During respondent's trial for theft in an Oregon state court,
the State's expert witness testified as to the value and identity
of the property involved. On cross-examination, he acknowledged
that he had once filed an unrelated criminal complaint against
respondent, but explained that no action had been taken on his
complaint. On redirect examination, the court sustained a series of
objections to the prosecutor's questions seeking to establish the
reasons why the witness had filed a complaint against respondent.
After eliciting from the witness that he had never done business
with respondent, the prosecutor asked: "Is that, because he is a
crook?" The trial court then granted respondent's motion for a
mistrial. On retrial, the court rejected respondent's contention
that the Double Jeopardy Clause of the Fifth Amendment, as made
applicable to the States by the Fourteenth Amendment, barred
further prosecution, finding that "it was not the intention of the
prosecutor in this case to cause a mistrial." Respondent was
convicted, but the Oregon Court of Appeals reversed, sustaining the
double jeopardy claim because the prosecutorial misconduct that had
occasioned the mistrial, even if not intended to cause a mistrial,
amounted to "overreaching."
Held:
1. There is no merit to respondent's contentions that the Court
of Appeals' decision was based upon an adequate and independent
state ground, or that in the alternative the case should be
remanded in order that the court may clarify the grounds upon which
its judgment rested. A fair reading of the opinion below shows that
the court rested its decision solely on federal law. Pp.
456 U. S.
670-671.
2. Where a defendant in a criminal trial successfully moves for
a mistrial, he may invoke the bar of double jeopardy in a second
effort to try him only if the conduct giving rise to the successful
motion for a mistrial was prosecutorial or judicial conduct
intended to provoke the defendant into moving for a
mistrial. A more general test of "overreaching" is rejected because
it offers virtually no standards for its application and because
such a rule may not aid defendants as a class. By contrast, a
standard that examines the prosecutor's intent is a manageable
standard to apply. Since the courts below both agreed that the
prosecutor did not intend her conduct to provoke respondent into
moving for a mistrial,
Page 456 U. S. 668
that is the end of the matter for purposes of the Double
Jeopardy Clause. Pp.
456 U. S.
671-679.
49 Ore.App. 415,
619
P.2d 948, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. POWELL,
J., filed a concurring opinion,
post, p.
456 U. S. 679.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined,
post, p.
456 U. S. 680.
STEVENS, J., filed an opinion concurring in the judgment, in which
BRENNAN, MARSHALL, and BLACKMUN, JJ., joined,
post, p.
456 U. S.
681.
JUSTICE REHNQUIST delivered the opinion of the Court.
The Oregon Court of Appeals decided that the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution
barred respondent's retrial after his first trial ended in a
mistrial granted on his own motion. 49 Ore.App. 415,
619 P.2d
948 (1980),
cert. granted, 454 U.S. 891 (1981). The
Court of Appeals concluded that retrial was barred because the
prosecutorial misconduct that occasioned the mistrial in the first
instance amounted to "overreaching." Because that court took an
Page 456 U. S. 669
overly expansive view of the application of the Double Jeopardy
Clause following a mistrial resulting from the defendant's own
motion, we reverse its judgment.
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. [
Footnote 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 court [
Footnote 2] found as a fact that "it was not
the intention of the prosecutor in this case to cause a mistrial."
49 Ore.App. at
Page 456 U. S. 670
418, 619 P.2d at 949. On the basis of this finding, the trial
court held that double jeopardy principles did not bar retrial, and
respondent was then tried and convicted.
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,
400 U. S. 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,
424 U. S.
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 [329] (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
Page 456 U. S. 671
of Appeals' decision is based upon an adequate and independent
state ground. Respondent contends in the alternative that the basis
for the decision below is sufficiently uncertain that we ought to
remand this case in order that the Court of Appeals may clarify the
grounds upon which its judgment rested.
See Delaware v.
Prouse, 440 U. S. 648,
440 U. S. 652
(1979);
California v. Krivda, 409 U. S.
33,
409 U. S. 35
(1972).
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,
433 U. S. 568
(1977).
II
The Double Jeopardy Clause of the Fifth Amendment [
Footnote 3] protects a criminal defendant
from repeated prosecutions for the same offense.
