New Jersey adopts Federal Test for Double Jeopardy

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark

New Jersey’s Supreme Court has recently adopted the same test used at the federal level for protection against double jeopardy.  In the case, the defendant was arrested for selling marijuana to an undercover police officer.  The defendant was charged with possession of marijuana with intent to distribute and possession of a controlled dangerous substance (CDS) with intent to distribute on or within 1000 feet of a school property.  In a separate municipal summons, the defendant was charged with a disorderly-persons offense of possession of fifty grams or less of marijuana.  Those charges arose out of the same sale.

The defendant went on to plead guilty to the municipal court charge.  After, defendant moved to dismiss the Superior Court charges on the theory of double jeopardy, since he already plead guilty to possession charge in municipal court.

The defendant’s case made it all the way to the Supreme Court.  The Court ruled that New Jersey would not be adopting just the same-elements test for double jeopardy as opposed to the same-evidence test.  The same-evidence test, which was previously used, means successive prosecution is prohibited when the same evidence is used for separate convictions.  In the defendant’s case, this was possession of marijuana which was used for both the municipal court charge and the Superior Court intent to distribute.

Although the Court let off the defendant in this case using the same-evidence test, the Court further ruled that from now on, New Jersey will use the same-elements test for double jeopardy.  The same-elements test means that if the State has to prove an additional element to a crime, in this case not only possession of marijuana but possession of marijuana in a school zone, then there is no double jeopardy protection.

In summary, there is now less protection from double jeopardy under the same-elements test than previously under the same-evidence test.  All the State has to do is prove a different additional element and the defendant can be charged with crimes even if the State uses the same evidence to do so.