are several offences, tho committed at the same
time.
46
And burglary may be where there is no larciny, and larciny may be where there
is no burglary.
47
"Thus it hath happened, that a man acquitted for stealing the horse, hath yet
been arraigned and convict for stealing the saddle, tho both were done at the
same time." 2 M. Hale, Pleas of the Crown, ch. 31, pp. 245-246 (1736 ed.).
48
49
"The plea [of auterfoits acquit ] will be vicious if the offences charged in the
two indictments be perfectly distinct in point of law, however nearly they may
be connected in fact.
50
.....
51
"So if the defendant be first indicted upon the more general charge, consisting
of the circumstances A. and B. only, an acquittal obviously includes an
acquittal from a more special charge consisting of the circumstances A. B. and
C. for if he be not guilty of the former, he cannot be guilty of those with the
addition of a third. But if one charge consist of the circumstances A. B. C. and
another of the circumstances A. D. E. then, if the circumstance which belongs
to them in common does not of itself constitute a distinct substantive offence,
an acquittal from the one charge cannot include an acquittal of the other." 1 T.
Starkie, Criminal Pleading, ch. xix, pp. 322-323 (2d ed. 1822).
Likewise:
52
"The plea [of auterfoits acquit ] cannot be sustained if the offences charged in
the two indictments are in contemplation of law dissimilar from each other,
however nearly analogous in fact and in circumstances. . . . [I]f the former
charge were such a one as the defendant could not have been convicted of the
latter upon it, the acquittal cannot be pleaded." 2 C. Petersdorff, Abridgment
738, n. (1825).
53
54
The cases from this period are few, but they lend support to this view. In
Turner's Case, Kelyng 30, 84 Eng.Rep. 1068 (K.B.1708), the defendant was
acquitted on an indictment charging burglary by breaking and entering the
house of Tryon and taking away great sums of money. Turner was again
indicted for burglary by breaking and entering the house of Tryon and
removing the money of Tryon's servant. The court held that Turner could not
"now be indicted again for the same burglary for breaking the house; but we all
agreed, he might be indicted for felony, for stealing the money of [the servant].
For they are several felonies, and he was not indicted of this felony before. . . ."
Even the holding of Turner's Case that the second indictment charged the
same felony of burglarywas limited in the famous case of King v.
Vandercomb, 2 Leach 708, 168 Eng.Rep. 455 (K.B.1796). There, the
defendants were first charged with burglary by breaking and entering a house
and stealing goods. The Crown abandoned the prosecution because it
developed at trial that the defendants had not removed any property. In a
second prosecution for burglary by breaking and entering with intent to steal,
the plea of auterfoits acquit was held bad:
55
"The circumstance of breaking and entering the house is common and essential
to both the species of this offence; but it does not of itself constitute the crime in
either of them; for it is necessary, to the completion of burglary, that there
should not only be a breaking and entering, but the breaking and entering must
be accompanied with a felony actually committed or intended to be committed;
and these two offences are so distinct in their nature, that evidence of one of
them will not support an indictment for the other." Vandercomb, supra, at 717,
168 Eng.Rep., at 460 (citations omitted).
56
The court's statement in Vandercomb that the "evidence of one of them will not
support an indictment for the other," see also id., at 720, 168 Eng.Rep., at 461,
is the precise equivalent of our statement in Blockburger that "each provision
requires proof of a fact which the other does not." 284 U.S., at 304, 52 S.Ct., at
182.
57
The early American cases adhere to the same rule. In State v. Sonnerkalb, 2
Nott & McCord 280 (S.C.1820), the defendant was first convicted of retailing
liquor without a license. He was then tried a second time for "dealing, trading
or trafficking with a negro," id., at 281, based on the same sale, and "the same
evidence was given on the part of the state," id., at 280. The court rejected the
defendant's claim that he had been convicted twice for the same offense: "[L]et
it be admitted, that the defendant committed physically but one act; two
offences may be committed by one act. . . ." Id., at 283. Since the first offense
required proof of retailing liquor (but it was "immaterial to whom he [did]
retail," id., at 282), and the second required proof of sale to a Negro (but it was
immaterial what product he sold), the two offenses were different "in legal
contemplation." Ibid.
