And even an acquittal would not give rise to autrefois acquit if the
unanimously agree that autrefois acquit and autrefois convict could be
By contrast, autrefois acquit and autrefois convict would not bar a
A plea of autrefois acquit
is a plea that a defendant has previously been acquitted of the conduct he currently stands accused of.
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.
to a consideration of the questions which arise concerning the plea of autrefois acquit." (182) In doing so, he enunciated nine principles of double jeopardy jurisprudence, only three of which truly concern the "scope" of the doctrine.
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.
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.(90)
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.(101) Third, as a result of these two features of collateral estoppel, most prosecutors will be powerfully discouraged from attempting to bifurcate litigation in search of strategic advantage or to vex defendants.(102) If a prosecutor wins the first trial, she will have to prove everything all over again in a second criminal case; but if she loses on any issue, she loses that issue forever (in criminal cases, at least) against the defendant.
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. But once we see that a judicial award of acquittal is a kind of due process penalty for low blows, it becomes clear that this extreme sanction is only one of a whole set that could be devised.(170) Ordinary games from everyday life offer a series of analogies.