Definition
A plea entered by a convicted prisoner at the point of sentencing or execution asserting that the person before the court is not the same individual who was convicted. The prisoner, in essence, contests identity — claiming the judgment of conviction was entered against someone else and cannot lawfully be enforced against them.
The plea operates as a bar to execution of sentence. It is not a challenge to the validity of the underlying conviction, the sufficiency of evidence, or the legality of the proceedings. It is solely a claim of mistaken identity as between the person convicted and the person now presented for punishment.
Common Confusion
DIVERSITY OF PERSON is easily confused with two other pleas available to a prisoner facing execution of judgment:
- **Diversity of person** challenges *who* is before the court — asserting the prisoner is not the convicted individual.
- **Autrefois convict** (or autrefois acquit) challenges *what has already happened* — asserting the prisoner has already been convicted or acquitted of the same offense and cannot be tried again.
- **Pardon** asserts that the conviction stands but punishment has been remitted by executive authority.
A researcher encountering these pleas in historical criminal procedure records must distinguish among them carefully. Diversity of person is the narrowest: it leaves the underlying conviction intact and contests only whether this prisoner is subject to it.
The term should also be distinguished from **diversity of citizenship** — the entirely unrelated basis for federal subject-matter jurisdiction under 28 U.S.C. § 1332. The shared word "diversity" has no doctrinal overlap between these two concepts.
Why It Matters in Research
This term appears almost exclusively in pre-twentieth-century criminal procedure sources and is largely obsolete as a named plea in modern practice. Researchers should treat it as a historical term of art encountered in:
- **English common law pleading records and treatises**: The plea's natural habitat is the formal pleading system of English criminal procedure, where specific named bars to execution were recognized and had defined procedural pathways. Bouvier cites Stephens' Commentaries, locating the doctrine firmly in the English tradition transmitted to American practice.
- **Early American criminal procedure**: American courts inherited the English pleading framework and would have recognized this plea in the antebellum period, though reported cases are rare. Researchers reviewing early state criminal records may encounter the plea label without finding much doctrinal elaboration in American sources.
- **The gap in modern sources**: Modern criminal procedure addresses the same underlying concern — misidentification of a prisoner subject to a sentence — through habeas corpus, motions to correct judgment, or identity hearings rather than through a formally named plea. A researcher should not expect to find "diversity of person" as a live procedural category in twentieth- or twenty-first-century materials.
- **Trap for the unwary**: Because the word "diversity" dominates modern legal research in the context of federal jurisdiction, search results for "diversity" in legal databases will be overwhelmed by diversity-of-citizenship materials. Researchers must search with precision — pairing "diversity of person" as a phrase, or searching within pre-1900 criminal procedure treatises directly.
Historical Dictionary Support
Bouvier's entry is brief: "The plea of a prisoner in bar of execution that he is not the person convicted." The citation chain runs to Stephens' Commentaries on the Laws of England (4th volume) and to Mozley & Whiteley's Law Dictionary — both English sources. This confirms the plea's origin and primary doctrinal home in English criminal procedure.
Bouvier contributes nothing beyond identification and citation, which itself signals that the plea was never extensively theorized in American legal writing. It was a recognized procedural vehicle, not a site of contested doctrine. Historical dictionaries as a class treat this term minimally, suggesting courts and practitioners rarely needed to debate its scope or elements.
What historical sources do not address: the procedural mechanics of how such a plea was tried (presumably to a jury, as a question of fact), what evidentiary standard applied, or how American courts adapted — or declined to adapt — the plea from English practice. A researcher needing those answers must work outward from Stephens' Commentaries and English precedent rather than from any American authority.
Jurisdictional Note
The plea derives from English common law and would have been available in American jurisdictions that inherited English criminal pleading practice. Modern American law has no uniform equivalent procedural label. The substantive concern — ensuring a sentence is enforced against the right person — is addressed today through mechanisms that vary by jurisdiction.
Encyclopedia Cross-Reference
The most relevant Law Mind Encyclopedia entry is not the diversity jurisdiction article (civpro_3), which addresses an entirely distinct doctrine. No single encyclopedia entry directly covers historical criminal pleading or execution procedure. Researchers may find contextual background in:
- criminal_87: Drug Courts and Diversion Programs — tangentially related only through the word "diversion"; not a substantive match.
No strong encyclopedia cross-reference exists for this term within the available corpus. Researchers should proceed directly to historical criminal procedure treatises.