OREGON V. KENNEDY, 456 U. S. 667 (1982)

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U.S. Supreme Court

Oregon v. Kennedy, 456 U.S. 667 (1982)

Oregon v. Kennedy

No. 80-1991

Argued March 29, 1982

Decided May 24, 1982

456 U.S. 667


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."


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.

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