United States
v. Dinitz, 424 U. S. 600,
424 U. S. 606
(1976). As a part of this protection against multiple prosecutions,
the Double Jeopardy Clause affords a criminal defendant a "valued
right to have his trial completed by a
Page 456 U. S. 672
particular tribunal."
Wade v. Hunter, 336 U.
S. 684,
336 U. S. 689
(1949). The Double Jeopardy Clause, however, does not offer a
guarantee to the defendant that the state will vindicate its
societal interest in the enforcement of the criminal laws in one
proceeding.
United States v. Jorn, 400 U.
S. 470,
400 U. S.
483-484 (1971) (plurality opinion);
Wade v.
Hunter, 336 U.S. at
336 U. S. 689.
If the law were otherwise,
"the purpose of law to protect society from those guilty of
crimes frequently would be frustrated by denying courts power to
put the defendant to trial again."
Ibid.
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,
22 U. S. 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,
434 U. S. 509
(1978);
Illinois v. Somerville, 410 U.
S. 458,
410 U. S. 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
336 U. S.
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
424 U. S.
607-610. Indeed, in
United States v. Tateo,
377 U. S. 463,
377 U. S. 467
(1964), the Court stated:
Page 456 U. S. 673
"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,
449 U. S. 130
(1980);
United States v. Dinitz, supra, at
424 U. S. 611;
United States v. Jorn, supra, at
400 U. S. 485;
United States v. Tateo, supra, at
377 U. S. 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
424 U. S. 611.
[
Footnote 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
Page 456 U. S. 674
own motion for a mistrial have been stated with less than
crystal clarity in our cases which deal with this area of the law.
In
United State v. Dinitz, 424 U.S. at
424 U. S. 611,
we said:
"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
377 U. S. 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 State v. Dinitz, 424 U.S. at
424 U. S. 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 evidence
Page 456 U. S. 675
by the prosecutor or by the defendant's attorney will not be
found objectionable by the trial court. Most such objections are
undoubtedly curable by simply refusing to allow the proffered
evidence to be admitted, or, in the case of a particular line of
inquiry taken by counsel with a witness, by an admonition to desist
from a particular line of inquiry.
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. [
Footnote
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
defendant's
Page 456 U. S. 676
motion, therefore, does not bar retrial absent intent on the
part of the prosecutor to subvert the protections afforded by the
Double Jeopardy Clause. A defendant's motion for a mistrial
constitutes "a deliberate election on his part to forgo his valued
right to have his guilt or innocence determined before the first
trier of fact."
United State v. Scott, 437 U. S.
82,
437 U. S. 93
(1978). Where prosecutorial error even of a degree sufficient to
warrant a mistrial has occurred,
"[t]he important consideration, for purposes of the Double
Jeopardy Clause, is that the defendant retain primary control over
the course to be followed in the event of such error."
United State v. Dinitz, supra, at
424 U. S. 609.
Only where the governmental conduct in question is intended to
"goad" the defendant into moving for a mistrial may a defendant
raise the bar of double jeopardy to a second trial after having
succeeded in aborting the first on his own motion.
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. [
Footnote 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. [
Footnote 7] But some
of the advantages secured to him by the Double
Page 456 U. S. 677
Jeopardy Clause -- the freedom from extended anxiety, and the
necessity to confront the government's case only once -- would be,
to a large, extent lost in the process of trial to verdict,
reversal on appeal, and subsequent retrial.
See United States
v. Dinitz, 424 U.S. at
424 U. S.
608.
In adopting the position we now do, we recognize that language
taken from our earlier opinions may well suggest a
Page 456 U. S. 678
broader rule. [
Footnote 8]
The Court of Appeals in this case, for example, may have derived
its "overreaching" standard from the following language in the
plurality opinion in
United States v. Jorn, 400 U.S. at
400 U. S.
485:
"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
judicial
Page 456 U. S. 679
or prosecutorial impropriety designed to avoid an acquittal,
reprosecution might well be barred."
Id. at
400 U. S. 485,
n. 12. There are likewise statements in
United States v.
Dinitz, supra, at
424 U. S. 611,
based largely on the plurality opinion in
Jorn to the same
effect.
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 Fifth Amendment to the United States
Constitution. The judgment of the Oregon Court of Appeals is
reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The Court of Appeals later explained that respondent's
"objections were not well taken, and the judge's rulings were
probably wrong." 49 Ore.App. 415, 417,
619
P.2d 948, 949 (1980).
