Attorney Ben Schwartz answers a viewer question regarding the Blockburger Rule and how the Eighth Amendment prohibits double jeopardy. You cannot be charged for the same crime twice, but there is a thing called lesser included offenses.

Hi, I’m Attorney Ben Schwartz,

Today we are going to answer a viewer question from Jamie. Jamie’s a law student who wrote in and said, “I’m doing some doing my Criminal Procedure class and I am struggling. Can you explain the Blockburger Rule?”

Yes, I can explain the Blockburger Rule. So, here is the Blockburger Rule in a nutshell. You need to know that the Eight Amendment prohibits double jeopardy. You can’t be prosecuted twice for the same offense. You need to know that in criminal law, there is a thing called lesser included offenses.

So you might not be guilty of what you are charged with, but you could be guilty of a lesser included offense. For example, you might be charged with first-degree murder but the jury might find you not guilty of that, but finds you guilty of second-degree murder or manslaughter or assault or offensive touching. There are lesser degrees of criminal culpability built into the law.

So, what the Blockburger Rule says, is that you can’t be tried on two separate criminal offenses if one of the criminal offenses is a lesser included offense of the charge. In other words, they can’t try you this week on murder in the first degree and then come back and try you in two weeks on manslaughter.

It doesn’t work that way. But to apply the Blockburger Rule, you need to understand that the rule says that it’s not a lesser included offense. There is no double jeopardy problem if each of the offenses that they are trying on includes an element that the other does not. Now the best way for me to try and explain that rule is this.

I was driving down the road with my son Charlie and Charle is six, and he is learning how to read. He’s starting to get good at reading and one of the things he does when we’re driving down the road is he reads road signs. So we were looking for our exit, we were driving down the road and he said, “Dad that sign says next exit.” Then he says to me, next and exits, they both have the same letters, they’re just jumbled, and if you use the same letters you can spell either word. And, I said to him, No that’s not correct Charlie. ‘Next’ and ‘Exit’  each of them contain a letter that the other does not. ‘Next’ contains ‘N’ and ‘N’ is not in ‘Exit’ and ‘Exit’ contains ‘I’ and ‘I’ is not in ‘Next’.

So, each word has a letter that the other does not. That’s essentially a good comparison for the Blockburger rule. The Blockburger rule says that if the state or the federal government is going to charge the defendant and go to trial on two offenses and get convictions on both of those offenses, each one has to contain an element that the other does not. Otherwise, you have got lesser included offenses and to be convicted and sentenced on both would violate the double jeopardy clause. So, that is the Blockburger rule. Hopefully, that makes sense.

Jamie, good luck with your legal studies. If you are watching this and you are a law student, I’m not trying to do your homework for you but if you have a question for me feel free to send me an email. My email address is ben.schwartz@schwartzandschwartz.com.

Thanks for watching!