People Of Mi V Devante Kyran JenningsPeople Of Mi V Devante Kyran Jennings
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Devante K. Jennings was convicted, following a jury trial in the Macomb Circuit Court, of carrying a concealed weapon,
On appeal, the Court of Appeals, RICK, P.J., and LETICA, J. (SHAPIRO, J., dissenting), affirmed in a split, unpublished opinion, issued April 20, 2023 (Docket No. 359837), holding that retrial was not barred under Oregon v Kennedy, 456 US 667 (1982), because the record indicated that the prosecutor‘s error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial. Judge SHAPIRO would have determined that retrial was barred under Kennedy, but he also urged the Michigan Supreme Court to adopt the standard set forth by the Arizona Supreme Court in Pool v Superior Court, 139 Ariz 98, 108 (1984), because it was easier to apply than Kennedy‘s subjective standard and was a more appropriate means of protecting the right against double jeopardy and deterring prosecutorial misconduct. Defendant sought leave to appeal in the Michigan Supreme Court, and the Court ordered oral argument on the application, 513 Mich 977 (2024). Following oral argument, the Court granted leave to appeal. ___ Mich ___; 19 NW3d 329 (2025).
The standard announced by the United States Supreme Court in Kennedy for determining when double-jeopardy principles bar retrial on the basis of prosecutorial misconduct conflicts with the double-jeopardy protections guaranteed by
- The federal standard from Kennedy, under which a mistrial declared due to prosecutorial misconduct bars retrial only if the prosecution intended to goad the defense into moving for one, fails to reflect the intent of the ratifiers of the 1963 Constitution, and that standard is rejected under Article 1, § 15; instead, the Pool test from the Arizona Supreme Court is adopted because it better effectuates the double-jeopardy protections guaranteed by Article 1, § 15 and this Court‘s pre-Kennedy pronouncements on this issue.
Both
Although there is no general presumption that federal interpretations of federal law control state interpretations of state law, the history and circumstances surrounding the adoption of Article 1, § 15 indicate an intertwined relationship between the historic interpretations of the Fifth
- Under Article 1, § 15, retrial is barred when the elements articulated in Pool are satisfied. Because Kennedy does not govern by default, the more nuanced issue presented in this case is when improper prosecutorial conduct bars retrial under Article 1, § 15. Neither the plain text of Article 1, § 15 nor pre-1963 precedent directly addresses the precise issue at hand. But by 1963, well-established double-jeopardy principles protected defendants from the declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict, as well as from harassment by successive prosecutions. These principles also safeguarded a defendant‘s valued right to have his trial completed by a particular tribunal that may be favorably disposed to his fate. As recognized in Kennedy, a defendant‘s valued right to complete their 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 protections guaranteed by Article 1, § 15 are similarly diluted when, e.g., a mistrial is declared after the prosecutor intentionally engages in egregious misconduct to avoid an acquittal or harass the defendant rather than to goad the defendant into moving for a mistrial. Double-jeopardy protections should apply the same way in that scenario as they do in goading cases.
Therefore, because the unduly rigid Kennedy standard conflicts with longstanding principles of double-jeopardy law and fails to fully realize the protections ensured by Article 1, § 15, Kennedy is rejected under state law. Instead, Pool is adopted as more in line with both longstanding double-jeopardy principles incorporated into our state Constitution and Michigan‘s pre-Kennedy caselaw on this subject, which recognized a similar, broader standard. But a defendant still bears a heavy burden to bar retrial under this standard, and only intentional misconduct that necessitates a mistrial opens the door to barring retrial. Consequently, this holding should not be read to suggest that all instances of prosecutorial error or misconduct implicate the protections guaranteed by Article 1, § 15.
Court of Appeals judgment vacated; case remanded to the trial court.
Justice ZAHRA, joined by Justice BERNSTEIN, dissenting, concluded that the majority acted without judicial restraint by overruling this Court‘s adoption of the Kennedy standard in People v Dawson, 431 Mich 234, 236 (1988), and by arbitrarily adopting the Pool standard. Moreover, this case was not a proper vehicle for adopting a new standard because neither the Kennedy test nor the Pool test was satisfied. This Court determined in People v Nutt, 469 Mich 565, 591 (2004), that the ratifiers of our Constitution intended that Article 1, § 15 was to be construed consistently
CAVANAGH, C.J.
When a criminal defendant successfully moves for a mistrial based on prosecutorial misconduct, federal double-jeopardy protections bar retrial only when the “conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v Kennedy, 456 US 667, 679; 102 S Ct 2083; 72 L Ed 2d 416 (1982). This case calls on us to consider whether the narrow standard first announced in Kennedy properly effectuates the double-jeopardy protections guaranteed by Article 1,
I. FACTUAL AND PROCEDURAL HISTORY
A. FACTS UNDERLYING THE CRIME
In the predawn hours of April 30, 2019, defendant was involved in an incident in which a firearm was discharged outside of a Clinton Township apartment building. After someone fired a handgun several times into the air, three individuals—including the shooter—left the scene in a white Dodge Charger. Defendant, who was driving the car, was stopped by police after a witness reported the incident and provided a vehicle description. Officers searched the car and discovered a loaded handgun with an obliterated serial number in the glovebox. The ammunition in the gun matched the spent shell casings recovered outside the apartment. None of the occupants of the car had a concealed pistol license, nor was the gun registered to any of them.
Later that day, Clinton Township Police Detective Carl Simon interviewed defendant about the incident. Defendant made several admissions during this interview, including that he was at the apartment building, that there was a disturbance there, and that he was the driver of the car, which was registered in his and his father‘s name. But when Detective Simon asked defendant for permission to obtain a DNA swab to determine
B. TRIAL COURT PROCEEDINGS
Based on these facts, defendant was charged with carrying a concealed weapon (CCW) in a motor vehicle contrary to
The prosecutor returned to the topic of defendant‘s interview during closing arguments. Specifically, the prosecutor stated that defendant had “agreed to waive his [Miranda] rights, he said he understood everything, . . . but low and behold [sic], after answering a few questions he says, no, I don‘t want to talk anymore.” The prosecutor cited
[L]ike, well, okay, if I start going down this road further I am going to get into some territory that‘s not good for me. I am going to start making admissions that I know are going to push me in further trouble. Maybe if I keep my mouth shut at this point, I can kind of walk out of this.
The record also reflects that the prosecutor included the words “guilty conscience” on a board shown to the jury. Again, defense counsel did not object to the prosecutor‘s argument.
After closing arguments concluded and the jury was excused for deliberation, the trial court instructed the prosecutor and defense counsel to remain in the courtroom to discuss a “concern.” That “concern” stemmed from the prosecutor‘s argument regarding defendant‘s invocation of his right to remain silent. The trial court explained that the prosecutor had “essentially weaponized” defendant‘s invocation “as consciousness of guilt” and the court concluded that it was “potentially prosecutorial misconduct.”
