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Prosecutorial Misconduct and the Double Jeopardy Clause: An
Attempt to Find a Universally Acceptable Standard
In 1993, a court of the State of New Mexico convicted Foster James Breit of
aggravated assault and first-degree murder.1 The trial court then granted Breit
a new trial because the prosecutor had engaged in egregious misconduct. 2
“[T]his [trial] was out of control. The prosecutor’s misconduct began
‘[b]arely into his opening statement’ . . . [when] he attempted to inflame the
jury with allegations that were irrelevant, matters that could not permissibly be
presented as evidence, and exaggerated claims that no evidence could ever
support. When objections were raised and sustained, he expressed sarcasm
and scorn toward opposing counsel and the court. During the questioning of
witnesses he engaged in improper arguments with witnesses. On crossexamination, even after direct admonition from the court, he attempted to
solicit irrelevant comments from the defendant . . . . He directed belligerent
remarks at opposing counsel . . . [including] utter[ing] an implied threat
without provocation: ‘You wave that at me one more time sweetheart’ . . . both
his tone of voice and nonverbal conduct were highly prejudicial. He displayed
‘sarcasm, sneering, rolling of eyes and exaggerated expressions.’ This
misconduct continued through the closing . . . [when he] made direct appeals to
the sympathies and prejudices of the jury . . . [and] belittled the defendant’s
fundamental right to remain silent . . . . [H]e suggested that opposing counsel
had engaged in perjury, lying, and collaborating with the defendant to
fabricate a defense.”3 Regardless of this egregious misconduct, the federal
standard would not bar a retrial.4 This court, however, expanded the federal
standard to include such egregious misconduct because it clearly stripped the
defendant of his right to a fair trial.5
I. INTRODUCTION
The Double Jeopardy Clause of the Fifth Amendment embodies a historic
1. Rosario Dyana Vega, Note, State Constitutional Law—New Mexico Rejects Prosecutorial Goading As
Test for Double Jeopardy Bar—State v. Breit, 28 N.M. L. REV. 151, 151 (1998) (providing background
information on case including year of conviction).
2. State v. Breit, 930 P.2d 792, 795 (N.M. 1996) (summarizing history of case).
3. Id. at 805 (detailing prosecutorial misconduct from trial record).
4. Id. at 795 (reasoning Breit’s retrial not barred under Kennedy standard).
5. Id. at 803 (expanding standard to include prejudicial misconduct committed with willful disregard
resulting in reversed conviction).
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constitutional protection for criminal defendants that provides finality to
criminal proceedings.6 The Clause provides in pertinent part: “nor shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb.”7 Controversy arises when the court must determine whether the Clause
applies only to mistrials or also to successful reversals of conviction,
specifically those caused by prosecutorial misconduct.8 For the past twenty
years, the United States Supreme Court and state courts have disagreed on the
applicable standard to apply to such Double Jeopardy claims regarding
prosecutorial misconduct.9 As a result, although several state courts embrace
the federal standard, many have constructed their own standards when
determining the protections provided by their own constitutions.10
There are several important considerations for interpreting the purpose of the
Double Jeopardy Clause.11 Courts continually emphasize that the Clause
provides protection to the criminal defendant but is not a sanction against
prosecutors despite any inappropriate or egregious conduct.12 As a general
6. Oregon v. Kennedy, 456 U.S. 667, 681 (1982) (Stevens, J., concurring) (noting prosecution not
allowed to re-prosecute for same offense after acquittal or conviction); United States v. Wilson, 420 U.S. 332,
339 (1975) (indicating long history of double jeopardy); Michael V. Young, Note, Double Jeopardy and
Defendant’s Request for Mistrial: Texas Court of Criminal Appeals Finds Prosecutor’s Intent No Longer
Critical: Prosecutor Should Have Known; Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996), 27 TEX.
TECH. L. REV. 1631, 1632 (1996) (quoting Eli J. Richardson, Eliminating Double-Talk from the Law of Double
Jeopardy, 22 FLA. ST. U. L. REV. 119, 121 (1994)) (noting long history of double jeopardy concept).
7. U.S. CONST. amend. V. (expounding definition of Double Jeopardy). The Double Jeopardy Clause
applies to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969)
(holding Fifth Amendment fundamental and therefore applicable to states).
8. Compare Kennedy, 456 U.S. at 676 (Rehnquist, J., plurality) (declaring prosecution must intend
misconduct to goad defendant into requesting mistrial to bar retrial), with Bauder v. State, 921 S.W.2d 696, 699
(Tex. Crim. App. 1996) (including prosecution’s conscious disregard as well as Kennedy intent under
standard), and Ex parte Davis, 957 S.W.2d 9, 14 (Tex. Crim. App. 1997) (limiting Bauder and Kennedy to
mistrial context).
9. See Vega, supra note 1, at 156 (noting rejection by several states of Supreme Court’s narrow Kennedy
standard); supra note 8 and accompanying text (examining other contrary cases). Compare Kennedy, 456 U.S.
at 676 (Rehnquist, J., plurality) (limiting retrial to when prosecution intends misconduct to goad defendant into
requesting mistrial), with State v. Kennedy, 666 P.2d 1316, 1318, 1326 (Or. 1983) (disagreeing with Court’s
ruling in Kennedy and using expanded standard on remand).
10. State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999) (holding egregious prosecutorial misconduct denies
defendant fair trial); Stamps v. Commonwealth, 648 S.W.2d 868, 869 (Ky. 1983) (declaring Kennedy standard
applicable to Double Jeopardy clause in Kentucky Constitution); People v. Dawson, 397 N.W.2d 277, 284
(Mich. Ct. App. 1986) (including both prosecutor’s indifference and specific intent within standard); State v.
Girts, 700 N.E.2d 395, 402-03 (Ohio Ct. App. 1997) (construing protection under Ohio Constitution coextensive with protection afforded under United States Constitution); State v. Cabrera, 24 S.W.3d 528, 532
(Tex. Ct. App. 2000) (upholding expanded standard outlined in Bauder).
11. See Rogan, 984 P.2d at 1242-43 (indicating need to balance defendant’s interests with society’s
interest); see also Ware v. State, 759 A.2d 764, 796 (Md. 2000) (rejecting defendant’s argument to use Double
Jeopardy Clause to sanction prosecutorial misconduct).
12. State v. Jorgenson, 10 P.3d 1177, 1180 (Ariz. 2000) (en banc) (stressing judgment not intended to
sanction prosecutor but required by Arizona’s Constitution); Hagez v. State, 749 A.2d 206, 227 (Md. Ct. Spec.
App. 2000) (quoting Beringer v. Sheahan, 934 F.2d 110, 113 (7th. Cir. 1991)) (cautioning Double Jeopardy
Clause not intended to punish prosecutorial misconduct); Kennedy, 666 P.2d at 1326 (clarifying prosecutorial
punishment not purpose of Double Jeopardy protection).