58
59
"In considering the identity of the offence, it must appear by the plea, that the
offence charged in both cases was the same in law and in fact. The plea will be
vicious, if the offences charged in the two indictments be perfectly distinct in
point of law, however nearly they may be connected in fact. . . . [I]t is sufficient
if an acquittal from the offence charged in the first indictment virtually includes
an acquittal from that set forth in the second, however they may differ in
degree. Thus an acquittal on an indictment for murder will be a good bar to an
indictment for manslaughter, and e converso, an acquittal on an indictment for
manslaughter will be a bar to a prosecution for murder; for in the first instance,
had the defendant been guilty, not of murder but of manslaughter, he would
have been found guilty of the latter offence upon that indictment; and in the
second instance, since the defendant is not guilty of manslaughter, he cannot be
guilty of manslaughter under circumstances of aggravation which enlarge it into
murder." Id., at 504 (emphasis in original).
60
Unless one offense is lesser included of the other, the two are not the "same"
under this test.
61
62
In State v. Sias, 17 N.H. 558 (1845), the defendant was first acquitted of
larceny, and then charged with obtaining property by conspiracy. The State
admitted that the "facts alleged and proposed to be proved in this case are
precisely the same facts, and same obtaining of the same property as the facts
and taking of property which constituted the larceny in the former indictment."
Ibid. The court held that the second prosecution was not barred:
63
"The offence charged in this indictment is not the same as that charged in the
former, and of which the defendant has been acquitted; nor is it included in the
former. The defendant could not have been convicted of a conspiracy on the
former indictment. He cannot be convicted of larceny on this. The proof in the
former case may have shown [the codefendant] to be guilty of larceny, and the
defendant and others of a conspiracy, but the acquittal was of the larceny
charged, and not of the conspiracy, which was not charged; and of which, for
that reason, the defendant could neither have been acquitted nor convicted in
that case." Id., at 559.
64
65
Thus, the Blockburger definition of "same offence" was not invented in 1932,
but reflected a venerable understanding. Blockburger relied on Gavieres v.
United States, 220 U.S. 338, 343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911),
which relied on Burton v. United States, 202 U.S. 344, 380-381, 26 S.Ct. 688,
698-99, 50 L.Ed. 1057 (1906), which relied on Commonwealth v. Roby, supra,
one of the leading early cases. Blockburger and Gavieres also cited Morey v.
Commonwealth, 108 Mass. 433, 435 (1871), which also applied Roby. We have
applied the Roby-Morey- Gavieres-Blockburger formulation in virtually every
case defining the "same offense" decided since Blockburger. See, e.g., Jones v.
Thomas, 491 U.S. 376, 384-385, n. 3, 109 S.Ct. 2522, 2526, n. 3, 105 L.Ed.2d
322 (1989); United States v. Woodward, 469 U.S. 105, 108, 105 S.Ct. 611, 612,
83 L.Ed.2d 518 (1985) (per curiam ); Ohio v. Johnson, 467 U.S. 493, 499, n. 8,
104 S.Ct. 2536, 2541, n. 8, 81 L.Ed.2d 425 (1984); Albernaz v. United States,
450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981); Whalen v.
United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715
(1980); Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct. 909, 912, 55 L.Ed.2d
70 (1978); Iannelli v. United States, 420 U.S., at 785, n. 17, 95 S.Ct., at 1293,
n. 17; Gore v. United States, 357 U.S., at 392, 78 S.Ct., at 1284.
II
66
The Court today abandons text and longstanding precedent to adopt the theory
that double jeopardy bars "any subsequent prosecution in which the
government, to establish an essential element of an offense charged in that
prosecution, will prove conduct that constitutes an offense for which the
defendant has already been prosecuted." Ante, at 521 (emphasis added). The
Court purports to derive that standard from our decision in Illinois v. Vitale, 447
U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), in which a motorist who
caused a fatal accident was first convicted of unlawful failure to reduce speed,
and later charged with involuntary manslaughter. We reversed the lower court's
determination that the second prosecution was barred by the Blockburger test,
because each statute had a statutory element that the other did not:
Manslaughter, but not failure to reduce speed, required proof of death; failure to
reduce speed, but not manslaughter, required a failure to slow down. In
remanding, however, we noted the possibility that the second prosecution
might be barred on another ground:
67
"[I]t may be that to sustain its manslaughter case the State may find it necessary
to prove a failure to slow or to rely on conduct necessarily involving such
failure; it may concede as much prior to trial. In that case, because Vitale has
already been convicted for conduct that is a necessary element of the more
serious crime for which he has been charged, his claim of double jeopardy
would be substantial under Brown [v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53
L.Ed.2d 187 (1977),] and our later decision in Harris v. Oklahoma, 433 U.S.