In response, defense counsel requested a mistrial. After the parties were allowed to briefly research the issue, the prosecutor sought a curative instruction that would explain how defendant had a right to remain silent, that defendant‘s invocation of that right cannot be used against him, and that “[a]ny evidence [sic] in this regard is stricken from the record.” The trial court asked the prosecutor if he was conceding error, to which the prosecutor answered in the affirmative. The trial court then explained that a prosecutor cannot comment on a defendant‘s invocation of his right to remain silent after he has been accused or brought into custody and arrested. Because “[t]here‘s no unringing this bell,”
That same day, the parties reappeared before the trial court to discuss scheduling a second trial. Defense counsel argued that retrial was barred on double-jeopardy grounds. The trial court, however, agreed with the prosecutor that a second trial would not violate defendant‘s double-jeopardy rights because the record lacked evidence that the prosecutor specifically intended to provoke defendant into moving for a mistrial. The trial court also cited defense counsel‘s lack of objections, adding that “I‘m not even sure that we would have a mistrial motion brought before this Court if this Court did not highlight the fact that the prosecution had overstepped their bounds.” Accordingly, the trial court denied defendant‘s request to bar retrial.
Defendant‘s second trial followed in February 2020. Although the prosecution called the same witnesses at the second trial, its theory of the case was somewhat different. At the first trial, the prosecution posited that defendant may have been the person who shot the gun, although there were some discrepancies between the descriptions of the shooter‘s clothing and the clothes defendant was wearing when he was stopped by the police. At the second trial, the prosecution proceeded on an aiding-and-abetting theory and argued that defendant was not the person who shot the gun. At the end of this trial, a jury convicted him of CCW. The trial court subsequently sentenced defendant to serve one to five years in prison.
Defendant appealed his conviction, and the Court of Appeals affirmed in a split decision. People v Jennings, unpublished per curiam opinion of the Court of Appeals, issued April 20, 2023 (Docket No. 359837). Relevant here, the majority rejected defendant‘s argument that double-jeopardy principles barred his retrial. Id. at 4. Applying the rule from Kennedy—that retrial is impermissible only when the prosecutor intended to goad the defense into moving for a mistrial—the majority first observed that “the prosecutor did not concede that he intended to cause a mistrial.” Id. The prosecutor instead explained that his goal was to convict defendant. Id. Moreover, the majority reasoned that “the record indicates that the prosecutor‘s error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial in this relatively straight-forward case.” Id. Consequently, the majority held that defendant‘s double-jeopardy rights were not violated when he was retried. Id.
Judge SHAPIRO dissented. He would have held that, even under the stringent Kennedy standard, double-jeopardy principles barred defendant‘s retrial because the “prosecutor‘s questions and closing argument were not minor foot faults.” Id. (SHAPIRO, J., dissenting) at 3. Indeed, the errors were serious enough for the trial court “to sua sponte raise the question of a mistrial.” Id. On these facts, Judge SHAPIRO concluded that “there was an intent to cause a mistrial, or at minimum to take the very substantial risk that one would be granted in order to introduce prejudicial and unconstitutional evidence.” Id.
Judge SHAPIRO added that the test under the Michigan Constitution should differ from the one announced in Kennedy. See id. at 1, 4. In his view, establishing “that a prosecutor specifically intended to cause a mistrial insufficiently protects the principles of
Defendant next sought leave to appeal in this Court. We first ordered oral argument on the application, directing the parties to address
whether the Double Jeopardy Clauses of the United States Constitution,
US Const, Am V ,XIV , and the Michigan Constitution,Const 1963, art 1, § 15 , barred the defendant‘s retrial. The parties shall specifically address: (1) what standard the Court should apply to determine whether prosecutorial misconduct bars retrial under Michigan‘s Double Jeopardy Clause, see, e.g., [Kennedy, 456 US at 676]; Pool[, 139 Ariz at 108-109]; State v McClaugherty, 144 NM 483, 491[; 2008-NMSC-044; 188 P3d 1234] (2008); Commonwealth v Smith, 532 Pa 177, 186[; 615 A2d 321] (1992); People v Batts, 30 Cal 4th 660, 695-696[; 68 P3d 357] (2003); State v Rogan, 91
Hawai‘i 405, 423-424[; 984 P2d 1231] (1999); and (2) whether retrial was impermissible in this case. [People v Jennings, 513 Mich 977, 977 (2024).]
After hearing oral argument on the application, we granted leave to appeal. Our order directed the parties to address the following additional issues:
(1) whether there is a “compelling reason” under the Michigan Constitution to adopt a different test from the one set forth in [Kennedy, 456 US at 675-676], to determine whether prosecutorial misconduct bars retrial, see People v Bullock, 440 Mich 15, 28-35[; 485 NW2d 866] (1992); but see People v Nutt, 469 Mich 565, 590[; 677 NW2d 1] (2004); (2) if so, whether this Court should adopt a test from another state or develop factors that expound on the “bad faith” test previously adopted in Michigan, see United States v Dinitz, 424 US 600, 611[; 96 S Ct 1075; 47 L Ed 2d 267] (1976); People v Anderson, 409 Mich 474, 485[; 295 NW2d 482] (1980); Pool[, 139 Ariz at 108-109]; and People v Tyson, 423 Mich 357, 371-372[; 377 NW2d 738] (1985); and (3) whether retrial was permissible in this case. [People v Jennings, ___ Mich ___, ___; 19 NW3d 329, 329-330 (2025).]
II. STANDARD OF REVIEW AND GENERAL PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
We review de novo questions of state constitutional interpretation. People v Parks, 510 Mich 225, 245; 987 NW2d 161 (2022). This Court is “the ultimate authority with regard to the meaning and application of Michigan law.” Bullock, 440 Mich at 27. Similarly, a “double-jeopardy challenge presents a question of constitutional law that this Court reviews de novo.” Nutt, 469 Mich at 573.
When interpreting the Michigan Constitution, our “primary objective” is to “determine the text‘s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). We thus aim to “realize the intent of the people by whom and for whom the constitution was ratified.” Studier v Mich Pub Sch Employees Retirement Bd, 472 Mich 642, 652; 698 NW2d 350 (2005) (quotation marks and citation omitted). We must also consider “the
III. ANALYSIS
This case concerns the scope of double-jeopardy protections afforded by Article 1, § 15, of Michigan‘s 1963 Constitution. In particular, we must determine the circumstances under which retrial is barred when a mistrial is declared based on improper prosecutorial conduct. Before turning to the question of whether the Michigan Constitution affords greater protection than its federal analogue in this realm, we first outline fundamental double-jeopardy principles that guide our analysis. We then turn to the different lines of cases applying these principles to circumstances similar to those presented in this case. Finally, because we conclude that the federal standard debuted in Kennedy, 456 US 667, fails to reflect the intent of those who ratified Michigan‘s 1963 Constitution two decades earlier, we reject that standard under Article 1, § 15. We instead adopt the test set forth by the Arizona Supreme Court in Pool, 139 Ariz 98,3 as that test better effectuates the double-
A. DOUBLE-JEOPARDY BACKGROUND
Broadly speaking, both the Michigan and United States Constitutions protect against being twice placed in jeopardy for the same offense.
