Concept
When Another Prosecution Bars
Former Prosecution in Another Jurisdiction
When Another Prosecution Bars
Section 1.10 of the Model Penal Code applies once the threshold from the last section is met: the conduct must constitute an offense within the concurrent jurisdiction of this State and of the United States or another State.1 The provision is written from the enacting State's side. It asks whether a prosecution in the other jurisdiction is a bar to a later prosecution in this State, and it answers yes in two circumstances only.2 The first is an earlier acquittal or conviction based on the same conduct, subject to two exceptions. The second is an earlier termination in the defendant's favor that necessarily decided something the State would have to prove. The next four sections take these up in order, beginning with route one, then its two exceptions, then route two, and this section supplies the frame that holds them together.
The first route turns on how the earlier case ended and on what the later case is about. The earlier prosecution must have ended in an acquittal or in a conviction as Section 1.08 defines those terms, and the later prosecution must be based on the same conduct.3 An acquittal under Section 1.08 includes a finding of not guilty by the trier of fact and a determination that the evidence was insufficient to warrant a conviction. A conviction includes an unreversed judgment of conviction, a guilty verdict that has not been set aside and could support a judgment, and a guilty plea accepted by the court.4 The linking word in the rule is conduct. Section 1.10 does not require that the two jurisdictions charge the same offense, or even offenses with the same name or elements. Such a requirement would rarely be satisfied, because a federal statute and a state statute, or the statutes of two states, almost never define a crime in identical words. The conduct ties the two prosecutions together, and the question whether the offenses really differ is saved for the exceptions.
The exceptions mark the places where the second sovereign may still have something left to prosecute. Under the first, there is no bar if each offense requires proof of a fact the other does not and the law defining each is intended to prevent a substantially different harm or evil.5 Both conditions must be present, so an offense with a distinct element that protects the same interest does not qualify. The reason is that a judgment under one law settles the defendant's accountability for the harm that law addresses, while a sovereign guarding against a different harm has had none of its own interest adjudicated. Under the second exception, there is no bar if the second offense was not consummated when the former trial began.6 A first trial cannot have covered an offense that was not yet complete, so the earlier judgment decided nothing about it.
The second route does not ask whether the conduct is the same. It asks what the first prosecution necessarily decided. The former prosecution must have been terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated. That acquittal, order, or judgment must also have necessarily required a determination inconsistent with a fact that must be established for conviction of the offense in the later prosecution.7 The two exceptions just described are written into subsection (1) alone, so they do not trim subsection (2). The logic is repose where an issue is already resolved: if the first judgment for the defendant could rest only on a finding that contradicts something the second prosecution needs, a second proceeding would ask a new factfinder to reach the opposite finding on the same question.
The two routes are the whole of Section 1.10, which matters for what the section leaves out. The same-jurisdiction rule in Section 1.09 adds a third route for a prosecution that was improperly terminated, meaning one that ended for reasons not amounting to an acquittal after the first witness was sworn but before verdict, unless the defendant consented or a listed necessity such as a deadlocked jury justified the ending.8 The text of Section 1.10 has no counterpart.9 Section 1.10 contains no separate route for an improperly terminated prosecution, so a trial in another jurisdiction aborted after the first witness was sworn does not, by that fact alone, bar a later prosecution here. It bars only if it also fits route one or route two, each of which requires an acquittal, a conviction, or a final judgment for the defendant that decided something. The omission is consistent with the premise that this bar rests on a genuine prior adjudication, since an inconclusive ending leaves no determination for the second sovereign to respect. Both routes also sit beneath Section 1.11, which removes a former prosecution from the bar altogether in the three situations taken up after the routes are in hand.10
Acquittal or Conviction Route
The acquittal-or-conviction route in Section 1.10(1) has two requirements that must both be met. The prosecution in the other jurisdiction must have ended in an acquittal or in a conviction as Section 1.08 defines those terms, and the prosecution here must be based on the same conduct.12 The first requirement looks at how the earlier case ended, and so asks whether the other sovereign actually finished its work. The second looks at what the two cases share, and so asks whether this State is reaching for the same act a second time. Because each requirement screens out a different kind of case, the definitions come first and the conduct test second.
Section 1.08 recognizes an acquittal in two situations. One is a finding of not guilty by the trier of fact, and the other is a determination that the evidence was insufficient to warrant a conviction.13 The second form matters because a judge can end a case for want of proof before any verdict is returned, and that ruling settles the merits as completely as a jury's verdict would. The definition also treats a finding of guilty of a lesser included offense as an acquittal of the greater inclusive offense, even if that conviction is later set aside.14 The reason is that a factfinder who convicts only of the lesser crime has necessarily declined to find the extra element that makes the greater crime greater, so the first sovereign has already decided that point in the defendant's favor.
