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One example of a double-description violation is conviction on “both a lesser-included offense and the greater offense [when] both offenses derive from the same criminal act.” State v. McKean, 147 N.H. 198, 200 (2001); see State v. Lucius, 140 N.H. 60, 67 (1995).

Kyles v. Whitley, 514 U.S. 419, 433-34 (1995); State v. Lucius, 140 N.H. 60, 63-64 (1995).

This due process right imposes on the prosecutor the “duty to disclose evidence favorable to the accused where the evidence is material either to guilt or to punishment.” State v. Lucius, 140 N.H. 60, 63 (1995).

If the defendant carries this burden, there is a presumption that the evidence is material and the burden shifts to the State to prove, beyond a reasonable doubt, that the undisclosed evidence would not have affected the verdict.

When considering the issue of double jeopardy, our focus under the State Constitution is upon whether proof of the elements of the crimes “as charged” will in actuality require a difference in evidence.

Moreover, failure of the police to disclose and turn over exculpatory evidence to the defendant is imputed to the prosecutor.

The most common include: (1) the simultaneous prosecution of multiple charges, see, e.g., State v. Lucius, 140 N.H. 60, 663 A.2d 605 (1995); and (2) the subsequent prosecution of a charge involving the same underlying conduct previously prosecuted by the State, see, e.g., State v. Brooks, 137 N.H. 541, 629 A.2d 1347 (1993).

Therefore, the statute defining the crime of “solicitation” guides us. See State v. Lucius, 140 N.H. 60, 67, 663 A.2d 605, 610 (1995).

This due process right imposes on the prosecutor the “duty to disclose evidence favorable to the accused where the evidence is material either to guilt or to punishment.” State v. Lucius, 140 N.H. 60, 63, 663 A.2d 605, 608 (1995).

State v. Lucius, 140 N.H. 60, 66, 663 A.2d 605, 609-10 (1995) (concluding that defendant is subject to “jeopardy for all alternative triggering events charged” when State charges elemental evidence in the alternative).

Part I, article 16 of the New Hampshire Constitution provides that “[n]o subject shall be liable to be tried, after an acquittal, for the same crime or offense.” We have interpreted part I, article 16 as forbidding “multiple punishments for convictions on separate charges that constitute the same offense.” State v. Lucius, 140 N.H. 60, 65, 663 A.2d 605, 609 (1995).

We first address the defendant’s State constitutional arguments, State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983), citing federal law only as an aid to our analysis, State v. Lucius, 140 N.H. 60, 63, 663 A.2d 605, 609 (1995).

The ultimate question is “whether the facts charged in the second indictment would, if true, have sustained the first.” State v. Lucius, 140 N.H. 60, 65, 663 A.2d 605, 609 (1995) (quotation omitted).