Against this backdrop, Article 1, § 15 and the Fifth Amendment have been construed as prohibiting both successive prosecutions and multiple punishments for the same offense. Id. at 575 & n 11. At issue in this case is the protection against successive prosecutions. The “principal thrust” of double-jeopardy protection under “our federal and state constitutional provision[s] is protection from repeated prosecutions for the same criminal offense arising out of the same conduct.” People v Harding, 443 Mich 693, 705; 506 NW2d 482 (1993). This venerable safeguard is “deeply ingrained in at least the Anglo-
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Id.]5
Put another way, the prohibition on successive prosecutions ensures that the state cannot “repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment.” People v Dawson, 431 Mich 234, 250; 327 NW2d 886 (1988).
The protection against successive prosecutions has also been described as insulating a “defendant‘s valued right to have his trial completed by a particular tribunal . . . .” Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949). This right furthers the defendant‘s interest of “being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v Jorn, 400 US 470, 486; 91 S Ct 547; 27 L Ed 2d 543 (1971).
The bar on successive prosecutions also serves as a check on state-sanctioned gamesmanship. As the United States Supreme Court has explained, “Implicit in this is the thought that if the Government may reprosecute, it gains an advantage from what it learns
For these reasons, the general rule is that a prosecutor is entitled “to one, and only one, opportunity to require an accused to stand trial.” Arizona v Washington, 434 US 497, 505; 98 S Ct 824; 54 L Ed 2d 717 (1978). And because jeopardy usually attaches once the jury is “selected and sworn,”6 this constitutional guarantee advances “an accused‘s interest in avoiding multiple prosecutions even where no determination of guilt or innocence has been made.” People v Lett, 466 Mich 206, 215; 644 NW2d 743 (2002). In other words, double-jeopardy protections kick in at the beginning of trial, not at the end after the jury returns its verdict. Dawson, 431 Mich at 251 (“An accused is placed in jeopardy as soon as the jury is selected and sworn. Hence, double jeopardy protection attaches before the conclusion of the trial.“).7
First, when a mistrial is declared over the defendant‘s objection (often at the request of the prosecutor), retrial is usually barred unless “the mistrial is occasioned by ‘manifest necessity.’ ” Lett, 466 Mich at 215 (citations omitted).8 The most common type of
The second rule applies when, as here, the defense seeks and secures a mistrial. “Where the motion for mistrial was made by defense counsel, or with his consent, and the mistrial was caused by innocent conduct of the prosecutor or judge, or by factors beyond their control, or by defense counsel himself,” retrial is typically permitted. Dawson, 431 Mich at 253. The premise of this rule is that the defendant himself has elected to terminate the first trial, arguably waiving any double-jeopardy claim. See id. at 254. But where “the successful mistrial motion is precipitated by” certain types of improper prosecutorial conduct, retrial may still be barred. Tyson, 423 Mich at 370. Otherwise, if the case were going poorly for the state, the prosecution could force the defendant‘s hand into moving for a mistrial—thereby dodging the heavy burden of establishing a “manifest necessity” for retrial and creating an unfair opportunity to refine its trial strategy—and simply retry the defendant anew.
Courts have, however, struggled to define the precise level of prosecutorial misconduct required to trigger the double-jeopardy bar and to apply that standard to the facts of individual cases. Id. As a result, various standards have emerged across the federal and state court systems. Id. That is where we turn next.
Currently, under federal law, the rule from Kennedy is that a mistrial declared due to prosecutorial misconduct bars retrial only if the prosecution intended to goad the defense into moving for one. Kennedy, 456 US at 679. To determine whether the federal Kennedy standard properly effectuates double-jeopardy protections under the Michigan Constitution, we first outline pre-Kennedy caselaw, the Kennedy standard itself, and post-Kennedy departures by our sister state courts.
1. PERTINENT PRE-KENNEDY CASELAW
In the latter half of the twentieth century, the United States Supreme Court began recognizing for the first time that double-jeopardy principles may sometimes bar retrial after the defense secures a mistrial predicated upon prosecutorial misconduct. For instance, in Tateo, 377 US at 468 n 3, the Court noted that “[i]f there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from a fear that the jury was likely to acquit the accused,” retrial may be barred. Similarly, in Jorn, 400 US at 485, the Court explained that while “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution,” this is so only “where circumstances develop not attributable to prosecutorial or judicial overreaching[.]” The Court also referenced “bad-faith conduct by judge or prosecutor,” id., adding that “where a defendant‘s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred,” id. at 485 n 12.
Expanding on these pronouncements, the Court in Dinitz, 424 US at 611, explained that the “Double Jeopardy Clause does protect a defendant against governmental actions
In the wake of these cases, this Court recognized a similar standard based on prosecutorial bad faith and overreaching. Relying on Jorn and Lee, we declared that retrial is barred “when the defendant‘s motion is induced by bad-faith conduct of the prosecutor or judge.” Anderson, 409 Mich at 485. Likewise, in People v Benton, 402 Mich 47, 63; 260 NW2d 77 (1977) (opinion by LEVIN, J.), we explained how the Court in Dinitz “observed a distinction between sua sponte mistrials and mistrials granted at the defendant‘s request, declaring that where the defendant requests the mistrial, retrials may”
2. THE KENNEDY SEA CHANGE
The legal landscape relating to retrial after a defense-obtained mistrial changed significantly in 1982 when the United States Supreme Court issued its landmark decision in Kennedy, 456 US 667. In Kennedy, the defendant stood trial on theft charges. Id. at 669. During the defendant’s first trial, the prosecutor asked a witness whether the defendant was a crook. Id. The defendant then moved for a mistrial, which the trial court granted. Id. After the prosecution sought to retry the defendant, the defendant moved to dismiss the case, citing double jeopardy. Id. The trial court found that the prosecutor did not intend to cause a mistrial and denied the defendant’s motion on that basis. Id. At his second trial, the defendant was convicted. Id. at 670.
The defendant appealed his conviction on double-jeopardy grounds. Id. The Oregon Court of Appeals held that retrial was barred because, although the prosecutor did not intend to provoke a mistrial, the prosecutor still engaged in impermissible overreaching. Id. That is, the personal attack from the prosecutor left the defendant
In a fractured opinion, the United States Supreme Court reversed, holding that retrial is barred only when a prosecutor specifically intends to goad the defense into moving for a mistrial. Kennedy, 456 US at 679. The Court first acknowledged that a 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. Id. at 673. The Court then rejected the broader tests of bad faith and harassment articulated in Dinitz because they offer virtually no standards for their application. Id. at 674. More specifically, the Court reasoned that every action taken by the prosecutor during a trial aims to prejudice the defendant by placing before the judge or jury evidence leading to a finding of his guilt, so it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant’s attorney will not be found objectionable by the trial court. Id. at 674-675. The Court also speculated that the broad and somewhat amorphous standard applied by the Oregon Court of Appeals would actually hurt criminal defendants because the judge presiding over the first trial might well be more loath to grant a defendant’s motion for mistrial if the likely consequence is a bar on retrial. Id. at 676. Based on these concerns, the Court found that the narrower intent-to-goad standard— though certainly not entirely free from practical difficulties —was more manageable. Id. at 675.
Justice Stevens—joined by three other justices—wrote separately. Although he agreed with the Court’s ultimate conclusion that double-jeopardy principles did not bar the
Moreover, Justice Stevens reasoned that the Court’s narrow standard conflicts with longstanding double-jeopardy rationales:
For example, a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction. In such a case, with the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions. [Id. at 689 (citations omitted).]
