Oregon v. Kennedy - 456 U.S. 667, 102 S. Ct. 2083 (1982)

Rule:

Where there is prosecutorial error of a degree sufficient to warrant a mistrial, the important consideration for purposes of the Double Jeopardy Clause is that the defendant retain primary control over the course to be followed in the event of such error. 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. 

Facts:

During Kennedy’s trial for theft in an Oregon state court, the State's expert witness testified as to the value and identity of the property involved. On cross-examination, he acknowledged that he had once filed an unrelated criminal complaint against Kennedy, but explained that no action had been taken on his complaint. On redirect examination, the court sustained a series of objections to the prosecutor's questions seeking to establish the reasons why the witness had filed a complaint against respondent. After eliciting from the witness that he had never done business with Kennedy, the prosecutor asked: "Is that because he is a crook?" The trial court then granted Kennedy’s motion for a mistrial. On retrial, the court rejected Kennedy’s contention that the Double Jeopardy Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment, barred further prosecution, finding that "it was not the intention of the prosecutor in this case to cause a mistrial." Respondent was convicted, but the Oregon Court of Appeals reversed, sustaining the double jeopardy claim because the prosecutorial misconduct that had occasioned the mistrial, even if not intended to cause a mistrial, amounted to "overreaching."

Issue:

Was the second trial of Kennedy barred by double jeopardy clause?

Answer:

No.

Conclusion:

The Court held that Kennedy may not invoke the bar of the double jeopardy clause of the Fifth and Fourteenth Amendments against a second trial except in those cases in which the prosecutorial or judicial conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. The court of appeals decision was based solely on federal law, and because the state trial court found, and the state court of appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial was not so intended by the prosecutor, there was no Fifth Amendment violation.