Legal Definitions - same-evidence test

The same-evidence test, also widely known as the Blockburger Test, is a legal standard used in the United States to determine whether two offenses are considered the "same offense" for the purpose of the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. This clause protects individuals from being prosecuted or punished twice for the same crime.

The test works by examining the elements of each crime. It asks: Does each offense require proof of an element that the other does not?

• If the answer is yes (each crime has at least one unique element not required by the other), then the offenses are considered distinct, and a person can be prosecuted and punished for both without violating double jeopardy.
• If the answer is no (one offense does not require proof of an element distinct from the other, meaning one crime is entirely subsumed within the other), then they are considered the "same offense" for double jeopardy purposes, and a person generally cannot be punished for both. This often applies when one crime is a "lesser included offense" of the other.

Here are some examples illustrating how the same-evidence test applies:

• Example 1: Distinct Offenses (Burglary and Arson)

  Imagine a person breaks into a commercial building with the intent to steal equipment (the crime of burglary). After taking the equipment, they then intentionally set the building on fire to destroy evidence (the crime of arson).

  Applying the same-evidence test:

  • Burglary requires unlawful entry into a structure with the intent to commit a crime inside.
  • Arson requires maliciously setting fire to a structure.

  Burglary requires proof of unlawful entry, which arson does not. Arson requires proof of setting fire, which burglary does not. Since each offense requires proof of an element that the other does not, they are considered distinct crimes. Therefore, the individual could be charged, convicted, and punished for both burglary and arson without violating the Double Jeopardy Clause.

• Example 2: Lesser Included Offense (Aggravated Assault and Simple Assault)

  Consider a situation where an individual is charged with aggravated assault for attacking someone with a baseball bat. Depending on the jurisdiction, aggravated assault might be defined as an assault committed with a deadly weapon or causing serious bodily injury. Simple assault, on the other hand, might be defined as an unlawful physical contact or threat of violence.

  Applying the same-evidence test:

  • Aggravated assault (in this context) requires proof of an assault *and* the use of a deadly weapon (the baseball bat).
  • Simple assault requires proof of an assault (unlawful physical contact or threat).

  Aggravated assault requires the element of using a deadly weapon, which simple assault does not. However, simple assault does *not* require proof of any element that aggravated assault does not already encompass. If you prove aggravated assault with a deadly weapon, you have inherently proven a simple assault. Because simple assault does not have a unique element distinct from aggravated assault, it is considered a lesser included offense. Under the same-evidence test, these would be considered the "same offense" for double jeopardy purposes, meaning the individual could not be punished for both simple assault and aggravated assault arising from the exact same act.

• Example 3: Distinct Offenses (Driving Under the Influence and Reckless Endangerment)

  Suppose a driver is pulled over and found to be operating a vehicle while intoxicated (Driving Under the Influence - DUI). During their impaired driving, they swerved dangerously, nearly hitting several pedestrians on the sidewalk (Reckless Endangerment).

  Applying the same-evidence test:

  • DUI requires operating a motor vehicle while impaired by alcohol or drugs.
  • Reckless Endangerment requires acting with extreme indifference to human life and creating a substantial risk of serious bodily injury to another person.

  DUI requires proof of impairment by substances, which reckless endangerment does not (a sober person can drive recklessly). Reckless endangerment requires proof of creating a substantial risk of serious bodily injury to another person, which DUI does not (a person could be driving impaired on a deserted road without endangering others). Since each offense requires proof of an element that the other does not, they are considered distinct crimes. The individual could face separate charges and punishments for both DUI and reckless endangerment.