[
Footnote 2]
These proceedings were not conducted by the same trial judge who
presided over respondent's initial trial.
[
Footnote 3]
This Court held in
Benton v. Maryland, 395 U.
S. 784 (1969), that this Clause was made applicable to
the States through the Due Process Clause of the Fourteenth
Amendment.
[
Footnote 4]
Cf. United State v. Tateo, 377 U.
S. 463,
377 U. S. 468,
n. 3 (1964) ("If 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, different considerations would, of course, obtain").
[
Footnote 5]
If the Court were to hold, as would JUSTICE STEVENS, that such a
determination requires an assessment of the facts and
circumstances, but without explaining how such an assessment ought
to proceed, the Court would offer little guidance to the federal
and state courts that must apply our decisions. JUSTICE STEVENS
disagrees with the decision below because his reaction to a cold
record is different from that of the Oregon Court of Appeals. The
Court of Appeals found "overreaching"; JUSTICE STEVENS finds none.
Neither articulates a basis for reaching their respective
conclusions which can be applied to other factual situations. We
are loath to adopt such an essentially standardless rule.
[
Footnote 6]
This Court has consistently held that the Double Jeopardy Clause
imposes no limitation upon the power of the government to retry a
defendant who has succeeded in persuading a court to set his
conviction aside, unless the conviction has been reversed because
of the insufficiency of the evidence.
See, e.g., United states
v. DiFrancesco, 449 U. S. 117,
449 U. S.
130-131 (1980).
[
Footnote 7]
JUSTICE STEVENS' opinion concurring in the judgment criticizes
the suggestion that the broader rule he espouses would make it less
likely the judges would grant a motion for mistrial than if the
narrower rule prevailed.
Post at
456 U. S.
687-688, n. 22. JUSTICE STEVENS' criticism of our
conclusion appears to be based on the erroneous assumption that the
courts in such a situation would be applying the narrow rule,
rather than the broad rule. Tested by the correct assumption that
the courts would be applying the all-encompassing standard
denominated "overreaching," which he espouses,
post at
456 U. S.
689-690, we do not find his criticisms persuasive. If
appellate courts and trial courts alike in this branch of the law
of double jeopardy were applying a rule of "black letter law" to a
predetermined set of facts, it might be true that an appellate
court would inevitably reach the conclusion that reprosecution
should be barred in a number of cases where the trial court had
actually denied the motion for mistrial. But there are two reasons
why such a hypothesis is inapplicable here.
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,
367 U. S. 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 Fifth Amendment."
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.
[
Footnote 8]
JUSTICE STEVENS states that we "gratuitously lo[p] off a portion
of the previously recognized exception."
Post at
456 U. S. 681.
This charge is simply not borne out by even a moderately careful
reading of our cases on the point. The footnote in
United
States v. Tateo, 377 U.S. at
377 U. S. 468,
n. 3, quoted in
n 4,
supra, states the exception in terms of prosecutorial
misconduct motivated by "fear that the jury was likely to acquit
the accused." The plurality opinion in
United States v.
Jorn, 400 U. S. 470,
400 U. S. 485
(1971), quoted in the text, states the test in the broader terms of
"prosecutorial or judicial overreaching"; the Court's opinion in
United States v. Dinitz, 424 U. S. 600
(1976), speaks at one point in terms of "governmental actions
intended to provoke mistrial requests,"
id. at
424 U. S. 611,
and at another point on the same page of "
bad faith conduct by
judge or prosecutor'" which "threatens the `[h]arassment of an
accused by successive prosecutions. . . .'" Only last Term, in
United States v. DiFrancesco, supra, we said that
"reprosecution of a defendant who has successfully moved for a
mistrial is not barred, so long as the Government did not
deliberately seek to provoke the mistrial request."
Id. at
449 U. S.
130.
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
456 U. S.
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.
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 emphasize
Page 456 U. S. 680
that a court -- in considering a double jeopardy motion --
should rely primarily upon the objective facts and circumstances of
the particular case.
See ante at
456 U. S.
675.
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
456 U. S.
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 456 U. S.
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 in 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, Ore.Const.,
Art. I, § 12, as that provision
Page 456 U. S. 681
has been interpreted by the state courts,
State v.