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principle, when a defendant requests a mistrial and the judge grants it, there is
no restriction on reprosecution under the Double Jeopardy Clause.13
Alternatively, when a prosecutor’s misconduct becomes so egregious that it
subverts the defendant’s right to a fair trial, the prosecutor has given the
defendant a hollow choice: whether to continue with the first tainted trial or
request a mistrial, thereby implicating the Double Jeopardy Clause.14 Courts,
therefore, have the difficult task of balancing the defendant’s interest in having
his fate decided by a single proceeding and society’s interest in convicting the
guilty.15
In 1982, in Oregon v. Kennedy, the United States Supreme Court effectively
limited a defendant’s constitutional protection by focusing on prosecutorial
intent, contrary to well-established precedent that also weighed prosecutorial
“overreaching” and “harassment” in determining whether misconduct should
bar reprosecution.16 On remand, however, the Oregon Supreme Court chose to
interpret its state constitution more broadly than the Supreme Court, expanding
the constitutional protection afforded to criminal defendants under the Double
Jeopardy Clause.17 Following the decision handed down in Kennedy and the
subsequent refusal by the Oregon Supreme Court to adopt the federal standard,
other states have split as to what standard to apply when construing their own
state constitutions.18
13. See e.g., United States v. Scott, 437 U.S. 82, 93 (1978) (acknowledging Double Jeopardy Clause
permits second prosecution when defendant successfully requests mistrial); United States v. Jorn, 400 U.S. 470,
485 (1971) (denying defendant’s motion for mistrial removes barrier to retrial); Barry Tarlow, Narrowing
Double Jeopardy Bar to Retrial After Intentional Prosecutorial Misconduct Reversal, 22 CHAMPION 48, 49
(1998) (noting general rule of no bar to reprosecution when defendant requests or consents to mistrial).
14. See United States v. Dinitz, 424 U.S. 600, 608-10 (1976) (requiring more control over proceedings
than Hobson’s Choice before defendant forfeits Fifth Amendment protection). A “Hobson’s Choice” occurs
“when a defendant . . . must choose between two equally objectionable alternatives: [he] must either relinquish
the opportunity of having [his] fate determined by the jury first impaneled and endure the expense and anxiety
of a second trial, or [he] must continue with a proceeding that has been prejudiced by prosecutorial
misconduct.” State v. Breit, 930 P.2d 792, 797 (N.M. 1996).
15. State v. Rogan, 984 P.2d 1231, 1242-43 (Haw. 1999) (balancing defendant’s interest in finality with
society’s interest in effective law enforcement); see Michael P. Reagan, Comment, State v. Mallet, 604 A.2d
1263, 27 SUFFOLK U. L. REV. 484, 487-88 (1993) (asserting Supreme Court of Rhode Island balanced
defendant’s and society’s interests by using Kennedy standard).
16. Oregon v. Kennedy, 456 U.S. 667, 674-76 (1982) (Rehnquist, J., plurality) (determining intent
standard more manageable than language used in prior cases); Dinitz, 424 U.S. at 611 (defining standard as
incorporating misconduct intended in bad faith or to harass or prejudice defendant); United States v. Jorn, 400
U.S. 470, 485 (1971) (including prosecutorial or judicial overreaching as part of Double Jeopardy protection).
Kennedy set forth the new standard of review in determining Double Jeopardy protection where prosecutorial
misconduct results in a mistrial at the request of the defendant. Kennedy, 456 U.S. at 675-76 (Rehnquist, J.,
plurality). The new standard focuses on whether the prosecutor’s intent was to goad the defendant into
requesting a mistrial. Id. at 676 (Rehnquist, J., plurality).
17. State v. Kennedy, 666 P.2d 1316, 1318, 1326 (Or. 1983) (expanding protection for defendant under
state constitution instead of following narrow federal standard).
18. See supra notes 8-10 and accompanying text (identifying cases disagreeing on applicable standard);
infra notes 19-21 and accompanying text (debating defendant’s Double Jeopardy protection in reversed
conviction situations). Compare State v. White, 369 S.E.2d 813, 815 (N.C. 1988) (applying Kennedy
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Kennedy focused solely on the standard for prosecutorial misconduct where
the defendant moved for a mistrial, but the decision has also influenced
defendants’ rights when seeking to reverse their convictions.19 The general rule
does not bar reprosecution when a defendant successfully reverses his
conviction except for insufficiency of the evidence, because the defendant
exercised his fundamental right to a jury in the first trial.20 After reevaluating
their standards for mistrials, several state courts have afforded the same
protection to the defendant with a reversed conviction as with a mistrial, and
barred retrial.21
This Note traces the development of case law over the past twenty years
relating to the effect of prosecutorial misconduct on mistrials and reversed
convictions under the Double Jeopardy Clause.22 This Note further examines
the nature of protection provided by the Double Jeopardy Clause and the
importance of balancing defendants’ rights against the public interest.23 This
Note also highlights the reasoning that underlies the controversy between the
United States Supreme Court and state courts pertaining to application of the
Clause.24 Finally, this Note analyzes recommendations by other commentators
as to the best standard available to the courts, and then offers an additional
approach to this difficult question.25
standard), and State v. Hull, 754 A.2d 84, 87 (R.I. 2000) (applying Kennedy standard to find no prosecutorial
misconduct), with Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (applying Arizona’s expanded
standard), Commonwealth v. Martorano, 741 A.2d 1221, 1223 (Pa. 1999) (applying pre-Kennedy standard),
and Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (applying Pennsylvania’s expanded standard).
19. United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (suggesting Kennedy extension to reversed
convictions if prosecutor trying to prevent acquittal); State v. Jorgenson, 10 P.3d 1177, 1180 (Ariz. 2000) (en
banc) (applying Pool standard in mistrial context to reversed convictions); State v. Rogan, 984 P.2d 1231, 1249
(Haw. 1999) (holding reprosecution after mistrial or reversed conviction barred where egregious misconduct
denies defendant fair trial); State v. Breit, 930 P.2d 792, 802-03 (N.M. 1996) (stating retrial barred when
misconduct prejudicial and committed with willful disregard).
20. United States v. Scott, 437 U.S. 82, 90-91 (1978) (allowing retrial of reversed conviction because
governmental actions not oppressive); United States v. McAleer, 138 F.3d 852, 856 (10th Cir. 1998)
(acknowledging general rule because rule does not deprive defendant of right to first jury); see Ex parte Davis,
957 S.W.2d 9, 11 (Tex. Crim. App. 1997) (quoting Montana v. Hall, 481 U.S. 400, 402-03 (1987)) (noting
retrial not barred by successful appeal of conviction as part of double jeopardy jurisprudence).
21. Martorano, 741 A.2d at 1223 (holding prosecutorial misconduct barred retrial after reversed
conviction because defendant denied fair trial); see supra note 19 and accompanying text (listing additional
cases where courts extended standard to reversed convictions).
22. Infra notes 56-108 and accompanying text (tracing federal and state cases discussing effect of
prosecutorial misconduct on defendants’ Double Jeopardy protection).
23. Infra notes 26-54 and accompanying text (outlining long history of Double Jeopardy Clause, its policy
reasons, and resultant competing interests).
24. Infra notes 62-72, 77-85, 94-98, 100-02, 106-08 and accompanying text (detailing reasons for
inconsistency among federal and state courts in applying Double Jeopardy protection).
25. Infra notes 109-13, 129-52 and accompanying text (suggesting alternative standards for determining
defendant’s Double Jeopardy protection when affected by prosecutorial misconduct).
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II. HISTORY
A. The Origins and Purpose of the Double Jeopardy Clause
The Fifth Amendment’s Double Jeopardy Clause provides that a defendant
should not be tried twice or punished twice for the same offense.26 Lord Coke
described double jeopardy protection in the 17th century as consisting of three
related common-law pleas: autrefois acquit, autrefois convict, and pardon.27
Later, Blackstone declared that double jeopardy protection included only the
first two common-law pleas.28 During the ratification process for the Bill of
Rights, James Madison added a ban against double jeopardy at the request of
several states.29 The House of Representatives questioned the wording of
Madison’s double jeopardy provision but it survived the House vote only for
the Senate to reject it in favor of more traditional language.30 Courts’
interpretation of the final form of the Double Jeopardy Clause’s language
initiated the question of how far to extend Double Jeopardy protection.31
26. Supra note 7 and accompanying text (promulgating definition of Double Jeopardy and its application
to states).
