Introduction

Former Jeopardy Under the Model Penal Code

Introduction

One episode of conduct can violate several criminal statutes at once, and a government with the resources of a state could try each violation in turn, using what each trial reveals to sharpen the next. Left unchecked, that sequence would let the prosecution relabel the same conduct until it won a conviction or a heavier sentence. The American Law Institute's Model Penal Code, its model criminal code, answers that risk in Sections 1.07 through 1.11.¹ Those sections do three separate jobs. The first limits how many convictions may stand on one course of conduct and forces related charges into a single trial (Section 1.07). The second says when a finished prosecution in the same state bars another, whether the later charge is for the same offense (Section 1.08) or for a different one (Section 1.09).² The third says when a prosecution by the United States or by another state bars a prosecution here (Section 1.10).³ Taken together, the sections treat a completed prosecution, here or elsewhere, as the state's one opportunity, and they cap duplicate convictions inside the trial itself.

These rules are statutory, so they operate separately from the constitutional Double Jeopardy Clause, which is analyzed elsewhere. In places the statute gives defendants more than the constitutional guarantee requires. Section 1.09, for example, bars a later prosecution for any offense that should have been tried in the first prosecution under the joinder rule of Section 1.07, unless the court ordered a separate trial of that offense.⁴ Because the two bodies of law need not draw their lines in the same places, a question framed under the Code is answered from the Code's text and structure. States that adopt the scheme tend to follow that structure while varying some wording. In State v. Aiu, the Hawaii Supreme Court applied its own codification and read it consistently with the Model Penal Code's structural scheme, treating the Code's commentary as an aid to understanding.⁵ A reader who knows how Sections 1.07 through 1.11 fit together can therefore work through an adopting state's version as well.

The first question in any multi-offense problem is whether the issue arises inside one trial or between two proceedings, because Section 1.07 governs the first situation and Sections 1.08 through 1.10 govern the second. This chapter follows that division. It begins with the limits on convictions and the duty to join related charges, then turns to the bars a finished prosecution raises against a later one, first for the same offense and then for a different offense. Next comes the rule for a prosecution that ends without a verdict, which in some circumstances counts as a first prosecution for bar purposes.⁶ The chapter then takes up prosecutions in another jurisdiction, and it ends with the circumstances in which an earlier prosecution does not bar a later one at all, such as a prosecution before a court that lacked jurisdiction.⁷ The analysis starts where the prosecution starts, with what the prosecutor may charge in one trial and what the court may enter a conviction on.