Rathbun, 287 Ore. 421,
600 P.2d
392 (1979).
See South Dakota v. Opperman, 428 U.
S. 364,
428 U. S. 396
(1976) (MARSHALL, J., dissenting),
on remand, State v.
Opperman, 247 N.W.2d
673 (S.D.1976) (original State Supreme Court judgment adhered
to as a matter of state constitutional law);
Oregon v.
Hass, 420 U. S. 714,
420 U. S. 726
(1975) (MARSHALL, J., dissenting).
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, [
Footnote 2/1] 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 proceedings.
[
Footnote 2/2]
Page 456 U. S. 682
If the defendant is acquitted by the jury, or if he is convicted
and the conviction is upheld on appeal, he may not be prosecuted
again for the same offense. [
Footnote
2/3] The defendant's interest in finality is not confined to
final judgments; he also has a protected interest in having his
guilt or innocence decided in one proceeding. [
Footnote 2/4] That interest must be balanced
against society's interest in affording the prosecutor one full and
fair opportunity to present his evidence to the jury. [
Footnote 2/5] Our decisions in the mistrial
setting accordingly have accommodated the defendant's double
jeopardy interests [
Footnote 2/6]
with legitimate prosecutorial interests. [
Footnote 2/7]
Page 456 U. S. 683
The accommodation is reflected in two general rules that govern
the permissibility of reprosecution after a mistrial. Which general
rule applies turns on whether the defendant has retained control
over the course to be followed once error has substantially tainted
the initial proceeding. [
Footnote
2/8] When a mistrial is declared over the defendant's
objection, the general rule is that retrial is barred. [
Footnote 2/9] An exception to this general
rule exists for cases in which the mistrial was justified by
"manifest necessity." [
Footnote
2/10] The other general rule is that the defendant's motion
for, or consent to, a mistrial removes any double jeopardy bar to
reprosecution. [
Footnote 2/11]
There is an exception to this rule for cases in which the
prosecutor [
Footnote 2/12]
intended to provoke a mistrial or otherwise engaged in
"overreaching" or "harassment." [
Footnote 2/13] The prosecutor has the burden
Page 456 U. S. 684
of proving the former exception for manifest necessity, and the
defendant has the burden of proving the latter exception for
overreaching.
Page 456 U. S. 685
As an initial matter, it is useful to explain why the
defendant's retention of control over the course to be followed
once serious prosecutorial error has occurred represents a
reasonable accommodation of double jeopardy and prosecutorial
interests. A defendant cannot be guaranteed both that there will be
only one proceeding and that it will be free of error. [
Footnote 2/14] When unfair prejudice is
injected into the proceeding by the prosecutor, the defendant may
choose to continue the proceeding despite the taint and, if
convicted, seek a reversal on appeal. [
Footnote 2/15] Or he may choose to abort the tainted
proceeding and begin anew. [
Footnote
2/16] While it is true that prosecutorial error leaves the
defendant with a "Hobson's choice," [
Footnote 2/17] it is also true
Page 456 U. S. 686
that the prosecutor suffers substantial costs no matter how the
defendant exercises this choice. If the defendant consents to a
mistrial, the prosecutor must go to the time, trouble, and expense
of starting all over with the criminal prosecution. If the
defendant chooses to continue the proceeding and preserve his
objection for appeal, the prosecutor must continue to completion a
proceeding in which a conviction may not be sustainable. [
Footnote 2/18]
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. [
Footnote 2/19] 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.
[
Footnote 2/20]
Page 456 U. S. 687
Today the Court once again recognizes that the exception
properly encompasses the situation in which the prosecutor commits
prejudicial error with the intent to provoke a mistrial. But the
Court reaches out to limit the exception to that one situation,
[
Footnote 2/21] rejecting the
previous recognition that prosecutorial overreaching or harassment
is also within the exception. [
Footnote 2/22]
Page 456 U. S. 688
Even if I agreed that the balance of competing interests tipped
in favor of a bar to reprosecution only in the situation in which
the prosecutor intended to provoke a mistrial, I would not
subscribe to a standard that conditioned such a bar on the
determination that the prosecutor harbored such intent when he
committed prejudicial error. It is almost inconceivable [
Footnote 2/23] that a defendant could
prove that the prosecutor's deliberate misconduct was motivated by
an intent to provoke a mistrial instead of an intent simply to
prejudice the defendant. [
Footnote
2/24] The defendant must shoulder a strong burden to establish
a bar to reprosecution when he has consented to the mistrial, but
the Court's subjective intent standard would eviscerate the
exception. [
Footnote 2/25]
Page 456 U. S. 689
A broader objection to the Court's limitation of the exception
is that the rationale for the exception extends beyond the
situation in which the prosecutor intends to provoke a mistrial.