27. United States v. Wilson, 420 U.S. 332, 340 (1975) (discussing history of double jeopardy protection).
Black’s Law Dictionary defines “autrefois acquit,” or former acquittal, as “a plea in bar of arraignment that the
defendant has been acquitted of the offense.” BLACK’S LAW DICTIONARY 130 (7th ed. 1999). “Autrefois
convict” means “a plea in bar of arraignment that the defendant has been convicted of the offense.” Id.
Black’s Law Dictionary defines a “plea in bar” as “a plea that seeks to defeat the plaintiff’s or prosecutor’s
action completely and permanently.” Id. at 1174. Black’s defines a “pardon” as “the act or an instance of
officially nullifying punishment or other legal consequences of a crime.” Id. at 1137. The defendant could
utilize these three common law pleas to bar retrial if the retrial consisted of the same offense and the defendant
had already been convicted, acquitted, or pardoned for the offense. Wilson, 420 U.S. at 340 (describing use of
common law pleas to bar second trial). The English Law recognized the principle underlying double jeopardy
at the time of the Year Books and the English courts used it as early as the 15th century. Id. at 340 n.6 (noting
time double jeopardy principle first recognized and used in English courts). The English Year Books are the
source of legal doctrines developed between 1268 and 1535. David J. Seipp, Boston University School of Law,
Legal History: The Year Books, Medieval English Legal History (Apr. 8, 2003), available at http://www.bu.
edu/law/seipp/.
28. Wilson, 420 U.S. at 340 (characterizing principle as including common law pleas of autrefois acquit
and autrefois convict). Blackstone believed that the jeopardy principle was a “universal maxim of the common
law of England [writing] that no man is to be brought into jeopardy of his life more than once for the same
offense.” Id. (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *335-36) (noting Blackstone’s commentaries
on jeopardy principle).
29. Id. at 340-41 (detailing ratification process of Double Jeopardy Clause). The provision provided in
pertinent part: “No person shall be subject, except in cases of impeachment, to more than one punishment or
one trial for the same offence.” Id. at 341 (quoting 1 ANNALS OF CONG. 434 (1789)) (citing Madison’s
proposed Double Jeopardy provision).
30. Wilson, 420 U.S. at 341 (describing challenge to Madison’s provision made by House of
Representatives). Several members in the House of Representatives expressed concern that other
representatives would misinterpret the provision to prevent the defendant from appealing for a new trial after
conviction. Id. The supporters of the provision felt, however, that the protection afforded the defendant in
appealing for a new trial was implicit in the language and the proposed amendment would only serve to ratify
the current law. Id.
31. See supra notes 8-10, 18-21 and accompanying text (highlighting numerous cases supporting and
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The Double Jeopardy Clause indisputably affords protection from multiple
prosecutions for the same offense after acquittal and after conviction, as well as
against multiple punishments for the same offense.32 The policy reasons
underlying the Clause include preserving the finality of judgments and
protecting a defendant from the hardship of multiple trials for the same
offense.33 Additionally, it protects defendants from the attempts of overzealous
prosecutors to re-litigate despite prior acquittal or to increase punishment after
a conviction.34 The Double Jeopardy Clause also strives to balance the
enormous power of the government and the comparatively de minimis
influence of the defendant.35 The purpose of the Double Jeopardy Clause is to
protect a defendant’s rights while not using that protection as a venue for
punishing prosecutors.36
A defendant has many reasons for seeking the protection of the Double
Jeopardy Clause.37 The defendant may want to avoid successive prosecutions
disagreeing with Kennedy’s interpretation of Double Jeopardy protection).
32. Wilson, 420 U.S. at 343 (reiterating three protections observed and outlined in past United States
Supreme Court cases); Hagez v. State, 749 A.2d 206, 217 (Md. Ct. Spec. App. 2000) (observing recent case
delineating three basic protections afforded defendant under Double Jeopardy Clause); David N. Cinotti et al.,
Thirty-First Annual Review of Criminal Procedure II. Preliminary Proceedings: Double Jeopardy, 90 GEO.
L.J. 1528, 1528 (2002) (articulating three separate protections offered by Double Jeopardy Clause). Double
Jeopardy attaches in a jury trial when the judge empanels and swears in the jury, and attaches in a bench trial
when the judge begins to hear evidence. Cinotti, supra, at 1532 (stating jeopardy attaches when defendant at
risk of guilty determination).
33. United States v. Jorn, 400 U.S. 470, 479 (1971) (explaining importance of final judgments and not
allowing government to reprosecute defendant for same offense); see State v. Rogan, 984 P.2d 1231, 1242-43
(Haw. 1999) (expounding traditional safeguards offered by Double Jeopardy Clause); see also David Rudstein,
Double Jeopardy and the Fraudulently-Obtained Acquittal, 60 MO. L. REV. 607, 610-11 (1995) (observing
policy considerations implicated by Double Jeopardy Clause); Rick Bierschbach, Note, One Bite at the Apple:
Reversals of Convictions Tainted by Prosecutorial Misconduct and the Ban on Double Jeopardy, 94 MICH. L.
REV. 1346, 1348-49 (1996) (summarizing defendant’s interests under Double Jeopardy Clause).
34. Rudstein, supra note 33, at 611 (noting additional policy considerations implicated by Double
Jeopardy Clause).
35. State v. Breit, 930 P.2d 792, 796 (N.M 1996) (quoting Justice Black regarding balancing
government’s enormous power as compared to defendant). This oft-cited quotation states:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of
jurisprudence, is that 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.
Green v. United States, 355 U.S. 184, 187-88 (1957).
36. State v. Jorgenson, 10 P.3d 1177, 1180 (Ariz. 2000) (en banc) (stressing judgment not intended to
sanction prosecutor but because required by Arizona’s Constitution); Hagez, 749 A.2d at 227 (quoting Beringer
v. Sheahan, 934 F.2d 110, 113 (7th Cir. 1991)) (cautioning Double Jeopardy Clause not intended to punish
prosecutorial misconduct); State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983) (clarifying prosecutorial
punishment not purpose of Double Jeopardy protection). But see Peter J. Henning, Prosecutorial Misconduct
and Constitutional Remedies, 77 WASH. U. L.Q. 713, 815 (1999) (suggesting double jeopardy protection
attractive means of punishing prosecutors).
37. See United States v. Scott, 437 U.S. 82, 104-05 (1978) (Brennan, J., dissenting) (suggesting financial
burden, duration, and risk of conviction as reasons to invoke Double Jeopardy Clause); State v. Rathbun, 600
P.2d 392, 397 (Or. 1979) (recognizing defendant’s interest in avoiding repeat prosecutions); Henning, supra
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because a trial inherently disrupts one’s life and provides the government an
avenue for harassment.38 Successive prosecutions also increase the likelihood
for conviction of innocent defendants.39 The finality of judgments allows the
defendant to return to a normal life once the trial ends, without fear of
readjudication by society.40
The defendant also has a strong interest in completing the trial in front of the
first jury or judge.41 The defendant must receive protection from manipulation
intended to preclude the first jury or judge from determining his fate.42 Retrial
gives to the prosecution the advantage of reevaluating the strengths and
weaknesses of its case, thereby giving prosecutors an opportunity to litigate a
stronger case on a second attempt.43
The government has important interests to weigh against a defendant’s
rights, in establishing a fair and just balancing of the double jeopardy
protections.44 Society has an interest in effective law enforcement to deter
others from committing crimes and to protect the public when guilty defendants
escape imprisonment through attorney misconduct.45 The government should
note 36, at 798-99 (recognizing incentive for defendant to seek Double Jeopardy protection); Bierschbach,
supra note 33, at 1348-49 (discussing defendant’s Double Jeopardy interests).
