Concept
Prosecution in Another Jurisdiction
Model Penal Code former jeopardy
Prosecution in Another Jurisdiction
Section 1.10 begins from a situation the earlier sections did not address: conduct that is an offense within the concurrent jurisdiction of this State and of the United States or another State. Concurrent jurisdiction means that two governments each have power to punish the same act under their own laws, as happens when a single episode violates both a state statute and a federal one. For that situation the Code provides that a prosecution in the other jurisdiction is a bar to a later prosecution in this State under the circumstances the section lists.1 The bar is conditional. A prosecution elsewhere ends the matter here only when one of those circumstances is present, and each circumstance is built from ideas the preceding sections developed: acquittal and conviction as § 1.08 defines them, the same conduct, and determinations inconsistent with a fact the later offense requires.2
The protection takes the form of a statute because the constitutional guarantee against double jeopardy does not supply it between separate governments. Each government prosecutes for violations of its own law and to protect its own interests, so under the dual-sovereignty doctrine a prosecution by one government does not, by that fact alone, prevent another from bringing its own case on the same conduct. The two governments also act through separate institutions, and the Constitution does not authorize Congress to conscript state legislative processes.3 A State's decision about how much weight to give another government's judgment is therefore a choice the State makes for itself, and § 1.10 is the Code's way of making that choice in the defendant's favor, within limits. Because the bar rests on the statute alone, its reach is exactly what the text gives it, which is why the subsections that follow repay close reading.
The direction of the bar is the feature of § 1.10 that students most often misread. The section belongs to this State's code, so it regulates this State's courts and prosecutors, and the bar it creates operates against a later prosecution in this State after a prosecution elsewhere.4 A legislature can direct the courts and officials of its own government and has no power to direct another government's. The section therefore cannot stop the United States or a sister State from prosecuting after this State has tried the defendant, and whether that other government is barred depends on its own law. Students misapply § 1.10 when they treat it as protecting a defendant from the other sovereign's later prosecution, because the text speaks only to a subsequent prosecution in this State.5
The two scenes differ only in which government went first, and that single fact decides whether § 1.10 has anything to say. When this State goes second, the Code's bar can apply. When this State goes first, the bar belongs to some other legislature's choice, if it exists at all.
Section 1.10 offers two routes to a bar, and they match two routes already developed for domestic prosecutions. Under the first, a prosecution elsewhere that ended in an acquittal or in a conviction as § 1.08 defines it bars this State from prosecuting based on the same conduct, subject to two exceptions. Those exceptions apply when each offense requires proof of a fact the other does not and the laws are intended to prevent a substantially different harm or evil, and when the second offense was not consummated when the former trial began.8 Under the second route, a prosecution elsewhere that ended after the charging instrument in an acquittal or a final order for the defendant, not set aside, reversed, or vacated, bars a prosecution here if that result necessarily required a determination inconsistent with a fact the later offense requires.9 The limits of § 1.11 also reach this section, so a prosecution elsewhere is no bar when it was before a court lacking jurisdiction, was procured by the defendant without the prosecutor's knowledge to avoid sentence, or produced a conviction later held invalid.10
What § 1.10 omits is as instructive as what it contains. The domestic bar in § 1.09 also reaches offenses of which the defendant could have been convicted at the first trial and offenses that should have been joined with it, and both routes presuppose one court and one prosecuting office with power to put every charge into a single trial. No court can join charges across two governments, and this State's prosecutor cannot make federal prosecutors charge anything or choose what a sister State charges. A bar built on failure to join would therefore penalize this State for something it had no means to do. The exceptions that remain protect each government's ability to vindicate a distinct interest, since a different harm or an offense not yet consummated gives this State a prosecution the first government never had occasion to bring. The subsections below take the routes in order, beginning with the one that turns on a judgment elsewhere and the same conduct.
Same Conduct After Judgment
Section 1.10(1) states the first route to a bar from a prosecution elsewhere, and it has two requirements that must both be met. The first prosecution must have resulted in an acquittal or in a conviction as defined in § 1.08, and the subsequent prosecution must be based on the same conduct.12 The text then qualifies the rule with an unless clause that lists two exceptions, which the next subsections take up, so everything here describes the default rule those exceptions modify. Each requirement answers a separate question. The judgment requirement asks whether the other government's case ended in a result that actually stands, and the same-conduct requirement asks whether the case this State now wants to bring covers the ground the first case covered.
