Grady v. Corbin

495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548, 1990 U.S. LEXIS 2698, 58 U.S.L.W. 4599

• Court: Supreme Court of the United States
• Decided: May 29, 1990
• Docket: 89-474
• Status: Published

Opinions

Justice Brennan

delivered the opinion of the Court.

We have long held, see Blockburger v. United States, 284 U. S. 299, 304 (1932), that the Double Jeopardy Clause of the Fifth Amendment¹ prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not “requir[e] proof of a fact which the other does not.” In Illinois v. Vitale, 447 U. S. 410 (1980), we suggested that even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. Today we adopt the suggestion set forth in Vitale. We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.²

I

For purposes of this proceeding, we take the following facts as true. At approximately 6:35 p.m. on October 3, 1987, respondent Thomas Corbin drove his automobile across the double yellow line of Route 55 in LaGrange, New York, striking two oncoming vehicles. Assistant District Attorney (ADA) Thomas Dolan was called to the scene, where he learned that both Brenda Dirago, who had been driving the second vehicle to be struck, and her husband Daniel had been seriously injured. Later that evening, ADA Dolan was informed that Brenda Dirago had died from injuries sustained in the accident. That same evening, while at the hospital being treated for his own injuries, respondent was served with two uniform traffic tickets directing him to appear at the LaGrange Town Justice Court on October 29, 1987. One ticket charged him with the misdemeanor of driving while intoxicated in violation of N. Y. Veh. & Traf. Law § 1192(3) (McKinney 1986); the other charged him with failing to keep right of the median in violation of § 1120(a). A blood test taken at the hospital that evening indicated a blood alcohol level of 0.19%, nearly twice the level at which it is per se illegal to operate a motor vehicle in New York. § 1192(2).

Three days later, ADA Frank Chase began gathering evidence for a homicide prosecution in connection with the accident. “Despite his active involvement in building a homicide case against [Corbin], however, Chase did not attempt to ascertain the date [Corbin] was scheduled to appear in Town Justice Court on the traffic tickets, nor did he inform either the Town Justice Court or the Assistant District Attorney covering that court about his pending investigation. ” In re Corbin v. Hillery, 74 N. Y. 2d 279, 284, 543 N. E. 2d 714, 716 (1989). Thus, ADA Mark Gliek never mentioned Brenda Dirago’s death in the statement of readiness for trial and other pretrial pleadings he submitted to respondent and the LaGrange Town Justice Court on October 14, 1987. App. 5-10.

Accordingly, when respondent pleaded guilty to the two traffic tickets on October 27, 1987, a date on which no member of the District Attorney’s office was present in court,³ the presiding judge was unaware of the fatality stemming from the accident. Corbin was never asked if any others had been injured on the night in question and did not voluntarily incriminate himself by providing such information.⁴ The presiding judge accepted his guilty plea, but because the District Attorney’s office had not submitted a sentencing recommendation, the judge postponed sentencing until November 17, 1987, when an ADA was scheduled to be present in court. The ADA present at sentencing on that date, Heidi Sauter, was unaware that there had been a fatality, was unable to locate the case file, and had not spoken to ADA Glick about the case. Nevertheless, she did not seek an adjournment so that she could ascertain the facts necessary to make an informed sentencing recommendation. 74 N. Y. 2d, at 284, 543 N. E. 2d, at 716. Instead, she recommended a “minimum sentence,”⁵ and the presiding judge sentenced Corbin to a $350 fine, a $10 surcharge, and a 6-month license revocation. App. 12.

