456 U.S. 667 (1982)
Respondent Kennedy was indicted for the theft of an oriental rug.1
During his first trial, the State called an expert witness on Middle Eastern rugs to testify as to the value and identity of the rug.2 On cross-examination, respondent's attorney asked the witness whether he had filed a criminal complaint against respondent, and the witness acknowledged this fact but explained that no action had been taken.3
On redirect examination, after objections to questions about the reasons for the complaint were sustained, the prosecutor asked the witness if he had ever done business with the Kennedys, to which the witness replied no, and then asked if that was because he is a crook.4 Defense counsel objected and moved for a mistrial, which the trial court granted.5
When the State sought to retry respondent, he moved to dismiss on double jeopardy grounds.6 After a hearing where the prosecutor testified, the trial court found that it was not the prosecutor's intention to cause a mistrial and denied the motion.7 Respondent was then tried and convicted.8
The Oregon Court of Appeals reversed, holding that the prosecutor's conduct constituted overreaching that barred retrial under the Double Jeopardy Clause, even though it accepted the finding of no intent to cause mistrial.9 The Oregon Supreme Court affirmed that decision.10 The United States Supreme Court granted certiorari to review the case.11
Whether the Double Jeopardy Clause bars retrial after a mistrial granted on the defendant's motion when the prosecutor engaged in overreaching conduct?12
The Double Jeopardy Clause of the Fifth Amendment protects a defendant against repeated prosecutions for the same offense.13 It affords a valued right to have the trial completed before a particular tribunal.14 A defendant's motion for mistrial ordinarily removes any bar to retrial unless the governmental conduct is intended to goad the defendant into moving for a mistrial.15
No. The trial court found as a fact after a hearing at which the prosecutor testified that it was not the intention of the prosecutor in this case to cause a mistrial.16 The Oregon Court of Appeals accepted that finding yet still held retrial barred under a broader overreaching standard because the question constituted a direct personal attack leaving the defendant with a Hobson's choice.17 The prosecutor's single question on redirect after sustained objections to other inquiries was not part of any sequence of overreaching and occurred too early in the trial to suggest an effort to avoid an acquittal.18
The Double Jeopardy Clause does not bar retrial of respondent Kennedy.19
Related opinions on this issue
Joined by Justices Brennan, Marshall, And Blackmun
Justice Stevens concurs in the judgment.20 He agrees that the isolated prosecutorial error occurred early in the trial.21 The comment could fairly have been elicited given defense counsel's injection of bias issues.22
Therefore the exception for overreaching was not established on these facts.23 He criticizes the majority for gratuitously limiting the exception to intent to provoke a mistrial.24 The Court should have retained the previously recognized categories of overreaching or harassment that render the defendant's choice to continue or abort unmeaningful.25
Whether the proper standard for determining whether double jeopardy bars retrial after a mistrial granted on the defendant's motion is the prosecutor's intent to provoke the motion rather than a broader overreaching standard?26
Only where the governmental conduct in question is intended to goad the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.27 The intent standard is a manageable rule that calls for a finding of fact from objective circumstances.28 The broader overreaching standard offers virtually no standards for application and would bar retrial in a wider range of circumstances.29
Yes. The Oregon courts applied the broader overreaching standard that bars retrial whenever prosecutorial error is motivated by bad faith or undertaken to harass or prejudice the defendant.30 That standard is not the proper one.31 The intent-based standard best accommodates the defendant's interest in finality before the first tribunal with society's interest in one full and fair opportunity to obtain a verdict.32
The trial court's factual finding of no intent to cause a mistrial ends the double jeopardy inquiry under the correct rule.33
The proper standard is whether the prosecutor intended to provoke the defendant into moving for a mistrial.34
Related opinions on this issue
Justice Powell joins the opinion.35 He emphasizes that because subjective intent is often unknowable a court should rely primarily upon the objective facts and circumstances of the particular case.36 In this case the absence of any sequence of overreaching prior to the single question confirms that prosecutorial intent to provoke a mistrial was absent.37
The prosecutor's surprise and resistance to the mistrial motion further supports this conclusion.38 The trial court's factual finding of no intention to cause a mistrial also confirms the absence of intent.39
Joined by Justice Marshall
Justice Brennan concurs in the judgment and joins in the opinion of Justice Stevens.40 He notes that nothing in the holding of the Court today prevents the state courts on remand from concluding that respondent's retrial would violate the provision of the Oregon Constitution that prohibits double jeopardy.41 State courts remain free to apply their own constitutional protections after the federal issue is resolved, consistent with precedents recognizing independent state grounds.42
Joined by Justices Brennan, Marshall, And Blackmun
Justice Stevens concurs in the judgment. He agrees that the isolated prosecutorial error occurred early in the trial. The comment could fairly have been elicited given defense counsel's injection of bias issues.
Therefore the exception for overreaching was not established on these facts. He criticizes the majority for gratuitously limiting the exception to intent to provoke a mistrial. The Court should have retained the previously recognized categories of overreaching or harassment that render the defendant's choice to continue or abort unmeaningful.