Double-Jeopardy Ruling Helps NJ Shed Outlier Status

TRENTON, N.J. (CN) – Taking aim at a test its courts have used to establish double jeopardy, New Jersey’s high court helped the state Tuesday shed its outlier status.

“Rather than grafting exception upon exception onto a test that would eventually fall under its own weight, we embrace the same-elements test in its stead,” Judge Walter Timpone wrote for the court.

In addition to the same-elements test, which requires two charges to each contain at least one unique element, New Jersey also used to weigh double jeopardy using what is known as the same-evidence test.

New Jersey has clung to the latter test over the years despite federal courts having abandoned it in the 1990s, with many states following suit. With the different tests sowing confusion in New Jersey appeals, the state’s high court made the same-elements test the sole determinant on Tuesday.

The underlying case stems from the 2010 arrest of Rodney Miles in Camden County for selling marijuana to an undercover police officer while standing on a street corner. In addition to possession with intent to distribute within 1,000 feet of a school property, Miles was charged with a municipal-level loitering for possessing 50 grams or less of marijuana.

Representing himself against the charges, court transcripts show that Miles expressed confusion about why his case was being sent to the state-level Superior Court. “This is a municipal charge, right, Your Honor?” Miles asked the judge at one hearing.

After pleading guilty to the municipal possession charge, Miles has fought to have the state charge against him dismissed on double-jeopardy grounds.

The Superior Court, which ruled against Miles, found that the charge did not trigger double jeopardy because it required proof of one additional element: the proximity to school grounds.

The New Jersey Supreme Court on the other hand affirmed an appellate reversal 5-2 Tuesday.

Vacating Miles’ conviction for possession with intent to distribute within 1,000 feet of a school, the court noted that this count, like the municipal possession charge, hinged on where he tried to sell the marijuana: a street corner near a school zone.

Directing that courts abandon future use the same-evidence test, Timpone contrasted it against the same-elements test, which is generally applied during the early stages of prosecution and produces uniform results.

Noting that the same-evidence test cannot prove double jeopardy until prosecutors have presented their case, Timpone said its “reliance on a case-by-case approach creates the potential for wildly different results in cases with similar facts.”

While “the same-elements test is not a cure-all,” it is part of “a fulsome array of safeguards for criminal defendants,” Timpone added.

Justice Barry Albin meanwhile called the federal same-element test “inconstant” in a dissenting opinion.

Calling it “at complete odds with the architecture of our joinder rules and double-jeopardy jurisprudence,” Albin said the same-element test could even hurt those defendants who face multiple nonindictable offenses.

In Miles’ case, for example, Albin noted that prosecutors had amended one of the possession charges to a disorderly persons offense. This could have set Miles up to face a second prosecution based on the different elements of the amended charge. “According to the majority, the second prosecution is not barred even though the defendant possessed the same drugs, on the same street corner, at the same time,” he wrote.

Albin also said it shouldn’t matter that New Jersey was one of the few states not to rely solely on the same-element test, noting that several state decisions had upheld both the same-elements and same-evidence tests as a way to protect against double-jeopardy prosecutions.

“The majority’s new rule will allow the state, with all its resources and power, to pursue repeated prosecutions to convict an accused for the same offense, despite an earlier conviction or acquittal,” Albin wrote.

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