There are other situations in which the defendant's double jeopardy
interests outweigh society's interest in obtaining a judgment on
the merits even though the defendant has moved for a mistrial. 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. [
Footnote 2/26] 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.
Another example is when the prosecutor seeks to inject enough
unfair prejudice into the trial to ensure a conviction but not so
much as to cause a reversal of that conviction. [
Footnote 2/27] This kind of overreaching would not
be covered by the Court's standard because, by hypothesis, the
prosecutor's intent is to obtain a conviction, not to provoke a
mistrial. Yet the defendant's choice to continue the tainted
proceeding or to abort it and begin anew -- can be just as "hollow"
[
Footnote 2/28] in this situation
as when the prosecutor intends to provoke a mistrial.
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
Page 456 U. S. 690
might inform the court's judgment, but several considerations
follow from the rationale for recognizing the exception. First,
because the exception is justified by the intolerance of
intentional manipulation of the defendant's double jeopardy
interests, a finding of deliberate misconduct normally would be a
prerequisite to a reprosecution bar. [
Footnote 2/29] Second, 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, [
Footnote
2/30] 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. [
Footnote 2/31] It should be apparent from these
observations that only in a rare and compelling case will a
mistrial declared at the request of the defendant or with his
consent bar a retrial.
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 defendant
Page 456 U. S. 691
is entitled to go to final judgment before the initial tribunal.
[
Footnote 2/32] The value of the
overreaching standard, like
"[t]he value of the [manifest necessity standard,] thus lies in
[its] capacity for informed application under widely different
circumstances without injury to defendants or to the public
interest."
Wade v. Hunter, 336 U. S. 684,
336 U. S. 691.
The inexactitude of the standard used to protect defendants in the
exceptional case surely should not concern the Court any more than
the equally ill-defined formula used to protect prosecutors in the
exceptional case. The scarcity of cases in which the exception has
been invoked [
Footnote 2/33]
counsels against preempting the judgment reflected in our decisions
that an exception for overreaching or harassment should remain
available for the rare case in which it may be needed. [
Footnote 2/34] We
Page 456 U. S. 692
should simply decide this case on its facts, as we did in
United States v. Dinitz and
Lee v. United States,
[
Footnote 2/35] and thereby
continue to give meaning to the "abstract formula" [
Footnote 2/36] in the context of actual
cases.
II
The petitioner, [
Footnote
2/37] and the state court that denied the respondent's motion
to dismiss, [
Footnote 2/38] 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
Page 456 U. S. 693
defendant. The comment therefore could not have injected the
kind of prejudice that would render unmeaningful the defendant's
option to proceed with the trial.
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.
[
Footnote 2/1]
Although I am willing to accept the Court's reading of the
Oregon Court of Appeals' opinion as having been based on federal
law, I find the question somewhat more difficult than does the
Court, because the Oregon Supreme Court declined to review the case
without explaining its reasons. Since the Oregon Supreme Court
seems to have interpreted the state constitutional protection
against double jeopardy to be broader than the federal provision,
see State v. Rathbun, 287 Ore. 421,
600 P.2d
392 (1979), it is entirely possible that that court's refusal
to review the Court of Appeals' decision was predicated on its view
that the decision was sound as a matter of state law, regardless of
whether it was compelled by federal precedents.
[
Footnote 2/2]
United States v. Jorn, 400 U.
S. 470,
400 U. S. 479
(plurality opinion).
[
Footnote 2/3]
United States v. Ball, 163 U.
S. 662.
[
Footnote 2/4]
Arizona v. Washington, 434 U.
S. 497,
434 U. S.
503.
[
Footnote 2/5]
Id. at
434 U. S. 505.
The Court in
Wade v. Hunter, 336 U.