682 [97 S.Ct. 2912, 53 L.Ed.2d 1054] (1977)." 447 U.S., at 420, 100 S.Ct., at
2267 (emphasis added).
68
We did not decide in Vitale that the second prosecution would constitute double
jeopardy if it required proof of the conduct for which Vitale had already been
convicted. We could not possibly have decided that, since the issue was not
presented on the facts before us. But beyond that, we did not even say in Vitale,
by way of dictum, that such a prosecution would violate the Double Jeopardy
Clause. We said only that a claim to that effect would be "substantial," ibid.;
see also id., at 421, 100 S.Ct., at 2268, deferring to another day the question
whether it would be successful. That day is today, and we should answer the
question no.
69
To begin with, the argument that Vitale said to be "substantial" finds no support
whatever in the two cases that Vitale thought gave it substance, Brown v. Ohio,
432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Harris v. Oklahoma,
433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). The first, Brown,
involved nothing more than a straightforward application of Blockburger.
There a car thief was first convicted of "joyriding," an offense that consisted of
"tak[ing], operat[ing], or keep[ing] any motor vehicle without the consent of its
owner." 432 U.S., at 162, n. 1, 97 S.Ct., at 2223, n. 1. He was then charged
with auto theft, which required all the elements of joyriding plus an intent
permanently to deprive the owner of his car. We held that Blockburger barred
the second prosecution: Because joyriding was simply a lesser included offense
of auto theft, proof of the latter would "invariably" require proof of the former.
432 U.S., at 168, 97 S.Ct., at 2226. We did not even hint that double jeopardy
would also have barred the prosecution if the two statutes had passed the
Blockburger test but the second prosecution could not be successful without
proving the same facts. The second case, our brief per curiam disposition in
Harris, involved a prosecution for armed robbery that followed a conviction
for felony murder based on the same armed robbery. The felony murder statute
by definition incorporated all of the elements of the underlying felony charged;
thus the later prosecution (rather than, as in Brown, the earlier conviction)
involved a lesser included offense. "When," we said, "conviction of a greater
crime, murder, cannot be had without conviction of the lesser crime, robbery
with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime
after conviction of the greater one." 433 U.S., at 682, 97 S.Ct., at 2913. Again,
we gave no indication that the second prosecution would have been barred if
not because of the statutory definition of the crimes but merely because of the
circumstances of the particular caseguilt could not be established without
proving the same conduct charged in the first prosecution. In short, to call the
latter proposition "substantial" in Vitale took more than a little stretching of the
cited cases.
70
I would have thought the result the Court reaches today foreclosed by our
decision just a few months ago in Dowling v. United States, 493 U.S. 342, 110
S.Ct. 668, 107 L.Ed.2d 708 (1990). There the State, in a prosecution for
robbery, introduced evidence of the defendant's perpetration of another robbery
committed in similar fashion (both involved ski masks), of which he had
previously been acquitted. Proof of the prior robbery tended to establish
commission of the later one. The State, in other words, "to establish an essential
element of an offense charged in [the second] prosecution, [had] prove[d]
conduct that constitute[d] an offense for which the defendant ha[d] already
been prosecuted." Ante, at 521. We held, however, that the Double Jeopardy
Clause was not violated. The difference in our holding today cannot rationally
be explained by the fact that in Dowling, unlike the present case, the two
crimes were part of separate transactions; that in no way alters the central vice
(according to today's holding) that the defendant was forced a second time to
defend against proof that he had committed a robbery for which he had already
been prosecuted. In Dowling, as here, conduct establishing a previously
prosecuted offense was relied upon, not because that offense was a statutory
element of the second offense, but only because the conduct would prove the
existence of a statutory element. If that did not offend the Double Jeopardy
Clause in Dowling, it should not do so here.