Conviction is defined more elaborately, because a case can reach a guilty result before the paperwork of judgment is complete. Section 1.08 recognizes three forms.15
- A judgment of conviction that has not been reversed or vacated.
- A verdict of guilty that has not been set aside and is capable of supporting a judgment.
- A plea of guilty that the court has accepted.
For the second and third forms, any failure to enter judgment must be for a reason other than a motion of the defendant.16 Each form shows that a court with power over the case has reached a completed result, and the exclusion of reversed or vacated judgments means that a conviction already wiped out leaves nothing for another sovereign to respect. The limit on defense motions follows the same logic: a defendant who has asked the court to hold up judgment is poorly placed to treat the resulting gap as proof that the first prosecution was complete.
The second requirement ties the two prosecutions together by conduct rather than by statute. Within a single State, Section 1.08 asks whether the later prosecution is for a violation of the same provision and is based on the same facts.17 Carry that same-provision requirement across jurisdictions and it could almost never be met, because a federal statute and a state statute, or the codes of two states, are different provisions by definition. The bar would disappear whenever the two sovereigns wrote their laws separately. Section 1.10 therefore asks only whether the later prosecution is based on the same conduct, which also prevents a prosecutor from avoiding the bar by renaming the same act under a different offense title.18 Whether the two offenses protect genuinely different interests is a separate question, and it is saved for the exceptions taken up in the next two sections.
The route closes when the first prosecution ends without either result.
Students lose this issue when they treat the earlier trial as enough, because a hung-jury mistrial is neither an acquittal nor a conviction. The other sovereign has decided nothing, so there is no adjudication for this State to respect. The same-State rule shows how firmly that conclusion holds. Section 1.09(3) bars a later prosecution after an improper termination, yet a termination because the jury is unable to agree is expressly listed as not improper.19 Section 1.10 has no improper-termination branch at all, so a deadlocked first trial leaves route one closed.20 If the other jurisdiction later retries the case and obtains an acquittal or a conviction, the analysis starts over with a result that fits the definitions. A bar under this route is also only presumptive, since it holds unless one of the two statutory exceptions applies, and the different-harm exception comes first.
Different Harm Exception
The bar under route one is presumptive, and the first of its two exceptions removes it when the earlier and later prosecutions, though built on the same conduct, address different wrongs. Under Section 1.10(1)(a), there is no bar if the offense of the earlier acquittal or conviction and the offense now charged each require proof of a fact the other does not, and the law defining each offense is intended to prevent a substantially different harm or evil.23 The different-harm exception therefore has two parts, an element prong and a harm prong, joined so that the exception applies only when both are present. Because it is written into subsection (1), it narrows the acquittal-or-conviction route and leaves the inconsistent-determination route untouched.24
The element prong compares what each offense requires the State to prove, and it looks in both directions. The prong is met only if the earlier offense requires some fact the later one does not and the later offense requires some fact the earlier one does not. A pair in which one offense is wholly contained in the other cannot satisfy it, because the contained offense requires nothing the larger one lacks, and a trial on the larger offense would already have tested every fact the contained offense needs. The same two-part formula appears in Section 1.09(1)(c)(i) as the exception to the bar between prosecutions within a single State, so the formula learned here carries over to that provision.25
The harm prong asks what each statute is for. It looks at what the law defining each offense is intended to prevent, and it requires those harms or evils to be substantially different. A second sovereign that enacted its statute to protect a different interest has not had that interest adjudicated by the first judgment, because the first court measured the defendant's conduct against a law aimed at something else. A bar in that situation would excuse the defendant from answering for an injury the first prosecution never addressed. Two statutes that guard the same interest in slightly different terms leave this prong unmet.
Requiring both prongs closes two escape routes. If a distinct element were enough, a prosecutor facing a bar could add a trivial fact to the charge, such as the type of property taken or the place of the offense, and claim a new element for what is the same wrong. If a different stated purpose were enough, a second sovereign could describe its statute in new words and obtain a retrial on proof identical to the first. Demanding both ties the exception to genuine differences in what must be proved and in what the law protects, so that a defendant who has answered for a wrong once is not tried for it again under a new label.
Changing the facts so that the second prosecution targets the same interest shows which prong carries the weight.
The harm prong is where answers most often go wrong. A reader who finds a distinct element on each side tends to stop and declare the exception met, but different elements alone do not defeat the bar. Different labels, or statutes that come from different sovereigns, also accomplish nothing unless the interests the statutes protect differ in substance. The offense pairings in this section are illustrations, and whether a particular pair qualifies depends on the text and evident purpose of the two statutes involved.
Some state codes carry their own version of this limit. Georgia's statute, which bars a state prosecution after a federal one for the same conduct, stops applying where each prosecution requires proof of a fact the other does not, a limit that resembles the element prong of the exception.26 The comparison is a reminder that the enacting State's own wording controls the result, a point taken up later in this chapter.