Two months later, on January 19, 1988, a grand jury investigating the October 3, 1987, accident indicted Corbin, charging him with reckless manslaughter, second-degree vehicular manslaughter, and criminally negligent homicide for causing the death of Brenda Dirago; third-degree reckless assault for causing physical injury to Daniel Dirago; and driving while intoxicated. The prosecution filed a bill of particulars that identified the three reckless or negligent acts on which it would rely to prove the homicide and assault charges: (1) operating a motor vehicle on a public highway in an intoxicated condition, (2) failing to keep right of the median, and (3) driving approximately 45 to 50 miles per hour in heavy rain, “which was a speed too fast for the weather and road conditions then pending.” App. 20. Respondent moved to dismiss the indictment on statutory and constitutional double jeopardy grounds. After a hearing, the Dutchess County Court denied respondent’s motion, ruling that the failure of Corbin or his counsel to inform the Town Justice Court at the time of the guilty plea that Corbin had been involved in a fatal accident constituted a “material misrepresentation of fact” that “was prejudicial to the administration of justice.”⁶ App. to Pet. for Cert. 8c.

Respondent then sought a writ of prohibition barring prosecution on all counts of the indictment. The Appellate Division denied the petition without opinion, but the New York Court of Appeals reversed. The court prohibited prosecution of the driving while intoxicated counts pursuant to New York’s statutory double jeopardy provision, N. Y. Crim. Proc. Law §40.20 (McKinney 1971 and Supp. 1970-1989). The court further ruled that prosecution of the two vehicular manslaughter counts would violate the Double Jeopardy Clause of the Fifth Amendment pursuant to the Blockburger test because, as a matter of state law, driving while intoxicated “is unquestionably a lesser included offense of second degree vehicular manslaughter.” 74 N. Y. 2d, at 290, and n. 7, 543 N. E. 2d, at 720, and n. 7. Finally, relying on the “pointed dictum” in this Court’s opinion in Vitale, the court barred prosecution of the remaining counts because the bill of particulars expressed an intention to “rely on the prior traffic offenses as the acts necessary to prove the homicide and assault charges.” 74 N. Y. 2d, at 289, 290, 543 N. E. 2d, at 719-720. Two judges dissented, arguing that respondent had deceived the Town Justice Court when pleading guilty to the traffic tickets. We granted certiorari, 493 U. S. 953 (1989), and now affirm.

II

The facts and contentions raised here mirror almost exactly those raised in this Court 10 years ago in Illinois v. Vitale, 447 U. S. 410 (1980). Like Thomas Corbin, John Vitale allegedly caused a fatal car accident. A police officer at the scene issued Vitale a traffic citation charging him with failure to reduce speed to avoid an accident in violation of §ll-601(a) of the Illinois Vehicle Code. Vitale was convicted of that offense and sentenced to pay a $15 fine. The day after his conviction, the State charged Vitale with two counts of involuntary manslaughter based on his reckless driving. Vitale argued that this subsequent prosecution was barred by the Double Jeopardy Clause.

This Court held that the second prosecution was not barred under the traditional Blockburger test because each offense “requirefd] proof of a fact which the other [did] not.” See Blockburger, 284 U. S., at 304. Although involuntary manslaughter required proof of a death, failure to reduce speed did not. Likewise, failure to slow was not a statutory element of involuntary manslaughter. Vitale, supra, at 418-419. Thus, the subsequent prosecution survived the Block-burger test.

But the Court did not stop at that point. Justice White, writing for the Court, added that, even though the two prosecutions did not violate the Blockburger test:

“[I]t may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown [v. Ohio, 432 U. S. 161 (1977),] and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977).” 447 U. S., at 420.

We believe that this analysis is correct and governs this case.⁷ To determine whether a subsequent prosecution is barred by the Double Jeopardy Clause, a court must first apply the traditional Blockburger test. If application of that test reveals that the offenses have identical-statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Brown v. Ohio, 432 U. S. 161, 166 (1977).

The State argues that this should be the last step in the inquiry and that the Double Jeopardy Clause permits successive prosecutions whenever the offenses charged satisfy the Blockburger test. We disagree. The Double Jeopardy Clause embodies three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). The Blockburger test was developed “in the context of multiple punishments imposed in a single prosecution.” Garrett v. United States, 471 U. S. 773, 778 (1985). In that context, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U. S. 359, 366 (1983). See also Brown, supra, at 165. The Blockburger test is simply a “rule of statutory construction,” a guide to determining whether the legislature intended multiple punishments.⁸ Hunter, supra, at 366.

