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 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, that if two successive prosecutions were not
barred by the test of
Blockburger v. United States,
284 U. S. 299,
284 U. S. 304,
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.
Held: 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. Pp.
495 U. S.
515-524.
(a) To determine whether a subsequent prosecution is barred, a
court must first apply the traditional
Blockburger test.
If the test's application 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. However, a technical comparison
Page 495 U. S. 509
of the elements of the two offenses as required by the
Blockburger test -- which was developed in the context of
multiple punishments imposed in a single prosecution -- does not
protect defendants sufficiently from the burdens of multiple
trials,
see, e.g., Brown v. Ohio, 432 U.
S. 161, and, thus, is not the exclusive means of
determining whether a subsequent prosecution violates the Double
Jeopardy Clause.
See, e.g., Harris v. Oklahoma,
433 U. S. 682.
Successive prosecutions, whether following acquittals or
convictions, raise concerns that extend beyond merely the
possibility of an enhanced sentence. They allow the State 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. They also give the State an opportunity to rehearse its
presentation of proof, thus increasing the risk of an erroneous
conviction for one or more of the offenses charged. Were
Blockburger the exclusive test 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. Pp.
495 U. S.
515-521.
(b) The critical inquiry in determining whether the government
will prove conduct in the subsequent prosecution that constitutes
an offense for which the defendant has already been prosecuted is
what conduct the State will prove, not the evidence the State will
use to prove it. Thus, the test is not an "actual evidence" or
"same evidence" test. While the presentation of specific evidence
in one trial does not forever prevent the government from
introducing the same evidence in a subsequent proceeding,
see
Dowling v. United States, 493 U. S. 342, a
State cannot avoid the Clause merely by altering in successive
prosecutions the evidence offered to prove the same conduct. Pp.
495 U. S.
521-522.
(c) Applying this analysis to the instant facts is
straightforward. While
Blockburger does not bar
prosecution of the reckless manslaughter, criminally negligent
homicide, and third-degree reckless assault charges against Corbin,
the State, in its bill of particulars, has admitted that it will
prove the entirety of the conduct for which Corbin was convicted to
establish essential elements of these offenses. Thus, the Double
Jeopardy Clause bars the prosecution. However, this holding would
not bar a subsequent prosecution if the bill of particulars
revealed that the State would rely solely on Corbin's driving too
fast in heavy rain to establish recklessness or negligence. Pp.
495 U. S.
522-523.
(d) That drunk driving is a national tragedy and that
prosecutors are overworked and may not always have the time to
monitor seemingly minor cases as they wind through the judicial
system do not excuse the need for scrupulous adherence to
constitutional principles. With adequate preparation and foresight,
the State could have prosecuted Corbin
Page 495 U. S. 510
for the offenses charged in the traffic tickets and the
subsequent indictment in a single proceeding. P.
495 U. S.
524.
74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714 (1989),
affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a
dissenting opinion,
post, p.
495 U. S. 524.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and KENNEDY, J., joined,
post, p.
495 U. S.
526.
Justice BRENNAN delivered the opinion of the Court.
We have long held, see
Blockburger v. United States,
284 U. S. 299
(1932), that the Double Jeopardy Clause of the Fifth Amendment
[
Footnote 1] 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
(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.
[
Footnote 2]
Page 495 U. S. 511
I
For purposes of this proceeding, we take the following facts as
true. At approximately 6:35 p.m. on October 3, 1987, respondent
Thomas Corbin drove his automobile across the double yellow line of
Route 55 in LaGrange, New York, striking two oncoming vehicles.
Assistant District Attorney (ADA) Thomas Dolan was called to the
scene, where he learned that both Brenda Dirago, who had been
driving the second vehicle to be struck, and her husband Daniel had
been seriously injured. Later that evening, ADA Dolan was informed
that Brenda Dirago had died from injuries sustained in the
accident. That same evening, while at the hospital being treated
for his own injuries, respondent was served with two uniform
traffic tickets directing him to appear at the LaGrange Town
Justice Court on October 29, 1987. One ticket charged him with the
misdemeanor of driving while intoxicated in violation of N.Y. Veh.
& Traf. Law § 1192(3) (McKinney 1986); the other charged him
with failing to keep right of the median in violation of § 1120(a).