Justice Stevens reasoned that this scenario would fall outside the Court’s new standard because, by hypothesis, the prosecutor’s intent is to obtain a conviction, not to provoke a mistrial. Id. Yet the defendant’s choice—to continue the tainted proceeding or to abort it and begin anew—can be just as hollow in this situation as when the prosecutor intends to provoke a mistrial. Id. (citation omitted). Therefore, in his view, 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. Id.
because the defendant’s option to abort the proceeding after prosecutorial misconduct would retain real meaning for the defendant in any case in which the trial was going badly for him, normally a required finding would be that the prosecutorial error virtually eliminated, or at least substantially reduced, the probability of acquittal in a proceeding that was going badly for the government. [Id. at 690.]
This consideration would, however, be far less impactful if the prosecutor’s intent is primarily to harass the defendant, and only secondarily to obtain a conviction, because double-jeopardy protections shield a defendant not only from declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict but also from [h]arassment of an accused by successive prosecutions. Id. at 690 n 31, quoting Downum, 372 US at 736 (brackets in Kennedy). All in all, Justice Stevens concluded that, even under his broader standard, only in a rare and compelling case will a mistrial declared at the request of the defendant or with his consent bar a retrial. Kennedy, 456 US at 690 (Stevens, J., concurring).
Finally, Justice Stevens stressed that the inexactitude of the prior standard is a virtue, not a vice. Id. at 690-691. The value of the overreaching standard, like [t]he value
3. POST-KENNEDY DEVELOPMENTS
The Kennedy decision was met with swift criticism from several state high courts.11 See, e.g., Batts, 30 Cal 4th at 665 (noting that the Kennedy standard has been widely
We begin with the post-remand decision of the Oregon Supreme Court in Kennedy. Accepting Justice Brennan’s invitation, Kennedy, 456 US at 680-681 (Brennan, J., concurring in the judgment), Oregon’s high court unanimously rejected the narrow standard announced for the first time by the Kennedy Court. State v Kennedy, 295 Or 260, 269, 276; 666 P2d 1316 (1983). In Kennedy’s stead, the Oregon Supreme Court opted to afford greater double-jeopardy protection under an analogous provision of the Oregon Constitution. Id.
The Oregon Supreme Court first emphasized that [s]tate courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the state themselves choose to abandon them and entrust their rights entirely to federal law, before turning to the narrow issue presented: whether there is room for a double jeopardy bar beyond the case of an intentionally provoked mistrial when a prosecutor harasses the defendant with what the prosecutor knows to be prejudicial error. Id. at 271-272. So framed, the court clarified that a guarantee against harassment, which is what double-jeopardy principles provide, implies a requirement of some conscious choice of prejudicial action before the guarantee bars correction of the error by a new trial. Id. at 273. Thus, the court concluded that negligence on the part of the prosecutor—gross or not—does not bar retrial. Id.
On the other side of the coin, the court perceived two central flaws with limiting the standard to intentional provocation of mistrials. Id. at 274. First, the Kennedy Court’s test hinged on prosecutorial misconduct. Id. Yet this singular focus, to the Oregon high court, overlooks that the conduct of other government officials—like bailiffs and judges—may also cause a mistrial. Id. at 274-275. Second, a finding that a prosecutor initially pursued a course of prejudicial misconduct for the purpose of forcing a mistrial is a grave matter. Id. at 275. Such a finding can justify disbarment, other disciplinary action, and even a federal civil-rights action. Id. So the court did not think that impermissible double jeopardy for the defendant is limited to the few situations in which a judge is sufficiently convinced of a prosecutor’s improper intentions to invoke those penalties because that places too heavy a burden on the inference that a defendant must ask a judge to draw from the objective conduct and circumstances. Id. at 276. For these reasons, the Oregon Supreme Court departed from Kennedy by holding that the Oregon Constitution bars retrial when improper official conduct is so prejudicial to the defendant that it cannot be cured by means short of a mistrial, and if the official knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal. Id.
A unanimous Arizona Supreme Court reached a similar conclusion in Pool, 139 Ariz 98. Although that court would typically interpret its state double-jeopardy clause in conformity to the interpretation given by the United States Supreme Court to the same clause in the federal constitution, the court declined to do so in the context of mistrials resulting from improper prosecutorial conduct. Id. at 108. First, Arizona’s high court
After rejecting Kennedy, the Arizona Supreme Court next considered the appropriate test under its state constitution. The court explained that the question should turn upon the concept of enforcing the constitutional guarantee against double jeopardy when the right to be free from multiple trials . . . would be impaired by the prosecutor’s intentional, improper conduct. Id. Against this backdrop, the court set forth three conditions that must be met for double jeopardy to bar retrial in this context under the Arizona Constitution:
Mistrial is granted because of improper conduct or actions by the prosecutor; and - such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
- the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. [Id. at 108-109.13]
In such a situation, the State has intentionally exposed the defendant to multiple trials for the same crime and has destroyed his expectation of completing the proceeding before the original tribunal. Id. at 109. Because this is exactly what the double jeopardy provision was intended to prevent, the Pool court parted ways with Kennedy. Id.
Pool is no stranger to Michigan jurisprudence. For many of the reasons expressed by Justice Stevens and the Pool court, our Court of Appeals in Dawson, 154 Mich App 260, adopted the Pool standard under
In addition to Oregon and Arizona, several other states have also declined to follow Kennedy. See 6 LaFave, § 25.2(b), pp 1233-1234 & n 11. Take Nevada, for instance, which adopted the Pool test in Thomas v Eighth Judicial Dist Court in & for Co of Clark, 133 Nev 468, 475-476; 402 P3d 619 (2017). Pennsylvania, too, has recognized a broader standard. See Commonwealth v Johnson, 659 Pa 277, 309; 231 A3d 807 (2020) (holding that, under the Pennsylvania Constitution, prosecutorial overreaching sufficient to invoke double jeopardy protections includes misconduct which not only deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a substantial risk that such will be the result ). The Hawai‘i Supreme Court has barred retrial under its state charter when the prosecutorial misconduct is so egregious that, from an objective standpoint, it clearly denied a defendant his or her right to a fair trial. Rogan, 91 Hawai‘i at 423. New Mexico’s high court has concluded that retrial is impermissible
Finally, the California Supreme Court in Batts, 30 Cal 4th at 666, held that retrial is barred, first, when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial ; and second, when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal.
Although these post-Kennedy standards do not mirror each other in every respect, they all share a common thread: state double-jeopardy protections may still bar retrial in cases of egregious prosecutorial misconduct even if the defendant cannot prove that the prosecutor’s specific intent was to provoke a defense mistrial request. See, e.g., Kennedy, 295 Or at 273. See also Note, When Double Jeopardy Should Bar Retrial In Cases of Prosecutorial Misconduct: A Call for Broader State Protections, 122 Colum L Rev 173, 190 (2022). In so holding, these state courts also recognize that the United States Supreme Court’s interpretation of a federal constitutional provision does not—and cannot—fix the meaning of a comparable state constitutional provision, especially when the United States Supreme Court later revises its interpretation of the federal counterpart. See, e.g., Kennedy, 295 Or at 271.