Successive prosecutions, however, whether following acquittals or convictions,⁹ raise concerns that extend beyond merely the possibility of an enhanced sentence:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity ____” Green v. United States, 355 U. S. 184, 187 (1957).

Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged. See, e. g., Tibbs v. Florida, 457 U. S. 31, 41 (1982) (noting that the Double Jeopardy Clause “prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction”); Ashe v. Swenson, 397 U. S. 436, 447 (1970) (the State conceded that, after the defendant was acquitted in one trial, the prosecutor did, at a subsequent trial, “what every good attorney would do-he refined his presentation in light of the turn of events at the first trial”); Hoag v. New Jersey, 356 U. S. 464 (1958) (after an alleged robber was acquitted, the State altered its presentation of proof in a subsequent, related trial-calling only the witness who had testified most favorably in the first trial- and obtained a conviction). Even when a State can bring multiple charges against an individual under Blockburger, a tremendous additional burden is placed on that defendant if he must face each of the charges in a separate proceeding.

Because of these independent concerns, we have not relied exclusively on the Blockburger test to vindicate the Double Jeopardy Clause’s protection against multiple prosecutions. As we stated in Brown v. Ohio:

“The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” 432 U. S., at 166-167, n. 6.

Justice Powell, writing for the Court in Brown, provided two examples. In Ashe v. Swenson, supra, the Court had held that the Double Jeopardy Clause barred a prosecution for robbing a participant in a poker game because the defendant’s acquittal in a previous trial for robbing a different participant in the same poker game had conclusively established that he was not present at the robbery. In In re Nielsen, 131 U. S. 176 (1889), the Court had held that a conviction for cohabiting with two wives over a 214-year period barred a subsequent prosecution for adultery with one of the wives on the day following the end of that period. Although application of the Blockburger test would have permitted the imposition of consecutive sentences in both cases, the Double Jeopardy Clause nonetheless barred these successive prosecutions. Brown, supra, at 166-167, n. 6.

Furthermore, in the same Term we decided Brown, we reiterated in Harris v. Oklahoma, 433 U. S. 682 (1977), that a strict application of the Blockburger test is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause. In Harris, the defendant was first convicted of felony murder after his companion shot a grocery store clerk in the course of a robbery. The State then indicted and convicted him for robbery with a firearm. The two prosecutions were not for the “same offense” under Blockburger since, as a statutory matter, felony murder could be established by proof of any felony, not just robbery, and robbery with a firearm did not require proof of a death. Nevertheless, because the State admitted that “ fit was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved’ ” in the felony-murder trial, the Court unanimously held that the subsequent prosecution was barred by the Double Jeopardy Clause. Harris, supra, at 682-683, and n. (quoting Brief in Opposition 4). See also Payne v. Virginia, 468 U. S. 1062 (1984). As we later described our reasoning: “[W]e did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense.” Vitale, 447 U. S., at 420.

These cases all recognized that a technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials. This case similarly demonstrates the limitations of the Blockburger analysis. If Blockburger constituted the entire double jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for homicide.¹⁰ Tr. of Oral Arg. 17-18. The State could improve its presentation of proof with each trial, assessing which witnesses gave the most persuasive testimony, which documents had the greatest impact, and which opening and closing arguments most persuaded the jurors. Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense.

Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.¹¹ This is not an “actual evidence” or “same evidence” test.¹² The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See Dowling v. United States, 493 U. S. 342 (1990). On the other hand, a State cannot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct. For example, if two bystanders had witnessed Corbin’s accident, it would make no difference to our double jeopardy analysis if the State called one witness to testify in the first trial that Corbin’s vehicle crossed the median (or if nobody testified in the first trial because Corbin, as he did, pleaded guilty) and called the other witness to testify to the same conduct in the second trial.

