Oregon v. Kennedy
456 U.S. 667 (1982)
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Rule of Law:
The Double Jeopardy Clause of the Fifth Amendment bars retrial following a defendant-requested mistrial only when the prosecutor's conduct giving rise to the motion was intended to provoke the defendant into moving for a mistrial.
Facts:
- Bruce Kennedy was charged with theft of an oriental rug in Oregon.
- During Kennedy's trial, the State called an expert witness to testify about the rug.
- On cross-examination, Kennedy's attorney elicited from the witness that he had previously filed a criminal complaint against Kennedy.
- On redirect examination, after the court sustained objections to her questions about the complaint, the prosecutor asked the witness if the reason he had not done business with Kennedy was 'because he is a crook?'
- In response to the prosecutor's question, Kennedy's counsel immediately moved for a mistrial.
Procedural Posture:
- After Kennedy's first trial ended in a mistrial granted on his own motion, the State of Oregon sought to retry him.
- Kennedy moved to dismiss the charges, arguing a retrial would violate the Double Jeopardy Clause.
- The Oregon trial court held a hearing, found that the prosecutor did not intend to cause a mistrial, and denied the motion to dismiss.
- Kennedy was convicted at his second trial and appealed.
- The Oregon Court of Appeals (intermediate appellate court), with Kennedy as appellant, reversed the conviction, holding that the prosecutor's 'overreaching' conduct barred retrial even without intent to provoke a mistrial.
- The State of Oregon, as petitioner, successfully sought a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does the Double Jeopardy Clause of the Fifth Amendment bar a second trial after the defendant successfully moves for a mistrial due to prosecutorial misconduct, if the prosecutor did not specifically intend to cause the mistrial?
Opinions:
Majority - Justice Rehnquist
No. The Double Jeopardy Clause does not bar retrial unless the prosecutorial conduct was specifically intended to provoke the defendant into requesting a mistrial. The Court rejects a broader standard of 'overreaching' or 'bad faith' because such standards are amorphous, offer no clear guidance for application, and are difficult to manage. A standard based on intent to 'goad' the defendant into a mistrial is a more manageable, objective standard that calls for a factual finding. When a defendant moves for a mistrial, they are deliberately electing to forgo their right to have their case decided by the first jury, and this choice should be respected unless the prosecutor's specific intent was to subvert that right.
Concurring - Justice Powell
No. I join the Court's opinion but write to emphasize that a court determining a prosecutor's intent should rely primarily on the objective facts and circumstances of the case. In this instance, the misconduct was an isolated question rather than a sequence of improper acts, and the prosecutor appeared surprised by the mistrial motion. These objective facts strongly support the trial court's finding that the prosecutor lacked the intent to cause a mistrial, making retrial permissible under the Double Jeopardy Clause.
Concurring - Justice Brennan
No. I concur in the judgment and join Justice Stevens' opinion. However, the Court's holding on the federal Double Jeopardy Clause does not prevent the Oregon state courts from concluding on remand that a retrial would violate the broader protections of the Oregon Constitution's double jeopardy provision.
Concurring - Justice Stevens
No. While the judgment to permit retrial in this specific case is correct, the majority's opinion is wrong to narrow the established double jeopardy exception. The Court unnecessarily 'lops off' the protection against general prosecutorial 'overreaching' and 'harassment,' limiting the exception only to cases where a defendant can prove the prosecutor specifically intended to provoke a mistrial. This subjective intent standard is nearly impossible for a defendant to prove and fails to protect against other egregious misconduct designed to harass or secure a conviction through unfair prejudice. However, even under the proper, broader 'overreaching' standard, the prosecutor's single improper question here did not rise to the level of misconduct that would bar a retrial.
Analysis:
This case significantly narrowed the scope of the Double Jeopardy Clause's protection following a defendant-requested mistrial. By replacing a vague 'overreaching' or 'bad faith' standard with a specific intent test, the Court created a much higher and more difficult bar for defendants to meet. The decision prioritizes a clear, 'manageable' legal standard over a more flexible, fact-intensive inquiry that might offer broader protection. As a result, it is now exceptionally difficult to bar a retrial based on prosecutorial misconduct, as defendants must prove the prosecutor's subjective state of mind was to provoke the mistrial, not merely to prejudice the jury or win the case through improper means.
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