The reason for the judgment requirement comes from what a bar is for. A defendant whose conduct has already been tried to an acquittal or a conviction elsewhere has been through the process the other government chose, and this State's interest in seeing the conduct answered is generally satisfied by that result. A prosecution that ended with neither result leaves the question of guilt open, and it would make little sense for an unfinished or undone proceeding to shield the defendant from the only government still willing to resolve it. Section 1.10(1) therefore borrows the definitions of § 1.08 rather than writing its own, so the acquittal half works as it did in the earlier sections, and the conviction half is governed by § 1.08(3).13
Under § 1.08(3) a conviction exists in any of three forms: 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, or a plea of guilty accepted by the court.14 The second and third forms cover the interval between the verdict or plea and the entry of judgment, so a bar does not wait on the clerk's paperwork. A condition attaches to those two forms, however: the failure to enter judgment must be for a reason other than a motion of the defendant.15 The condition keeps a defendant from asking the court to hold off judgment and then pointing to the unfinished case as a completed conviction that shields against this State. The same definition also excludes results that do not stand. A judgment that has been reversed or vacated, or a guilty verdict that has been set aside, is no longer a conviction, and a trial that ends in a mistrial produces neither an acquittal nor a conviction.16
The two scenes involve the same truck and the same conduct and differ only in how the first prosecution ended, which shows the judgment requirement doing the sorting. Students lose this issue when they treat the start of a prosecution elsewhere, or even a trial that reached the jury, as enough, because the text asks for a result that stands.19 A defendant's exposure in the other jurisdiction, however real, produces a bar here only when it ended in an acquittal or a conviction that survives under § 1.08.
The second requirement carries more weight in § 1.10(1) than its counterpart does in § 1.09, because § 1.10(1) has no other way to reach a later prosecution. As the earlier sections showed, the domestic bar can attach to an offense of which the defendant could have been convicted at the first trial and to an offense that should have been joined with it. Section 1.10(1) contains neither route, and its only test for the later prosecution is whether it is based on the same conduct.20 The text speaks of conduct, so the inquiry looks at what the defendant did rather than at whether the two governments' statutes share a label, and the exceptions in the following subsections are where different harms and offenses not yet consummated get sorted out.
Because both requirements must be satisfied, the route is best run as a short sequence of questions put in a fixed order.
Different Facts and Harms Elsewhere
Section 1.10(1)(a) supplies the first exception to the same-conduct bar, and its wording matches an exception the Code already uses for two prosecutions within a single State. The bar does not apply when the offense of which the defendant was formerly convicted or acquitted and the offense now prosecuted each require proof of a fact the other does not, and the law defining each is intended to prevent a substantially different harm or evil.23 Section 1.09(1)(c)(i) states the identical test for the domestic setting, so its mechanics were taught earlier and need only be recalled here.24 What is new in § 1.10 is that the two laws being compared come from different legislatures, and that fact changes how the second half of the test plays out in practice.
The test has two parts, and both must be satisfied. The first part compares the proof each offense requires, in both directions: the earlier offense must demand some fact the later one does not, and the later offense must demand some fact the earlier one does not.25 When one offense's elements are wholly contained in the other's, this part fails, because the second trial would ask the State to prove nothing the first trial had not already addressed. The second part asks what each law is intended to prevent and requires that the harms be substantially different.26 If either part fails, the exception does not apply and the default bar from the preceding subsection stays in force. The two parts do separate jobs. A comparison of elements alone is easy to win, since two statutes can differ in wording or carry a minor extra element while protecting the same interest, and the harm requirement keeps the exception from swallowing the rule.
The harm requirement matters most when the laws belong to different sovereigns, because each legislature writes for its own reasons. A federal statute typically rests on a federal power and so includes an element that ties the conduct to that power, such as movement across a state line, an element a state statute has no reason to include. The state statute, in turn, may require a fact the federal law does not, so the element comparison will often favor the State without much argument, and the question that decides cases is which interest each law protects. This is also why the exception carries real weight in § 1.10. This State cannot join its charge to a trial run by another government, so a bar here cannot rest on a failure to join. When the two laws protect different interests, the first prosecution did not vindicate the interest this State has, and a trial under its own law adds something new. When both laws protect the same interest, a second trial adds only another trial of the same wrong.