A blood test taken at the hospital that evening indicated a blood
alcohol level of 0.19%, nearly twice the level at which it is
per se illegal to operate a motor vehicle in New York. §
1192(2).
Three days later, Assistant District Attorney 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
Page 495 U. S. 512
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.
Accordingly, when respondent pleaded guilty to the two traffic
tickets on October 27, 1987, a date on which no member of the
District Attorney's office was present in court, [
Footnote 3] the presiding judge was unaware
of the fatality stemming from the accident. Corbin was never asked
if any others had been injured on the night in question, and did
not voluntarily incriminate himself by providing such information.
[
Footnote 4] The
Page 495 U. S. 513
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 Assistant District Attorney was scheduled to be
present in court. The Assistant District Attorney 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," [
Footnote
5] and the presiding judge sentenced Corbin to a $350 fine, a
$10 surcharge, and a 6-month license revocation. App. 12.
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
Page 495 U. S. 514
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." [
Footnote 6] App. to Pet. for Cert.
8c.
Respondent then sought a writ of prohibition barring prosecution
on all counts of the indictment. The Appellate Division denied the
petition without opinion, but the New York Court of Appeals
reversed. The court prohibited prosecution of the driving while
intoxicated counts pursuant to New York's statutory double jeopardy
provision, N.Y.Crim.Proc.Law § 40.20 (McKinney 1971 and Supp.
1970-1989). The court further ruled that prosecution of the two
vehicular manslaughter counts would violate the Double Jeopardy
Clause of the Fifth Amendment pursuant to the
Blockburger
test because, as a matter of state law, driving while intoxicated
"is unquestionably a lesser included offense of second degree
vehicular manslaughter." 74 N.Y.2d at 290, and n. 7, 545 N.Y.S.2d
at 75, and n. 7, 543 N.E.2d at 720, and n. 7. Finally, relying on
the "pointed dictum" in this Court's opinion in
Vitale,
the court barred prosecution of the remaining counts because the
bill of particulars expressed an intention to "rely on the prior
traffic
Page 495 U. S. 515
offenses as the acts necessary to prove the homicide and assault
charges." 74 N.Y.2d at 289, 290, 545 N.Y.S.2d at 74, 75, 543 N.E.2d
at 719, 720. Two judges dissented, arguing that respondent had
deceived the Town Justice Court when pleading guilty to the traffic
tickets. We granted certiorari, 493 U.S. 953 (1989), and now
affirm.
II
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
(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
284 U. S. 304.
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
447 U. S.
418-419. 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:
"[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
Page 495 U. S. 516
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 (1977)] and our later decision in
Harris v.
Oklahoma, 433 U. S. 682 (1977)."
447 U.S. at
447 U. S. 420.
We believe that this analysis is correct, and governs this case.
[
Footnote 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, supra, at
432 U. S.
166.
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,
395 U. S. 717
(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,
471 U. S. 778
(1985). In that context,
"the Double Jeopardy Clause does no more than prevent the
sentencing court
Page 495 U. S. 517
from prescribing greater punishment than the legislature
intended."
Missouri v. Hunter, 459 U. S. 359,
459 U. S. 366
(1983).
See also Brown, supra, at
432 U. S. 165.
The
Blockburger test is simply a "rule of statutory
construction," a guide to determining whether the legislature
intended multiple punishments. [
Footnote 8]
Hunter, supra, at 366.
Page 495 U. S. 518
Successive prosecutions, however, whether following acquittals
or convictions, [
Footnote 9]
raise concerns that extend beyond merely the possibility of an
enhanced sentence:
"The underlying idea, one that is deeply ingrained in at least
the Anglo-American 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,
355 U. S. 187
(1957). Multiple prosecutions also give the State an opportunity to
rehearse its presentation of proof, thus increasing the risk of an
erroneous conviction for one or more of the offenses charged.
See, e.g., Tibbs v. Florida, 457 U. S.
31,
457 U. S. 41
(1982) (noting that the Double 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,
397 U. S. 447
(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 do -- he refined his presentation in
light of the turn of events at the first trial");
Hoag v. New
Jersey, 356 U. S. 464
(1958) (after an alleged robber was acquitted, the State altered
its presentation
Page 495 U. S. 519
of proof in a subsequent, related trial -- calling only the
witness who had testified most favorably in the first trial -- and
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.
Because of these independent concerns, we have not relied
exclusively on the
Blockburger test to vindicate the
Double Jeopardy Clause's protection against multiple prosecutions.
