OREGON v. KENNEDY
No. 80-1991
Supreme Court of the United States
Argued March 29, 1982—Decided May 24, 1982
456 U.S. 667
Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioner. With him on the brief were William F. Gary, Solicitor General, and Robert E. Barton, John C. Bradley, Thomas H. Denney, and Stephen F. Peifer, Assistant Attorneys General.
Donald C. Walker argued the cause and filed a brief for respondent.
Samuel A. Alito, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and David B. Smith.*
JUSTICE REHNQUIST delivered the opinion of the Court.
The Oregon Court of Appeals decided that the Double Jeopardy Clause of the
I
Respondent was charged with the theft of an oriental rug. During his first trial, the State called an expert witness on the subject of Middle Eastern rugs to testify as to the value and the identity of the rug in question. On cross-examination, respondent‘s attorney apparently attempted to establish bias on the part of the expert witness by asking him whether he had filed a criminal complaint against respondent. The witness eventually acknowledged this fact, but explained that no action had been taken on his complaint. On redirect examination, the prosecutor sought to elicit the reasons why the witness had filed a complaint against respondent, but the trial court sustained a series of objections to this line of inquiry.1 The following colloquy then ensued:
“Prosecutor: Have you ever done business with the Kennedys?
“Witness: No, I have not.
“Prosecutor: Is that because he is a crook?”
The trial court then granted respondent‘s motion for a mistrial.
When the State later sought to retry respondent, he moved to dismiss the charges because of double jeopardy. After a hearing at which the prosecutor testified, the trial court2 found as a fact that “it was not the intention of the prosecutor in this case to cause a mistrial.” 49 Ore. App., at 418, 619 P. 2d, at 949.
Respondent then successfully appealed to the Oregon Court of Appeals, which sustained his double jeopardy claim. That court set out what it considered to be the governing principles in this kind of case:
“The general rule is said to be that the double jeopardy clause does not bar reprosecution, ‘. . . where circumstances develop not attributable to prosecutorial or judicial overreaching, . . . even if defendant‘s motion is necessitated by a prosecutorial error.’ United States v. Jorn, 400 U. S. 470, 485 . . . (197[1]). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant. United States v. Dinitz, 424 U. S. 600, 611 . . . (1976). Accord, State v. Rathbun, 37 Or. App. 259, 586 P. 2d 1136 (1978), reversed on other grounds, 287 Or. 421, [600] P. 2d [392] (1979).” Id., at 417-418, 619 P. 2d, at 949.
The Court of Appeals accepted the trial court‘s finding that it was not the intent of the prosecutor to cause a mistrial. Nevertheless, the court held that retrial was barred because the prosecutor‘s conduct in this case constituted what it viewed as “overreaching.” Although the prosecutor intended to rehabilitate the witness, the Court of Appeals expressed the view that the question was in fact “a direct personal attack on the general character of the defendant.” Id., at 418, 619 P. 2d, at 949. This personal attack left respondent with a “Hobson‘s choice—either to accept a necessarily prejudiced jury, or to move for a mistrial and face the process of being retried at a later time.” Id., at 418, 619 P. 2d, at 950.
Before turning to the merits of the double jeopardy claim, we are met with the respondent‘s contention that the Court
We reject both of these contentions. A fair reading of the opinion below convinces us that the Court of Appeals rested its decision solely on federal law. With one exception, the cases it cited in outlining the “general rule” that guided its decision are decisions of this Court. The Court of Appeals’ citation to State v. Rathbun, 37 Ore. App. 259, 586 P. 2d 1136 (1978), rev‘d, 287 Ore. 421, 600 P. 2d 392 (1979), was clearly to its own decision in that case, rather than the decision of the Oregon Supreme Court. Although the Supreme Court‘s decision in Rathbun was based on state statutory and constitutional grounds, the Court of Appeals’ decision in Rathbun clearly rested on federal grounds, a fact which was so recognized by the Oregon Supreme Court. Id., at 430-431, 600 P. 2d, at 396-397. Even if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977).