38. State v. Rogan, 984 P.2d 1231, 1242 (Haw. 1999) (proffering explanation for protecting defendant
from multiple prosecutions). Multiple prosecutions may cause the defendant extensive emotional and financial
burdens. See Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (noting increase of defendant’s emotional
and financial burdens); Rathbun, 600 P.2d at 397 (acknowledging repeated prosecutions subject defendant to
embarrassment, expense, and constant state of anxiety).
39. United States v. DiFrancesco, 449 U.S. 117, 128 (1980) (noting government gains opportunity to
learn from strengths of previous case and resolve its weaknesses); Rogan, 984 P.2d at 1242 (cautioning
repeated prosecutions increase possibility of convicting innocent defendants); People v. Dawson, 397 N.W.2d
277, 284 (Mich. Ct. App. 1986) (observing mistrial provided prosecutor with chance to strengthen case for
retrial); Bierschbach, supra note 33, at 1349 (suggesting retrials increase risk of convicting innocent
defendants).
40. Rogan, 984 P.2d at 1242 (quoting United States v. Jorn, 400 U.S. 470, 486 (1971)) (reiterating
defendant’s interest in “conclud[ing] his confrontation with society”); Rudstein, supra note 33, at 610-11
(detailing policy considerations including preservation of final judgments).
41. See Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (Rehnquist, J., plurality) (pointing to
defendant’s valued right in completing trial in front of first tribunal); accord United States v. Scott, 437 U.S.
82, 99-100 (1978); United States v. Dinitz, 424 U.S. 600, 606 (1976); Jorn, 400 U.S. at 484; Bierschach, supra
note 33, at 1351 (discussing defendant’s interest regarding completing first trial). The defendant has the right
to have his guilt or innocence decided by the first trier of fact because otherwise the government could
terminate the proceedings if it felt the jury would acquit. Bierschach, supra note 33, at 1351.
42. Rogan, 984 P.2d at 1243 (asserting protection from possible manipulation by government to prevent
verdict).
43. Scott, 437 U.S. at 105 n.4 (Brennan, J., dissenting) (observing mistrial provided prosecutor with
chance to strengthen case for retrial); see also supra note 39 and accompanying text (demonstrating support for
notion that reprosecution affords government opportunity to strengthen case). The prosecutor’s witnesses may
even be coached between trials, subtly changing their testimony to strengthen prosecution’s case. See Scott,
437 U.S. at 105 n.4 (Brennan, J., dissenting).
44. Infra notes 45-46 and accompanying text (describing government’s interests).
45. See Rogan, 984 P.2d at 1243 (recognizing balance between defendant’s rights and public’s interest in
enforcing laws); State v. Torres, 744 A.2d 699, 703-04 (N.J. Super. Ct. App. Div. 2000) (addressing society’s
concern for fair and vigilant enforcement of laws); Bierschbach, supra note 33, at 1352 (summarizing society’s
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be given one meaningful opportunity to present its entire case when attempting
to secure a conviction.46 The prosecutor represents the government and works
to achieve the interests of both society and the government.47 In doing so, the
prosecutor must remember that the mission to seek justice involves both an
exercise of good judgment and avoiding the temptation to exercise an unfair
advantage over the defendant.48
B. General Double Jeopardy Principles and Applicable Federal Standards
Several well-established principles provide guidance for dealing with
mistrials and reversed convictions in the context of the Double Jeopardy
Clause.49 When a court grants a mistrial at the defendant’s request or with his
consent, and no prosecutorial misconduct has occurred, the Double Jeopardy
Clause does not apply and the government can re-try the defendant.50 The
Double Jeopardy Clause provides no protection to a defendant who
successfully reverses his conviction because of a defect in the proceedings,
absent prosecutorial misconduct.51 A reversed conviction based on insufficient
interests including interest of effective law enforcement).
46. Oregon v. Kennedy, 456 U.S. 667, 692 (1982) (Stevens, J., concurring) (balancing defendant’s
interest and society’s interest in allowing prosecutor opportunity to present facts to jury); Rogan, 984 P.2d at
1243 (realizing Court’s emphasis on allowing prosecutor chance to present evidence to trier of fact). When the
judge denies the prosecution this opportunity, it is well established that a defendant’s interest in completing his
first trial may be subordinate to society’s interest in effective law enforcement. United States v. Jorn, 400 U.S.
470, 480 (1971) (noting in some instances public’s interest outweighs defendant’s interests).
47. See State v. Rogan, 984 P.2d 1231, 1244 (Haw. 1999) (articulating prosecution’s obligations and its
unique position of striving for both convictions and truth); see also Kenneth Rosenthal, Prosecutor Misconduct,
Convictions, and Double Jeopardy: Case Studies in an Emerging Jurisprudence, 71 TEMP. L. REV. 887, 94647, 951 (1998) (explaining prosecution’s relationship to government); Vega, supra note 1, at 154
(characterizing prosecutor as vehicle for public protection and law enforcement).
48. Rogan, 984 P.2d at 1244 (advocating prosecution’s goal of seeking justice and avoidance of any
appearance of an unfair advantage over defendant) (quoting State v. Quitog, 938 P.2d 559, 567 n.19 (Haw.
1997)); Vega, supra note 1, at 154 (defining tasks of prosecutor as including protection of defendant’s rights).
But see Rosenthal, supra note 47, at 945-51 (detailing government’s practically unlimited power and cases
where prosecution unfairly utilized this power).
49. See infra notes 50-54 and accompanying text (outlining general rules for mistrials and reversed
convictions). A mistrial occurs when a judge terminates a trial before the jury deliberates because of
procedural error or serious misconduct or when a jury is unable to reach a verdict. See BLACK’S LAW
DICTIONARY 1018 (7th ed. 1999). A reversed conviction occurs when a judge or jury finds a defendant guilty
and the defendant subsequently persuades the appellate court to reverse his conviction. See id. at 335.
50. See e.g., United States v. Scott, 437 U.S. 82, 93 (1978) (noting Double Jeopardy not implicated for
mistrials granted at defendants’ request); United States v. Jorn, 400 U.S. 470, 485 (1971) (asserting general rule
stating defendant’s request for mistrial removes barrier to retrial); United States v. Larouche Campaign, 866
F.2d 512, 514 (1st Cir. 1989) (commenting on appellant’s recognition of general rule providing no protection
when defendant requests mistrial); United States v. Kessler, 530 F.2d 1246, 1255 (5th Cir. 1976) (pointing to
Court’s decisions exemplifying notion that defendant’s request for mistrial removes constitutional protection).