S. 684, explained:
"The double jeopardy provision of the Fifth Amendment . . . does
not mean that, every time a defendant is put to trial before a
competent tribunal, he is entitled to go free if the trial fails to
end in a final judgment. Such a rule would create an insuperable
obstacle to the administration of justice in many cases in which
there is no semblance of the type of oppressive practices at which
the double jeopardy prohibition is aimed. There may be
unforeseeable circumstances that arise during a trial making its
completion impossible, such as the failure of a jury to agree on a
verdict. In such event, the purpose of law to protect society from
those guilty of crime frequently would be frustrated by denying
courts power to put the defendant to trial again. And there have
been instances where a trial judge has discovered facts during a
trial which indicated that one or more members of a jury might be
biased against the Government or the defendant. It is settled that
the duty of the judge in this event is to discharge the jury and
direct a retrial. What has been said is enough to show that a
defendant's valued right to have his trial completed by a
particular tribunal must, in some instances, be subordinated to the
public's interest in fair trials designed to end in just
judgments."
Id. at
336 U. S.
688-689 (footnote omitted).
[
Footnote 2/6]
"The reasons why [the defendant's 'valued right to have his
trial completed by a particular tribunal'] merits constitutional
protection are worthy of repetition. Even if the first trial is not
completed, a second prosecution may be grossly unfair. It increases
the financial and emotional burden on the accused, prolongs the
period in which he is stigmatized by an unresolved accusation of
wrongdoing, and may even enhance the risk than an innocent
defendant may be convicted. The danger of such unfairness to the
defendant exists whenever a trial is aborted before it is
completed. Consequently, as a general rule, the prosecutor is
entitled to one, and only one, opportunity to require an accused to
stand trial."
Arizona v. Washington, supra, at
434 U. S.
503-505 (footnotes omitted).
[
Footnote 2/7]
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
336 U. S.
689.
[
Footnote 2/8]
See United States v. Dinitz, 424 U.
S. 600,
424 U. S.
609.
[
Footnote 2/9]
Arizona v. Washington, 434 U.S. at
434 U. S.
505.
[
Footnote 2/10]
Ibid.
[
Footnote 2/11]
United States v. Jorn, 400 U.S. at
400 U. S.
485.
[
Footnote 2/12]
The exception also encompasses comparable judicial misconduct.
Because we are confronted with prosecutorial error, this opinion
will address only that context.
[
Footnote 2/13]
Ibid. The Court has never invoked the exception to bar
reprosecution after a mistrial. In only two cases has the Court
actually been confronted with a claim that the exception applied.
In
United States v. Dinitz, supra, the trial court had
granted the defendant's motion for a mistrial after expelling
defense counsel for repeated misconduct. In holding that retrial
was not barred by the Double Jeopardy Clause, this Court
articulated the exception and the reasons why it was not
established on the facts of that case:
"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. It bars retrials where 'bad faith conduct by
judge or prosecutor,'
United States v. Jorn, supra, at
400 U. S. 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
372 U. S. 736.
See Gori v. United States, 367 U.S. at
367 U. S. 369;
United States v. Jorn, supra, at
400 U. S. 489
(STEWART, J., dissenting);
cf. Wade v. Hunter, 336 U.S. at
336 U. S.
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
424 U. S. 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
432 U. S. 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 impress upon the court the importance to petitioner of
not being placed in jeopardy on a defective charge."
432 U.S. at
432 U. S. 33-34
(footnote omitted).
For other descriptions of the overreaching or harassment
exception,
see, e.g., Arizona v. Washington, supra, at
434 U. S. 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,
410 U. S. 464
(error "that would lend itself to prosecutorial manipulation");
United States v. Jorn, 400 U.S. at
400 U. S. 485
("prosecutorial . . . overreaching");
id. at
400 U. S. 485,
n. 12 ("prosecutorial impropriety designed to avoid an acquittal");
United States v. Tateo, 377 U. S. 463,
377 U. S. 468,
n. 3 ("prosecutorial . . . impropriety . . . result[ing] from a
fear that the jury was likely to acquit the accused").
[
Footnote 2/14]
United States v. Jorn, 400 U.S. at
400 U. S.
484.
[
Footnote 2/15]
Id. at
400 U. S. 484,
n. 11.
