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Criminal Procedure • 5th Amendment
CRIMPRO#056
Legal Definition
Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not. Being put in jeopardy for a greater offense bars retrial for any lesser included offense (and, generally, vice versa), with the exception of (a) that in the case of trial for battery, where the victim later dies, the defendant can be tried for murder, and (b) when new evidence is discovered.
Plain English Explanation
There's a lot going on here, so let's unpack it. First off, as you've already learned, crimes are defined by their elements. In other words, for a defendant to be guilty of a specific crime, they must have committed the elements that make up that crime. Sometimes different crimes have overlapping elements. For example, assault is often called a "failed battery," as it has all of the same elements except for an actual harmful or offensive touching. With this in mind, when examining whether or not a defendant is being charged twice for the same crime, look to see whether the crimes charged have overlapping elements and whether there are any elements that make a crime distinctively different than the other.
In contrast, the second thing to unpack from this card is when bundling crimes together does prevent the state from breaking the crime into independent, separate charges. There are two circumstances where this comes into play:
(1) When a defendant is being retried for a lesser, included offense than the one previously tried for, the lesser offense is barred. For example, if someone is tried for felony murder, there must have also been a felony committed, like armed robbery. After all, without a felony being committed, then there is no way for a subsequent killing to be considered "felony murder." When you compare felony murder against armed robbery, felony murder is obviously the greater offense, while armed robbery can be considered a lesser included offense. Imagine if Bob were charged with felony murder, found innocent, then retried for armed robbery. This would be barred by double jeopardy, as Bob's acquittal under the greater offense would preclude the state from trying to go after any lesser, included offenses tied to it.
(2) When a defendant is being retried for a greater offense than the one previously tried for, the greater offense is similarly barred. There are, however, a couple main exceptions for this. The first is when the lesser offense was a battery that results in the victim, later, dying. For example, if Bob hits Sam over the head with a baseball bat and is arrested, charged, and convicted of battery a few days before Sam dies in the hospital due to his injuries, then Bob can be charged with murder and tried again, even though it involves basically the same facts and victim as previously tried. The second is when, despite the police's best, most diligent efforts to find all evidence related to a crime, they miss something but later discover it after the defendant has already been charged.
In contrast, the second thing to unpack from this card is when bundling crimes together does prevent the state from breaking the crime into independent, separate charges. There are two circumstances where this comes into play:
(1) When a defendant is being retried for a lesser, included offense than the one previously tried for, the lesser offense is barred. For example, if someone is tried for felony murder, there must have also been a felony committed, like armed robbery. After all, without a felony being committed, then there is no way for a subsequent killing to be considered "felony murder." When you compare felony murder against armed robbery, felony murder is obviously the greater offense, while armed robbery can be considered a lesser included offense. Imagine if Bob were charged with felony murder, found innocent, then retried for armed robbery. This would be barred by double jeopardy, as Bob's acquittal under the greater offense would preclude the state from trying to go after any lesser, included offenses tied to it.
(2) When a defendant is being retried for a greater offense than the one previously tried for, the greater offense is similarly barred. There are, however, a couple main exceptions for this. The first is when the lesser offense was a battery that results in the victim, later, dying. For example, if Bob hits Sam over the head with a baseball bat and is arrested, charged, and convicted of battery a few days before Sam dies in the hospital due to his injuries, then Bob can be charged with murder and tried again, even though it involves basically the same facts and victim as previously tried. The second is when, despite the police's best, most diligent efforts to find all evidence related to a crime, they miss something but later discover it after the defendant has already been charged.
Hypothetical
Hypo 1: Bob decides to drink a bottle of tequila and drive around the block. On his drive, he hits and kills Sam with his car. Bob is arrested and charged with two crimes: (1) reckless homicide; and (2) driving while intoxicated. Bob's attorney argues that Bob only committed one crime and, because both crimes involve reckless use of the vehicle, they should not be split into two separate charges. Result: Though there is overlap in the elements of the two crimes, they each require proof of an additional element that the other does not, which means they are not the same offense. Specifically, reckless homicide requires proof that someone died, while driving while intoxicated requires proof of intoxication.
Hypo 2: Bob steals Sam's car. Bob is arrested and charged with operating a vehicle without the owner's consent. Bob pled guilty and served 30 days in jail. After being released from jail, Bob was indicted for theft of an automobile in relation to taking Sam's car. Result: Bob has been placed in double jeopardy. Though the crimes are distinct, "operating a vehicle without the owner's consent" is essentially a lesser, included offense to "stealing an automobile." As such, Bob was already tried for this crime and jeopardy has already attached from his previous trial, preventing him from being tried again for the greater offense now.
Hypo 2: Bob steals Sam's car. Bob is arrested and charged with operating a vehicle without the owner's consent. Bob pled guilty and served 30 days in jail. After being released from jail, Bob was indicted for theft of an automobile in relation to taking Sam's car. Result: Bob has been placed in double jeopardy. Though the crimes are distinct, "operating a vehicle without the owner's consent" is essentially a lesser, included offense to "stealing an automobile." As such, Bob was already tried for this crime and jeopardy has already attached from his previous trial, preventing him from being tried again for the greater offense now.
Related Concepts
Under what circumstances may a defendant be retried?
What limitations does the 5th Amendment place on the prosecutor's comments?
When and how may a defendant assert their 5th Amendment Right Against Compelled Testimony?
When does jeopardy attach, and what prevents double jeopardy?
When may the 5th Amendment right against compelled testimony be eliminated?