C. THE PROPER SCOPE OF MICHIGAN’S DOUBLE-JEOPARDY CLAUSE IN THE CONTEXT OF DEFENSE MISTRIAL REQUESTS
We now turn to the proper test under
1. INTERPRETING THE MICHIGAN CONSTITUTION IN LIGHT OF A SIMILAR FEDERAL CONSTITUTIONAL PROVISION
When interpreting
Despite these federalism-focused maxims, we have at times suggested that there is some specific burden on this Court to identify a compelling reason or justification for interpreting the words of the Michigan Constitution differently than the words of the United States Constitution. People v Tanner, 496 Mich 199, 222 n 16; 853 NW2d 653 (2014). The compelling reason language first appeared in Nash, 418 Mich at 214-215 (opinion by BRICKLEY, J.), where we noted that [w]e have, on occasion, construed the Michigan Constitution in a manner which results in greater rights than those given by the federal constitution, and where there is compelling reason, we will undoubtedly do so again. (Citation omitted; emphasis added.) Later opinions of this Court seemingly interpreted Nash as establishing a hurdle in favor of federal caselaw that must be cleared before interpreting provisions of the Michigan Constitution differently from their federal analogues. See, e.g., People v Collier, 426 Mich 23, 39; 393 NW2d 346 (1986); People v Hill, 429 Mich 382, 393; 415 NW2d 193 (1987); People v Collins, 438 Mich 8, 25-29; 475 NW2d 684 (1991); Bullock, 440 Mich at 29-30 & n 10 (questioning the compelling reason standard but nonetheless applying it).
Recognizing the danger of a strong compelling reason standard, this Court’s decision in Sitz, 443 Mich 744, clarified that the compelling reason language should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. Id. at 758. Properly understood, the Nash rule compels neither the acceptance of federal interpretation nor its rejection. Id. at 758-759. So while we must reject unprincipled creation of state constitutional rights that
We built on Sitz’s sentiments in Tanner. In that case, we reiterated that this Court need not recognize the informal presumption that a United States Supreme Court interpretation of a federal constitutional provision constitutes the proper interpretation of a similar or identical state constitutional provision . . . unless we are persuaded that such an interpretation is also most faithful to the state constitutional provision. Tanner, 496 Mich at 222 n 16. Squarely addressing the compelling reason language, we again emphasized its limited utility by explaining that a strong presumption in favor of federal interpretations
cannot precisely describe this Court’s relationship with the federal judiciary, even with the United States Supreme Court. While it may almost always be prudent and responsible for this Court to examine federal precedents when they pertain to the same or similar language as in the Michigan Constitution, our responsibility in giving meaning to the Michigan Constitution must invariably focus upon its particular language and history, and the specific intentions of its ratifiers, and not those of the federal Constitution. Simply put, our exercise of judgment concerning the reasonable meaning of the provisions of our state Constitution cannot, consistently with our oath of office and our structure of constitutional federalism, be delegated to another judicial body. [Id.]
Consequently, we need not, and cannot, defer to the United States Supreme Court in expounding the Michigan Constitution but must instead independently examine our state’s Constitution to ascertain the intentions of those in whose name our Constitution was
Today, we reaffirm the principles elucidated in Sitz and Tanner. This Court’s solemn duty is to faithfully interpret our state Constitution consistently with our oath of office and our structure of constitutional federalism. Tanner, 496 Mich at 223 n 16. In so doing, we may respectfully consider federal interpretations but need not treat such authorities as presumptively correct unless the history of the particular state provision—or the federal Supremacy Clause—demands as much. This Court must instead, from the outset, independently analyze our state Constitution to ensure that our citizens are receiving the measure of the protections that they created, which protections may or may not extend beyond those set forth by the federal Constitution. Id. at 222 n 15. Were it otherwise, the interpretation of Michigan’s Constitution would be subject to the changing jurisprudence of the United States Supreme Court. And such an approach would violate
2. ARTICLE 1, § 15 OF MICHIGAN’S 1963 CONSTITUTION
Having framed the analytical lens through which we construe our state Constitution, we now turn to the particularities of
As noted above,
To account for the interpretive practice of this Court, the ratifiers of Michigan’s 1963 Constitution resorted back to broader language that tracked the language of the original 1835 provision and the Fifth Amendment. See id. at 588-589 & n 25. One 1961 Constitutional Convention delegate explained that [t]he Supreme Court of Michigan . . . has virtually held that [Const 1908, art 2, § 14] means the same thing as the provision in the federal constitution, which is what we have put in . . . . 1 Official Record, Constitutional Convention 1961, p 539. The Address to the People17 confirmed this intent:
[Const 1963, art 1, § 15] is a revision of Sec. 14, Article II, of the present constitution. The new language of the first sentence involves the substitution of the double jeopardy provision from the U.S. Constitution in place of the present provision which merely prohibits [sic] acquittal on the merits. This is more consistent with the actual practice of the courts in Michigan. [Address to the People, 2 Official Record, Constitutional Convention 1961, p 3364.]
Accordingly, the ratifiers of
Despite there being no general presumption that federal interpretations of federal law control state interpretations of state law, the above history illustrates the intertwined relationship between the historic interpretations of
But this general principle is not—and never has been—a categorical rule that forever handcuffs this Court to federal double-jeopardy jurisprudence. As we clarified in Smith, stating that the Michigan and federal double jeopardy clauses should be construed in a parallel fashion in some cases does not mean that we are bound in our understanding of the Michigan Constitution by any particular interpretation of the United States Constitution. Smith, 478 Mich at 302 n 7, quoting Harvey v Michigan, 469 Mich 1, 6 n 3; 664 NW2d 767 (2003). We mean only that we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the Fifth Amendment have accurately conveyed the meaning of Const 1963, art 1, § 15 as well. Smith, 478 Mich at 302 n 7. So whether federal jurisprudence accurately reflects the meaning of
For this reason, we reject the idea that an intent to incorporate some then-existing federal protections into
3. KENNEDY AND ARTICLE 1, § 15
Freed from any presumption that Kennedy governs by default, we return to the more nuanced issue presented in this case: the circumstances under which improper prosecutorial conduct bars retrial under
But we are not left without guidance in determining the scope of protections provided by
As we have concluded before, these principles accurately reflect the purpose of double-jeopardy protections under our state Constitution. See, e.g., Nutt, 469 Mich at 575 n 10; People v Herron, 464 Mich 593, 601; 628 NW2d 528 (2001); Dawson, 431 Mich at 251; Anderson, 409 Mich at 483 n 15.