See also United States v. Tateo, supra, at
377 U. S. 474
(Goldberg, J., dissenting) ("Many juries acquit defendants after
trials in which reversible error has been committed, and many
experienced trial lawyers will forego a motion for a mistrial in
favor of having his case decided by the jury")
[
Footnote 2/16]
"[I]t is evident that, when judicial or prosecutorial error
seriously prejudices a defendant, he may have little interest in
completing the trial and obtaining a verdict from the first jury.
The defendant may reasonably conclude that a continuation of the
tainted proceeding would result in a conviction followed by a
lengthy appeal and, if a reversal is secured, by a second
prosecution. In such circumstances, a defendant's mistrial request
has objectives not unlike the interests served by the Double
Jeopardy Clause -- the avoidance of the anxiety, expense, and delay
occasioned by multiple prosecutions."
United States v. Dinitz, 424 U.S. at
424 U. S.
608.
[
Footnote 2/17]
Id. at
424 U. S.
609.
[
Footnote 2/18]
See Westen & Drubel, Toward a General Theory of
Double Jeopardy, 1978 S.Ct.Rev. 81, 101-102.
[
Footnote 2/19]
"The prosecutor might wish to provoke a mistrial in order to
shop for a more favorable trier of fact, or to correct deficiencies
in [his] case, or to obtain an unwarranted preview of the
defendant's evidence."
Id. at 94.
[
Footnote 2/20]
Cf. Brock v. North Carolina, 344 U.
S. 424,
344 U. S. 429
(Frankfurter, J., concurring).
[
Footnote 2/21]
Compare ante at
456 U. S.
675-676 ("Prosecutorial conduct that might be viewed as
harassment or overreaching, even if sufficient to justify a
mistrial on defendant's motion, therefore, does not bar retrial
absent intent on the part of the prosecutor to subvert the
protections afforded by the Double Jeopardy Clause"),
with
ante at
456 U. S. 676
("Only where the governmental conduct in question is intended to
goad' the defendant into moving for a mistrial may a defendant
raise the bar of double jeopardy to a second trial after having
succeeded in aborting the first on his own motion"), and
ante at 456 U. S. 679
("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").
[
Footnote 2/22]
The Court offers two reasons for cutting back on the exception.
First, the Court states that
"[t]he 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."
Ante at
456 U. S. 674.
As I indicate in the text, however, some generality in the formula
is a virtue and, in any event, meaningful and principled standards
can be developed on a case-by-case basis that will not inhibit
legitimate prosecution practices.
See infra at
456 U. S.
689-692. Moreover, the general standards could hardly be
more difficult to apply than the Court's subjective intent
standard. On this point, it is noteworthy that JUSTICE REHNQUIST
recently cited the exception for "prosecutorial overreaching or
misconduct" to illustrate that double jeopardy analysis rests on
"balancing and fairness," rather than "
bright line'
distinction[s]." Finch v. United States, 433 U.
S. 676, 433 U. S. 680
(dissenting opinion).
Second, the Court is "not sure that criminal defendants as a
class would be aided" by a broader exception.
Ante at
456 U. S. 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).
[
Footnote 2/23]
For an example of the kind of case that the Court's limited
exception would cover,
see Commonwealth v. Warfield, 424
Pa. 555, 227 A.2d 177 (1967).
[
Footnote 2/24]
"As an initial matter, I question the validity of the lower
court's assumption that the Government in such cases tailors its
misconduct to achieve one improper result, as opposed to another.
It is far more likely that, in cases such as this, where the
prosecution is concerned that the trial may result in an acquittal,
the Government engages in misconduct with the general purpose of
prejudicing the defendant. In this case, for example, the
Government stood to benefit from Dixon's misconduct, regardless of
whether it resulted in a guilty verdict or a mistrial. Moreover,
even if such subtle differences in motivation do exist, I suspect
that a defendant seeking to prevent a retrial will seldom be able
to prove the Government's actual motivation."
Green v. United States, 451 U.
S. 929, 931, n. 2 (MARSHALL, J., dissenting from denial
of certiorari).
[
Footnote 2/25]
Moreover, a standard that requires a prosecutor to take the
stand to explain his trial strategy and his train of thought prior
to making a serious error is of questionable wisdom.
[
Footnote 2/26]
See, e.g., Shaw v. Garrison, 328 F.
Supp. 390 (ED La.1971),
aff'd, 467 F.2d 113 (CA5
1972),
cert. denied, 409 U.S. 1024.
