Concept
The Blockburger Test
Same offense and lesser-included offenses
The Blockburger Test
The Fifth Amendment forbids being twice put in jeopardy for the same offence, but its text does not say what makes two charges one offence.1 The Court supplied the answer in Blockburger v. United States, a prosecution under the Harrison Narcotic Act, and the yardstick it announced there, the Blockburger same-elements test, still governs.2 Where a single act or transaction violates two distinct statutory provisions, the question is whether each provision requires proof of a fact that the other does not.3 The test therefore sets two definitions side by side and asks whether either one contains something the other lacks.
The facts of the case show the comparison at work. The indictment charged sales of morphine hydrochloride to the same purchaser, and the jury convicted on three counts. The second count charged a sale on one day of ten grains not in or from the original stamped package. The third charged a sale the next day of eight grains, also not from the original stamped package, and the fifth charged that same next-day sale a second way, as made not in pursuance of a written order from the purchaser, which the statute also required. The trial court imposed five years of imprisonment and a $2,000 fine on each count, with the prison terms running consecutively.4 Blockburger raised two objections. The first, that the two sales to one purchaser were really a single offense, goes to the conduct side of the inquiry and is taken up later in this chapter. The second produced the test: the third and fifth counts rested on one sale, so he argued that only one penalty could lawfully be imposed.5
The Court accepted that there was only one sale and still held that two offenses had been committed.6 The reason lies in how Congress drew the two provisions. Section 1 punished a sale not made in or from the original stamped package, so a prosecutor proceeding under it had to prove that fact, which the other section does not mention. Section 2 punished a sale not made in pursuance of a written order from the purchaser, so a prosecutor proceeding under it had to prove the absence of the order, which the first section does not mention. Each provision therefore carried a fact the other lacked, and the single sale violated both. The Court added that the full penalty on each count might seem severe, but the plain meaning of the penalty provision made each offense punishable on its own, and any relief had to come from Congress rather than from judicial construction.7
That holding generalizes through a comparison of elements. Consider a crime made up of elements A and B, a second crime made up of A, B, and C, and a third made up of B, C, and D.8 The first two are the same offense, because the first contains no element that the second lacks; the second is simply the first with one more requirement added. The third crime is different from both, since it requires D, which neither of the others requires, and each of the others requires A, which the third does not.9 Two statutes therefore need not have identical elements to be the same offense. They are the same unless each contains something the other lacks, and that is where analyses go wrong: an extra element on only one side proves nothing, because a greater crime always has an element that its lesser version lacks. Only a unique element on both sides makes the crimes different.
A three-count drug indictment shows the comparison being run. A defendant who sells drugs to a neighbor and is arrested with a gun in his pocket is charged in one indictment with sale of a controlled substance, possession of that substance, and possession of a firearm in connection with the sale.10 Sale has an element that possession lacks, namely the sale itself. Possession has nothing that sale lacks, because a defendant cannot sell a drug without at least constructively possessing it, so the sale and possession counts are probably the same offense and support only one conviction. Sale and the firearm count come out differently: a sale does not require a gun, and the firearm charge can be satisfied by drug dealings that involve no sale, such as transporting or buying.11 Each of those two counts has a unique element, so both are separate offenses.
Because the comparison reads definitions, heavy overlap in the facts used to prove two crimes does not make them the same offense. Drunk driving requires proof of intoxication, which manslaughter does not, and manslaughter requires proof that the defendant caused a death, which drunk driving does not, so the two are different offenses even if the prosecutor would use much of the same evidence for each.12 Sharing a common core crime does not change the result either. Robbery in a dwelling and robbery with a firearm both contain robbery, but each adds a different element, so each is a different offense from the other.13 The test is sometimes loosely called the 'same-evidence' test, and that label misleads, since the analysis involves the elements of the charged offenses rather than the facts of the incident.14 A later section takes up a brief period in which the Court looked at the defendant's conduct instead of the statutory elements.
The elements comparison fits the job the Clause performs. The Clause restrains courts and prosecutors, because the legislature may define crimes and punishments, and the constitutional question is whether courts and prosecutors have gone beyond what the legislature defined.15 A comparison of statutory elements asks only what the legislature made each crime consist of. When each statute requires a fact the other does not, the legislature has defined two distinct wrongs, and prosecuting or punishing under both does not repeat a single wrong. When one statute has nothing beyond the other, a second proceeding can only re-prove what the first already required or add punishment for the same wrong. A comparison of trial evidence would work poorly for a further reason: the answer would depend on what a prosecutor chose to offer in a particular case and could not be known until the proof was in. Reading the definitions yields the answer from the statutes alone, before either trial begins.
The test began as a multiple-punishment rule, since the question in Blockburger was whether consecutive sentences at one trial exceeded what Congress had authorized.16 Brown v. Ohio carried it into successive prosecutions by reasoning that offenses that are the same for barring consecutive sentences at a single trial are necessarily the same for barring a later trial.17 One comparison therefore answers the sameness question in both settings. A later section explains that at a single trial, a clearly expressed legislative authorization of cumulative punishment can still permit two sentences even where the offenses are the same under the test.18 The same elements comparison also appears outside this Clause, where it decides whether charges are different offenses for purposes of the Sixth Amendment right to counsel, as the Court held in Texas v. Cobb.19
The fifth step does the real work. A no at the third or fourth step means that one crime is wholly contained in the other, and that containment is the situation that arises most often and needs its own treatment: a lesser version of a crime, with fewer elements, charged alongside or after the greater one. The next section takes up how the test treats greater and lesser offenses.