But our assent with Kennedy ends there because this “hollow shell” can remain equally empty beyond the narrow instance in which the prosecutor intentionally provokes a mistrial. See, e.g., Breit, 122 NM at 662 (explaining that one of the primary shortcomings of Kennedy “is highlighted by the fact that other forms of misconduct and harassment and bad faith can also leave a defendant with little choice“). The protections guaranteed by
As a result, whether the prosecution intentionally pursues “an improper course of conduct because [it] means to goad a defendant into demanding a mistrial or because [it] is willing to accept a mistrial and start over is a distinction without a difference” under
The practical effect of Kennedy‘s narrow standard further supports this conclusion. Without a concession from the state, proving that a prosecutor harbored the specific intent to goad the defendant into moving for a mistrial (rather than, say, an intent to harass the defendant or prejudice the defendant‘s chance of acquittal) is virtually impossible. See, e.g., Kennedy, 456 US at 688 (Stevens, J., concurring); Thomas, 133 Nev at 473 (collecting cases and noting “the difficulty in proving a prosecutor‘s specific intent to provoke a mistrial“); Jennings (SHAPIRO, J., dissenting), unpub op at 4 (“Demonstrating that a prosecutor specifically intended to cause a mistrial insufficiently protects the principles of double jeopardy because absent an admission . . . it is virtually impossible to determine what the prosecutor‘s subjective intent was.“).22 “It is far more likely . . . that the
Nor are we persuaded that Kennedy should be adopted on workability grounds. While the Kennedy test might be easy to apply, “[t]he succinctness and manageability of a standard of law does not necessarily bespeak its justness or applicability to the problem it is intended to address.” Breit, 122 NM at 661. And despite Kennedy‘s surface-level appeal, we have outlined the significant difficulties with its operation in practice. The test demonstrates how placing outsized emphasis on “workability” or “manageability” can easily lead to watered-down constitutional protections. Furthermore, as explained in more detail below, we are not convinced that a broader standard is prohibitively unworkable.
Under longstanding principles of double-jeopardy law, we conclude that the unduly rigid Kennedy standard—announced for the first time years after ratification of Michigan‘s
4. THE PROPER TEST UNDER ARTICLE 1, § 15
Having rejected Kennedy under
To begin with, Pool provides a workable standard that best balances society‘s interest in “punishing one whose guilt is clear,” Tateo, 377 US at 466, with an individual‘s right to be free from state harassment, successive prosecutions, and the “embarrassment, expense and ordeal” that results, Green, 355 US at 187-188. It does so by recognizing that double-jeopardy interests are implicated both in the context of goading and whenever a prosecutor intentionally engages in misconduct egregious enough to necessitate a mistrial.
- Mistrial is granted because of improper conduct or actions by the prosecutor; and
- such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
- the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. [Pool, 139 Ariz at 108-109.]
Under this test, determining the prosecutor‘s knowledge or intent will often turn on objective circumstances surrounding the trial, including
the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion. [A court] may also consider the prosecutor‘s own explanations of his “knowledge” and “intent” to the extent that such explanation can be given credence in light of the minimum requirements expected of all lawyers. [Id. at 108 n 9.]
After all, as the Pool court recognized, “there must be a point at which lawyers are conclusively presumed to know what is proper and what is not.” Id. at 107. Courts should
We further note that, along with being adopted by a past panel of our Court of Appeals, the Pool formulation tracks pre-Kennedy caselaw from this Court. After the ratification of our 1963 Constitution, but before Kennedy, this Court affirmed the double-jeopardy principles espoused in Green and recognized the broader bad-faith standard for determining when prosecutorial misconduct bars retrial. See, e.g., Benton, 402 Mich at 63-64 (opinion by LEVIN, J.) (noting that “where the defendant requests the mistrial, retrials may be barred when the judge or prosecutor acted in bad faith“); Anderson, 409 Mich at 485 (citing Jorn and Lee in explaining that retrial is barred “when the defendant‘s motion is induced by bad-faith conduct of the prosecutor or judge“). By probing whether the prosecutor engaged in “intentional conduct which the prosecutor knows to be improper and prejudicial,” Pool, 139 Ariz at 108-109, the Pool test is essentially a more detailed articulation of the bad-faith standard we recognized in Anderson and Benton. Accordingly, prior caselaw further supports our conclusion to depart from Kennedy and adopt the formulation set forth in Pool.
Defendant argues that his second trial violated
V. CONCLUSION
We conclude that the narrow Kennedy standard conflicts with the double-jeopardy protections guaranteed by
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
Kimberly A. Thomas
Noah P. Hood
ZAHRA, J. (dissenting).
Nearly 45 years ago, the Supreme Court of the United States in Oregon v Kennedy11 established a test used to determine whether federal double-jeopardy protections bar retrial when a criminal defendant moves for a mistrial based on prosecutorial misconduct. Soon thereafter, this Court in People v Dawson22 “adopt[ed] the federal [Kennedy] standard” under our Michigan double-jeopardy jurisprudence and held “that retrial is barred where the prosecutor intended to goad the defendant into moving for a mistrial.”3 Today, a majority of this Court overrules Dawson and rejects the Kennedy standard, which has been soundly in place in Michigan for nearly 40 years, and arbitrarily adopts a test created by the Arizona Supreme Court.
I. FACTUAL AND PROCEDURAL HISTORY
I agree with the majority opinion‘s recitation of the relevant facts and history of the trial court proceedings.7 I disagree, however, with the majority opinion‘s incomplete characterization of the majority opinion from the Court of Appeals. When describing the Court of Appeals majority opinion, it explains that the Court of Appeals determined that the Kennedy test was not satisfied here because the prosecutor did not intentionally goad
II. STANDARD OF REVIEW
The question of whether a defendant‘s retrial violates the double-jeopardy provisions of the United States and Michigan Constitutions is a question this Court reviews
III. ANALYSIS
The majority opinion states that the question before us is “whether the Michigan Constitution affords greater protection than its federal analogue[.]” But we have already answered that question many times before. We have made clear that “the meaning ascribed to a federal constitutional provision by the United States Supreme Court is not dispositive, except to the extent that it appears—as we have explained that it does in the case of
A. ARTICLE 1, § 15 OF MICHIGAN‘S 1963 CONSTITUTION IS TO BE INTERPRETED CONSISTENTLY WITH THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION
Our “primary objective” in interpreting the Michigan Constitution is “to determine the text‘s original meaning to the ratifiers, the people, at the time of ratification.”19 The Fifth Amendment of the United States Constitution protects a criminal defendant from
In 2004, in People v Nutt, “[w]e conclude[d] that in adopting art 1, § 15, the people of this state intended that our double jeopardy provision would be construed consistently with Michigan precedent and the Fifth Amendment.”23 Even before our 1963 Constitution was adopted, this Court “defined the scope of our Constitution‘s double jeopardy
In determining our ratifiers’ intent, the Nutt Court looked to the history of
The Nutt Court looked to materials from the Constitutional Convention of 1961 to verify the intent of the ratifiers:32
Constitutional Convention Committee Proposal Number 15 recommended that
Const 1908, art 2, § 14 [the 1908 Constitution‘s double jeopardy provision] be revised to mirror the language of the Fifth Amendment, with the deletion of the “archaic” words “of life and limb.” 1 Official Record, Constitutional Convention 1961, pp 464-465, 540. Delegate Stevens explained that “[t]he Supreme Court of Michigan . . . has virtually held that [Const 1908, art 2, § 14 ] means the same thing as the provision in the federal constitution, and that is what we have put in . . . .” Id. at 539. It was reported that the change was not substantive and that the judiciary committee wished simply to bring the text of the double jeopardy provision “in line with the law as it now stands in the state of Michigan” and “in line with the federal constitution.” Id. at 542, 543. . . . Therefore, Delegate Stevens explained, the committee “want[ed] to make the constitution read the way the supreme court says it does read.” Id. at 542,
Of even greater significance to our analysis is the Address to the People,33 2 Official Record, Constitutional Convention, 1961, p 3355, accompanying
This is a revision of Sec. 14, Article II, of the present constitution. The new language of the first sentence involves the substitution of the double jeopardy provision from the U.S. Constitution in place of the present provision which merely prohibits [sic] “acquittal on the merits.” This is more consistent with the actual practice of the courts in Michigan.34
[2 Official Record, p 3364.]