Applying this analysis to the facts of this case is straightforward. Respondent concedes that Blockburger does not bar prosecution of the reckless manslaughter, criminally negligent homicide, and third-degree reckless assault offenses.¹³ Tr. of Oral Arg. 25-26. The rest of our inquiry in this case is simplified by the bill of particulars filed by the State on January 25, 1988.¹⁴ That statement of the prosecution’s theory of proof is binding on the State until amended, 74 N. Y. 2d, at 290, 543 N. E. 2d, at 720, and the State has not amended it to date. Tr. of Oral Arg. 8. The bill of particulars states that the prosecution will prove the following:

“[T]he defendant [(1)] operated a motor vehicle on a public highway in an intoxicated condition having more than .10 percent of alcohol content in his blood, [(2)] failed to keep right and in fact crossed nine feet over the median of the highway [,and (3) drove] at approximately forty-five to fifty miles an hour in heavy rain, which was a speed too fast for the weather and road conditions then pending .... By so operating his vehicle in the manner above described, the defendant was aware of and consciously disregarded a substantial and unjustifiable risk of the likelihood of the result which occurred. . . . By his failure to perceive this risk while operating a vehicle in a criminally negligent and reckless manner, he caused physical injury to Daniel Dirago and the death of his wife, Brenda Dirago.” App. 20.

By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted — driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution, and the New York Court of Appeals properly granted respondent’s petition for a writ of prohibition. This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i. e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence).¹⁵

Ill

Drunken driving is a national tragedy. ' Prosecutors’ offices are often overworked and may not always have the time to monitor seemingly minor cases as they wind through the judicial system. But these facts cannot excuse the need for scrupulous adherence to our constitutional principles. See Santobello v. New York, 404 U. S. 257, 260 (1971) (“This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor’s offices. The heavy workload may well explain these episodes, but it does not excuse them”). With adequate preparation and foresight, the State could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding this double jeopardy question. We have concluded that the Double Jeopardy Clause of the Fifth Amendment demands application of the standard announced today, but we are confident that with proper planning and attention prosecutors will be able to meet this standard and bring to justice those who make our Nation’s roads unsafe.

The judgment of the New York Court of Appeals is

Affirmed.

1 The Double Jeopardy Clause states: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” It is enforceable against the States through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784, 794 (1969).

2 This issue has been raised before us twice in recent years without resolution. See Fugate v. Neio Mexico, 470 U. S. 904 (1985) (affirming by an equally divided Court); Thigpen v. Roberts, 468 U. S. 27 (1984) (deciding on alternative grounds).

3 The record does not indicate why the return dates for the traffic tickets were changed from October 29 to October 27. In any event, the District Attorney was not deprived of a meaningful opportunity to participate in this prosecution. If the District Attorney had wanted to prevent Corbin from pleading guilty to the traffic tickets so that the State could combine all charges into a single prosecution containing the later-charged felony counts, he could have availed himself of N. Y. Crim. Proc. Law § 170.20(2) (McKinney 1982), which states:

“At any time before entry of a plea of guilty to or commencement of a trial of an accusatory instrument [containing a charge of misdemeanor], the district attorney may apply for an adjournment of the proceedings in the local criminal court upon the ground that he intends to present the misdemeanor charge in question to a grand jury with a view to prosecuting it by indictment in a superior court. In such ease, the local criminal court must adjourn the proceedings to a date which affords the district attorney reasonable opportunity to pursue such action, and may subsequently grant such further adjournments for that purpose as are reasonable under the circumstances.”

Furthermore, the District 'Attorney’s participation in this prosecution amounted to more than a failure to move for an adjournment. ADA Glick filed papers indicating a readiness to proceed to trial, and ADA Heidi Sauter appeared at Corbin’s sentencing on behalf of the People of the State of New York.

