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New Jersey Section 2C:1-11 – Former prosecution in another jurisdiction: when a bar

New Jersey Law on Former Prosecution in Another Jurisdiction

Section 2C:1-11 of the New Jersey Code of Criminal Justice deals with the situation where a defendant has already been prosecuted for an offense in another jurisdiction. This section sets out when a former prosecution in another state or federal court will bar a subsequent prosecution in New Jersey for the same criminal conduct.

Key Provisions

The main rules under 2C:1-11 are:

• A former prosecution in another jurisdiction will bar prosecution in New Jersey if:
  • It resulted in an acquittal or conviction and the New Jersey prosecution is for the same offense or an offense that could have been charged in the first prosecution.
  • It was improperly terminated (e.g. dismissed due to a procedural error) and the subsequent prosecution in New Jersey is for the same offense.
• A former federal prosecution will bar a New Jersey prosecution if:
  • It resulted in an acquittal, conviction or improper termination.
  • The New Jersey prosecution is based on the same conduct.

Policy Considerations

The bar on subsequent prosecutions after acquittal or conviction in another jurisdiction is based on the principles of double jeopardy and collateral estoppel. These principles aim to prevent the unfairness and harassment involved in repeatedly prosecuting a defendant for the same criminal conduct.

Where there has been an improper termination, the bar aims to prevent prosecutorial forum shopping and abuse of process. It prevents a prosecutor dismissing a case due to a technicality or procedural error and then refiling it in another jurisdiction.

At the same time, the section aims to balance the interests of New Jersey in prosecuting offenses committed within its jurisdiction. So the bar only applies where New Jersey’s interests will be adequately served by the prior prosecution in the other jurisdiction.

Comparison to Federal Law

Section 2C:1-11 is broadly similar to the federal double jeopardy statute, 18 U.S.C. § 5032. This provides that a federal prosecution is barred following a prosecution in another jurisdiction if it would have been barred in that jurisdiction.

However, federal courts have held this does not necessarily prevent a federal prosecution where a state prosecution resulted in an acquittal or conviction. Federal and state offenses are considered different for double jeopardy purposes, even if based on the same conduct.

So federal law potentially allows successive federal-state prosecutions to a greater degree than permitted under New Jersey law.

Examples of How 2C:1-11 Works

Here are some examples of how 2C:1-11 operates in practice:

• John is prosecuted in Pennsylvania for assault and battery and is acquitted following a trial. New Jersey then charges John for the same assault. The Pennsylvania acquittal bars the New Jersey prosecution under 2C:1-11.
• Mary is prosecuted in federal court for bank robbery and convicted following a guilty plea. New Jersey cannot then prosecute Mary for armed robbery based on the same bank robbery.
• Bill is prosecuted in New York for drug trafficking offenses. The case is dismissed due to a procedural error regarding the indictment. New Jersey cannot then prosecute Bill for drug offenses arising from the same conduct and facts.
• Jane is prosecuted in Delaware for theft. The case is dismissed as time-barred under the statute of limitations in Delaware. New Jersey can still prosecute Jane for the same theft, as the Delaware prosecution was not “improperly terminated” under 2C:1-11.

Defenses Under 2C:1-11

There are certain defenses where a former prosecution will not bar a subsequent New Jersey prosecution:

• The former prosecution was in a court that lacked jurisdiction over the defendant or the offense.
• The former prosecution was obtained by fraud or misconduct by the defendant.
• The offenses prosecuted involve different elements and facts, so they are not considered the “same offense.”

Whether offenses under different statutes are the “same” depends on an analysis of the statutory elements, not the underlying facts. So a defendant could be prosecuted under both state and federal law for offenses arising from the same criminal transaction.

Policy Arguments Regarding 2C:1-11

There are good policy arguments on both sides regarding the New Jersey approach under 2C:1-11:In favor:

• Upholds principles of double jeopardy and prevents prosecutorial overreach.
• Promotes finality, consistency and fairness in prosecutions.
• Recognizes sovereignty of other states’ courts.
• Avoids unnecessary successive prosecutions for same offense.

Against:

• Can undermine New Jersey’s jurisdiction and ability to prosecute crimes committed locally.
• Permits procedural errors in other states to preclude prosecution in New Jersey.
• Offenses under different statutes, though based on same facts, are arguably different.
• Does not adequately recognize dual sovereignty of federal and state governments.

Calls for Reform

The issue of successive federal-state prosecutions has resulted in calls for reform of double jeopardy rules. Groups like the American Bar Association argue federal law should be amended to provide greater protection against successive prosecutions.

However, reform efforts face significant resistance. Federal and state prosecutors wish to retain flexibility to prosecute certain offenses, especially crimes crossing state borders.

There have been no recent efforts to amend or reform section 2C:1-11 in New Jersey. But the broader policy debates around double jeopardy and successive prosecutions continue. Reconciling the interests of fairness to defendants, state sovereignty and effective law enforcement remains a complex issue.