Thus, the ratifiers were advised that (1) the double jeopardy protection conferred by our 1963 Constitution would parallel that of the federal constitution, and (2) that the proposal was meant to bring our double jeopardy provision into conformity with what this Court had already determined it to mean.35
In 2005, in People v Davis, we again acknowledged “that in adopting
Once again, in 2007, in People v Smith, we concluded “that in adopting
[A]t the time People v Nutt was decided, this Court’s double jeopardy jurisprudence had become largely unmoored from its constitutional foundation. In White and its progeny, the Court had disregarded the ratifiers’ understanding of the phrase “same offense,” and instead implemented a definition of the term that was consistent with its own ideas of “public policy.” However, in Nutt, we recognized that it was the ratifiers’ policy choices, and not those of the judiciary, which must govern our interpretation of the constitution. When White adopted the “same transaction” test, it acted contrary to the expressed intentions of the ratifiers that Michigan’s Double Jeopardy Clause be interpreted in a manner consistent with the federal constitution, in accord with our then-existing caselaw. Therefore, in order to implement the policy determinations of the people, we overruled White and reinstated the meaning of the phrase “same offense” as it was understood by the ratifiers.41
In 2008, in People v Ream, this Court yet again affirmed that “in adopting
Just recently, in 2022, this Court held that “[w]hile we are not bound to interpret our Constitution consistently with similar provisions of the United States Constitution, ‘we have been persuaded in the past that interpretations of the Double Jeopardy Clause of the
The above precedent demonstrates that this Court has consistently and overwhelmingly held that Michigan’s Double Jeopardy Clause is to be interpreted consistently with the federal Double Jeopardy Clause as a matter of original ratifier intent. In order for this Court to adopt a different standard than the federal Kennedy standard, it must overrule precedents such as Nutt, Davis, Smith, Ream, Szalma, and Beck and articulate a reason to do so. But there is absolutely no reason, let alone a compelling one, offered in the majority opinion.
B. THE MAJORITY OPINION INCORRECTLY DISPENSES WITH THE “COMPELLING REASON” TEST
Historical practice has been to apply the Michigan double-jeopardy provision coterminously with the federal one.45 Decoupling the interpretation of a Michigan
To analyze whether a Michigan constitutional provision should be interpreted more broadly than a parallel provision in the United States Constitution, the Court has considered whether there is a “compelling reason” to read the Michigan provision that way.46 A “compelling reason” may be significant textual differences, historical factors, and longstanding Michigan precedent.47 Here, none of those considerations support treating the state and federal constitutional protections differently. Considering the essentially identical text of the federal Double Jeopardy Clause and the Michigan clause, it is difficult to discern a textual basis for interpreting them differently. Compare
The majority opinion dispenses with the “compelling reason” test when choosing to interpret
Because the ratifiers’ intention is clear, there is no good reason, let alone a compelling one, to interpret Michigan’s Double Jeopardy Clause differently than the
C. THE MAJORITY OPINION REJECTS THE INTENT OF THE RATIFIERS OF CONST 1963, ART, 1 § 15
The majority opinion acknowledges that “our interpretive North Star is the ‘original meaning to the ratifiers, the people, at the time of ratification[.]’ ”53 But this acknowledgment is mere lip service to traditional Michigan constitutional jurisprudence. Today’s opinion fails to follow the clear intent of our ratifiers when it departs from the federal Kennedy standard.54 In an attempt to justify the adoption of another state’s standard for determining when retrial is barred after a mistrial predicated upon prosecutorial misconduct, the majority unsuccessfully argues that the ratifiers of our 1963 Constitution did not intend for all of our state double-jeopardy protections to mirror those provided by
The ratifiers did not have such narrow intent. The Nutt Court closely examined the ratifiers’ intent by looking at the record of the Constitutional Convention of 1961: “Constitutional Convention Committee Proposal Number 15 recommended that
Despite such obvious evidence of the ratifiers’ intent to construe our Double Jeopardy Clause consistently with its federal counterpart, the majority takes out of context language from a few of the many relevant cases previously decided by this Court to reach its desired outcome. When we said the ratifiers of
Moreover, we have followed the ratifiers’ intent in regard to this double-jeopardy standard post-ratification of our 1963 Constitution. As the majority opinion recognizes, it was not until the latter half of the twentieth century that the United States Supreme Court began recognizing for the first time that double-jeopardy principles may sometimes bar
The ratifiers of our 1963 Constitution have made clear that
A majority of this Court sets aside the clear intent of the ratifiers of our 1963 Constitution and the consistent precedent from this Court. In doing so, the majority is persuaded by a minority of other jurisdictions that have held that their state double-jeopardy protections are broader than those provided by the
The majority opinion states that although Arizona “would typically interpret its state double-jeopardy clause ‘in conformity to the interpretation given by the United States Supreme Court to the same clause in the federal constitution,’ the court declined to do so in the context of mistrials resulting from improper prosecutorial conduct.”70 The majority uses Arizona’s departure from the federal Kennedy test as its justification to do the same in this case. Arizona’s double-jeopardy jurisprudence, however, is much different than Michigan’s double-jeopardy jurisprudence. When Arizona chose to reject the federal Kennedy test, it was not bound by decades of Arizona Supreme Court precedent that held
A minority of other jurisdictions have criticized Kennedy’s “subjective intent” standard as being too difficult to satisfy and have consequently adopted their own standard.71 When our Court of Appeals decided Dawson, it offered the same criticism.72 But that Court’s decision to adopt a different standard was premised on the notion that “state constitutions can provide greater protections than those afforded by the United States Constitution.”73 Although this is true, it does not mean that Michigan’s Double Jeopardy Clause does provide greater protection than its federal counterpart.74 And on appeal in Dawson and in the years since our Court of Appeals’ decision in that case, this Court adopted the federal Kennedy standard75 and has made clear that the ratifiers of
E. THE MAJORITY OPINION ABANDONS DAWSON AND COUNTLESS OTHER DECISIONS WITHOUT CONDUCTING A STARE DECISIS ANALYSIS
This exact issue has been before this Court before. Today, this Court overturns our holding in Dawson, where “[w]e adopt[ed] the federal standard,”77 and our many decisions post-Dawson where this Court has held that
The mere fact that a case is subsequently found to have been wrongly decided, by itself, does not necessarily mean that overruling it is appropriate.79 Rather, stare decisis is “generally ‘the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and
- “whether the rule has proven to be intolerable because it defies practical workability”;
- “whether reliance on the rule is such that overruling it would cause a special hardship and inequity”;
- “whether upholding the rule is likely to result in serious detriment prejudicial to public interests”; and
- “whether the prior decision was an abrupt and largely unexplained departure from precedent.”84
In addition, it is appropriate to ask “whether changes in the law or facts no longer justify the decision.”85
What is even more concerning is the majority’s ease in overturning decades of this Court’s post-Dawson caselaw in which this Court has made it clear that the ratifiers of
F. IT IS UNNECESSARY TO DECIDE THE CORRECT STANDARD IN THIS CASE BECAUSE NEITHER KENNEDY NOR POOL IS SATISFIED
As discussed above, there are many reasons why this Court should not abandon Kennedy and adopt Pool as the new test in our state. Moreover, this case is not an ideal vehicle to abandon Kennedy and adopt Pool because neither standard is met to bar defendant from being retried.91
The majority opinion remands to the trial court to determine whether retrial is permissible in this case under the Arizona Pool standard.92 The Arizona Pool standard uses a three-prong test, which states that double jeopardy bars retrial where:
Mistrial is granted because of improper conduct or actions by the prosecutor; and - such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows9 to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
- the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.
