DOUBLE JEOPARDY,DOUBLE JEOPARDY,DOUBLE JEOPARDY,DOUBLE JEOPARDY,DOUBLE JEOPARDY,
COLLATERAL ESTOPPELCOLLATERAL ESTOPPELCOLLATERAL ESTOPPELCOLLATERAL ESTOPPELCOLLATERAL ESTOPPEL
AND RES JUDICATAAND RES JUDICATAAND RES JUDICATAAND RES JUDICATAAND RES JUDICATAI. INTRODUCTION
The Fifth Amendment of the U.S. Constitution
affords the broad guarantee that no person shall “be
subject for the same offense to be twice put in jeopardy
of life or limb.” Double jeopardy protection is afforded
in three distinct forms: (1) protection against a second
prosecution for the same offense after acquittal; (2)
protection against a second prosecution for the same
offense after conviction; (3) and protection against
multiple punishment for the same offense. North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23
L.Ed.2d 656 (1969). The Double Jeopardy Clause is
applicable to the states through the Due Process Clause
of the Fourteenth Amendment. See Benton v. Maryland,
395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969);
see also Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57
L.Ed.2d 24 (1978).
The New Jersey Constitution provides: “No person
shall after acquittal, be tried for the same offense.”
N.J.Const. art.1, ¶ 11. The language with which double
jeopardy protection is established by the New Jersey
Constitution is significantly narrower than the
corresponding language in the United States Constitu-
tion. State v. Jones, 188 N.J. Super. 201 (App. Div.
1983). Nevertheless, the development of the two clauses
is the same and their application is coextensive. State v.
Farmer, 48 N.J. 145, 167-168 (1966).
Double jeopardy analysis in New Jersey is also
affected by the existence of so-called statutory double
jeopardy protection, contained in the Penal Code. See,
e.g., N.J.S.A. 2C:1-8 (prosecution when conduct
constitutes more than one offense); N.J.S.A. 2C:1-9
(prosecution barred by former prosecution for same
offense); State v. Yoskowitz, 116 N.J. 679 (1989).
Additionally, tests developed to determine whether an
offense is the “same offense” for double jeopardy
purposes, for example, the “same conduct” test, are
implicated by joinder provisions of both the Penal Code
and the Court Rules. See N.J.S.A. 2C:1-8b; R. 3:15;
JOINDER, this Digest.
In the last twenty years, federal double jeopardy
jurisprudence and New Jersey double jeopardy
jurisprudence have changed and changed again. For
decades, the key term “same offense” was defined by the
same-elements test of Blockburger v. United States, 284
U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1934). Two
offenses are the same unless each contains an element not
contained by the other. In Grady v. Corbin, 495 U.S.
508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the
United States Supreme Court expanded the definition to
include also as the same offense those offenses which arise
out of the same conduct. Then, in a reversal, the Supreme
Court rejected Grady just three years after it was decided,
and returned to the Blockburger same-elements test.
United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849,
125 L.Ed.2d 556 (1993).Meanwhile, in 1983 the New Jersey Supreme Court
decided State v. Dively, 92 N.J. 573 (1983), and held that
in order to demonstrate a double jeopardy violation, a
defendant must show not only that the offenses met the
Blockburger same-elements test but also that they met the
same-conduct test. Four years later, in State v. DeLuca,
108 N.J. 98 (1987), the Court rejected Dively as
“erroneous,” and held that a defendant need only show
that two offenses met either the same-elements test or the
same-conduct test.II. ATTACHMENT OF JEOPARDY
The significance of whether jeopardy has attached
rests in the legal principle that “an accused must suffer
jeopardy before he can suffer double jeopardy.” Serfass v.
United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d
265 (1975). The Supreme Court has held that in a jury
trial, jeopardy attaches when the jury is impaneled and
sworn. Crist v. Bretz, 437 U.S. 28 (1978). In a non-jury
trial, jeopardy attaches when the first witness is sworn.
Serfass v. United States, supra; Crist v. Bretz, supra; see also
State v. Lynch, 74 N.J. 327 (1979); State v. Antieri, 180
N.J. Super. 267 (Law Div. 1981).Jeopardy does not attach and retrial is not barred
when a trial court dismisses a case as a pre-trial matter of
calendar control or administration. Serfass v. United
States, supra; State v. Johnson, 125 N.J. Super. 438 (App.
Div. 1973). Analytically, “the conclusion that jeopardy
has attached begins, rather than ends, the inquiry
whether the Double Jeopardy Clause bars retrial.”
Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35
L.Ed.2d 425 (1973). Retrial may be permitted, even
though jeopardy has attached, if the original jeopardy
may be regarded as continuing. Double jeopardy is not
implicated until original jeopardy is terminated. Green
v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 2
L.Ed.2d 199 (1957).