4 The New York Court of Appeals held that, although an attorney may not misrepresent facts, “a practitioner representing a client at a traffic violation prosecution should not be expected to volunteer information that is likely to be highly damaging to his client’s position.” In re Corbin v. Hillery, 74 N. Y. 2d 279, 288, and n. 6, 543 N. E. 2d 714, 718, and n. 6 (1989) (emphasis in original). Because the Court of Appeals refused to characterize as misconduct the behavior of either Corbin or his attorney, we need not decide whether our double jeopardy analysis would be any different if affirmative misrepresentations of fact by a defendant or his counsel were to mislead a court into accepting a guilty plea it would not otherwise accept.

5 The Town Justice Court notes of the sentencing proceeding state:

“Atty: My client is willing to plea [sic] guilty and I request minimum sentence.

“Judge: Read charges. We will accept your plea of guilty. Any recommendation on sentence?

“Atty: Minimum sentence.” App. 12.

The State contends that these notes indicate that the sentencing recommendation was made by respondent’s counsel, not by ADA Sauter. We do not so interpret the notes, but even if this were an accurate interpretation, the record nevertheless establishes that ADA Sauter was present at the sentencing proceeding yet neither objected to a minimum sentence nor mentioned that the accident had resulted in a fatality.

6 The New York Court of Appeals found no misrepresentations and no misconduct during the guilty plea colloquy on October 27, 1987. 74 N. Y. 2d, at 287-288, and n. 6, 543 N. E. 2d, at 718-719, and n. 6. We accept its characterization of the proceedings. See n. 4, supra. ■

7 We recognized in Brown v. Ohio, 432 U. S. 161, 169, and n. 7 (1977), that when application of our traditional double jeopardy analysis would bar a subsequent prosecution, “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. See Diaz v. United States, 223 U. S. 442, 448-449 (1912); Ashe v. Swenson, [397 U. S. 436, 453, n. 7 (1970)] (Brennan, J., concurring).” Because ADA Dolan was informed of Brenda Dirago’s death on the night of the accident, such an exception is inapplicable here.

8 Justice Scalia’s dissent contends that Blockburger is not just a guide to legislative intent, but rather an exclusive definition of the term “same offence” in the Double Jeopardy Clause. Post, at 528-530. To support this contention, Justice Scalia asserts that “[w]e have applied the [Block-burger test] in virtually every case defining the ‘same offense’ decided since Blockburger.” Post, at 535-536. Every one of the eight cases cited in support of that proposition, however, describes Blockburger as a test to determine the permissibility of cumulative punishments. None of the cases even suggests that Blockburger is the exclusive definition of “same offence” in the context of successive prosecutions. See Jones v. Thomas, 491 U. S. 376, 380-381 (1989) (case involved Double Jeopardy Clause’s protection against multiple punishments, not successive prosecutions); United States v. Woodward, 469 U. S. 105, 108 (1985) (per curiam) (describing Block-burger as a “rule for determining whether Congress intended to permit cumulative punishment”); Ohio v. Johnson, 467 U. S. 493, 499, n. 8 (1984) (Blockburger test determines “whether cumulative punishments may be imposed”); Albernaz v. United States, 450 U. S. 333, 337 (1981) (“[T]his Court has looked to the Blockburger rule to determine whether Congress intended that two statutory offenses be punished cumulatively”); Whalen v. United States, 445 U. S. 684, 691 (1980) (Blockburger relied on “to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively”); Simpson v. United States, 435 U. S. 6, 11 (1978) (Blockburger established “the test for determining ‘whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment’”), quoting Brown v. Ohio, supra, at 166; Iannelli v. United States, 420 U. S. 770, 785, n. 17 (1975) (Blockburger test used to identify “congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction”); Gore v. United States, 357 U. S. 386 (1958) (case involved imposition of multiple sentences in a single proceeding).

