Concept

Working Through the Analysis

Former Prosecution in Another Jurisdiction

Working Through the Analysis

The earlier sections took the other-sovereign bar apart piece by piece: the concurrent-jurisdiction premise, the two routes to a bar in Section 1.10, the two exceptions attached to the first route, and the three exceptions in Section 1.11. On a fact pattern those pieces have to be run in a fixed order, and the order follows the structure of the text. A prosecution in another jurisdiction bars a later State prosecution only when it ended in one of the ways Section 1.10 lists.¹ The analysis therefore asks first whether a qualifying prior adjudication exists, and only then asks whether anything about it takes the case back out of the bar. Reversing that order wastes effort on defects in a proceeding that never could have supported a bar, and it risks granting a bar to a proceeding that did not qualify in the first place.

Exam Analysis Steps

Because each step either builds the foundation for a bar or removes it, the analysis is best run as a fixed sequence of questions, and the steps are these:

Confirm that the conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States or another State, since Section 1.10 speaks only to a prosecution in such another jurisdiction.²
Identify how the first prosecution ended, and ask whether it was an acquittal, a conviction as defined in Section 1.08, or a final order or judgment for the defendant, not set aside, reversed, or vacated, that necessarily required a determination inconsistent with a fact the State must establish in the later case.³
If the bar rests on an acquittal or a conviction, ask whether each offense requires proof of a fact the other does not and the laws defining them are intended to prevent a substantially different harm or evil, or whether the second offense was not consummated when the former trial began, because either exception means there is no bar.⁴
If a bar survives, test it against Section 1.11 by asking whether the former court lacked jurisdiction over the defendant or the offense, whether the defendant procured the prosecution without the prosecutor's knowledge to avoid sentence, and whether a conviction was later held invalid on habeas corpus, coram nobis, or similar process.⁵

Each step does a job the others cannot do. Step 2 does the sorting, because Section 1.08 counts a judgment of conviction only if it has not been reversed or vacated, a guilty verdict only if it has not been set aside and can support a judgment, and a guilty plea only if the court accepted it.⁶ A judgment that was reversed or vacated drops out at step 2, while a conviction that stood and was later held invalid on habeas corpus passes step 2 and is removed at step 4.⁷ Step 3 applies only when the bar rests on an acquittal or conviction, because the different-harm and unconsummated-offense exceptions are written into the first route and the text of the inconsistent-determination route contains no such clause.⁸ Step 4 can follow either route, since the lead-in of Section 1.11 reaches Sections 1.08, 1.09, and 1.10 alike.⁹ Finding an exception at step 3 or step 4 does not decide the later case. It removes the first prosecution as a basis for a bar, and the State must still prove guilt.

The word jurisdiction appears at two separate places in this method, and the two uses should be kept apart. Step 1 asks whether the conduct is an offense within the concurrent jurisdiction of this State and another sovereign, which is the premise on which Section 1.10 operates.¹⁰ Step 4 asks whether the particular court that held the first proceeding lacked jurisdiction over the defendant or the offense.¹¹ One question looks at the conduct and the two sovereigns, and the other looks at the court that actually tried the case. A court without power over the defendant or the offense cannot be treated as having settled anything, so a defect there takes away the bar even when step 1 is satisfied. All of this is the Model Code rule, and the governing State's enacted statute controls, so each step should be checked against the words the legislature actually adopted.

A paired example shows how a single changed fact reverses the result.

Hypothetical Illustration

A defendant is tried and convicted in a neighboring State's court that had jurisdiction over both him and the offense, and the conviction stands. This State then prosecutes the same conduct under a statute with the same elements and the same harm. Step 1 is met because the conduct is within the concurrent jurisdiction of both States. Step 2 is met because the conviction has not been reversed or vacated. At step 3 the offenses do not each require proof of a fact the other does not, and they target the same harm, so the different-harm exception fails, and the offense was fully consummated before the first trial began, so the second exception fails too. At step 4 the first court had jurisdiction, the defendant did not procure the prosecution, and no habeas corpus or coram nobis proceeding has invalidated the judgment. The bar operates, and this State may not proceed.

Steps 1 through 3 gave identical answers in both versions, so the jurisdiction of the first court is the only variable that moved the outcome. Section 1.11(1) provides that a prosecution is not a bar if it was before a court that lacked jurisdiction over the defendant or the offense, and a defect of either kind is enough.¹² The mechanism is the one that supports any bar. A bar rests on a judgment that lawfully settled the matter, and a court with no power over the defendant or the offense had no power to settle it. The State is therefore free to prosecute, with guilt still to be proved.

Working Through the Analysis

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