Also known as: same-conduct · identical conduct
Written by attorneys · grounded in primary & secondary sources — see below
The factual actions or behavior that form the basis for legal proceedings or claims. A later prosecution or action is treated as resting on the same conduct when it arises from the identical or substantially identical set of events already resolved.
Skylar Sullivan was acquitted of directing illegal waste disposal after a jury found an upstream source responsible. Prosecutors later charged her with conspiracy to conceal the same dumping by falsifying manifests. Because the new charge rested on the identical dumping events, the former acquittal barred the second prosecution.
Seth Shapiro consented to Santiago Sanchez entering his property to repair a fence. Sanchez also trimmed nearby trees during the same visit. The consent extended to the trimming because it involved substantially the same conduct on the same premises.
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Samantha Stone was convicted of selling narcotics on a specific date. Prosecutors later charged her with possessing the same narcotics on that date. The offenses remained separate because each required proof of an element the other did not, even though both arose from the identical transaction.
Sean Steele, admitted in one state, advised a client in another state via video conference on contract terms. The home jurisdiction asserted authority over the advice even though all work occurred outside its borders. The rule reaches the same conduct regardless of physical location.
Sebastian Santos was acquitted of directing illegal dumping. Prosecutors then charged him with conspiring to conceal evidence of that same dumping. The later charge rested on the identical conduct and therefore could not proceed after the acquittal.
Sterling Manufacturing was convicted of negligent waste handling. Prosecutors later sought to charge the company with knowing illegal disposal arising from the identical dumping events. Jeopardy on the lesser offense barred the greater offense based on the same conduct.
Same conduct focuses on the underlying factual events, while the Blockburger test examines whether each offense requires proof of an element the other does not. Even when conduct is factually identical, distinct elements allow successive prosecutions.
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Consent reaches substantially the same conduct when the acts occur within the same transaction and location. Exceeding the consent makes it ineffective only for the excess portion.
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Jeopardy on the lesser included offense bars the greater offense because the greater requires no additional proof beyond the lesser plus extra elements. The bar applies once jeopardy has attached on the lesser charge.
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Separate sovereigns may each prosecute the same conduct under their own laws because each acts as an independent sovereign. The Double Jeopardy Clause does not bar successive prosecutions by different states or by state and federal governments.
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…Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §…