Baime, J.s.c. (temporarily assigned).
These consolidated motions present novel questions pertaining to the scope of the Fifth Amendment prohibition against double jeopardy. Defendants were called as witnesses in unrelated murder trials. Both refused to testify after being directed to do so by the trial judge. In summary proceedings conducted pursuant to R. 1:10-1 each defendant was convicted of contempt and sentenced to a six-month term in the county jail. Thereafter, the grand jury returned separate indictments charging each defendant with hindering the prosecution of another. See N.J.S.A. 2C:29-3(a)(3). These charges embrace the same acts for which defendants were summarily convicted of contempt.
At issue is whether the protection against double jeopardy precludes a criminal prosecution predicated upon the same conduct for which defendants have been punished in prior summary contempt proceedings. Ancillary questions are presented with respect to the applicability of N.J.S.A. 2C:1-8(b), which bars separate trials for multiple offenses "arising from the same episode" if such crimes are "known to the appropriate prosecuting
officer" at the time of the commencement of the initial proceeding.
The principal thrust of defendant's claim is that the present prosecution is barred by the federal and state constitutional prohibitions against double jeopardy. Although New Jersey's constitutional language is narrower than that set forth in the Fifth Amendment, the protection so conferred has been construed as coterminous with its federal counterpart.*fn1 State v. Barnes, 84 N.J. 362, 370 (1980); State v. Lynch, 79 N.J. 327, 340 (1979); State v. Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Farmer, 48 N.J. 145, 168 (1966), cert. den. 386 U.S. 991, 87 S. Ct. 1305, 18 L. Ed. 2d 335 (1967). Thus, there is no need to consider separately New Jersey's constitutional proscription against double jeopardy.
The Fifth Amendment proscribes multiple prosecution for "the same offense." While "[n]o one currently questions the great worth of [this] constitutional safeguard," difficulty arises in determining "just when we are dealing with the same offense within the contemplation" of that protection. State v. Currie, 41 N.J. 531, 536 (1964). The constitutional prohibition had its genesis in the early common law of England. Ashe v. Swenson, 397 U.S. 436, 450, 90 S. Ct. 1189, 1197, 25 L. Ed. 2d 469 (1970). See, also, Note, "Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee," 65 Yale L.J. 339, 340-344 (1956). Although the phrase "same offense" appeared in the earliest articulations of the double jeopardy principle, see 4 Blackstone Commentaries 335, "questions of its precise meaning rarely arose prior to the 18th century." Ashe v. Swenson, supra at 451, 90 S. Ct. at 1198. By [186 NJSuper Page 38] the time the Bill of Rights was adopted it had not been authoritatively defined. Ibid. The first common law definition of the phrase "same offense" was premised upon the nature and type of evidence offered in multiple prosecutions. Ibid. See also State v. Currie, supra 41 N.J. at 538. Under this theory, the test of double jeopardy is whether "the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first." State v. Hoag, 21 N.J. 496, 502 (1956) aff'd 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1957). Because a single transaction can be dissected into chronologically discrete crimes, the same evidence test often proved inadequate to vindicate the values underlying the double jeopardy proscription. Additional formulations of the principle thus developed. In varying factual settings, judicial attention has focused upon the identity of the elements of statutory crimes, see, e.g., State v. Best, 70 N.J. 56, 62 (1976); State v. Roller, 29 N.J. 339, 350 (1959); State v. Hoag, supra 21 N.J. at 502; State v. Leibowitz, 22 N.J. 102, 108 (1956); State v. Midgeley, 15 N.J. 574, 579 (1954); State v. Shoopman, 11 N.J. 333, 335 (1953); State v. Labato, 7 N.J. 137, 144 (1951); State v. DiGiosia, 3 N.J. 413, 419 (1950); State v. Thomas, 114 N.J. Super. 360, 364 (Law Div.1971) mod. 61 N.J. 314 (1972); State v. Hill, 44 N.J. Super. 110, 112 (App.Div.1957); the legislative design in enacting overlapping laws incriminating the same unlawful conduct, see, e.g., State v. Best, supra 70 N.J. at 61; State v. Davis, 68 N.J. 69, 78 (1975); State v. Ruiz, 68 N.J. 54, 66 (1975) (Justice Pashman dissenting); State v. Cormier, 46 N.J. 494, 501-502 (1966); State v. Stenson, 174 N.J. Super. 402, 406 (Law Div.1980); State v. Bontempo, 170 N.J. Super. 220, 236 (Law Div.1979), certif. den. 87 N.J. 317 (1981), and whether multiple charges emanate from a single criminal transaction or episode, see, State v. Pennsylvania R.R., 9 N.J. 194, 198 (1982); State v. Roller, supra 29 N.J. at 345; State v. Hoag, supra 21 N.J. at 503; State v. Fitzsimmons, 60 N.J. Super. 230, 233 (Cty.Ct.1960); State v. Greely, 30 N.J. Super. 180, 184-5 (Cty.Ct.1954), aff'd 31 N.J. Super. 542 (App.Div.1954); State v. Cooper, 13 N.J.L. 361, 371 (Sup.Ct.1833). Quite plainly,
no single test has achieved universal acceptance. Rather, our courts have eschewed technisms and inflexibility. The primary considerations should be "fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals." State v. Currie, supra 41 N.J. at 539. See, also, State v. Roller, supra 29 N.J. at 346, Caraway, "Pervasive Multiple Offense Problems -- A Policy Analyses," 1971 Utah L.Rev. 105 (1971); Comment, "The Double Jeopardy Clause: Refining the Constitutional Proscription Against Successive Criminal Prosecutions," 19 UCLA L.Rev. 804 (1972).
The double jeopardy clause protects against a second prosecution for the same offense after an acquittal and following a conviction. It also guards against multiple punishments for the same offense. Brown v. Ohio, 431 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). The principle evolved as a reaction to the "prodigious prosecution advantages" of the early common law. See Note, "Consecutive Sentences In Single Prosecutions: Judicial Multiplication of Statutory Penalties," 67 Yale L.J. 916, 918 (1958). Its object and design were to secure finality in criminal litigation by protecting defendants from the threat, harassment and stigma of repeated criminal trials. The clause insures that "[t]he State shall not be permitted to make repeated attempts to convict the accused, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . ." State v. Barnes, supra 84 N.J. at 370. See, also, Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 (1957).
The prohibition is "not against being twice punished, but against being twice put in jeopardy." Downum v. United States, 372 U.S. 734, 736, 83 S. Ct. 1033, 1034, 10 L. Ed. 2d 100 (1963). Stated somewhat differently, the double jeopardy clause does not per se bar multiple prosecutions for the same ...