# Grady v. Corbin
## Dissenting Opinions

    O'Connor
    Scalia
United States Supreme Court
495 U.S. 508
Grady v. Corbin
No. 89-474 Argued: March 21, 1990. --- Decided: May 29, 1990
Syllabus
After respondent Corbin's automobile struck oncoming vehicles on a New York highway, causing the death of one person and injury to another, he was served with two uniform traffic tickets directing him to appear at a Town Justice Court. One ticket charged him with the misdemeanor of driving while intoxicated, and the other charged him with failing to keep to the right of the median. When Corbin pleaded guilty to the traffic tickets in the Town Justice Court, the presiding judge was not informed of the fatality or of a pending homicide investigation. Subsequently, a grand jury indicted Corbin, charging him with, among other things, reckless manslaughter, criminally negligent homicide, and third-degree reckless assault. A bill of particulars identified the three reckless or negligent acts on which the prosecution would rely to prove the 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 at a speed too fast for the weather and road conditions. Corbin's motion to dismiss the indictment on, inter alia, constitutional double jeopardy grounds was denied by the County Court. He then sought a writ of prohibition barring prosecution, which was denied by the Appellate Division. However, the State Court of Appeals reversed, finding that the State's intention to "rely on the prior traffic offenses as the acts necessary to prove the homicide and assault charges" violated this Court's "pointed" dictum in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228, that if two successive prosecutions were not barred by the test of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 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.
Held: 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. Pp. 515-524.
(a) To determine whether a subsequent prosecution is barred, a court must first apply the traditional Blockburger test. If the test's application 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. However, a technicalcomparison of the elements of the two offenses as required by the Blockburger test-which was developed in the context of multiple punishments imposed in a single prosecution-does not protect defendants sufficiently from the burdens of multiple trials, see, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, and, thus, is not the exclusive means of determining whether a subsequent prosecution violates the Double Jeopardy Clause. See, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054. Successive prosecutions, whether following acquittals or convictions, raise concerns that extend beyond merely the possibility of an enhanced sentence. They allow the State 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. They 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. Were Blockburger the exclusive test 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. Pp. 515-521.
(b) The critical inquiry in determining whether the government will prove conduct in the subsequent prosecution that constitutes an offense for which the defendant has already been prosecuted is what conduct the State will prove, not the evidence the State will use to prove it. Thus, the test is not an "actual evidence" or "same evidence" test. While the presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding, see Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708, a State cannot avoid the Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct. P. 521-522.
(c) Applying this analysis to the instant facts is straightforward. While Blockburger does not bar prosecution of the reckless manslaughter, criminally negligent homicide, and third-degree reckless assault charges against Corbin, the State, in its bill of particulars, has admitted that it will prove the entirety of the conduct for which Corbin was convicted to establish essential elements of these offenses. Thus, the Double Jeopardy Clause bars the prosecution. However, this holding would not bar a subsequent prosecution if the bill of particulars revealed that the State would rely solely on Corbin's driving too fast in heavy rain to establish recklessness or negligence. Pp. 522-523.
(d) That drunken driving is a national tragedy and that prosecutors are overworked and may not always have the time to monitor seemingly minor cases as they wind through the judicial system do not excuse the need for scrupulous adherence to constitutional principles. 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. P. 524.
74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714 (1989), affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, post, p. 524. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, post, p. 526.
Bridget R. Steller for petitioner.
Richard T. Farrell, Ilene J. Miller, Brooklyn, N.Y., for respondent.
Justice BRENNAN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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