As we stated in
Brown v. Ohio:
"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
432 U. S.
166-167, n. 6. 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
(1889), the Court had held that a conviction for cohabiting with
two wives over a 2 1/2-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
432 U. S.
166-167, n. 6.
Furthermore, in the same Term we decided
Brown, we
reiterated in
Harris v. Oklahoma, 433 U.
S. 682 (1977), that a
Page 495 U. S. 520
strict application of the
Blockburger test is not the
exclusive means of determining whether a subsequent prosecution
violates the Double Jeopardy Clause. In
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 felony-murder trial, the Court
unanimously held that the subsequent prosecution was barred by the
Double Jeopardy Clause. Harris, supra, at 433 U. S. 682-683,
and n. * (quoting Brief in Opposition 4). See also Payne v.
Virginia, 467 U. S. 1062
(1984). As we later described our reasoning, "we 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 447 U. S. 420.
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. [Footnote 10] Tr. of Oral Arg. 17-18.
The State could improve its presentation of proof with each trial,
assessing which witnesses
Page 495 U. S. 521
gave the most persuasive testimony, which documents had the
greatest impact, 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.
Thus, a subsequent prosecution must do more than merely survive
the
Blockburger test. As we suggested in
Vitale,
the Double Jeopardy Clause 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.
[
Footnote 11] This is not an
"actual evidence" or "same evidence" test. [
Footnote 12] The critical inquiry is what
conduct the State will prove, not the evidence the State will use
to prove that conduct. As we have held, the presentation of
specific evidence in one trial does not forever prevent the
government from introducing that same evidence in a subsequent
Page 495 U. S. 522
proceeding.
See Dowling v. United States, 493 U.
S. 342 (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.
Applying this analysis to the facts of this case is
straightforward. Respondent concedes that
Blockburger does
not bar prosecution of the reckless manslaughter, criminally
negligent homicide, and third-degree reckless assault offenses.
[
Footnote 13] Tr. of Oral
Arg. 25-26. The rest of our inquiry in this case is simplified by
the bill of particulars filed by the State on January 25, 1988.
[
Footnote 14] That statement
of the prosecution's theory of
Page 495 U. S. 523
proof is binding on the State until amended, 74 N.Y.2d at 290,
545 N.Y.S.2d at 75, 543 N.E.2d at 720, and the State has not
amended it to date. Tr. of Oral Arg. 8. The bill of particulars
states that the prosecution will prove the following:
"[T]he defendant [(1)] operated a motor vehicle on a public
highway in an intoxicated condition having more than .10 percent of
alcohol content in his blood, [(2)] failed to keep right and in
fact crossed nine feet over the median of the highway [and (3)
drove] at approximately forty-five to fifty miles an hour in heavy
rain, which was a speed too fast for the weather and road
conditions then pending. . . . By so operating his vehicle in the
manner above described, the defendant was aware of and consciously
disregarded a substantial and unjustifiable risk of the likelihood
of the result which occurred. . . . By his failure to perceive this
risk while operating a vehicle in a criminally negligent and
reckless manner, he caused physical injury to Daniel Dirago and the
death of his wife, Brenda Dirago."
App. 20. 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). [
Footnote
15]
Page 495 U. S. 524
III
Drunk driving is a national tragedy. Prosecutors' offices are
often overworked, and may not always have the time to monitor
seemingly minor cases as they wind through the judicial system. But
these facts cannot excuse the need for scrupulous adherence to our
constitutional principles.
See Santobello v. New York,
404 U. S. 257,
404 U. S. 260
(1971) ("This record represents another example of an unfortunate
lapse in orderly prosecutorial procedures, in part, no doubt,
because of the enormous increase in the workload of the often
understaffed prosecutor's offices. The heavy workload may well
explain these episodes, but it does not excuse them"). With
adequate preparation and foresight, the State could have prosecuted
Corbin for the offenses charged in the traffic tickets and the
subsequent indictment in a single proceeding, thereby avoiding this
double jeopardy question. We have concluded that the Double
Jeopardy Clause of the Fifth Amendment demands application of the
standard announced today, but we are confident that, with proper
planning and attention prosecutors, will be able to meet this
standard and bring to justice those who make our Nation's roads
unsafe.
The judgment of the New York Court of Appeals is
Affirmed.
