Del. C. » Title 11 — Delaware Criminal Code · CHAPTER 2. General Provisions Concerning Offenses · Crimes and Criminal Procedure
Delaware Code

11 Del. C. § 208 (2026)

When prosecution is barred by former prosecution for different offense

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Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in § 207 of this title and the subsequent prosecution is for:

a. Any offense of which the defendant could have been convicted on the first prosecution; or

b. The same conduct, unless:

1. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or

2. The second offense was not consummated when the former trial began.

(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.

(3) The former prosecution was improperly terminated as improper termination is defined in § 207(4) of this title and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

11 Del. C. 1953, §  208;  58 Del. Laws, c. 497, §  1; 
Notes of Decisions
Cited in 3 cases, 1974–2018 · leading case: State v. Esham, 321 A.2d 512 (Del. Super. Ct. 1974).
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State v. Esham, 321 A.2d 512 (Del. Super. Ct. 1974). · cites it 2× “Defendant has moved to bar prosecution of the present case, contending that this prosecution violates 11 Del.C. § 208. 1 Defendant contends that he was required to defend against the charge of the September 14, 1972 sale at the prior trial, and, therefore, the present charge…”
Holland v. State, No. 44, 2016 (Del. Mar. 22, 2017). · cites it 12× “First, he argues that the Superior Court incorrectly interpreted 11 Del. C. § 208. He contends the statute in fact bars his indictment for Attempted Robbery.”
State v. MacDonough, No. 1704004345 (Del. Super. Ct. Jan. 12, 2018). “24 Defendant also had raised a third contention in his Amended Motion that prosecution is barred under 11 Del. C. § 208. Def.’s Am. Mot. at 2-3.”
11 Del. C. § 208(1)(b)(1): 1 case
Holland v. State, No. 44, 2016 (Del. Mar. 22, 2017). “First, he argues that the Superior Court incorrectly interpreted 11 Del. C. § 208. He contends the statute in fact bars his indictment for Attempted Robbery.”
11 Del. C. § 208(2): 1 case
Holland v. State, No. 44, 2016 (Del. Mar. 22, 2017). “First, he argues that the Superior Court incorrectly interpreted 11 Del. C. § 208. He contends the statute in fact bars his indictment for Attempted Robbery.”
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