Therefore, Article 44(a) and (b)'s language "envisages only the old common law pleas of former acquittal and former conviction[, autrefois acquit and autrefois convict,] and it did not consider the modern doctrine that jeopardy can attach before verdict or findings.
In this case, the rule would apply equally to an autrefois convict and autrefois acquit factual scenario, expanding the reach of the Diaz holding.
Here, the basis for the bar is derived from the common law autrefois acquit plea at common law.
Finally, looking at Diaz as an exception to autrefois convict makes more sense from a policy perspective because the original holding was not trying to create an exception to a double jeopardy autrefois acquit scenario.
The result of this analysis is that in an autrefois acquit scenario there is no difference between the application of the two double jeopardy bars if Diaz is properly viewed as an exception or collateral estoppels is applied to ensure just results.
to a consideration of the questions which arise concerning the plea of autrefois acquit.
In both leaving open the possibility that some prosecutions would warrant judicial limitation due to their "abuse of process" and that autrefois acquit bars prosecution for "substantially similar" offenses, Lord Morris implicitly recognized the negative of consequences of strictly construing double jeopardy law.
In his critique of the standard rationales behind current double jeopardy law, Laudan views the perpetual fear argument as a red herring because proposals to allow for acquittal appeals or reprosecutions of the autrefois acquit
never call for unbridled power to re-prosecute ad infinitum, but are instead premised on the symmetrical notion that "an acquittal, like a conviction, should be open to judicial review.
And so, ordinarily, Robin can plead autrefois acquit in her second trial because she really was tried for robbery--the same offense, la meme felonie--in the first trial, and was acquitted.
Whereas the formal rules of the Double Jeopardy Clause apply equally to autrefois acquit and autrefois convict, the collateral estoppel principle aids a defendant who is in effect acquitted on some contested issue.
If we view the misconduct/mistrial issue primarily through the prism of the Double Jeopardy Clause, we might think that the sole or most apt judicial response to prosecutorial misconduct is an award of acquittal; the Clause, as we have seen, is tightly linked to the idea of autrefois acquit.
At common law, a third plea, autrefois attains complemented autrefois acquit and autrefois convict.