Autrefois Acquit

Criminal Law.  Autrefois acquit (“previously acquitted”) is a French term that is now part of English common law terminology.  It refers to a defense asserted by a criminal defendant that he or she cannot be tried for a crime because the record shows the he or she has already been subjected to trial for the same conduct and was acquitted.

Compare with “autrefois convict,” which is a similar defense asserted by a criminal defendant that he was already subjected to trial for the same conduct, but unlike “autrefois acquit,” the prior trial of defendant asserting “autrefois convict” resulted in conviction.

See also “Double Jeopardy”


State v. Ackerman, 64 N.J.L. 99 (1899):

A plea of autrefois acquit at common law must be specially pleaded in writing, and must set out the former record of acquittal, also the identity of the offense and person, by proper averments . . . The burden of proof is upon the defendant to support a plea of autrefois acquit by a preponderance of proof.

Wadle v. State, 151 N.E.3d 227, 238-39 (Ind. 2020):

Historically, the prohibition against double jeopardy—rooted in the English common law pleas of autrefois acquit (former acquittal) and autrefois convict (former conviction)—applied as a procedural bar to successive prosecutions for the same offense. Because early American penal codes defined only a handful of criminal offenses, a person seldom committed more than one violation in the same act or transaction. Strict rules of pleading and procedure likewise prevented multiple convictions in a single trial. By the mid-nineteenth century, however, this paradigm had shifted, the consequence of an expanding body of statutory law defining new—and often overlapping—criminal offenses. Relaxed rules of pleading and procedure opened the door to further change, allowing prosecutors to join multiple related charges against a defendant—and even fragment those charges—for a single criminal act. While minimizing the likelihood of unwarranted acquittal, these multi-count indictments greatly enhanced the potential penalty for any given criminal transaction.”

To protect the interests of the accused, then, the prohibition against double jeopardy evolved beyond the procedural context to embody a substantive bar to multiple convictions or punishments for the “same offense” in a single trial.  While the issues raised by these two strands of double jeopardy vary, the “crucial inquiry” remains constant: whether one charged offense is the “same” as another charged offense to trigger the constitutional protection.

State v. Taylor, 371 Md. 617, 630-33 (2002)

The principle of double jeopardy encompasses three interrelated pleas at common law: autrefois acquitautrefois convict, and pardon. The pleas of autrefois convict and pardon provide that a criminal defendant may not be prosecuted twice for the same offense after conviction and may not be punished multiple times for the same offense. Therefore, the analytical challenges in cases involving autrefois convict and pardon are determining the point in the proceedings at which jeopardy attaches such that retrial would violate the prohibition against double jeopardy . . .

The third common law double jeopardy principle is the plea of autrefois acquit.  It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law, or of a misconception of fact on the part of the jury.

This plea has been interpreted broadly. A verdict of “not guilty” invokes the protection against double jeopardy such that procedural errors or acquittals entered on a fatally defective indictment bar subsequent prosecution.

Related entries