71
The principle the Court adopts today is not only radically out of line with our
double jeopardy jurisprudence; its practical effect, whenever it applies, will
come down to a requirement that where the charges arise from a " 'single
criminal act, occurrence, episode, or transaction,' " they "must be tried in a
single proceeding," Brown v. Ohio, supra, at 170, 97 S.Ct., at 2228
(BRENNAN, J., concurring)a requirement we have hitherto "steadfastly
refused" to impose, Garrett v. United States, 471 U.S. 773, 790, 105 S.Ct.
2407, 2417, 85 L.Ed.2d 764 (1985). Suppose, for example, that the State
prosecutes a group of individuals for a substantive offense, and then prosecutes
them for conspiracy. Cf. Pinkerton v. United States, 328 U.S. 640, 645-646, 66
S.Ct. 1180, 1183, 90 L.Ed. 1489 (1946). In the conspiracy trial it will prove (if
it can) that the defendants actually committed the substantive offenseeven
though there is evidence of other overt acts sufficient to sustain the conspiracy
charge. For proof of the substantive offense, though not an element of the
conspiracy charge, will assuredly be persuasive in establishing that a conspiracy
existed. Or suppose an initial prosecution for burglary and a subsequent
prosecution for murder that occurred in the course of the same burglary. In the
second trial the State will prove (if it can) that the defendant was engaged in a
burglarynot because that is itself an element of the murder charge, but
because by providing a motive for intentional killing it will be persuasive that
murder occurred. Under the analysis embraced by the Court today, I take it that
the second prosecution in each of these cases would be barred, because the
State, "to establish an essential element of an offense charged in that
prosecution, will prove conduct that constitutes an offense for which the
defendant has already been prosecuted." Ante, at 521. Just as, in today's case,
proof of drunken driving or of crossing the median strip invalidates the second
prosecution even though they are not elements of the homicide and assault
offenses of which respondent is charged; so also, in the hypotheticals given,
proof of the substantive offense will invalidate the conspiracy prosecution and
proof of the burglary the murder prosecution.
72
The Court seeks to shrink the apparent application of its novel principle by
saying that repetitive proof violates the Double Jeopardy Clause only if it is
introduced "to establish an essential element of an offense charged in [the
second] prosecution." That is a meaningless limitation, of course. All evidence
pertaining to guilt seeks "to establish an essential element of [the] offense," and
should be excluded if it does not have that tendency.
73
The other half of the Court's new test does seem to import some limitation,
though I am not sure precisely what it means and cannot imagine what
principle justifies it. I refer to the requirement that the evidence introduced in
the second prosecution must "prove conduct that constitutes an offense for
which the defendant has already been prosecuted." This means, presumably,
that prosecutors who wish to use facts sufficient to prove one crime in order to
establish guilt of another crime must bring both prosecutions simultaneously;
but that those who wish to use only some of the facts establishing one crime
not enough facts to "prove conduct that constitutes an offense"can bring
successive prosecutions. But, one may reasonably ask, what justification is
there even in reason alone (having abandoned text and precedent) for limiting
the Court's new rule in this fashion? The Court defends the rule on the ground
that a successive prosecution based on the same proof exposes the defendant to
the burden and embarrassment of resisting proof of the same facts in multiple
proceedings, and enables the State to "rehearse its presentation of proof, thus
increasing the risk of an erroneous conviction for one or more of the offenses
charged." Ante, at 518. But that vice does not exist only when the second
prosecution seeks to prove all the facts necessary to support the first
prosecution; it exists as well when the second prosecution seeks to prove some,
rather than all of themi.e., whenever two prosecutions each require proof of
facts (or even a single fact) common to both. If the Court were correct that the
Double Jeopardy Clause protects individuals against the necessity of twice
proving (or refuting) the same evidence, as opposed to the necessity of twice
defending against the same charge, then the second prosecution should be
equally bad whether it contains all or merely some of the proof necessary for
the first.
