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Double Jeopardy - Defining the Same Offense W Louisiana Law Review Volume 32 | Number 1 December 1971 Double Jeopardy - Defining the Same Offense W. John English Jr. Repository Citation W. John English Jr., Double Jeopardy - Defining the Same Offense, 32 La. L. Rev. (1971) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol32/iss1/9 This Comment is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. 1971] COMMENTS drug legislation is not an "all or nothing" situation. There exist alternative methods for reducing the social costs besides legali- zation. Examples of such compromise solutions included in the UCDSA are conditional discharge provisions, civil court actions and fines, reduction of possession penalties and emphasis on the apprehension of traffickers. Vance R. Andrus and Charles R. Moore DOUBLE JEOPARDY- DEFINING THE SAME OFFENSE The ancient laws provided that the state could not twice put a person in jeopardy for the same offense. There was limited expression of this principle in the Digest of Justinian, and the proscription was firmly entrenched in English common law by the seventeenth century.' A prohibition was incorporated into the fifth amendment of the United States Constitution which provides in part, "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ....12 This guarantee has recently been applied to state proceedings via the due process clause of the fourteenth amendment in Benton v. Maryland. The Benton ruling, however, merely affirmed a maxim already accepted in all state constitutions and statutes." The purpose of this Comment is to examine the various stan- dards used in determining when a second jeopardy exists and to evaluate their effectiveness in terms of the principles under- lying the double jeopardy clause. Particular attention will be 1. Comment, 75 YALE L.J. 262 n.1 (1965): "Actually the double jeopardy principle existed in the days of the Greeks and Romans .... Canon law contained a similar principle. There Is evidence that a plea similar to double jeopardy may have appeared in English law as early as the fourteenth cen- tury, but the earliest conclusive evidence of the principle appears in writings of Hale (seventeenth century), and Coke (seventeenth century), and later In Blackstone (eighteenth century)." 2. U.S. CONST. amend. V. 3. 395 U.S. 784 (1969). 4. See, e.g., LA. CONST. art. 1, § 9: "... nor shall any person be twice put in jeopardy of life or liberty for the same offense, except on his own appli- cation for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained." See also Comment, 21 LA. L. REv. 615 (1961): "The maxim 'nor shall any person be twice put in jeopardy of life or liberty for the same offense' is incorporated Into Article I, § 9, of the Louisiana Con- stitution. Although the phraseology may differ, this maxim is accepted in all federal and state courts." LOUISIANA LAW REVIEW [Vol. 32 devoted to a discussion of the collateral estoppel theory, recently incorporated into the fifth amendment.5 Policies Underlying the Double Jeopardy Clause A judgment of acquittal, whether it results from a jury ver- dict or from an order by the court, terminates the prosecution, and the double jeopardy clause bars any further criminal pro- ceedings against the defendant for the same offense.7 However, acquittal in the criminal action does not bar a civil suit based on the same facts, since different standards of proof are involved.8 The idea that the state, with all its resources and power, should not be allowed to make repeated attempts to convict an indi- vidual of an alleged offense 9 is based on several policies. First, reprosecution for the same offense after an acquittal is pro- hibited because guilt should be established by proving the ele- ments of a crime to the satisfaction of a single jury, not by cap- italizing on the increased probability of conviction resulting from repeated prosecutions before several such panels. 10 Sec- ond, reprosecution after a conviction is prohibited to prevent the prosecutor from searching for an agreeable sentence by bringing successive prosecutions for the same offense before different judges." Third, the fifth amendment forbids a second trial, not merely a second conviction, for the same offense in an effort to prevent criminal trials from becoming an instrument for unnecessarily badgering individuals.1 2 Finally, courts are pre- vented from imposing multiple punishments for a single legis- latively defined offense.13 5. See Ashe v. Swenson, 397 U.S. 436 (1970). 6. Fong Foo v. United States, 369 U.S. 141 (1962); United States v. Ball, 163 U.S. 662 (1896). 