[
Footnote 1]
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." U.S. Const., Amdt. 5. It is enforceable against the States
through the Fourteenth Amendment.
Benton v. Maryland,
395 U. S. 784,
395 U. S. 794
(1969).
[
Footnote 2]
This issue has been raised before us twice in recent years
without resolution.
See Fugate v. New Mexico, 470 U.
S. 904 (1985) (affirming by an equally divided Court);
Thigpen v. Roberts, 468 U. S. 27 (1984)
(deciding on alternate grounds).
[
Footnote 3]
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 a 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 Assistant District Attorney Heidi Sauter
appeared at Corbin's sentencing on behalf of the People of the
State of New York.
[
Footnote 4]
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."
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.
[
Footnote 5]
The Town Justice Court notes of the sentencing proceeding
state:
"Atty: My client is willing to plea [
sic] guilty and I
request minimum sentence."
"Judge: Read charges. We will accept your plea of guilty. Any
recommendation 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.
[
Footnote 6]
The New York Court of Appeals found no misrepresentations and no
misconduct during the guilty plea colloquy on October 27, 1987. 74
N.Y.2d at 287-288, and n. 6, 545 N.Y. 5.2d at 74, and n. 6, 543
N.E.2d at 718-719, and n. 6. We accept its characterization of the
proceedings.
See n 4,
supra.
[
Footnote 7]
We recognized in
Brown v. Ohio, 432 U.
S. 161,
432 U. S. 169,
and n. 7 (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,
223 U. S.
448-449 (1912);
Ashe v. Swenson, 397 U. S.
436,
397 U. S. 453, n. 7 (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.
[
Footnote 8]
Justice SCALIA's dissent contends that
Blockburger is
not just a guide to legislative intent, but rather an exclusive
definition of the term "same offence" in the Double Jeopardy
Clause.
Post at
495 U. S.
528-530. To support this contention, Justice SCALIA
asserts that "[w]e have applied the [
Blockburger test] in
virtually every case defining the
same offense' decided since
Blockburger." Post at 495 U. S.
535-536. Every one of the eight cases cited in support
of that proposition, however, describes Blockburger as a
test to determine the permissibility of cumulative punishments.
None of the cases even suggests that Blockburger is the
exclusive defInition of "same offense" in the context of successive
prosecutions. See Jones v. Thomas, 491 U.
S. 376, 491 U. S.
380-381 (1989) (case involved Double Jeopardy Clause's
protection against multiple punishments, not successive
prosecutions); United States v. Woodward, 469 U.
S. 105, 469 U. S. 108
(1985) (per curiam) (describing Blockburger as a "rule for
determining whether Congress intended to permit cumulative
punishment"); Ohio v. Johnson, 467 U.
S. 493, 467 U. S. 499,
n. 8 (1984) (Blockburger test determines "whether
cumulative punishments may be imposed"); Albernaz v. United
States, 450 U. S. 333,
450 U. S. 337
(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,
445 U. S. 691
(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,
435 U. S. 11
(1978) (Blockburger established "the test for determining
`whether two offenses are sufficiently distinguishable to permit
the imposition of cumulative punishment'"), quoting Brown v.
Ohio, 432 U. S. 161,
432 U. S. 166
(1977); Iannelli v. United States, 420 U.
S. 770, 420 U. S. 785,
n. 17 (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
(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
495 U. S.
530-536. But this Court has not interpreted the Double
Jeopardy Clause as Justice SCALIA would interpret it since at least
1889.
See infra, at
495 U. S. 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
495 U. S.
532-533 (SCALIA, J., dissenting) (relying on
Turner's Case, Kelyng 30, 84 Eng.Rep. 1068, 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
(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).
[
Footnote 9]
See, e.g., Ohio v. Johnson, 467 U.
S. 493,
467 U. S.
498-499 (1984);
Ex parte
Lange, 18 Wall. 163,
85 U. S. 169
(1874).
[
Footnote 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.
[
Footnote 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 offense not yet prosecuted (a
"component offense"), the Double Jeopardy Clause would bar
subsequent prosecution of the component offense.
See Harris v.
Oklahoma, 433 U. S. 682
(1977) ("When, as here, 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") (footnote
omitted);
cf.Brown, supra, at 168 (noting that it is
irrelevant for the purposes of the Double Jeopardy Clause whether
the conviction of the greater offense precedes the conviction of
the lesser offense, or vice-versa).
