Oregon v. Kennedy

456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416, 1982 U.S. LEXIS 111, 50 U.S.L.W. 4544

Opinions

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 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.¹ The following colloquy then ensued:

“Prosecutor: Have you ever done business with the Kennedys?

“Witness: No, I have not.

“Prosecutor: Is that because he is a crook?”

The trial court then granted respondent’s motion for a mistrial.

When the State later sought to retry respondent, he moved to dismiss the charges because of double jeopardy. After a hearing at which the prosecutor testified, the trial court² found as a fact that “it was not the intention of the prosecutor in this case to cause a mistrial.” 49 Ore. App., at , 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, 485 . . . (197[1]). However, retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant. United States v. Dinitz, 424 U. S. 600, 611 . . . (1976). Accord, State v. Rathbun, 37 Or. App. 259, 586 P. 2d 1136 (1978), reversed on other grounds, 287 Or. 421, [600] P. 2d [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 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, 652 (1979); California v. Krivda, 409 U. S. 33, 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, 568 (1977).

II

The Double J eopardy Clause of the Fifth Amendment³ protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U. S. 600, 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 particular tribunal.” Wade v. Hunter, 336 U. S. 684, 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, 483-484 (1971) (plurality opinion); Wade v. Hunter, 336 U. S., at 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, 580 (1824). Perez dealt with the most common form of “manifest necessity”: a mistrial declared by the judge following the jury’s declaration that it was unable to reach a verdict. While other situations have been recognized by our cases as meeting the “manifest necessity” standard, the hung jury remains the prototypical example. See, e. g., Arizona v. Washington, 434 U. S. 497, 509 (1978); Illinois v. Somerville, 410 U. S. 458, 463 (1973). The “manifest necessity” standard provides sufficient protection to the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining “the public’s interest in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.

But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the “manifest necessity” standard has no place in the application of the Double Jeopardy Clause. United States v. Dinitz, supra, at 607-610. Indeed, in United States v. Tateo, 377 U. S. 463, 467 (1964), the Court stated:

“If Tateo had requested a mistrial on the basis of the judge’s comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him” (emphasis in original).

Our cases, however, have indicated that even where the defendant moves for a mistrial, there is a narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial. See, e. g., United States v. DiFrancesco, 449 U. S. 117, 130 (1980); United States v. Dinitz, supra, at 611; United States v. Jorn, supra, at 485; United States v. Tateo, supra, at 468, n. 3. The circumstances under which respondent’s first trial was terminated require us to delineate the bounds of that exception more fully than we have in previous cases.

Since one of the principal threads making up the protection embodied in the Double Jeopardy Clause is the right of the defendant to have his trial completed before the first jury empaneled to try him, it may be wondered as a matter of original inquiry why the defendant’s election to terminate the first trial by his own motion should not be deemed a renunciation of that right for all purposes. We have recognized, however, that there would be great difficulty in applying such a rule where the prosecutor’s actions giving rise to the motion for mistrial were done “in order to goad the [defendant] into requesting a mistrial.” United States v. Dinitz, supra, at 611.⁴ In such a case, the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances. But the precise phrasing of the circumstances which will allow a defendant to interpose the defense of double jeopardy to a second prosecution where the first has terminated on his 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 States v. Dinitz, 424 U. S., at 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 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 ‘[harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” United States v. Dinitz, 424 U. S., at 611 (citation omitted).

' The language just quoted would seem to broaden the test from one of intent to provoke a motion for a mistrial to a more generalized standard of “bad faith conduct” or “harassment” on the part of the judge or prosecutor. It was upon this language that the Oregon Court of Appeals apparently relied in concluding that the prosecutor’s colloquy with the expert witness in this case amount to “overreaching.”

The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to “prejudice” the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence 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.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 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 States v. Scott, 437 U. S. 82, 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 States v. Dinitz, supra, at 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.⁶ If a mistrial were in fact warranted under the applicable law, of course, the defendant could in many instances successfully appeal a judgment of conviction on the same grounds that he urged a mistrial, and the Double Jeopardy Clause would present no bar to retrial.⁷ But some of the advantages secured to him by the Double 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 608.

In adopting the position we now do, we recognize that language taken from our earlier opinions may well suggest a broader rule.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 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 or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred.” Id., at 485, n. 12. There are likewise statements in United States v. Dinitz, supra, at 611, based largely on the plurality opinion in Jom 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.

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).

2 These proceedings were not conducted by the same trial judge who presided over respondent’s initial trial.

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.

4 Cf. United States v. Tateo, 377 U. S. 463, 468, n. 3 (1964) (“If there were any intimation in a ease 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”).

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.

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, 130-131 (1980).

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 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 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, 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.

8 Justice Stevens states that we “gratuitously lo[p] off a portion of the previously recognized exception.” Post, at 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 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, 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 611, and at another point on the same page of “ ‘bad-faith conduct by judge or prosecutor’ ” which “threatens the ‘[hjarassment 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 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 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.