Blockburger Same Elements Test

In Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932) the Supreme Court established the rule that absent any expressed legislative intent, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304. It is settled by subsequent Supreme Court cases applied in our own jurisprudence that this test involves a comparison of the statutory elements of the offenses, not the facts and evidence underlying each charge. Byrd v. United States, 598 A.2d 386, 389 (D.C. 1991)(en banc). See also, e.g., Silver v. United States, 726 A.2d 191, 194 (D.C. 1999)(applying test); Hanna v. United States, 666 A.2d 845, 852 (D.C. 1995)(same). While appellant properly states the "same elements" test, she misapplies it in practice. the "same elements" test is used to determine whether separate statutory provisions both criminalize a single act. Since appellant's 1996 and 1998 indictments plainly charge the same "offense," namely, first degree cruelty to a child pursuant to D.C. Code 22-901(a), the "same elements" test simply does not apply.