74
Apart from the lack of rational basis for this latter limitation, I am greatly
perplexed (as will be the unfortunate trial court judges who must apply today's
rootless decision) as to what precisely it means. It is not at all apparent how a
court is to go about deciding whether the evidence that has been introduced (or
that will be introduced) at the second trial "proves conduct" that constitutes an
offense for which the defendant has already been prosecuted. Is the judge in the
second trial supposed to pretend that he is the judge in the first one, and to let
the second trial proceed only if the evidence would not be enough to go to the
jury on the earlier charge? Or (as the language of the Court's test more readily
suggests) is the judge in the second trial supposed to decide on his own
whether the evidence before him really "proves" the earlier charge (perhaps
beyond a reasonable doubt)? Consider application of the Court's new rule in the
unusually simple circumstances of the present case: Suppose that, in the trial
upon remand, the prosecution's evidence shows, among other things, that when
the vehicles came to rest after the collision they were located on what was, for
the defendant's vehicle, the wrong side of the road. The prosecution also
produces a witness who testifies that prior to the collision the defendant's
vehicle was "weaving back and forth"without saying, however, that it was
weaving back and forth over the center line. Is this enough to meet today's
requirement of "proving" the offense of operating a vehicle on the wrong side
of the road? If not, suppose in addition that defense counsel asks the witness on
cross-examination, "When you said the defendant's vehicle was 'weaving back
and forth,' did you mean weaving back and forth across the center line?"to
which the witness replies "yes." Will this self-inflicted wound count for
purposes of determining what the prosecution has "proved"? If so, can the
prosecution then seek to impeach its own witness by showing that his
recollection of the vehicle's crossing the center line was inaccurate? Or can it at
least introduce another witness to establish that fact? There are many questions
here, and the answers to all of them are ridiculous. Whatever line is selected as
the criterion of "proving" the prior offenseenough evidence to go to the jury,
more likely than not, or beyond a reasonable doubt the prosecutor in the second
trial will presumably seek to introduce as much evidence as he can without
crossing that line; and the defense attorney will presumably seek to provoke the
prosecutor into (or assist him in) proving the defendant guilty of the earlier
crime. This delicious role reversal, discovered to have been mandated by the
Double Jeopardy Clause lo these 200 years, makes for high comedy but inferior
justice. Often, the performance will even have an encore. If the judge initially
decides that the previously prosecuted offense "will not be proved" (whatever
that means) he will have to decide at the conclusion of the trial whether it "has
been proved" (whatever that means). Indeed, he may presumably be asked to
make the latter determination periodically during the course of the trial, since
the Double Jeopardy Clause assuredly entitles the defendant to have the
proceedings terminated as soon as its violation is evident. Even if we had no
constitutional text and no prior case law to rely upon, rejection of today's
opinion is adequately supported by the modest desire to protect our criminal
legal system from ridicule.
75
Since I do not agree with the Court's new theory of the Double Jeopardy
Clause, the question in this case for me is whether the current prosecution will
place respondent in jeopardy for the "same offenses" for which he has already
been convicted. The elements of the traffic offenses to which he pleaded guilty
were, respectively, operating a vehicle on the wrong side of the road, N.Y. Veh.
& Traf. Law 1120(a) (McKinney 1986), and operating a vehicle while in an
intoxicated condition, 1192(3). The elements of the offenses covered by the
subsequent charges whose dismissal is challenged here* are, respectively,
recklessly causing the death of another person, N.Y. Penal Law 125.15
(McKinney 1987), negligently causing the death of another person, 125.10,
and recklessly causing physical injury to another person, 120.00. Because
respondent concedes, see ante, at 522, that each of these provisions contains an
element, in the sense described by Blockburger, that the provisions under
which he has been convicted do not, they do not constitute the "same offense"
within the meaning of the Double Jeopardy Clause. I would therefore reverse
the judgment.
The Double Jeopardy Clause states: "[N]or shall any person be subject for the
same offence to be twice put in jeopardy of life or limb." It is enforceable
against the States through the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).
This issue has been raised before us twice in recent years without resolution.
See Fugate v. New Mexico, 470 U.S. 904, 105 S.Ct. 1858, 84 L.Ed.2d 777
(1985) (affirming by an equally divided Court); Thigpen v. Roberts, 468 U.S.
27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984) (deciding on alternative grounds).
The record does not indicate why the return dates for the traffic tickets were
changed from October 29 to October 27. In any event, the District Attorney
was not deprived of a meaningful opportunity to participate in this prosecution.