51. United States v. Wallach, 979 F.2d 912, 915 (2d Cir. 1992) (observing rule providing no protection
when defendant secures reversal of conviction due to procedural defect); Hagez v. State, 749 A.2d 206, 217
(Md. Ct. Spec. App. 2000) (stating protections afforded by Double Jeopardy Clause not applicable when
defendant successfully appeals conviction). The new trial becomes the first trial in which the defendant was
placed in jeopardy because the original trial was ultimately nullified. See Hagez, 749 A.2d at 218 (indicating
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evidence provides the only undisputed exception to the general principle that
Double Jeopardy protection does not apply to successful appeals.52 The law
considers a reversed conviction based on insufficient evidence equivalent to an
acquittal and, therefore, subject to Double Jeopardy protection.53
When the prosecution successfully requests a mistrial or the judge sua
sponte orders a mistrial, the appellate court applies the “manifest necessity”
standard to determine whether to bar retrial.54 The disparity between federal
and state courts arises, however, when the court determines the effect of
prosecutorial misconduct on the defendant’s double jeopardy rights after the
defendant successfully requests a mistrial or reversed a conviction.55
1. The Pre-Kennedy Double Jeopardy Standard
Under the pre-Kennedy standard, misconduct by the judge or the prosecution
barred retrial when it forced the defendant into requesting a mistrial.56
Additionally, any misconduct motivated by bad faith, or misconduct that
harassed or prejudiced the defendant, barred retrial.57 The pre-Kennedy
reversed conviction means “slate wiped clean” and reprosecution allowed).
52. Scott, 437 U.S. at 90-91 (examining bar to retrial when defendant secures reversed conviction because
of insufficient evidence). This exception bars reprosecution because the government had a full and fair
opportunity to present its case and did not persuade the court that enough evidence existed for a conviction.
See Burks v. United States, 437 U.S. 1, 16 (1978) (expounding reasons for barring retrial including
prosecution’s full opportunity to present case); Bierschbach, supra note 33, at 1356-57 (summarizing holding
in Burks regarding reversed convictions).
53. Jacob v. Clarke, 52 F.3d 178, 180 (8th Cir. 1995) (noting reversed conviction results in same
protection as acquittal when reversed because of insufficient evidence); see Burks, 437 U.S. at 11 (describing
reversed conviction based on insufficient evidence functional equivalent of acquittal).
54. Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (Rehnquist, J., plurality) (reiterating “manifest
necessity” standard as classical test when trial terminated over objection of defendant). The manifest necessity
standard provides that a judge has the authority, taking all the circumstances into consideration, to discharge a
jury if there is a manifest necessity to do so or continuing the trial would defeat the ends of public justice.
United States v. Perez, 22 U.S. 579, 580 (1824). Manifest necessity most commonly involves a mistrial due to
a hung jury. Kennedy, 456 U.S. at 672 (Rehnquist, J., plurality).
55. Kennedy, 456 U.S. at 672 (Rehnquist, J., plurality) (noting different principles apply when mistrial
granted at defendant’s request); id. at 673-74 (Rehnquist, J., plurality) (noting ambiguity in previous decisions
regarding applicable double jeopardy protection when defendant requests mistrial or reverses conviction); see
supra notes 8-10, 17-19 and accompanying text (presenting differing cases on applicable standard when
defendant requests mistrial or successfully reverses conviction).
56. United States v. Dinitz, 424 U.S. 600, 611 (1976) (advocating protection when prosecutorial or
judicial misconduct intends to provoke defendant into requesting mistrial). The pre-Kennedy standard bars
retrial when the prosecution intended the error to provoke a mistrial, if the prosecution made the error in bad
faith, or it meant to harass or prejudice the defendant. Kennedy, 456 U.S. at 670 (Rehnquist, J., plurality)
(quoting Dinitz, 424 U.S. at 611) (articulating pre-Kennedy standard applicable to cases where defendant
requests mistrial). Although not initially specified, the pre-Kennedy standard includes prosecutorial or judicial
overreaching because many courts used this language to support their decisions. See Kennedy, 456 U.S. at 683
(Stevens, J., concurring) (utilizing terminology of “overreaching” when discussing pre-Kennedy standard);
United States v. Jorn, 400 U.S. 470, 485 (1971) (describing double jeopardy protection as including
“prosecutorial or judicial overreaching”); see also United States v. Kessler, 530 F.2d 1246, 1255 (1976)
(reiterating terminology used in Jorn).
57. Dinitz, 424 U.S. at 611 (setting forth pre-Kennedy standard). In Kessler, the court defined
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standard expanded the protection to cases of egregious prosecutorial
misconduct, regardless of the prosecutor’s intent.58 The Kennedy decision
limited this standard, sparking the debate over the extension of the Double
Jeopardy Clause protection.59
2. The Double Jeopardy Standard Announced in Kennedy
In Kennedy, the United States Supreme Court held that prosecutorial
misconduct bars retrial only when the prosecution performed the misconduct to
effectuate the defendant’s forced request for a mistrial.60 A plurality of justices
determined that the prosecution’s misconduct did not satisfy this standard, and
therefore, the Double Jeopardy Clause offered no protection to the defendant.61
The Court declared that the previous exception offered virtually no standard to
aid courts in determining whether prosecutorial misconduct barred retrial after
a defendant’s request for a mistrial.62
prosecutorial overreaching as occurring when “gross negligence or intentional misconduct” on the part of the
government produces aggravating circumstances that seriously prejudice the defendant so as to reasonably
convince said defendant that the tainted proceeding will result in conviction. Kessler, 530 F.2d at 1256
(quoting Dinitz, 424 U.S. at 608 and United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir. 1973)), cert.
denied, 414 U.S. 924 (1973), reh. denied, 414 U.S. 1052 (1973)) (defining elements needed to find
prosecutorial overreaching). This definition suggests that the effect of the prosecutor’s actions should
determine the defendant’s fate, rather than the subjective intent of the prosecution. Id.
58. Kessler, 530 F.2d at 1256.
59. Oregon v. Kennedy, 456 U.S. 667, 687 (1982) (Stevens, J., concurring) (clarifying plurality’s holding
in Kennedy, remarking on Court’s decision to limit previous standard of overreaching); see supra notes 8-10,
17-19 and accompanying text (presenting cases in disagreement as to what standard to apply when defendant
requests mistrial).
60. Kennedy, 456 U.S. at 676 (Rehnquist, J., plurality) (defining applicable standard for Double Jeopardy
protection when defendant requests mistrial because of prosecutorial misconduct). The defendant’s first trial
ended in a mistrial granted at the defendant’s request. State v. Kennedy, 666 P.2d 1316, 1318 (Or. 1983).
Before the retrial, the defendant moved to dismiss the charges arguing that the protection afforded him by the
Double Jeopardy Clause barred a subsequent trial. Kennedy, 456 U.S. at 669 (Rehnquist, J., plurality). The
defendant argued that he requested a mistrial because the prosecution tainted the jury by engaging in
misconduct while questioning an expert. Id. The trial judge rejected this notion on the ground that the
prosecution did not intend to cause a mistrial and therefore did not meet the pre-Kennedy standard. Id. at 66970. A jury subsequently convicted the defendant of theft during retrial. Id. at 670. The Oregon Court of
Appeals reversed, sustaining the Double Jeopardy claim because the prosecution need not intend to cause a
mistrial for jeopardy to attach. Kennedy, 456 U.S. at 670 (Rehnquist, J., plurality). The Court held that
jeopardy had attached because the prosecutorial misconduct “amounted to overreaching.” Id. The government
then appealed to the United States Supreme Court, which granted certiorari. State v. Kennedy, 666 P.2d at
1318. A four judge plurality in favor of reversal issued the opinion of the Court, with two concurring opinions,
one by Justice Powell and another by Justice Stevens, joined by three other justices. See State v. Kennedy, 666
P.2d at 1319 (observing plurality opinion and four justices disagreeing with plurality).