II
The Double Jeopardy Clause of the
Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the “manifest necessity” standard first enunciated in Justice Story‘s opinion for the Court in United States v. Perez, 9 Wheat. 579, 580 (1824). Perez dealt with the most common form of “manifest necessity“: a mistrial declared by the judge following the jury‘s declaration that it was unable to reach a verdict. While other situations have been recognized by our cases as meeting the “manifest necessity” standard, the hung jury remains the prototypical example. See, e. g., Arizona v. Washington, 434 U. S. 497, 509 (1978); Illinois v. Somerville, 410 U. S. 458, 463 (1973). The “manifest necessity” standard provides sufficient protection to the defendant‘s interests in having his case finally decided by the jury first selected while at the same time maintaining “the public‘s interest in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.
But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the “manifest necessity” standard has no place in the application of the Double Jeopardy Clause. United States v. Dinitz, supra, at 607-610. Indeed, in United States v. Tateo, 377 U. S. 463, 467 (1964), the Court stated:
“If Tateo had requested a mistrial on the basis of the judge‘s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him” (emphasis in original).
Our cases, however, have indicated that even where the defendant moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial. See, e. g., United States v. DiFrancesco, 449 U. S. 117, 130 (1980); United States v. Dinitz, supra, at 611; United States v. Jorn, supra, at 485; United States v. Tateo, supra, at 468, n. 3. The circumstances under which respondent‘s first trial was terminated require us to delineate the bounds of that exception more fully than we have in previous cases.
Since one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him, it may be wondered as a matter of original inquiry why the defendant‘s election to terminate the first trial by his own motion should not be deemed a renunciation of that right for all purposes. We have recognized, however, that there would be great difficulty in applying such a rule where the prosecutor‘s actions giving rise to the motion for mistrial were done “in order to goad the [defendant] into requesting a mistrial.” United States v. Dinitz, supra, at 611.4 In such a case, the defendant‘s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances. But the precise phrasing of the circumstances which will allow a defendant to interpose the defense of double jeopardy to a second prosecution where the first has terminated on his
“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.”
This language would seem to follow the rule of United States v. Tateo, supra, at 468, n. 3, in limiting the exception to cases of governmental actions intended to provoke mistrial requests. But immediately following the quoted language we went on to say:
“[The Double Jeopardy Clause] bars retrials where ‘bad-faith conduct by judge or prosecutor,’ threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” United States v. Dinitz, 424 U. S., at 611 (citation omitted).
The language just quoted would seem to broaden the test from one of intent to provoke a motion for a mistrial to a more generalized standard of “bad faith conduct” or “harassment” on the part of the judge or prosecutor. It was upon this language that the Oregon Court of Appeals apparently relied in concluding that the prosecutor‘s colloquy with the expert witness in this case amount to “overreaching.”
The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to “prejudice” the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evi-
More serious infractions on the part of the prosecutor may provoke a motion for mistrial on the part of the defendant, and may in the view of the trial court warrant the granting of such a motion. The “overreaching” standard applied by the court below and urged today by JUSTICE STEVENS, however, would add another classification of prosecutorial error, one requiring dismissal of the indictment, but without supplying any standard by which to assess that error.5
By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system. When it is remembered that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system, but in the federal court system on habeas corpus as well, the desirability of an easily applied principle is apparent.
Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on de-
Were we to embrace the broad and somewhat amorphous standard adopted by the Oregon Court of Appeals, we are not sure that criminal defendants as a class would be aided. Knowing that the granting of the defendant‘s motion for mistrial would all but inevitably bring with it an attempt to bar a second trial on grounds of double jeopardy, the judge presiding over the first trial might well be more loath to grant a defendant‘s motion for mistrial.6 If a mistrial were in fact warranted under the applicable law, of course, the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial.7 But some of the advantages secured to him by the Double
In adopting the position we now do, we recognize that language taken from our earlier opinions may well suggest a
“Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant‘s motion is necessitated by prosecutorial or judicial error.”
A footnote attached to this sentence explains, however, that “where a defendant‘s mistrial motion is necessitated by judi-
Because of the confusion which these varying statements of the standard in question have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.
Since the Oregon trial court found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the
It is so ordered.
JUSTICE POWELL, concurring.
I join the Court‘s opinion holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause. Because “subjective” intent often may be unknowable, I empha-
In the present case the mistrial arose from the prosecutor‘s conduct in pursuing a line of redirect examination of a key witness. The Oregon Court of Appeals identified a single question as constituting “overreaching” so serious as to bar a retrial. Yet, there are few vigorously contested lawsuits—whether criminal or civil—in which improper questions are not asked. Our system is adversarial and vigorous advocacy is encouraged.
