Caseflicks

Supreme Court of the United States • 1982

Oregon v. Kennedy

456 U.S. 667 | 102 S. Ct. 2083 | 72 L. Ed. 2d 416 | 1982 U.S. LEXIS 111 | 50 U.S.L.W. 4544

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Takeaway

In short, Oregon v. Kennedy holds that a defendant who requests and obtains a mistrial may block retrial on federal double-jeopardy grounds only when the prosecutor intended to provoke that mistrial request.

Background

Kennedy was charged with theft of an oriental rug. At his first trial, the State called a rug expert. Defense counsel sought to show the expert’s bias by eliciting that he had filed a criminal complaint against Kennedy. After the court sustained objections to the prosecutor’s attempts on redirect to explain the complaint, the prosecutor asked the expert whether he had never done business with the Kennedys because “he is a crook.” The trial court granted Kennedy’s motion for a mistrial.

When Oregon sought to retry Kennedy, he argued that double jeopardy barred a second prosecution. Following a hearing, the trial court found that the prosecutor did not intend to cause a mistrial and allowed retrial. Kennedy was convicted. The Oregon Court of Appeals reversed, accepting the finding that the prosecutor did not intend to provoke a mistrial but holding that the prosecutor’s question was sufficiently prejudicial “overreaching” to bar retrial under the Fifth Amendment.

Issues

Issue #1

Whether the Oregon Court of Appeals decision rested on an adequate and independent state-law ground that prevented Supreme Court review.

Holding

No. The Oregon Court of Appeals rested its decision on federal double-jeopardy law, so the Supreme Court could decide the federal question.

Reasoning

The Court read the Oregon Court of Appeals opinion as relying on this Court’s Double Jeopardy Clause precedents. Its formulation of the governing rule drew principally from federal cases, including United States v. Jorn and United States v. Dinitz.

The intermediate court’s citation to its earlier decision in State v. Rathbun did not create an independent state-law ground. That earlier Court of Appeals decision had itself rested on federal law, even though the Oregon Supreme Court later resolved Rathbun on state grounds. In any event, the state court’s substantial reliance on federal law required the Court to reach the merits.

Issue #2

Whether double jeopardy bars retrial after a defendant successfully moves for a mistrial because of prosecutorial misconduct that was not intended to provoke the mistrial motion.

Holding

No. When the defendant obtains a mistrial, retrial is barred only if the prosecutor’s conduct was intended to goad the defendant into requesting a mistrial.

Reasoning

The Double Jeopardy Clause protects a defendant against repeated prosecutions and preserves a valued interest in having the case decided by the first jury. But it does not invariably require the State to complete every prosecution in a single proceeding, because the public also has an interest in fair trials that produce just judgments.

A mistrial declared over the defendant’s objection is governed by the demanding “manifest necessity” standard. That standard does not apply when the defendant requests the mistrial, because the defendant has ordinarily chosen to end the first proceeding rather than continue before the original jury.

The Court recognized a narrow exception for governmental conduct intended to force that choice. If a prosecutor deliberately goads the defendant into seeking a mistrial, treating the defendant’s motion as a waiver of double-jeopardy protection would allow the State to manipulate the proceeding and defeat the defendant’s right to have the first jury decide the case.

The Court rejected a broader rule barring retrial for prosecutorial “overreaching,” harassment, or bad faith not aimed at provoking a mistrial. Such labels provide no sufficiently workable standard: improper questions and evidentiary errors are common in contested trials, and even serious errors that warrant a mistrial do not necessarily reveal an attempt to subvert double-jeopardy protections.

Intent is a manageable factual inquiry that courts routinely make from objective facts and circumstances. The rule also preserves the defendant’s primary control over how to respond to prejudicial error—by seeking a mistrial or continuing the trial and raising the error on appeal—unless the prosecutor deliberately engineered the mistrial request.

Here, the trial court found, and the Oregon Court of Appeals accepted, that the prosecutor did not intend to cause a mistrial. That finding was dispositive under the Court’s rule, so the Fifth Amendment did not bar Kennedy’s retrial.

Concurrences

Justice Powell

Reasoning

Justice Powell joined the Court’s intent-based rule but emphasized that a prosecutor’s subjective state of mind will often be difficult to know directly. Courts therefore should determine intent chiefly from the objective facts and circumstances surrounding the challenged conduct.

The surrounding facts supported the trial court’s finding here. The prosecutor asked only one prejudicial question rather than engaging in a pattern of misconduct, resisted and appeared surprised by the mistrial motion, and testified that she had not intended to cause a mistrial. On this record, Powell agreed that retrial was permissible.

Justice Brennan

Reasoning

Justice Brennan concurred only in the judgment and joined Justice Stevens’s separate opinion. He added that the Court’s decision resolved only the federal Double Jeopardy Clause question and did not prevent Oregon courts, on remand, from holding that retrial violated the Oregon Constitution’s potentially broader protection against double jeopardy.

Justice Stevens

Reasoning

Justice Stevens agreed that retrial was permissible on these facts, but he rejected the majority’s decision to make intent to provoke a mistrial the exclusive exception to the ordinary rule allowing retrial after a defendant requests a mistrial. In his view, the case could and should have been decided by holding that this isolated question did not amount to the overreaching or harassment recognized in prior cases.

Stevens viewed the Double Jeopardy Clause as protecting a defendant’s interest in finality and in having guilt or innocence resolved in one proceeding, while accommodating the public’s interest in a fair adjudication. When serious prosecutorial error leaves a defendant to choose between a tainted trial and a mistrial, that choice is not meaningful if the government has deliberately manipulated the trial in a way that seriously compromises the defendant’s prospects for acquittal.

The exception should therefore extend beyond a prosecutor who specifically seeks a mistrial. Deliberate misconduct intended to harass the defendant through repeated proceedings, or to inject unfair prejudice likely to secure a conviction, can equally make the defendant’s supposed choice hollow even though the prosecutor’s immediate goal is not an aborted trial.

A subjective intent-to-provoke standard would be exceptionally difficult for defendants to prove and would, in Stevens’s view, effectively eliminate a previously recognized safeguard. Courts could instead assess deliberate and egregious misconduct from objective circumstances, reserving a retrial bar for rare cases where the misconduct substantially destroys the defendant’s meaningful choice.

Nonetheless, the record did not establish such a case. The isolated question came early in the trial, the prosecutor was attempting to rehabilitate a witness after defense counsel raised the witness’s accusation against Kennedy, and the question did not create the kind of overwhelming unfair prejudice that would render Kennedy’s decision to seek a mistrial meaningless.