61. Kennedy, 456 U.S. at 679 (Rehnquist, J., plurality) (deciding in favor of government). The incident in
question occurred through the prosecution’s questioning of an expert witness. Id. at 669. The questioning
proceeded as follows: “Prosecutor: Have you ever done business with the Kennedys? Witness: No, I have
not. Prosecutor: Is that because he is a crook?” Id.
62. Kennedy, 456 U.S. at 674 (Rehnquist, J., plurality) (criticizing pre-Kennedy rule for lack of guidelines
in applying it). But see id. at 689-90 (Stevens, J., concurring) (discussing elements Court considers when
applying pre-Kennedy standard).
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The Court reasoned that the prosecution intends all conduct to prejudice the
defendant because it wants to successfully convict the defendant.63 The
“overreaching” aspect of the pre-Kennedy standard allows for too many
instances where the defendant could successfully bar retrial.64 The Court
preferred its own standard, which focuses on the prosecutor’s intent, based on
the belief that it was a “more manageable” standard.65 Courts could then apply
the standard with more ease, resulting in consistent and uniform decisions.66
The Court also noted that the broader standard, in practice, may not afford
defendants any additional protection as compared to the new limited standard.67
Although the entire Court agreed that the particular facts of this case did not
bar retrial, three justices joined Justice Stevens in a concurring opinion,
disagreeing with the plurality’s limited standard.68 Justice Stevens suggested
that the Court should have applied the existing standard instead of making new
law in a case that did not contain sufficiently egregious prosecutorial
misconduct.69 In addition, he found the standard introduced by the plurality
opinion too onerous on the defendant and not comprehensive enough to cover
actual instances of egregious misconduct that should fall within double
jeopardy protection.70 His concurrence stressed that the Court should consider
63. Id. at 674-75 (Rehnquist, J., plurality) (suggesting rarity of trial free from any objectionable
evidence).
64. See id.
65. Kennedy, 456 U.S. at 675 (Rehnquist, J., plurality) (approving “more manageable” standard based on
prosecutor’s intent over standard based on “overreaching”). Justice Powell enumerated factors a court may
consider in determining whether the prosecutor intended to cause a mistrial. Id. at 680 (Powell, J., concurring).
A court considers:
(1) whether there was a sequence of overreaching or error prior to the error resulting in the mistrial,
(2) whether the prosecutor resisted the motion for a mistrial, (3) whether the prosecutor testified, and
the court below found, that there was no intent to cause a mistrial, and (4) the timing of the error.
State v. Torres, 744 A.2d 699, 705 (N.J. Super. Ct. App. Div. 2000). Contra Rosenthal, supra note 47, at 894
(criticizing standard set forth by Kennedy Court as unclear). Rosenthal argues that the Court failed to clarify
whether it must consider the subjective or objective intent of the prosecutor under the standard. Id.
66. Young, supra note 6, at 1654-55 (outlining advantages of application of same standard by state and
federal courts); supra note 65 and accompanying text (detailing Court’s arguments for finding limited intent
standard more manageable); infra note 85 and accompanying text (discussing Justice McCormick’s opinion
regarding advantages to Kennedy standard).
67. Kennedy, 456 U.S. at 676 (Rehnquist, J., plurality) (suggesting pre-Kennedy standard would not help
defendants as class). A trial judge may be more reluctant to grant a defendant’s motion for mistrial if he
believes the defendant will then move to bar a second trial based on Double Jeopardy protection. Id.
68. Id. at 681 (Stevens, J., concurring) (admonishing plurality for removing exception to rule).
69. Id. (Stevens, J., concurring) (concluding creation of new standard unnecessary where prosecutorial
error not sufficient to satisfy existing standard); id. at 692-93 (explaining why facts of case insufficient to
satisfy existing standard).
70. Kennedy, 456 U.S. at 688 (Stevens, J., concurring) (realizing plurality’s subject intent requirement
ultimately eliminates double jeopardy protection when defendant requests mistrial); id. at 689 (discussing
situations of misconduct where prior standard offers protection but no protection under limited standard).
Justice Stevens provided two examples in which prosecutorial misconduct would bar retrial under the prior
standard where the new standard would offer no protection. Id. The first occurs when a prosecutor, attempting
to harass a defendant, engages in repeated acts of misconduct with indifference as to whether a mistrial or
reversed conviction will result. Id. Secondly, the prosecutor could infuse the trial with enough prejudice to
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whether the defendant retained control of the proceedings.71 Justice Stevens
discussed several other factors a court may consider when applying the preKennedy standard and opposed the plurality’s notion that it offers “virtually no
standards for its application.”72
C. The Debate Between States’ Interpretation of Their Own Constitution’s
Double Jeopardy Protection
The split among the justices has fueled a debate among state courts, and
between federal and state courts, regarding the proper application of the double
jeopardy clauses in state constitutions.73 The Kennedy decision does not bind
state courts engaged in interpreting their own constitutions.74 Some states have
chosen to follow the Kennedy standard while others have applied a variation of
the pre-Kennedy standard.75
1. States Adopting Kennedy Standard for Mistrials
The states that have incorporated the Kennedy standard for purposes of
interpreting their constitutions include Georgia, Illinois, Kentucky, New Jersey,
North Carolina, Ohio, and Rhode Island.76 Although Maryland does not
secure a conviction but not enough to risk reversal on appeal. Id.; see Bauder v. State, 921 S.W.2d 696, 701 n.1
(Tex. Crim. App. 1996) (Baird, J., concurring) (asserting independent research failed to uncover case satisfying
Kennedy standard); Rosenthal, supra note 47, at 910 (finding only two reported cases where Kennedy standard
afforded protection to defendant); Tarlow, supra note 13, at 50 (acknowledging author knows of no cases
where defendant satisfied Kennedy standard).
71. See Kennedy, 456 U.S. at 686 (Stevens, J., concurring) (declaring manipulation by prosecutor to
indirectly control proceedings unacceptable); id. at 683 (noting which general rule applies depends on whether
defendant retains control over proceedings); id. at 685 (explaining reasons for importance of defendant’s
retention of control). Justice Stevens notes that when a defendant must choose between a tainted trial likely to
end in conviction or a request for a mistrial, the defendant has no true control over the proceedings. Id. at 686.
The Court refers to this as a “Hobson’s Choice,” which does not warrant subjecting the defendant to another
trial. Id. at 685; supra note 14 (defining “Hobson’s Choice”).
72. Kennedy, 456 U.S. at 674, 689-90 (Stevens, J., concurring) (discussing deliberate misconduct and
substantial reduction in probable acquittal as factors essential in analysis). A court must consider whether
egregious prosecutorial misconduct exists and whether the misconduct has rendered the defendant’s choice
meaningless. Id. at 689. Although the concurring justices recognized they cannot reduce the pre-Kennedy
standard to a formula because of its reliance on case-specific circumstances, they reasoned that barring
reprosecution requires deliberate misconduct. Id. at 689-91. Additionally, any prosecutorial misconduct that
substantially reduces or eliminates the defendant’s chance for acquittal when the case is clearly going badly for
the government, satisfies the pre-Kennedy standard. Id. at 690.