[
Footnote 12]
Terminology in the double jeopardy area has been confused at
best. Commentators and judges alike have referred to the
Blockburger test as a "same evidence" test.
See,
e.g., Note, The Double Jeopardy Clause as a Bar to
Reintroducing Evidence, 89 Yale L.J. 962, 965 (1980);
Ashe, 397 U.S. at
397 U. S. 448 (BRENNAN, J., concurring). This is a
misnomer. The
Blockburger test has nothing to do with the
evidence presented at trial. It is concerned solely with the
statutory elements of the offenses charged. A true "same evidence"
or "actual evidence" test would prevent the government from
introducing in a subsequent prosecution any evidence that was
introduced in a preceding prosecution. It is in this sense that we
discuss, and do not adopt, a "same evidence" or "actual evidence"
test.
[
Footnote 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.
[
Footnote 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
495 U. S.
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
495 U. S. 529
(SCALIA, J., dissenting).
[
Footnote 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,
471 U. S. 790
(1985). But see Jones v. Thomas, 491 U.
S. 376, 491 U. S.
388-389 (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").
Justice O'CONNOR, dissenting.
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
Page 495 U. S. 525
between the Court's opinion today and
Dowling v. United
States, 493 U. S. 342
(1990), decided earlier this Term, indicates that the Court has
strayed from a proper interpretation of the scope of the Double
Jeopardy Clause.
In
Dowling, we considered whether an eyewitness'
testimony regarding a robbery for which
Dowling had been
acquitted was admissible at a second trial of
Dowling for
an unrelated robbery. The eyewitness had testified at the first
trial that a man had entered her house "wearing a knitted mask with
cutout eyes and carrying a small handgun" and that his mask had
come off during a struggle, revealing his identity.
Id. at
493 U. S. 344.
Based on this evidence, Dowling had been charged with burglary,
attempted robbery, assault, and weapons offenses, but was acquitted
of all charges. At a second trial for an unrelated bank robbery,
the government attempted to use the witness' testimony to prove
Dowling's identity as a robber. We held that the Double 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
493 U. S.
348-352.
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
495 U. S. 510,
495 U. S. 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
495 U. S. 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,
Page 495 U. S. 526
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.
The Court's decision is also inconsistent with
Dowling's approach to longstanding rules of evidence.
Although we declined in
Dowling to adopt a reading of the
Double Jeopardy Clause that would "exclude in all circumstances . .
. relevant and probative evidence that is otherwise admissible"
under Federal Rule of Evidence 404(b) and other Federal Rules of
Evidence, 493 U.S. at
493 U. S. 348,
the wide sweep of the Court's decision today casts doubt on the
continued vitality of Rule 404(b), which makes evidence of "other
crimes" admissible for proving "motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident."
In my view,
Dowling correctly delineated the scope of
the Double Jeopardy Clause's protection. Accordingly, the
inconsistency between our decision in
Dowling and the
Court's decision today leads me to reject the Court's expansive
interpretation of the Clause. I respectfully dissent.
Justice SCALIA, with whom Chief Justice REHNQUIST and Justice
KENNEDY join, dissenting.
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
Page 495 U. S. 527
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.
I
The Double Jeopardy Clause, made applicable to the States by the
Fourteenth Amendment,
Benton v. Maryland, 395 U.
S. 784,
395 U. S. 794
(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, 437 U. S. 11
(1978), quoting Green v. United States, 355 U.
S. 184, 355 U. S. 187
(1957). In Blockburger v. United States, 284 U.
S. 299, 284 U. S. 304
(1932), we summarized the test for determining whether conduct
violating two distinct statutory provisions constitutes the "same
offence" for double jeopardy purposes:
"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,
220 U. S. 342 (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 the defendant
Page 495 U. S. 528
from prosecution and punishment under the other."
Ibid. Blockburger furnishes, we have observed,
the "established test" for determining whether successive
prosecutions arising out of the same events are for the "same
offence."
Brown v. Ohio, 432 U. S. 161,
432 U. S. 166
(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,
420 U. S. 785,
n. 17 (1975);
see also Gore v. United States, 357 U.
S. 386 (1958);
American Tobacco Co. v. United
States, 328 U. S. 781,
328 U. S.
788-789 (1946).
