Definition
Former jeopardy is the condition of having already been placed in legal peril for a particular offense, such that a second prosecution for the same offense is barred. It is the factual and procedural predicate that gives life to the double jeopardy defense: once a defendant has been put to trial on a criminal charge before a court of competent jurisdiction, and jeopardy has attached, that defendant cannot be tried again for the same offense by the same sovereign.
The term is most commonly encountered as a plea — the plea of former jeopardy — which the defendant enters to assert that a pending prosecution is constitutionally or statutorily barred because a prior prosecution already placed them in jeopardy for the identical offense. A successful plea results in dismissal of the subsequent charge.
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Common Confusion
Former jeopardy and double jeopardy are related but not interchangeable. Double jeopardy is the constitutional protection — the right guaranteed by the Fifth Amendment and its state equivalents. Former jeopardy is the pleading vehicle and the factual condition asserted to invoke that protection. A defendant pleads former jeopardy; the constitutional doctrine that sustains the plea is double jeopardy. Researchers using historical sources will encounter both terms used loosely, sometimes interchangeably, which can obscure whether a source is discussing the procedural plea, the constitutional rule, or the point at which jeopardy first attached.
Former jeopardy should also be distinguished from former acquittal and former conviction, which are specific types of former jeopardy pleas. Former jeopardy is the umbrella; the others specify what happened in the prior proceeding.
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Core Elements
For a plea of former jeopardy to succeed, courts have required that the following be identical across both prosecutions:
1. THE ACCUSED — The same defendant must have been placed in jeopardy in the prior proceeding.
2. THE SOVEREIGNTY — The prosecuting sovereign must be the same. A federal prosecution does not bar a subsequent state prosecution for the same underlying conduct, and vice versa, under the dual sovereignty doctrine.
3. THE OFFENSE — Both the act and the legal crime charged must be identical, or the second offense must be the same in law as the first under the applicable same-elements test.
4. JEOPARDY MUST HAVE ATTACHED — The prior proceeding must have reached the point at which jeopardy attaches: in a jury trial, when the jury is sworn; in a bench trial, when the first witness is sworn. A proceeding dismissed before that point does not support a former jeopardy plea.
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Why It Matters in Research
The terminology has layered over time in ways that create traps for historical corpus research. In older sources — including Bouvier's and nineteenth-century case reporters — former jeopardy, autrefois acquit, autrefois convict, and double jeopardy appear as near-synonyms or are used interchangeably depending on whether the author is discussing the plea form, the constitutional rule, or the common law antecedent. Researchers should not assume consistency of usage across eras.
The sovereignty element is a persistent source of doctrinal complexity and historical divergence. Early American sources often treated the sovereignty requirement loosely; the dual sovereignty doctrine as a robust, consistently applied rule is a product of later federal jurisprudence. Historical sources predating the mid-twentieth century may not reflect the modern doctrine accurately.
The Bouvier's entry excerpted here flags a practical application point that remains significant: where a statute grants the government a right of appeal following an acquittal or a favorable ruling, former jeopardy questions arise immediately. Whether such an appeal itself constitutes placing the defendant in jeopardy a second time was contested in early cases and resolved differently across jurisdictions and time periods. Corpus researchers examining state penal statutes and appeals-by-the-prosecution questions should note that the Bouvier's excerpt addresses misdemeanor and fine-only contexts, where the jeopardy analysis could differ from felony proceedings.
Researchers working in tax law should note that jeopardy has a separate technical meaning in that context — jeopardy assessments — which is unrelated to former jeopardy as a criminal defense doctrine. The shared vocabulary can generate false corpus matches.
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Historical Dictionary Support
Bouvier's treats former jeopardy primarily through the lens of the plea's requirements, emphasizing the triple identity rule: same accused, same sovereignty, same offense (as to both act and crime). This formulation is consistent with the common law framework that American courts inherited and is still recognizable in modern doctrine, though the language has been refined.
What Bouvier's does not address — and what historical dictionaries generally underserve — is the attachment question: the mechanics of when jeopardy first attaches and what procedural events are sufficient to trigger former jeopardy protection. That doctrine developed substantially through twentieth-century case law and is not well captured in any of the standard historical dictionary sources. Researchers relying solely on Bouvier's or similar period sources will find the attachment rules underdeveloped or absent.
Bouvier's reference to the Commonwealth's statutory right of appeal in misdemeanor and fine-only cases gestures at a genuine doctrinal fault line: courts were divided on whether a government appeal following an acquittal constituted a second jeopardy, and the resolution varied by jurisdiction and by the type of proceeding involved.
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Jurisdictional Note
The dual sovereignty doctrine means that former jeopardy analysis is inherently jurisdiction-sensitive: a prior federal prosecution does not bar a subsequent state prosecution and vice versa. Within a single sovereign, state constitutional double jeopardy provisions sometimes afford broader protection than the federal Fifth Amendment floor, affecting how courts in those states apply the former jeopardy plea.
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Encyclopedia Cross-Reference
Double Jeopardy — Attachment and Scope (The Law Mind Criminal Law Encyclopedia) — primary reference for the constitutional doctrine underlying the plea.
Jeopardy Assessments (The Law Mind Tax Encyclopedia) — for distinguishing the unrelated tax-law usage of jeopardy terminology.
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