73. See supra notes 8-10, 17-19 and accompanying text (presenting cases showing disagreement
regarding proper standard when defendant requests mistrial or successfully reverses conviction); see infra notes
76-99 and accompanying text (detailing state decisions and their respective positions on Kennedy standard).
74. See State v. Kennedy, 666 P.2d 1316, 1321 (Or. 1983) (clarifying federal law persuasive rather than
binding when interpreting Oregon law); State v. Torres, 744 A.2d 699, 706 (N.J. Super. Ct. App. Div. 2000)
(noting court owes no duty to follow Kennedy when evaluating protections afforded by own constitution).
75. Infra note 76 and accompanying text (detailing cases where state courts chose to apply Kennedy
standard when interpreting state constitutions); infra note 86 and accompanying text (indicating cases where
state courts chose to apply expanded standard when interpreting own constitutions).
76. People v. Townsend, 456 N.E.2d 938, 940 (Ill. App. Ct. 1983) (deciding case based on Kennedy
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explicitly follow the Kennedy standard, the Court of Special Appeals of
Maryland has argued strongly for its application when analyzing a case under
the Constitution of the United States.77 The Maryland court asserts that a
mistrial itself sufficiently punishes the prosecution.78 Most of the state courts
justify their decisions with the same reasoning as the plurality opinion in
Kennedy.79 New Jersey and Ohio utilized the factors enumerated in Justice
Powell’s concurring opinion in determining whether prosecutors intended to
cause a mistrial.80 New Jersey also considered the risk to innocent people when
releasing a defendant without an inquiry into the defendant’s guilt or reference
to the government’s evidence.81 The New Jersey Superior Court advocated
standard); Stamps v. Commonwealth, 648 S.W.2d 868, 869 (Ky. 1983) (adopting Kennedy standard for
interpretation of Kentucky’s Double Jeopardy Clause); State v. Torres, 744 A.2d 699, 704-06 (N.J. Super. Ct.
App. Div. 2000) (holding New Jersey Constitution offers no greater protection than federal Constitution); State
v. White, 369 S.E.2d 813, 815 (N.C. 1988) (adopting Kennedy standard for interpreting protection provided by
own constitution); State v. Girts, 700 N.E.2d 395, 402-03 (Ohio Ct. App. 1997) (holding Ohio Constitution and
Federal Constitution co-extensive, offer same protection as afforded by Kennedy standard); State v. Hull, 754
A.2d 84, 87 (R.I. 2000) (noting court followed Kennedy standard in previous Rhode Island case and decided
present case accordingly); see Fugitt v. State, 319 S.E.2d 829, 833-34 (Ga. 1984) (alluding to following
Kennedy if case concerned mistrial). Georgia, Illinois, Kentucky, and Rhode Island courts have interpreted
their respective state constitutions under the Kennedy standard. Fugitt, 319 S.W.2d at 833-34; Townsend, 456
N.E.2d at 940; Stamps, 648 S.W.2d at 869; Hull, 754 A.2d at 87. New Jersey, North Carolina, and Ohio courts
have explicitly stated that their constitutions do not provide any greater protection than the federal Constitution,
thereby defaulting to the Kennedy standard. Torres, 744 A.2d at 704-06; White, 369 S.E.2d at 815; Girts, 700
N.E.2d at 402-03.
77. Hagez v. State, 749 A.2d 206, 217 (Md. Ct. Spec. App. 2000) (noting no constitutional bar to
reprosecution in Maryland because failed to satisfy federal standard); id. at 228-29 (discussing reasons why
Kennedy standard more appropriate). The Maryland court reasoned that egregious misconduct requires specific
intent and not merely general intent. Id. at 228. The court outlined five “special intents which might flow from
the same general intent,” noting that only the fifth would bar reprosecution. Id. at 228-29. The enumerated
“special intents” include:
1. thinking it to be correct; 2. not thinking about whether it is error or not (perhaps lawyerly
negligence); 3. being cavalierly indifferent to error under circumstances where one would reasonably
be expected to know that there is probably error (perhaps gross negligence); 4. knowing it to be
error, but hoping to get away with it, thereby clinching a probable winner (deliberate “overkill” in a
case the prosecutor has no desire to abort); 5. knowing it to be error, but desiring to “sabotage” a
probable loser either 1) by snatching an unexpected victory from probable defeat if not caught, or 2)
by getting caught, thereby provoking the mistrial, averting the probable acquittal and living to fight
again another day. (A calculated sabotaging of a perceived “lost cause” in either event; an
indifference to whether he is caught or not).
Id.
78. Hagez, 749 A.2d at 229 (stressing lost time, money, resources, and opportunity to secure conviction
considered sufficient rebuke).
79. White, 369 S.E.2d at 815 (approving Kennedy standard because easier applicability and broader
standard occasions judicial reluctance to grant mistrials); see Stamps, 648 S.W.2d at 869 (noting Kennedy
court’s explanation of difficulty in applying overreaching standard).
80. Torres, 744 A.2d at 705 (holding factor analysis reveals no prosecutorial misconduct intended to goad
defendant into mistrial); Girts, 700 N.E.2d at 404 (determining no intention of prosecutor to goad defendant
into requesting mistrial after considering factors).
81. Torres, 744 A.2d at 708 (exposing risk to defendant’s potential next victim if defendant set free
because of prosecutorial misconduct).
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alternate means of punishing prosecutorial misconduct.82
Texas chose to adopt an expanded standard, although the Bauder dissent
proposed several additional reasons for following Kennedy.83 The dissent
agreed with Kennedy that the broader standard offered no real guidelines for its
application and failed to inform prosecutors as to what conduct will give rise to
sanctions.84 Additionally, the dissent found it inefficient to require state courts
to evaluate the case under federal law using the Kennedy standard, and then
follow-up by embarking on a separate state law analysis.85
2. States Creating Own Standard Under Their Respective Constitutions for
Mistrials
Several other state courts, including Pennsylvania, Hawaii, Oregon, Texas,
Michigan, Arizona, and New Mexico, have chosen to adopt their own standard
instead of following the limited Kennedy decision.86 Courts, including those in
Pennsylvania and Hawaii, have expanded the applicable standard to focus on
the prosecutor’s intent to carry out the misconduct rather than to goad the
defendant into a mistrial.87 These courts examined whether the prosecution
intended the misconduct to prejudice the defendant, thus denying the defendant
a fair trial.88 This expanded standard refines the pre-Kennedy standard,
82. Torres, 744 A.2d at 708 (delineating alternative means of punishment). Alternate means of
punishment such as disbarment, suspension, or reprimand, more effectively deal with prosecutorial misconduct.
Id.; Henning, supra note 36, at 828-29 (suggesting other ways of punishing prosecutors); see Akhil Reed Amar,
Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1847-48 (1997) (advocating caution when awarding
acquittal based on prosecutorial misconduct because numerous alternative punishments exist).
83. Bauder v. State, 921 S.W.2d 696, 706 (Tex. Crim. App. 1996) (McCormick, J., dissenting)
(characterizing prosecutor as victim when applying broader standard); infra notes 84-85 and accompanying text
(listing additional support in favor of Kennedy standard).
84. Bauder, 921 S.W.2d at 706 (McCormick, J., dissenting) (remarking on lack of criterion to know when
crossing line into prosecutorial misconduct). Judge McCormick suggests that prosecutors may not utilize
otherwise admissible evidence for fear that it may cause a mistrial and frustrate effective law enforcement
efforts. Id. But see Henning, supra note 36, at 802 (suggesting incentive to withhold misconduct from
attention of judge in order to prevent mistrial).
