When a prosecution is for a violation of the same statutory provisions and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside.
(2) The former prosecution was terminated, after the information had been filed or the indictment found, by a final order or judgment for the defendant, which has not been set aside, reversed or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment or a plea of guilty or nolo contendere accepted by the court.
(4) The former prosecution was improperly terminated. Except as provided in this subdivision there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict. Termination under any of the following circumstances is not improper:
a. The defendant consents to the termination or waives, by motion to dismiss or otherwise, the right to object to the termination.
b. The trial court declares a mistrial in accordance with law.
11 Del. C. 1953,
§
207;
58 Del. Laws, c. 497,
§
1;
70 Del. Laws, c. 186,
§
1;
Notes of Decisions
Cited in
7
cases (
3 in the last 5 years), 1974–2025 · leading case:
Capano v. State, 889 A.2d 968 (Del. 2006).
Capano v. State, 889 A.2d 968 (Del. 2006).
· cites it 2× “When a prosecution is for a violation of the same statutory provisions and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: The former prosecution resulted in an acquittal which has not subsequently…”
State v. Hamilton, 318 A.2d 624 (Del. Super. Ct. 1974).
“The Court finds, therefore, that the pending indictment is not barred by defendant’s prior conviction in Municipal Court, either under 11 Del.C. §§ 207 and 208 or under recent federal judicial interpretations of the double jeopardy clause of the Fifth Amendment.”
Weber v. May (D. Del. 2022).
· cites it 3× “In turn, the double jeopardy analysis has been codified in 11 Del. Code § 207, which states, in part: There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to…”
Newton v. State (Del. 2015).
· cites it 3× “According to Newton, because the July 2006 resolution of the charges against Jordan absolved Newton of any guilt in the Assault case, any further prosecution of Newton was barred by 11 Del. C. § 207(3). (9) Newton’s claim is without merit.”
Benson v. State (Del. 2020).
“17 deliberations concluded and before the trial court declared a mistrial, that they were unanimously against guilt as to capital murder and first-degree murder charges, but deadlocked on other charges.”
Weber v. May (D. Del. 2023).
“”); and (2) 11 Del. Code § 207 (“There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction.”
State v. Caudle (Del. Super. Ct. 2025).
“23 A defendant may not be convicted of more than one offense if: (1) one offense is included in the 18 11 Del. C. § 207. 19 White v. State, 243 A.”
— 11 Del. C. § 207(1) — 2 cases
Capano v. State, 889 A.2d 968 (Del. 2006).
“When a prosecution is for a violation of the same statutory provisions and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: The former prosecution resulted in an acquittal which has not subsequently…”
Weber v. May (D. Del. 2022).
“In turn, the double jeopardy analysis has been codified in 11 Del. Code § 207, which states, in part: There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to…”
— 11 Del. C. § 207(3) — 1 case
Newton v. State (Del. 2015).
“According to Newton, because the July 2006 resolution of the charges against Jordan absolved Newton of any guilt in the Assault case, any further prosecution of Newton was barred by 11 Del. C. § 207(3). (9) Newton’s claim is without merit.”
— 11 Del. C. § 207(4)(b) — 1 case
Benson v. State (Del. 2020).
“17 deliberations concluded and before the trial court declared a mistrial, that they were unanimously against guilt as to capital murder and first-degree murder charges, but deadlocked on other charges.”
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