If the District Attorney had wanted to prevent Corbin from pleading guilty to
the traffic tickets so that the State could combine all charges into a single
prosecution containing the later-charged felony counts, he could have availed
himself of N.Y.Crim.Proc.Law 170.20(2) (McKinney 1982), which states:
"At any time before entry of a plea of guilty to or commencement of a trial of
an accusatory instrument [containing a charge of misdemeanor], the district
attorney may apply for an adjournment of the proceedings in the local criminal
court upon the ground that he intends to present the misdemeanor charge in
question to a grand jury with a view to prosecuting it by indictment in a superior
court. In such case, the local criminal court must adjourn the proceedings to a
date which affords the district attorney reasonable opportunity to pursue such
action, and may subsequently grant such further adjournments for that purpose
as are reasonable under the circumstances."
Furthermore, the District Attorney's participation in this prosecution amounted
to more than a failure to move for an adjournment. ADA Glick filed papers
indicating a readiness to proceed to trial, and ADA Heidi Sauter appeared at
Corbin's sentencing on behalf of the People of the State of New York.
The New York Court of Appeals held that, although an attorney may not
misrepresent facts, "a practitioner representing a client at a traffic violation
prosecution should not be expected to volunteer information that is likely to be
highly damaging to his client's position." In re Corbin v. Hillery, 74 N.Y.2d
279, 288, and n. 6, 545 N.Y.S.2d 71, 74, and n. 6, 543 N.E.2d 714, 718, and n.
6 (1989) (emphasis in original). Because the Court of Appeals refused to
characterize as misconduct the behavior of either Corbin or his attorney, we
need not decide whether our double jeopardy analysis would be any different if
affirmative misrepresentations of fact by a defendant or his counsel were to
mislead a court into accepting a guilty plea it would not otherwise accept.
on sentence?
"Atty: Minimum sentence." App. 12.
The State contends that these notes indicate that the sentencing
recommendation was made by respondent's counsel, not by ADA Sauter. We
do not so interpret the notes, but even if this were an accurate interpretation, the
record nevertheless establishes that ADA Sauter was present at the sentencing
proceeding yet neither objected to a minimum sentence nor mentioned that the
accident had resulted in a fatality.
6
We recognized in Brown v. Ohio, 432 U.S. 161, 169, and n. 7, 97 S.Ct. 2221,
2227, and n. 7, 53 L.Ed.2d 187 (1977), that when application of our traditional
double jeopardy analysis would bar a subsequent prosecution, "[a]n exception
may exist where the State is unable to proceed on the more serious charge at
the outset because the additional facts necessary to sustain that charge have not
occurred or have not been discovered despite the exercise of due diligence. See
Diaz v. United States, 223 U.S. 442, 448-449 [32 S.Ct. 250, 251, 56 L.Ed. 500]
(1912); Ashe v. Swenson, [397 U.S. 436, 453, n. 7, 90 S.Ct. 1189, 1194, n. 7, 25
L.Ed.2d 469 (1970) ] (BRENNAN, J., concurring)." Because ADA Dolan was
informed of Brenda Dirago's death on the night of the accident, such an
exception is inapplicable here.
Johnson, 467 U.S. 493, 499, n. 8, 104 S.Ct. 2536, 2541, n. 8, 81 L.Ed.2d 425
(1984) (Blockburger test determines "whether cumulative punishments may be
imposed"); Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141,
67 L.Ed.2d 275 (1981) ("[T]his Court has looked to the Blockburger rule to
determine whether Congress intended that two statutory offenses be punished
cumulatively"); Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432,
1437, 63 L.Ed.2d 715 (1980) (Blockburger relied on "to determine whether
Congress has in a given situation provided that two statutory offenses may be
punished cumulatively"); Simpson v. United States, 435 U.S. 6, 11, 98 S.Ct.
909, 912, 55 L.Ed.2d 70 (1978) (Blockburger established "the test for
determining 'whether two offenses are sufficiently distinguishable to permit the
imposition of cumulative punishment' "), quoting Brown v. Ohio, supra, 432
U.S., at 166, 97 S.Ct., at 2225; Iannelli v. United States, 420 U.S. 770, 785, n.
