Indiana’s Double Jeopardy Doctrine at a Crossroads: Moyers, Brothers, and the Fight Over Wadle
Six years after the Indiana Supreme Court tried to fix substantive double jeopardy law with Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), the doctrine is once again in flux. And this time the Court itself may be preparing to scrap the framework it built. Two recent decisions, Moyers v. State, 277 N.E.3d 33 (Ind. 2026), and the published order in Brothers v. State, 278 N.E.3d 370 (Ind. 2026), trace the arc of that unfolding debate. The decisions also set the stage for what could be another sea change in Indiana double jeopardy law.
The Backdrop: Wadle, Powell, and A.W.
In 2020, the Indiana Supreme Court replaced the old Richardson framework with two tests: Wadle, for when a single act violates multiple statutes with common elements; and Powell, for when a single act violates one statute multiple times (multiplicity). In 2024, A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), added a defendant-friendly gloss to Wadle’s second step: where a charging information is ambiguous about whether one offense is factually included in another, court presume a double joepardy violation and let the State try to rebut it with trial evidence. That’s the framework at the heart of the Shanks and Grimes cases, both of which are now headed to oral argument in the Indiana Supreme Court on December 3, 2026.
Moyers: Sorting Out Which Test Even Applies
Moyers tackled a threshold problem that had split the Court of Appeals: when a defendant is convicted of two elevated versions of the same statute (Level 3 and Level 4 felony criminal confinement, one enhanced for use of a deadly weapon and the other for moderate bodily injury), does Wadle or Powell govern?
Chief Justice Rush’s majority opinion held that the answer turns on whether the statute defines a single “base offense” with elevated forms, or multiple distinct base offenses. Because Indiana’s confinement statute sets a baseline Level 6 felony and then elevates the same core offense based on attendant circumstances, the Court held it defines one’s statutory offense. This means that Powell, and not Wadle, applies. Applying Powell, the majority found the evidence showed only one continuous, unbroken confinement of the victim. Thus, only one conviction could stand.
Justice Molter concurred separately, cautioning against the Court once again overhauling its own doctrine without the benefit of adversarial briefing on the new approach — a preview of the debate to come.
Justice Slaughter, joined by Justice Massa, dissented. They did not just disagree with the outcome. Rather, they argued the entire Wadle/Powell framework should be abandoned. In Justice Slaughter’s view, “substantive double jeopardy” is not really double jeopardy at all; it is pure statutory interpretation. Thus, he argues that the Court should stop building judge-made tests, steps, and presumptions on the top of the statutes and instead simply apply Indiana’s included-offense statute directly. He would reserve Powell-style multiplicity analysis for the narrow set of cases where the included-offense statute does not apply at all., such as cases where the defendant is convicted of the same offense more than once.
Brothers: A Preview of What Comes Next
Two months later, in Brothers v. State, the Court denied transfer in another Wadle case, but Justice Slaughter’s concurrence in that denial is the real story. The State had asked the Court to overrule Wadle outright and replace it with the federal Blockburger same-elements test, paired with Indiana’s existing statutory protections. Justice Slaughter agreed with much of the State’s diagnosis: Wadle’s “factually included” inquiry has no real statutory anchor and traces back to a charging-information-based test Indiana repealed by statute back in 1976. But he saw no need to import Blockburger wholesale, since Indiana’s own included-offense statute already incorporates a same-elements comparison.
Notable, Justice Slaughter did not push to grant transfer and decide the issue in Brothers. He signaled he was willing to let the Court’s newly minted Moyers framework “settle” for a bit before forcing the larger question — a patience that appears to have run out by September, when the Court granted transfer in both Shanks and Grimes. In those cases, the Court has invited amicus briefing specifically addressing whether Wadle should be overruled.
Where This is Headed
Read together, these decisions describe a doctrine under real strain. Moyers shows a majority still trying to make Wadle and Powell work by adding new interpretive categories on top of them — an approach Justice Slaughter argues only compounds the confusion Wadle itself was supposed to eliminate. Brothers shows that critique gaining a receptive audience, with the State nor formally on record urging the Court to scrap Wadle. And the September transfer order in Shanks/Grimes shows the Court has decided the question is ripe.
What Might Replace Wadle?
It is worth thinking through the options, since practitioners charging or defending multi-count cases over the next several months will want to preserve arguments under more than one possible framework.
Option 1: Blockburger, layered onto existing statutes. The State’s proposal in Brothers would import the federal same-elements test — do the two offenses each require proof of an element the other does not — as a threshold screen, backstopped by Indiana’s included-offense, multiple-conviction, and successive-prosecution statutes for anything Blockburger misses. This has the appeal of familiarity, since federal courts and many sister states use it. But it also risks reintroducing exactly the kind of judge-made overlay Justice Slaughter otherwise wants to eliminate, since Blockburger itself is a court-created interpretive presumption, not a codified test.
Option 2: Justice Slaughter’s statute-only approach. Apply the included-offense statute’s text directly with no judicially created “steps,” rebuttable presumptions, or charging-information-ambiguity doctrine layered on top. Multiplicity analysis would kick in only where the included-offense statute plainly does not apply because the two convictions are for the identical offense. This is the leanest option and the one with the most textual pedigree, but it would require the Court to overrule its prior precedent yet again.
Option 3: Refine rather than replace. The Supreme Court could decline to overrule Wadle and Powell wholesale and instead continue the Moyers approach of adding clarifying doctrine. Justice Molter’s concurrence in Moyers is the clearest institutional voice for this path: wait for a party to actually brief a replacement framework, and do not get “over your skis” building one sua sponte.
Given that the Court is now inviting amicus briefing on the overrule question itself, this appears to be the vehicle the Court has chosen to finally resolve the Wadle/Powell debate one way or the other. For defense practitioners, the immediate takeaway is to preserve alternative double jeopardy arguments under both the current Wadle/A.W./Moyers framework and a straight included-offense-statute theory.