What is the primary condition under which two crimes do not constitute the same offense?

The primary condition under which two crimes do not constitute the same offense is when each crime requires proof of an additional element that the other does not. This principle is rooted in the legal doctrine of "double jeopardy," which protects a person from being prosecuted for the same offense more than once. For two offenses to be considered distinct under this doctrine, they must have different elements that must be proven in court.

For example, if one crime requires proof of an act that is not necessary to prove the other crime, then they can be prosecuted separately without violating the double jeopardy clause. This is sometimes referred to as the "elements test," which hinges on the legal definitions of each crime and the specific facts that must be established in court to convict.

The other options involve considerations that do not necessarily establish whether two offenses are distinct based on legal definitions. Jurisdictional differences, statutory penalties, or different victims may affect the legal process but do not fundamentally determine whether two crimes are the same or different offenses in terms of their legal elements.