[
Footnote 2/27]
The defendant's successful argument for a bar to reprosecution
in
United States v. Kessler, 530 F.2d 1246, 1253 (CA5
1976), was that,
"otherwise "a prosecutor would have the option of first trying
his case with inadmissible, prejudicial, and irrelevant evidence --
that is, committing known error -- in hopes of
getting away'
with it, with the ability to retry the case properly if the first
trial is aborted by a mistrial.""
[
Footnote 2/28]
Ante at
456 U. S.
673.
[
Footnote 2/29]
Deliberate misconduct generally must be inferred from the
objective evidence. The more egregious the prosecutorial error, and
the harsher its impact on the defendant, the more readily the
inference could be drawn.
[
Footnote 2/30]
Justice Harlan aptly described the defendant's interest as
"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 U.S. at
400 U. S. 486.
There is a corresponding societal interest against the historical
and abhorrent practice of terminating trials whenever it appeared
that the government's evidence was insufficient to convict.
See
Arizona v. Washington, 434 U.S. at
434 U. S.
507-508.
[
Footnote 2/31]
In a case in which the prosecutor's intent is primarily to
harass the defendant, and only secondarily to obtain a conviction,
this consideration would, of course, carry much less weight. The
Double Jeopardy Clause protects 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."
Downum v. United
States, 372 U. S. 734,
372 U. S.
736.
[
Footnote 2/32]
See especially the Court's opinion in
Illinois v.
Somerville, 410 U. S. 458.
JUSTICE MARSHALL criticized the majority in that case for
"abandon[ing] th[e] tradition [of elaboration of rules which
give increasing guidance as case after case is decided] and
[adopting] a new balancing test whose elements are stated on such a
high level of abstraction as to give judges virtually no guidance
at all in deciding subsequent cases."
Id. at
410 U. S. 483
(dissenting opinion).
[
Footnote 2/33]
The petitioner and the United States as
amicus curiae
cite only a few cases in which the exception has been invoked to
bar reprosecution. One commentator discovered only two cases in
which a Federal Court of Appeals barred reprosecution. Note, Double
Jeopardy: An Illusory Remedy for Governmental Overreaching at
Trial, 29 Buffalo L.Rev. 759, 760, n. 16 (1980).
[
Footnote 2/34]
"We should not be so unmindful, even when constitutional
questions are involved, of the principle of
stare decisis,
by whose circumspect observance the wisdom of this Court as an
institution transcending the moment can alone be brought to bear on
the difficult problems that confront us. . . . Furthermore, we are
not here called upon to weigh considerations generated by changing
concepts as to minimum standards of fairness, which interpretation
of the Due Process Clause inevitably requires. Instead, the defense
of double jeopardy is involved, whose contours are the product of
history. In this situation, the passage of time is not enough, and
the conviction borne to the mind of the rightness of an overturning
decision must surely be of a highly compelling quality to justify
overruling a well-established precedent when we are presented with
no considerations fairly deemed to have been wanting to those who
preceded us."
Green v. United States, 355 U.
S. 184,
355 U. S. 215
(Frankfurter, J., dissenting).
[
Footnote 2/35]
See 456
U.S. 667fn2/13|>n. 13,
supra.
[
Footnote 2/36]
Wade v. Hunter, 336 U.S. at
336 U. S.
691.
[
Footnote 2/37]
"The Oregon Court of Appeals' holding that retrial of this case
was barred on double jeopardy grounds is erroneous by any standard
of prosecutorial overreaching which the lower courts of this
country had previously derived from the decisions of this
Court."
Brief for Petitioner 43.
[
Footnote 2/38]
"I have reviewed the transcript and the wording, as put, and I
would agree that the question was improper as put. I do not find,
however, that it constitutes bad faith or was intentional
impropriety. The question of whether or not it constitutes
overreaching is one of those gray areas where we have to determine
what 'overreaching' means, and in looking to the case which the
defense has cited,
United States v. Kessler, prosecutorial
overreaching is there defined as being such as must have been a
result of gross negligence or intentional misconduct which
prejudiced the defendant so that he cannot receive a fair trial,
and I wouldn't find that the overreaching or the erroneous conduct
in this matter reaches that degree of aggravation. I don't think it
amounted to gross negligence or intentional misconduct."
App. 53.