Definition
A plea in bar entered by a criminal defendant asserting that he has already been tried and convicted of the same offense for which he is now being prosecuted. If the plea is sustained, it operates as a complete defense and bars further prosecution. The doctrine rests on the principle that no person should be tried twice for the same crime — an antecedent of the modern constitutional protection against double jeopardy.
To succeed, the defendant must show that: (1) a prior conviction was rendered; (2) by a court of competent jurisdiction; (3) for the same identical offense now charged.
Autrefois convict is one of two classical former-jeopardy pleas in bar. Its companion, autrefois acquit, applies where the prior proceeding ended in acquittal rather than conviction.
Common Confusion
AUTREFOIS CONVICT vs. AUTREFOIS ACQUIT: These two pleas are frequently grouped together and sometimes cited interchangeably in older sources, but they are distinct. Autrefois acquit rests on a prior acquittal; autrefois convict rests on a prior conviction. The practical distinction matters because courts have sometimes treated the two pleas differently, particularly regarding what qualifies as a "conviction" sufficient to support the latter plea. A verdict of guilty that was later vacated on appeal, for instance, may not sustain autrefois convict.
AUTREFOIS CONVICT vs. DOUBLE JEOPARDY: In modern American practice, autrefois convict has largely been absorbed into the constitutional double jeopardy framework under the Fifth Amendment. Researchers should not assume that every principle governing the common law plea maps cleanly onto modern double jeopardy doctrine. The constitutional guarantee is broader in some respects and has its own body of case law that has developed independently of the common law pleas.
Why It Matters in Research
Researchers working in pre-twentieth-century criminal law materials will encounter autrefois convict as a formal pleading category, often discussed alongside autrefois acquit in treatises on criminal procedure. In modern materials, the term rarely appears as a distinct procedural device — it has been functionally replaced by double jeopardy motions, but the underlying substantive concept survives.
Two traps for researchers: First, historical sources sometimes discuss whether a conviction that was reversed or set aside on appeal can support the plea. The answer varied by jurisdiction and era, and older treatise discussions do not reflect the modern constitutional resolution of this question. Second, because the plea was a plea in bar at common law, its procedural mechanics — how and when it had to be raised, what evidence supported it, how the court resolved it — followed common law pleading rules that differ substantially from modern motion practice. Reading historical descriptions of the plea as procedural guidance for modern courts would be error.
For researchers tracing the intellectual genealogy of double jeopardy protections, autrefois convict is an essential entry point. The common law pleas predated and informed both the Fifth Amendment's double jeopardy clause and equivalent state constitutional provisions. Understanding what the pleas covered — and what they did not — helps explain gaps and ambiguities in early American double jeopardy jurisprudence.
Corpus connections: This term connects to broader research on the plea in bar as a procedural device, the development of constitutional double jeopardy doctrine, and the history of criminal pleading reform in the nineteenth century.
Historical Dictionary Support
The three source dictionaries are in close agreement. All three define autrefois convict as a plea in bar grounded in a prior conviction for the same identical offense, and all cite the same foundational authorities — Blackstone's Commentaries (4 Bl. Comm. 336) and Stephen's Commentaries (4 Steph. Comm. 403–404). Burrill adds Chitty's Criminal Law (1 Chitt. Crim. Law, 462) and explicitly cross-references autrefois acquit, signaling that the two pleas were understood as a paired system.
Rapalje & Lawrence adds the requirement that the prior conviction be before "a court of competent jurisdiction," a condition the other entries imply but do not state explicitly. This is a meaningful qualification: a conviction by a tribunal lacking jurisdiction would not support the plea, a point that became significant in debates over military tribunals, territorial courts, and foreign convictions.
What the historical dictionaries do not address: the effect of a reversed or vacated conviction, the interplay between the plea and prosecutorial charging discretion, and any distinction between conviction for a lesser included offense and conviction for the precise charge. These silences reflect genuine unsettled questions in the historical law, not mere omission.
Jurisdictional Note
In the United States, autrefois convict as a formal common law plea has been superseded in practice by constitutional double jeopardy protections and their procedural implementations under federal and state rules of criminal procedure. English and Commonwealth jurisdictions retain the terminology more actively. Researchers working in comparative or historical contexts should note that the scope of the plea — particularly regarding same-offense identity — was defined differently across jurisdictions and has no single authoritative resolution in the historical sources.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Collateral Consequences of Criminal Conviction (criminal_244)