17, 95 S.Ct. 1284, 1293-94, n. 17, 43 L.Ed.2d 616 (1975) (Blockburger test
used to identify "congressional intent to impose separate sanctions for multiple
offenses arising in the course of a single act or transaction"); Gore v. United
States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) (case involved
imposition of multiple sentences in a single proceeding).
To further support its contention that Blockburger is the exclusive means of
defining "same offence" within the meaning of the Double Jeopardy Clause,
Justice SCALIA's dissent relies on a lengthy historical discussion. Post, at 530536. But this Court has not interpreted the Double Jeopardy Clause as Justice
SCALIA would interpret it since at least 1889. See infra, at 519 (discussing In
re Nielsen ). We have not previously found, and we do not today find, history to
be dispositive of double jeopardy claims. Compare post, at 532-533 (SCALIA,
J., dissenting) (relying on Turner's Case, Kelyng 30, 84 Eng.Rep. 1068 (K.B.),
decided in England in 1708, which held that a defendant acquitted of stealing
from a homeowner could lawfully be prosecuted for stealing from the
homeowner's servant during the same breaking and entering), with Ashe v.
Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (holding that the
Double Jeopardy Clause prevents a defendant acquitted of robbing one
participant at a poker game from being prosecuted for robbing any of the other
participants at the same game).
9
See, e.g., Ohio v. Johnson, 467 U.S. 493, 498-499, 104 S.Ct. 2536, 2540-41, 81
L.Ed.2d 425 (1984); Ex parte Lange, 18 Wall. 163, 169, 21 L.Ed. 872 (1874).
10
The State recognizes that under state law it would have to prosecute all of the
homicide charges in the same proceeding. Tr. of Oral Arg. 17.
11
Similarly, if in the course of securing a conviction for one offense the State
necessarily has proved the conduct comprising all of the elements of another
13
Because the State does not contest the New York Court of Appeals' ruling that
the driving while intoxicated and vehicular manslaughter charges are barred
under state law and Blockburger, respectively, Pet. for Cert. 12; Tr. of Oral Arg.
18, we need decide only whether the Double Jeopardy Clause prohibits the
State from prosecuting Corbin on the homicide and assault charges.
14
Application of the test we adopt today will not depend, as Justice SCALIA's
dissent argues, on whether the indictment "happens to show that the same
evidence is at issue" or whether the jurisdiction "happen[s] to require the
prosecution to submit a bill of particulars that cannot be exceeded." Post, at
529-530. The Courts of Appeals, which long ago recognized that the Double
Jeopardy Clause requires more than a technical comparison of statutory
elements when a defendant is confronting successive prosecutions, have
adopted an essential procedural mechanism for assessing double jeopardy
claims prior to a second trial. All nine Federal Circuits which have addressed
the issue have held that "when a defendant puts double jeopardy in issue with a
non-frivolous showing that an indictment charges him with an offense for
which he was formerly placed in jeopardy, the burden shifts to the government
to establish that there were in fact two separate offenses." United States v.
Ragins, 840 F.2d 1184, 1192 (CA4 1988) (collecting cases). This procedural
mechanism will ensure that the test set forth today is in fact "implementable,"
post, at 529 (SCALIA, J., dissenting).
15
Adoption of a "same transaction" test would bar the homicide and assault
prosecutions even if the State were able to establish the essential elements of
those crimes without proving the conduct for which Corbin previously was
convicted. The Court, however, has "steadfastly refused to adopt the 'single
transaction' view of the Double Jeopardy Clause." Garrett v. United States, 471
U.S. 773, 790, 105 S.Ct. 2407, 2417, 85 L.Ed.2d 764 (1985). But see Jones v.
Thomas, 491 U.S. 376, 388-389, 109 S.Ct. 2522, 2529, 105 L.Ed.2d 322 (1989)
(BRENNAN, J., joined by MARSHALL, J., dissenting) (maintaining that "the
Double Jeopardy Clause requires, except in very limited circumstances, that all
charges against a defendant growing out of a single criminal transaction be tried
in one proceeding").
The court below held two vehicular manslaughter counts barred under the
Blockburger test, and because the State does not contest that ruling here, see
ante, at 521, n. 12, I do not reach it.