The two scenes share a pattern, a conviction elsewhere followed by a charge on the same conduct, and differ only in what the two statutes require and protect. In the first, the state law answers to an interest the federal law does not serve, so the State's prosecution is not a repeat. In the second, the state law repeats the neighboring law, so a second trial vindicates nothing new. Students lose this issue when they stop at a difference in elements, because the exception also requires a substantially different harm or evil, and a statute that merely rewords the same prohibition protects the same interest.29
Unconsummated Offense Elsewhere
Section 1.10(1)(b) supplies the second exception to the same-conduct bar. The bar does not apply when the second offense was not consummated when the former trial began.31 The two exceptions in § 1.10(1) are alternatives, so a later prosecution escapes the bar if either one is satisfied, and nothing in this exception depends on the comparison of elements and harms taught in the preceding subsection. The wording repeats the second exception that § 1.09(1)(c)(ii) states for prosecutions within a single State, which was taught earlier, so what needs attention here is how the exception works when the first prosecution belongs to another government.32 An offense is consummated when it is complete, meaning that every element has occurred. The exception therefore asks one question about the offense this State now charges: had it been completed by the time the other government's trial opened?
The reason for the exception comes from what a trial can decide. A prosecutor elsewhere builds a case on the facts as they stand when the trial begins, and no court can convict a defendant of an offense whose last element has not yet happened. A first prosecution therefore cannot have resolved an offense that did not yet exist. Suppose a conviction for the earlier-ripening offense nevertheless shielded the defendant from the later one. A defendant who inflicts an injury and is convicted of it would then gain protection from a homicide charge because the victim happened to die after the trial opened, a timing that neither government controlled. The exception prevents that result by leaving this State free to prosecute the later offense on its own terms.
The text fixes the reference point at the beginning of the former trial, and the choice has consequences in both directions. An offense completed after the trial opened counts as unconsummated even if the trial was still under way when its last element occurred. An offense completed before the trial opened does not, even if the other government never charged it. That second consequence follows from the fact that the other government's prosecutor, at the opening of trial, could have charged whatever had already happened, whereas no one could have charged what had not yet occurred.
The two scenes share the same federal conviction and the same state charge, and they differ only in the date of the death relative to the opening of the federal trial. That single date decides whether this exception is available. Students lose this issue by measuring from the wrong moment, such as the date the federal conviction was entered or the date this State filed its charge, when the text asks only about when the former trial began.35 A failed attempt to use this exception also leaves the other exception open, so the analysis does not end at the first no.
Inconsistent Determinations Elsewhere
Section 1.10(2) gives a second route by which a prosecution in another jurisdiction bars a later prosecution in this State. Where the same-conduct route asks what the defendant did, this route asks what the first tribunal decided. The first prosecution must have ended, after the information was filed or the indictment found, in an acquittal or in a final order or judgment for the defendant that has not been set aside, reversed, or vacated. That result must also have necessarily required a determination inconsistent with a fact that must be established to convict the defendant of the offense now prosecuted in this State.37 The provision repeats, for prosecutions elsewhere, the rule that § 1.09(2) states for a second prosecution within a single State, so the mechanics were taught earlier and only the setting is new.38
Three features separate this route from the one in § 1.10(1). The first is that it opens only on a result favorable to the defendant, since the text names an acquittal or a final order or judgment for the defendant and says nothing of convictions.39 The second is that the text asks about a fact, so it does not require that the later prosecution rest on the same conduct or charge the same kind of offense; what matters is whether the first judgment decided something the State would have to prove again. The third is that subsection (2) contains no counterpart to the two exceptions that qualify subsection (1), so the comparison of elements and harms and the date on which an offense was consummated play no part here.
The reason for the bar is that a judgment which decided a fact against the prosecution leaves any later case depending on that fact asking a second factfinder to overrule the first. The word necessarily does the limiting work. A verdict of not guilty usually comes without reasons, so a court asked to apply the bar would otherwise have to guess why the first tribunal acquitted. If the bar attached whenever the acquittal might have rested on a fact the State must prove again, nearly every acquittal would shield the defendant from nearly every related charge, and the guess would be resolved against the State. Requiring that the judgment could not have been reached without the inconsistent determination ties the bar to what the first tribunal actually had to decide. Because the rule asks what the first tribunal decided rather than which government's interest each statute serves, it also does not matter that the judgment came from another legislature's law.
The two scenes share an acquittal elsewhere and a later state charge, and they differ only in what the acquittal decided. In the first, the decided fact is one the State must prove, so a state trial would ask a new factfinder to reconsider it. In the second, the decided fact belongs to the federal statute alone, and the State's case never depends on it. Students lose this issue when they treat any acquittal as a shield and overlook necessarily required. If identity and the defendant's state of mind were both contested and the jury returned a general verdict of not guilty, the acquittal may rest on either ground, so it did not necessarily require a determination about identity and the bar fails.42
Like the rest of § 1.10, subsection (2) limits only this State. It tells this State when it may not prosecute after a proceeding elsewhere, and it says nothing about whether the other government may prosecute the defendant.43