Hastings Law Journal


Kevin A. Hicks


In addition to protecting a criminal defendant against multiple trials, the double jeopardy clause protects those convicted of crimes from multiple punishment for the same offense. This protection presents the problem of how to determine whether two or more charged offenses are truly separate or whether they constitute a single offense. In Blockburger v. United States, the United States Supreme Court adopted a mechanical test, holding that two offenses are different where each requires proof of a fact that the other does not. For many years this "same evidence" test seemed to be the last word on whether two offenses were sufficiently distinct to provide separate bases of punishment. Recently, however, the Court has determined that the issue is ultimately a legislative question and that the same-evidence test is merely a means of discerning legislative intent in the absence of other indicators. This Note argues that the court's" abandonment of the same-evidence test was inevitable and that there is no simple judicial test for distinguishing between offenses. The Note calls on Congress and state legislatures to make findings determining which combinations of offenses should be punished consecutively and which should be punished cumulatively. The Note suggests the Federal Sentencing Guidelines as a basic model for this legislative process, but proposes a different analysis focusing primarily on the subjective intent of the offender.

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