7. United States v. Bayer, 331 U.S. 532 (1947); Gavieres v. United States, 220 U.S. 338 (1911); United States v. Kramer, 289 F.2d 909 (2d Cir. 1961). 8. United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 492-94 (1950); Helvering v. Mitchell, 303 U.S. 391, 397-98 (1938); Jones v. Dis- trict of Columbia, 212 F. Supp. 438 (D.C. 1962). 9. Green v. United States, 355 U.S. 184, 187 (1957). 10. Green v. United States, 355 U.S. 184 (1957); United States v. Coke, 404 F.2d 836 (2d Cir. 1968); Murray & Sorenson v. United States, 207 F.2d 119 (1st Cir. 1953); Bryan v. United States, 175 F.2d 223 (5th Cir. 1949), afljd, 338 U.S. 552 (1950). 11. United States v. Coke, 404 F.2d 836 (2d Cir. 1968); United States v. Sabella, 272 F.2d 206 (2d Cir. 1959); Smith v. United States, 177 F.2d 434 (10th Cir. 1949). 12. United States v. Ball, 163 U.S. 662 (1896); Rowley v. Welch, 114 F.2d 499 (D.C. 1940); United States v. Perrone, 161 F. Supp. 252 (S.D. N.Y. 1958). 13. North Carolina v. Pearce, 395 U.S. 711 (1969); United States v. Coke, 404 F.2d 836 (2d Cir. 1968). 19711 COMMENTS Defining the Same Offense Although courts and writers unanimously agree that it would be deplorable to force a defendant to undergo a second trial for the same offense, a great diversity of opinion exists as to the meaning of the phrase "same offense" as used in the double jeopardy clause. Over the years, the majority of state and fed- eral courts have developed three basic approaches in deter- mining when a second trial will constitute double jeopardy- the same evidence test, the same transaction test, and 1he col- lateral estoppel theory. These approaches, however, are not mutually exclusive, and the same court sometimes uses them interchangeably, thus, causing more confusion over the term "same offense."' 14 The Same Evidence Test Under the same evidence test, a conviction or acquittal upon one indictment does not bar a subsequent conviction and sen- tence upon another charge "unless the evidence required to support the finding of guilt upon one of them would have been sufficient to warrant the same result upon the other."'15 This test was first enunciated in 1796 in the English case of Rex v. Vandercomb & Abbott,' and a majority of American jurisdic- tions have since adopted it. 1 The rule has not always, however, been strictly applied and several modifications of the test have been developed by the courts. One such modification of the same evidence test was enun- ciated in State v. Brownrigg.18 Under this "backwards test,"'19 offenses are the same only if the defendant could have been convicted of the second offense on the evidence offered at the first trial. This differs from the original rule in that it is based on the actual evidence presented at the second trial rather than 20 the evidence or facts alleged in the second indictment. 14. See Note, 7 BROOKLYN L. REV. 79, 85 (1937). 15. Morey v. Commonwealth, 108 Mass. (12 Browne) 433, 434 (1871). 16. 168 Eng. Rep. 455, 461 (Ex. 1796): "[U]nless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second Indictment, an acquittal on the first indictment can be no bar to the second." 17. See Note, 7 BROOKLYN L. Rgv. 79, 81 (1937). 18. 87 Me. (7 Hamlin) 500, 33 A. 11 (1895); see also Ex parte Gano, 90 Kan. 134, 132 P. 999 (1913). 19. See Note, 7 BROOKLYN L. Riov. 79, 82-83 (1937). 20. See note 16 supra and accompanying text. LOUISIANA LAW REVIEW [Vol. 32 A second variation of the same evidence test was developed in 1911 when the United States Supreme Court, in Gavieres v. United States,2 1 held that offenses are not the same if each con- tains an element not included in the other. This "distinct ele- ments test"22 recognizes that a single act may violate several statutes, and if each statute requires proof of an additional ele- ment which the other does not, an acquittal or conviction under one statute will not bar a prosecution under the other.23 Thus, this test depends upon the minimum proof required by statute to convict the defendant,24 not the evidence actually introduced '25 at trial as required by the "backwards test. 26 A third variation was developed in Burton v. United States, in which the Supreme Court held that offenses are the same for double jeopardy purposes only if they are identical in law and in fact.2 7 This "identity test,' 2 which depends upon the evidence required to convict the defendant, differs from the other two variations29 of the same evidence test in that it would permit second prosecutions for necessarily included offenses if the de- fendant were first tried on the greater offense.
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