Boston Criminal Defense Attorney Explains What Constitutes the “Same Offense” for Double Jeopardy Purposes
The Fifth Amendment to the U.S. Constitution provides, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” As your Boston criminal defense lawyer will advise you, the “double jeopardy” clause protects you from multiple prosecutions and multiple punishments for the same offense. However, whether two offenses are the “same” offense for double jeopardy purposes is sometimes difficult to determine.
Multiple overlapping and related offenses may be prosecuted as separate crimes. For example, if a person steals a car to abduct another person and try to kill him, this could give rise to separate trials for auto theft, kidnapping, and attempted murder. However, if any single offense is wholly incorporated in another, such as a lesser included offense, the two offenses are considered the same, and punishment is allowed for only one. For example, a person cannot be prosecuted twice for first degree murder and second degree murder arising from the same wrongful act.
In Massachusetts, the court will first consider the legislative intent of the law underlying the two offenses. If the legislators clearly intended two separate offenses, then double jeopardy will not attach. For example, Massachusetts General Laws, chapter 94C, section 32J, which criminalizes drug distribution within a “school zone,” expressly requires the court to impose a mandatory minimum sentence after punishment for the underlying offense. Thus, a sentence imposed under the school zone statute would not violate double jeopardy. When the legislature’s intent is unclear, Massachusetts courts use a “same elements” test. Under this test, if the same elements are required to establish both offenses, then the offenses are the same for double jeopardy purposes. If, however, one offense requires proof of an element that the other does not, then the offenses are not the same. For example, assault and battery by means of a dangerous weapon is not the same offense as armed assault with intent to murder because the latter requires intent to murder, while proof of the former does not.
Contact a Boston Criminal Defense Lawyer
The surest way to protect your constitutional rights is to contact a Massachusetts lawyer who has dedicated his career to defending those accused of crimes. Call Kevin J. Mahoney, at 617-492-0055, for a free initial consultation.
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