We have departed from
Blockburger's exclusive focus on
the statutory elements of crimes in only two situations. One occurs
where a statutory offense expressly incorporates another statutory
offense without specifying the latter's elements. For example, in
Harris v. Oklahoma, 433 U. S. 682
(1977) (per curiam ), we held that a conviction for felony murder
based on a killing in the course of an armed robbery barred
subsequent prosecution for the underlying robbery. Although the
second prosecution would not have been barred under the
Blockburger test (because, on its face, the Oklahoma
felony-murder statute did not require proof of robbery, but only of
some felony), the second prosecution was impermissible
because it would again force the defendant to defend against the
charge of robbery. The other situation in which we have relaxed the
Blockburger "elements" test occurs where a second
prosecution would require relitigation of factual issues that were
necessarily resolved in the defendant's favor in the first
prosecution.
See Ashe v. Swenson, 397 U.
S. 436 (1970).
Subject to the
Harris and
Ashe exceptions, I
would adhere to the
Blockburger rule that successive
prosecutions under
Page 495 U. S. 529
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); 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."
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., 1 U. S.
Shaffer, 1 Dall. 236,
1 U.S.
237 (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
Page 495 U. S. 530
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.
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.
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:
"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."
"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.
Page 495 U. S. 531
And burglary may be where there is no larciny, and larciny may
be where there is no burglary."
"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.).
Treatises of a slightly later vintage are in accord. Thomas Starkie
(frequently cited in early American cases) says:
"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."
"
* * * *"
"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, p. 322-323 (2d ed.
1822). Likewise:
"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 circumstance. . . . [I]f the former charge were such a one
as the defendant could not have been convicted of the latter upon
it, the acquittal
Page 495 U. S. 532
cannot be pleaded."
2 C. Petersdorff, Abridgment 738, n. (1825).
See also 1
J. Chitty, Criminal Law 4550-457 (1816).
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 burglary -- was limited in
the famous case of
King v. Vandercomb, 2 Leach 708, 168
Eng.Rep. 455 (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:
"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. "
Page 495 U. S. 533
2 Leach,
supra, at 717, 168 Eng.Rep. at 460 (citations
omitted). The court's statement in
Vandercomb that the
"evidence of one of them will not support an indictment for the
other,"
see also 2 Leach,
supra, 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
284 U. S. 304.
The early American cases adhere to the same rule. In
State v.
Sonnerkalb, 2 Nott & M'Cord 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.
Commonwealth v. Roby, 12 Pickering 496 (Mass.1832),
after analyzing
King v. Vandercomb and Chitty's treatise,
distilled the rule as follows:
"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
Page 495 U. S. 534
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). Unless one offense
is lesser included of the other, the two are not the "same" under
this test.
In
State v. Standifer, 5 Porter 523 (Ala. 1837), the
defendants were acquitted of murdering Levi Lowry. They were then
charged with assault and battery of John Lowry, and pleaded
auterfoits acquit on the grounds that the charge was based
on the same affray as the previous prosecution. The court rejected
the plea:
"It is not of unfrequent occurrence that the same individual, at
the same time and in the same transaction, commits two or more
distinct crimes, and an acquittal of one will not be a bar to
punishment for the other."
Id. at 531. A jury could not lawfully have returned a
verdict of guilty of assault on John Lowry at the first trial, and
the offenses thus had "no appearance of identity."
Id. at
532.
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:
"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
Page 495 U. S. 535
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.
See also State v. Taylor, 2 Bailey
49, 50 (S.C.1830) (conviction of "trading with a slave" does not
bar prosecution for receiving goods stolen by slave "founded on the
same act"; "two distinct offences were committed" because neither
offense was necessarily included within the other);
Hite v.
State, 17 Tenn. 357, 376 (1836) (following
Vandercomb);
State v. Glasgow, Dudley 40, 43
(S.C.1837) (following
Sonnerkalb);
State v.
Coombs, 32 Maine 529, 530 (1851) (conviction for selling
liquor does not bar prosecution for being a common seller of such
liquors: "In the trial for common selling, the single acts of sale
are not prosecuted. They are shown merely as evidence of the larger
crime. Such proceedings do not expose to a second punishment for
the same offence");
Wilson v. State, 24 Conn. 57, 63
(1855) (conviction for larceny does not bar prosecution for
burglary by breaking and entering with intent to steal because each
offense requires proof of facts that other does not: "A uniform
doctrine on this point has prevailed, wherever it has been
discussed.");
State v. Warner, 14 Ind. 572 (1860) (same
rule).