Nevertheless, this would have been a close case for me if there had been substantial factual evidence of intent beyond the question itself. Here, however, other relevant facts and circumstances strongly support the view that prosecutorial intent to cause a mistrial was absent. First, there was no sequence of overreaching prior to the single prejudicial question. See ante, at 669-670, and n. 1. Moreover, it is evident from a colloquy between counsel and the court, out of the presence of the jury, that the prosecutor not only resisted, but also was surprised by, the defendant‘s motion for a mistrial. See App. 24-29. Finally, at the hearing on respondent‘s double jeopardy motion, the prosecutor testified—and the trial found as a fact and the appellate court agreed—that there was no “intention . . . to cause a mistrial.” Ante, at 669.
In view of these circumstances, the Double Jeopardy Clause provides no bar to retrial.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.
I concur in the judgment and join the opinion of JUSTICE STEVENS. However, it should be noted 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,
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in the judgment.
Unless the Oregon Court of Appeals based its decision on Oregon law,1 this is a case in which the state court should have applied the general rule that a defendant‘s motion for a mistrial removes any double jeopardy bar to retrial. The prosecutor‘s mistake was not the kind of overreaching or harassment identified in our precedents as an exception to the general rule. Instead of explaining why that conclusion is required by settled law, this Court gratuitously lops off a portion of the previously recognized exception. This exercise in lawmaking is objectionable because it is wholly unnecessary and because it compromises an important protection provided by the Double Jeopardy Clause.
I
The Double Jeopardy Clause represents a constitutional policy of finality for the defendant‘s benefit in criminal pro-
The rationale for the exception to the general rule permitting retrial after a mistrial declared with the defendant‘s consent is illustrated by the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial.19 In this situation the defendant‘s choice to continue the tainted proceeding or to abort the proceeding and begin anew is inadequate to protect his double jeopardy interests. For, absent a bar to reprosecution, the defendant would simply play into the prosecutor‘s hands by moving for a mistrial. The defendant‘s other option—to continue the tainted proceeding—would be no option at all if, as we might expect given the prosecutor‘s intent, the prosecutorial error has virtually guaranteed conviction. There is no room in the balance of competing interests for this type of manipulation of the mistrial device. Or to put it another way, whereas we tolerate some incidental infringement upon a defendant‘s double jeopardy interests for the sake of society‘s interest in obtaining a verdict of guilt or innocence, when the prosecutor seeks to obtain an advantage by intentionally subverting double jeopardy interests, the balance invariably tips in favor of a bar to reprosecution.20
To invoke the exception for overreaching, a court need not divine the exact motivation for the prosecutorial error. It is sufficient that the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant‘s choice to continue or to abort the proceeding. It is unnecessary and unwise to attempt to identify all the factors that
No one case, of course, is a proper vehicle for identifying the limits of the exception. The Court repeatedly has shunned inflexible standards in applying the comparable “manifest necessity” exception to the general rule that a de-
II
The petitioner,37 and the state court that denied the respondent‘s motion to dismiss,38 have correctly pointed out that it is unnecessary to cut back on the recognized exception, or even to disavow the most liberal construction given it by the federal courts, to conclude that the exception has not been established on the facts of this case. The isolated prosecutorial error occurred early in the trial, too early to determine whether the case was going badly for the prosecution. If anyone was being harassed at that time, it was the prosecutor, who was frustrated by improper defense objections in her attempt to rehabilitate her witness. The gist of the comment that the respondent was a “crook” could fairly have been elicited from the witness, since defense counsel injected the respondent‘s past alleged improprieties into the trial by questioning the witness about his bias towards the
Because the present case quite clearly does not come within the recognized exception, I join the Court‘s judgment. I cannot, however, join the Court‘s opinion because it totally fails to justify its disavowal of the Court‘s precedents.