Unconsummated Offense Exception
The different-harm exception compares what each statute protects, and the second exception looks only at timing. Under Section 1.10(1)(b), an earlier acquittal or conviction on the same conduct does not bar the later prosecution if the second offense was not consummated when the former trial began.28 An offense is consummated when every element it requires, including any required result, has occurred. The unconsummated-offense exception therefore asks one question about one moment: had the conduct and its result already combined into the second offense when the first trial opened? The statute joins this exception to the different-harm exception with the word or, so the State may rely on either one, and neither depends on the other.29
The typical case is a result that arrives after the first trial is underway and turns a lesser offense into a greater one. The exception exists because a first sovereign cannot have tried an offense that had not yet occurred. When the first trial opened, the only offense the facts could support was the lesser one, and the later result was not a fact anyone could put before the factfinder. If the first judgment barred the greater offense anyway, the defendant would receive immunity for a harm the earlier proceeding had no way to address. A guilty plea to the lesser charge would then buy protection against a graver charge that did not yet exist.
Change one fact and the result reverses.
The only variable that moved the answer was the date of the death, and that points to the trap in this exception. The moment the former trial began fixes the answer, so the date of the defendant's conduct and the date of the first verdict are both irrelevant. A death that occurs after the trial began but before verdict falls on the same side of the line as one that occurs after judgment, because in each case the offense was incomplete at the opening of the trial. The exception also sits inside subsection (1), so it limits route one only. A defendant acquitted in the first trial on a ground that necessarily decided a fact the later prosecution must prove may still look to the inconsistent-determination route in subsection (2).30
Inconsistent Determination Route
Route one asks what kind of result the first prosecution produced and whether the later charge rests on the same conduct, and the two exceptions just covered can remove its bar. Section 1.10(2) supplies a second path that runs on different logic and is untouched by those exceptions. Under it, a prosecution in the other jurisdiction bars the State's prosecution when the former case was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact the State must establish to convict of the offense now charged.32 This inconsistent-determination route has three parts: a qualifying termination, a ruling that still stands, and a necessary finding that collides with an element of the second offense. As with route one, all of it presupposes that the conduct falls within the concurrent jurisdiction of this State and the other sovereign.
The first two parts screen out terminations that settled nothing durable. Requiring that the information be filed or the indictment found means the former case was a formal accusation the defendant had to answer, so a ruling made before any charge issued cannot count. Requiring that the ruling not be set aside, reversed, or vacated means an order already wiped out leaves no determination for this State to respect, the same logic that excluded reversed convictions from route one. The qualifying terminations are also broader than route one's, since a final order or judgment for the defendant counts here even when it is not an acquittal in the sense Section 1.08 defines. The same-State rules contain parallel language: Section 1.09(2) uses this structure for a later prosecution for a different offense, and Section 1.08(2) adds that the inconsistent determination may concern a legal proposition as well as a fact.33
The reason for a separate route lies in what the first proceeding resolved. When a court or jury has necessarily decided a factual question in the defendant's favor, a second prosecution that depends on the opposite answer asks a new factfinder to contradict the first, and it forces the defendant to defend again on a point already decided. Route one cannot always prevent that, because the different-harm and unconsummated-offense exceptions are written into subsection (1) and can leave a second prosecution open even after an acquittal.34 Route two does not compare the offenses' elements or purposes, so those exceptions do not reach it. What links the two prosecutions here is the overlap between what the first ruling decided and what the State must now prove, and subsection (2) contains no same-conduct clause of its own.
The word necessarily carries the route. A general verdict of not guilty reports a result without reasons, so the inquiry looks past the verdict to the elements of the first offense, the issues actually contested at trial, and the form of the ruling, and asks which findings the outcome could not have been reached without. If the first judgment could rest on any of several grounds, no single ground was necessarily decided, and a bar arises only if every available ground would contradict a fact the State must prove. A final order that rests on a procedural defect, such as a missed filing deadline, decides nothing about what the defendant did and therefore conflicts with no element of the later offense. The comparison thus runs from the first judgment's findings to the second offense's elements rather than from offense to offense, and it can be carried out in a fixed order.
Changing what the acquittal rested on reverses the result.
Students lose this issue when they carry the element comparison from route one into this route, see that the two offenses look different, and stop. Different labels, different sovereigns, and different elements do not decide route two, because the question is what the first judgment necessarily decided. A defendant who wins an acquittal on an issue common to both prosecutions keeps that win across jurisdictions, while one whose acquittal turned on an issue peculiar to the first statute does not. A bar under this route, like one under route one, remains subject to the Section 1.11 exceptions, which the next part takes up.36