9 The trial judge is to measure what the prosecutor “intends” and “knows” by objective factors, which include the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion. He may also consider the prosecutor’s own explanations of his “knowledge” and “intent” to the extent that such explanation can be given credence in light of the minimum requirements expected of all lawyers.93
purpose with indifference to a significant resulting danger of mistrial or reversal[.]’ ” Quoting Pool, 139 Ariz at 108-109 (brackets in majority opinion).
I disagree that the factual record is insufficient, and so did the Court of Appeals. The prosecutor explained that he “was trying to argue for [a] conviction to get the jury to find [defendant] guilty, not for a mistrial.” The trial court then stated that “when the defense doesn’t even object during the course of the testimony or in argument as to that, I can hardly find that the prosecution actually intended to somehow elicit this mistrial when the foundation was laid during testimony.” And the court also looked at whether the behavior of the prosecution, “through their conduct or misconduct, . . . was so egregious that it actually contemplated or brought about the mistrial in an intentional fashion.” It concluded that “[t]here is nothing in the record to suggest that’s the case, and in fact, I’m not even sure that we would have a mistrial motion brought before this Court if this Court did not highlight the fact that the prosecution had overstepped their bounds.”
The instant case differs from Dawson in several respects. Here, the prosecutor did not concede that he intended to cause a mistrial. To the contrary, the prosecutor stated that his statements were designed “to get the jury to find [defendant] guilty, not for a mistrial.” At most, this evidences a concession of recklessness, not a specific intent to cause a mistrial. In response, the trial court ruled that nothing in the record suggested that the prosecutor engaged in conduct so egregious as to suggest an intent to bring about a mistrial. In Dawson, our Supreme Court declined to apply the Pool test, choosing to go no further than the Kennedy test. But regardless of which test is applied, the primary consideration in both is whether the prosecutor’s actions evince an intent to cause a mistrial. And since we must rely in large part on the trial court’s assessment of the prosecutor’s behavior, we conclude that the trial court did not clearly err in finding that the prosecutor did not intend to goad the defense into requesting a mistrial. The objective facts presented here do not contradict the prosecutor’s denial that he intended to provoke a mistrial, and the record indicates that the prosecutor’s error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial in this relatively straight-forward case. Accordingly, we find that double-jeopardy principles did not bar retrial.94
The Court of Appeals majority also responded to the Court of Appeals dissent, explaining that even if the Court were to adopt the Arizona Pool standard as advocated for by Judge SHAPIRO, the fact remains that both tests require a showing of intent; even the Pool test requires the trial court to evaluate “ ‘what the prosecutor “intends” and “knows” by objective factors.’ ”95 The majority could not understand how Judge SHAPIRO could conclude that Pool was satisfied here, given that the prosecutor expressly stated that he did
The Court of Appeals was correct in concluding that it is unnecessary in this case to address the precise legal standard for whether double jeopardy applies. Whatever the standard—Kennedy or Pool—there needs to be intent by the prosecutor to do something that the prosecutor “knows to be improper and prejudicial” and is motivated by “any improper purpose with indifference” to the risks of mistrial or reversal.96 Although the prosecutor here later admitted his error, it would be difficult to find that he knew his conduct was improper and prejudicial based on the objective evidence set forth in the record. While the prosecutor’s closing argument certainly crossed a line, he did not appear to realize it until the trial court raised the issue sua sponte. Even then, he had to confirm with his office’s appellate specialist that he had indeed committed reversible error. And the objective evidence shows that the prosecutor did not engage in intentional improper conduct with indifference toward causing a mistrial. After all, the prosecutor opposed mistrial, arguing against it repeatedly. The prosecutor explained that his statements as to defendant’s silence were designed “to get the jury to find him guilty, not for a mistrial.”97 The trial court agreed, finding that “[t]here is nothing in the record to suggest that’s the case, and in fact, I’m not even sure that we would have a mistrial motion brought before
Moreover, unlike in Dawson, where “[t]he prosecutor’s case was going badly,”99 the procession of the trial here strongly suggests that the prosecutor would have no incentive to act egregiously enough to risk a mistrial. At defendant’s second trial, the prosecution secured a conviction by presenting essentially the same evidence and witnesses as at the first trial. At both trials, a witness testified that she saw a man fire a gun, and she described the outfit the shooter was wearing and what car he was driving. The officer who initiated the traffic stop of defendant testified that within a few minutes of being dispatched, he saw the suspect car and, after pulling it over, he saw a man that matched the witness’s description of the shooter. Given the strength of the evidence in the record prior to the prosecutor’s improper statement, it would be hard to believe that the prosecutor purposely committed misconduct. Without some plausible incentive to cause a mistrial, it is difficult to see why there would be intent to do so. Even under the Arizona Pool standard, it is hard to discern objective evidence of the prosecutor’s intent to cause a mistrial or knowledge that he was likely to do so.
The strength of the prosecutor’s case, the isolated nature of the error, the lack of any objection by defense counsel, and the trial court’s factual findings—reversible only when
IV. CONCLUSION
Today, a majority of this Court acts without judicial restraint in setting aside both decades of our Court’s caselaw and the intent of the ratifiers of
Brian K. Zahra
Richard H. Bernstein
Notes
The majority opinion merely states in a footnote that “[t]he [Court of Appeals] majority rejected the dissent‘s invitation to adopt a different standard as to when double jeopardy bars retrial in this context because, in the majority‘s opinion, ‘there is little evidence to support the conclusion that defendant could meet’ either of the proffered tests.” (Quoting People v Jennings, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2023 (Docket No. 359837), p 4 n 2.)“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . .” [People v Hicks, 447 Mich 819, 828; 528 NW2d 136 (1994) (opinion by GRIFFIN, J.), quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824).]
Dawson, 431 Mich at 258.the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion. [The trial court] may also consider the prosecutor’s own explanations of his knowledge and intent to the extent that such explanation can be given credence in light of the minimum requirements expected of all lawyers. [Id. at 108 n 9.]
Although application of these factors will often prove helpful, the ultimate task facing this Court in cases requiring interpretation of particular Michigan constitutional provisions is to respectfully consider federal interpretations of identical or similar federal constitutional provisions, but then to undertake by traditional interpretive methods to independently ascertain the meaning of the Michigan Constitution. Id. Smith, 478 Mich at 314; see also Ream, 481 Mich at 233.1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. [Id. (citations omitted).]