Notes
First, the rule espoused by JUSTICE STEVENS is anything but a rule of “black letter law.” We are admonished that “[i]t is unnecessary and unwise to attempt to identify all the factors that might inform the court‘s judgment.” Ibid. Second, appellate courts have traditionally given weight to a trial court‘s assessment as to the necessity for a mistrial in deciding questions of double jeopardy. As this Court said in Gori v. United States, 367 U. S. 364, 368 (1961):
“Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be obtained without discontinuing the trial, a mistrial may be declared without the defendant‘s consent and even over his objection, and he may be retried consistently with the
It seems entirely reasonable to expect, therefore, that appellate judges will continue to defer to the judgment of trial judges who are “on the scene” in this area, and that they will not inexorably reach the same conclusion on a cold record at the appellate stage that they might if any one of them had been sitting as a trial judge. And a trial judge trying to faithfully apply the amorphous standard enunciated by JUSTICE STEVENS could surely be forgiven if in cases he regarded as extremely close he resolved the doubt in favor of continuing a trial to its conclusion rather than aborting it. Society‘s interest, of course, is not simply to convict the guilty. Rather, its interest is “in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.
Thus, it is quite inaccurate to suggest that our previous cases have single-mindedly adhered to one rule in cases such as this, and that we are now “lopping off” a part of that rule. However this case is decided, we are faced with a choice between two differing lines of authority in our own recent precedents; for the reasons stated in the text, supra, at 674-677, we think that the better arguments favor the rule which we adopt. But JUSTICE STEVENS, no less than we, chooses one of two differing rules; the state of our case law indicates that the justification for the choice must be based upon principle, and not authority. See United States v. Dinitz, 424 U. S. 600, 609.
“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecu- tions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, at 485, threatens the ‘[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U. S., at 736. See Gori v. United States, 367 U. S., at 369; United States v. Jorn, supra, at 489 (STEWART, J., dissenting); cf. Wade v. Hunter, 336 U. S., at 692.
“But here the trial judge‘s banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner ‘was guilty of improper conduct’ during his opening statement which ‘may have justified disciplinary action,’ 492 F. 2d, at 60-61. Even accepting the appellate court‘s conclusion that the trial judge overreacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge‘s action was motivated by bad faith or undertaken to harass or prejudice the respondent.” 424 U. S., at 611 (footnote omitted).
The exception was also unsuccessfully claimed in Lee v. United States, 432 U. S. 23. In Lee the defendant had moved to dismiss a defective information prior to the attachment of jeopardy. The trial court tentatively denied the motion, but then granted it at the close of the evidence. Treating the motion to dismiss as a motion for a mistrial, this Court quoted extensively from Dinitz for the statement of the exception and then explained why the exception had not been established:
“It follows under Dinitz that there was no double jeopardy barrier to petitioner‘s retrial unless the judicial or prosecutorial error that prompted petitioner‘s motion was ‘intended to provoke’ the motion or was otherwise ‘motivated by bad faith or undertaken to harass or prejudice’ petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor‘s failure to draft the information properly and the court‘s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error—even assuming the court‘s action could be so characterized—was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court‘s failure to postpone the taking of evidence until it could give full consideration to the defendant‘s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise im- press upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.” 432 U. S., at 33-34 (footnote omitted).
For other descriptions of the overreaching or harassment exception, see, e. g., Arizona v. Washington, supra, at 508 (“using the superior resources of the State to harass or to achieve a tactical advantage over the accused“) (footnote omitted); Illinois v. Somerville, 410 U. S. 458, 464 (error “that would lend itself to prosecutorial manipulation“); United States v. Jorn, 400 U. S., at 485 (“prosecutorial . . . overreaching“); id., at 485, n. 12 (“prosecutorial impropriety designed to avoid an acquittal“); United States v. Tateo, 377 U. S. 463, 468, n. 3 (“prosecutorial . . . impropriety . . . result[ing] from a fear that the jury was likely to acquit the accused“).
Second, the Court is “not sure that criminal defendants as a class would be aided” by a broader exception. Ante, at 676. If a mistrial will more frequently constitute a bar to reprosecution, the Court supposes that trial judges will tend to refuse the defendant‘s mistrial motion and permit the error to be corrected on appeal of the conviction, in which event there would be no bar to reprosecution. This reasoning is premised on the assumption that an appellate court that concluded not only that the defendant‘s mistrial motion should have been granted but also that the prosecutor intended to provoke a mistrial would not be obligated to bar reprosecution as well as reverse the conviction. The assumption is “irrational.” Commonwealth v. Potter, 478 Pa. 251, 282, 386 A. 2d 918, 933 (1978) (Roberts, J.); see id., at 259-260, 386 A. 2d, at 921-922 (Pomeroy, J.); Westen & Drubel, supra, at 103, 106, n. 130; see generally Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 773-776 (1980).