In the case of Grady v. Corbin, 1989, the U.S Supreme Court ruled that a person cannot be tried for a greater offense after being convicted of a lesser included offense arising from the same criminal act or transaction. The defendant, Thomas Corbin was driving while intoxicated and crossed into oncoming traffic causing an accident which resulted in one death and injury to another passenger. He pleaded guilty to charges related to drunk driving and crossing into oncoming traffic but was later charged with manslaughter and assault relating to the same incident. The court held that this constituted double jeopardy as it involved prosecution for multiple offenses based on the same conduct, violating his Fifth Amendment rights against double jeopardy.

In the dissenting opinion for Grady v. Corbin, Justice Scalia argued that the majority's decision to expand double jeopardy protections was a departure from established precedent and an unnecessary expansion of constitutional rights. He contended that previous rulings had clearly defined when charges constituted the same offense, and this case did not meet those criteria. The defendant's reckless driving charge was separate from his manslaughter charge because they required proof of different facts; thus, prosecuting both did not violate double jeopardy principles. Furthermore, he criticized the majority's reliance on "the 'same-conduct' test," which he saw as vague and subjective compared to existing standards. In essence, Justice Scalia believed that by broadening double jeopardy protections in this manner without clear necessity or precedent could lead to confusion in future cases and potentially hinder effective law enforcement.