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,
220 U. S. 343
(1911), which relied on
Burton v. United States,
202 U. S. 344,
202 U. S.
380-381 (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
Page 495 U. S. 536
Blockburger. See, e.g., Jones v. Thomas,
491 U. S. 376, n.
3 (1989);
United States v. Woodward, 469 U.
S. 105,
469 U. S. 108
(1985) (per curiam );
Ohio v. Johnson, 467 U.
S. 493,
467 U. S. 499,
n. 8 (1984);
Albernaz v. United States, 450 U.
S. 333,
450 U. S. 337
(1981);
Whalen v. United States, 445 U.
S. 684,
445 U. S. 691
(1980);
Simpson v. United States, 435 U. S.
6,
435 U. S. 11
(1978);
Iannelli v. United States, 420 U.
S. 770,
420 U. S. 785,
n. 17 (1975);
Gore v. United States, 357 U.
S. 386,
357 U. S. 392
(1958).
II
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
495 U. S. 521
(emphasis added). The Court purports to derive that standard from
our decision in
Illinois v. Vitale, 447 U.
S. 410 (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:
"[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
Page 495 U. S.
537
would be substantial under
Brown [v. Ohio,
432 U. S.
161 (1977)] and our later decision in
Harris v.
Oklahoma, 433 U. S. 682 (1977)."
447 U.S. at
447 U. S. 420
(emphasis added). 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
447 U. S. 421,
deferring to another day the question whether it would be
successful. That day is today, and we should answer the
question no.
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
(1977), and
Harris v. Oklahoma, 433 U.
S. 682 (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
432 U. S. 162.
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
432 U. S. 168.
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
Page 495 U. S. 538
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
433 U. S. 682.
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
case -- guilt 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.
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
(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
495 U. S. 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
Page 495 U. S. 539
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.
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 (BRENNAN,
J., concurring) -- a requirement we have hitherto "steadfastly
refused" to impose, Garrett v. United States, 471 U.
S. 773, 471 U. S. 790
(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, 328 U. S.
645-646 (1946). In the conspiracy trial, it will
prove (if it can) that the defendants actually committed the
substantive offense -- even 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 burglary -- not 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
495 U. S. 521.
Just as, in today's case, proof of
Page 495 U. S. 540
drunk 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.
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.
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
495 U. S. 518.
But that vice does not exist only when the second
Page 495 U. S. 541
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 them --
i.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.
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
Page 495 U. S. 542
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 offense --
enough 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 for 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 caselaw to rely upon, rejection of today's opinion is
adequately supported by the modest desire to protect our criminal
legal system from ridicule.
Page 495 U. S. 543
A limitation that is so unsupported in reason and so absurd in
application is unlikely to survive. Today's decision to extend the
Double Jeopardy Clause to prosecutions that
prove a
previously prosecuted offense will lead predictably to extending it
to prosecutions that
involve the same facts as a
previously prosecuted offense. We will thus have fully embraced
Justice BRENNAN's "same transaction" theory, which has as little
support in the text and history of the Double Jeopardy Clause, but
at least has the merit of being rational and easy to apply. One can
readily imagine the words of our first opinion effecting this
extension:
"When we said in
Grady that the second prosecution is
impermissible if it 'will prove conduct' that constitutes the prior
offense, we did not mean that it will establish commission of that
offense with the degree of completeness that would permit a jury to
convict. It suffices if the evidence in the second prosecution
'proves' the previously prosecuted offense in the sense of tending
to establish one or more of the elements of that offense."
The Court that has done what it has today to 200 years of
established double jeopardy jurisprudence should find this lesser
transmogrification easy. It may, however, prove unnecessary, since
prosecutors confronted with the inscrutability of today's opinion
will be well advised to proceed on the assumption that the "same
transaction" theory has already been adopted. It is hard to tell
what else has.
III
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
Page 495 U. S. 544
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, negligently causing the death of another
person, N.Y. Penal Law § 125.10 (McKinney 1987), and recklessly
causing physical injury to another person, N.Y. Penal Law § 120.00
(McKinney 1987). Because respondent concedes,
see ante at
495 U. S. 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 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 2093, n. 12, I do
not reach it.