To further support its contention that Blockburger is the exclusive means of defining “same offence” within the meaning of the Double Jeopardy Clause, Justice Scalia’s dissent relies on a lengthy historical discussion. Post, at 530-536. But this Court has not interpreted the Double Jeopardy Clause as Justice Scalia would interpret it since at least 1889. See infra, at 519 (discussing In re Nielsen). We have not previously found, and we do not today find, history to be dispositive of double jeopardy claims. Compare post, at 532-533 (Scalia, J., dissenting) (relying on Turner’s Case, Kelyng 30, 84 Eng. Rep. 1068 (K. B.), decided in England in 1708, which held that a defendant acquitted of stealing from a homeowner could lawfully be prosecuted for stealing from the homeowner’s servant during the same breaking and entering), with Ashe v. Swenson, 397 U. S. 436 (1970) (holding that the Double Jeopardy Clause prevents a defendant acquitted of robbing one participant at a poker game from being prosecuted for robbing any of the other participants at the same game).

9 See, e. g., Ohio v. Johnson, 467 U. S. 493, 498-499 (1984); Ex parte Lange, 18 Wall. 163, 169 (1874).

10 The State recognizes that under state law it would have to prosecute all of the homicide charges in the same proceeding. Tr. of Oral Arg. 17.

11 Similarly, if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a “component offense”), the Double Jeopardy Clause would bar subsequent prosecution of the component offense. See Harris v. Oklahoma, 433 U. S. 682 (1977) (“When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one”) (footnote omitted); cf. Brown, 432 U. S., at 168 (noting that it is irrelevant for the purposes of the Double Jeopardy Clause whether the conviction of the greater offense precedes the conviction of the lesser offense or vice versa).

12 Terminology in the double jeopardy area has been confused at best. Commentators and judges alike have referred to the Blockburger test as a “same evidence” test. See, e. g., Note, The Double Jeopardy Clause as a Bar to Reintroducing Evidence, 89 Yale L. J. 962, 965 (1980); Ashe, 397 U. S., at 448 (Brennan, J., concurring). This is a misnomer. The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged. A true “same evidence” or “actual evidence” test would prevent the government from introducing in a subsequent prosecution any evidence that was introduced in a preceding prosecution. It is in this sense that we discuss, and do not adopt, a “same evidence” or “actual evidence” test.

13 Because the State does not contest the New York Court of Appeals’ ruling that the driving while intoxicated and vehicular manslaughter charges are barred under state law and Blockburger, respectively, Pet. for Cert. 12; Tr. of Oral Arg. 18, we need decide only whether the Double Jeopardy Clause prohibits the State from prosecuting Corbin on the homicide and assault charges.

14 Application of the test we adopt today will not depend, as Justice Scalia’s dissent argues, on whether the indictment “happens to show that the same evidence is at issue” or whether the jurisdiction “happen[s] to require the prosecution to submit a bill of particulars that cannot be exceeded.” Post, at 529-530. The Courts of Appeals, which long ago recognized that the Double Jeopardy Clause requires more than a technical comparison of statutory elements when a defendant is confronting successive prosecutions, have adopted an essential procedural mechanism for assessing double jeopardy claims prior to a second trial. All nine Federal Circuits which have addressed the issue have held that “when a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.” United States v. Ragins, 840 F. 2d 1184, 1192 (CA4 1988) (collecting cases). This procedural mechanism will ensure that the test set forth today is in fact “implementable,” post, at 529 (Scalia, J., dissenting).

15 Adoption of a “same transaction” test would bar the homicide and assault prosecutions even if the State were able to establish the essential elements of those crimes without proving the conduct for which Corbin previously was convicted. The Court, however, has “steadfastly refused to adopt the ‘single transaction’ view of the Double Jeopardy Clause.” Garrett v. United States, 471 U. S. 773, 790 (1985). But see Jones v. Thomas, 491 U. S. 376, 388-389 (1989) (Brennan, J., joined by Marshall, J., dissenting) (maintaining that “the Double Jeopardy Clause requires, except in very limited circumstances, that all charges against a defendant growing-out of a single criminal transaction be tried in one proceeding”).