85. Bauder, 921 S.W.2d at 706 (McCormick, J., dissenting) (arguing ineffectiveness of overcoming
federal constitutional analysis only to engage in state constitutional analysis). Judge McCormick notes that the
Kennedy standard provides consistency, resulting in a better understanding of the parameters within which the
prosecution can work. Id.; Young, supra note 6, at 1654-55 (noting consistency of Kennedy standard).
86. See, e.g., Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984); State v. Rogan, 984 P.2d 1231,
1249 (Haw. 1999); People v. Dawson, 397 N.W.2d 277, 284 (Mich. Ct. App. 1986); State v. Breit, 930 P.2d
792, 803 (N.M. 1996); State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983); Commonwealth v. Smith, 615 A.2d
321, 325 (Pa. 1992); State v. Cabrera, 24 S.W.3d 528, 530 (Tex. Ct. App. 2000); Bauder, 921 S.W.2d at 699.
87. Rogan, 984 P.2d at 1249; Smith, 615 A.2d at 325 (identifying standards under respective state
constitutions). For example, in Smith, the court held that their constitution bars retrial when the prosecutor
intends that the misconduct will provoke the defendant into requesting a mistrial and also when the prosecutor
intends their conduct to prejudice the defendant to the point of denying the defendant a fair trial. Smith, 615
A.2d at 325. This standard parallels Rogan where a Hawaii court interpreted its constitution to bar retrial
“where 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, 984 P.2d at 1249.
88. Supra note 87 and accompanying text (citing expanded standard applied by Pennsylvania and
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providing a more specific explanation of prosecutorial “overreaching.”89
The Arizona Supreme Court created specific conditions that bar retrial.90
These conditions afford a defendant additional protection under the Double
Jeopardy Clause, while responding to the Kennedy Court’s concerns that the
pre-Kennedy rule offers “virtually no standards for its application.”91 The
Texas and New Mexico courts extend double jeopardy protection to situations
where the prosecution consciously disregards the risk that his conduct might
effectively force the defendant into requesting a mistrial.92 Texas has
interpreted this standard as affording the defendant protection not only when
the prosecution intended the misconduct, but also when the prosecution
recklessly committed the misconduct.93
The New Mexico and Texas courts considered the Kennedy standard overly
inclusive and inadequate in protecting the defendant’s rights.94 Several courts
Hawaii).
89. Supra notes 56-57 and accompanying text (discussing pre-Kennedy standard and Court’s
interpretation of “overreaching”). Compare Rogan, 984 P.2d at 1249, and Smith, 615 A.2d at 325 (stating
expanded standard applicable when defendant requests mistrial), with Kennedy, 456 U.S. 667, 670 (1982)
(Rehnquist, J., plurality) (articulating pre-Kennedy standard applied when defendant requests mistrial).
90. Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984) (setting forth three conditions for
determining relevant double jeopardy protection under state constitution). The Pool court mandates double
jeopardy protection when:
1) Mistrial is granted because of improper conduct or actions by the prosecutor; and 2) 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 3) the conduct causes prejudice to the defendant which cannot be cured by
means short of a mistrial.
Id. The Michigan court also uses the three conditions set forth in Pool, holding that intentional misconduct
bars retrial when the prosecutor knows it to be so prejudicial that there is no cure for the misconduct short of
mistrial. People v. Dawson, 397 N.W.2d 277, 284 (Mich. Ct. App. 1986). In State v. Kennedy, Oregon used a
standard almost identical to Michigan, however that court used the term “official” instead of “prosecution” to
explicitly include misconduct by bailiffs, judges, and other government officials. State v. Kennedy, 666 P.2d
1316, 1326 (Or. 1983).
91. See supra note 90 and accompanying text (demonstrating Pool conditions include situations where
prosecution displays indifference to causing mistrial).
92. State v. Breit, 930 P.2d 792, 803 (N.M. 1996); State v. Cabrera, 24 S.W.3d 528, 530 (Tex. Ct. App.
2000); Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (declaring adopted standard affords
additional protection under state’s Double Jeopardy Clause). The Bauder standard bars reprosecution when a
prosecutor’s calculated, “objectionable,” conduct brings about a motion for a mistrial, or when the prosecutor
consciously disregards the known risk that an “objectional event,” caused by the prosecutor, causes a mistrial
on the defendant’s motion. Bauder, 921 S.W.2d at 699. The New Mexico Supreme Court uses slightly
different terminology, barring retrial in mistrials and reversed convictions when the official misconduct is so
unfairly prejudicial that it necessitates a mistrial or motion for a new trial. Breit, 930 P.2d at 803. The court
also bars retrial if an official intends to provoke a mistrial or acts in willful disregard of the resulting mistrial or
reversal and the official knows that the conduct is inappropriate and prejudicial. Id.
93. Bauder, 921 S.W.2d at 700 (noting prosecutor likely intended misconduct if egregious enough for
court to determine prosecutor crossed line). The New Mexico Supreme Court limits this interpretation by
requiring “willful disregard” rather than indifference because the former denotes awareness while the latter can
also mean “reckless” or “negligent.” Breit, 930 P.2d at 803.
94. State v. Rogan, 984 P.2d 1231, 1248 (Haw. 1999) (approving reasoning in Breit and Bauder stating
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argue that the Double Jeopardy Clause focuses on the malicious intentions of
the prosecution as opposed to the protection of a defendant’s rights.95
Consequently, these states prefer a more objective standard, believing it is more
applicable and more practical, rather than forcing the courts to hypothesize
about the prosecutor’s subjective intent.96
These courts prefer to risk reluctance on the part of trial judges to grant a
defendant’s requests for a mistrial, rather than apply a limited standard that
ultimately eliminates a defendant’s double jeopardy protection.97 The Hawaii
and Michigan Courts also emphasize the need to protect the defendant’s
interests because of the vast resources and discretion the government wields.98
Among the courts that chose to expand protection for defendants in the mistrial
context, a majority have argued for the same expanded protection in the area of
reversed convictions.99
3. Application of These Principles to Reversed Convictions
Many states, including Florida, Maryland, Georgia, Rhode Island, Texas,
and Ohio follow the general rule regarding reversed convictions noted earlier,
which limits the Kennedy standard to the mistrial context.100 Courts often cite
objective standard better than subjective intent standard); see Breit, 930 P.2d at 804 (refusing to differentiate
between prosecution’s intent to goad defendant and prosecution’s willingness to accept mistrial); Kennedy, 666
P.2d at 1326 (finding Kennedy standard as too burdensome on defendant).
95. Rogan, 984 P.2d at 1248-49 (declaring prosecutor’s intent irrelevant); Breit, 930 P.2d at 800
(supporting protection for defendant irrespective of prosecutor’s intent); see Henning, supra note 36, at 798
(quoting Supreme Court as stating Double Jeopardy is “absolute” where applicable).
96. Rogan, 984 P.2d at 1248 (arguing court’s determination based on subjective intent equivalent to
guessing); Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (finding less subjective rule more
advantageous). But see Young, supra note 6, at 1656 (suggesting courts ability to determine prosecutorial
intent while affording defendants proper protection).
97. See Rogan, 984 P.2d at 1248-49 (rejecting limited standard because burden on defendant unfairly
difficult to satisfy); Bauder, 921 S.W.2d at 702 (Baird, J., concurring) (determining protection afforded under
Kennedy standard meaningless because impossible to satisfy); see also supra note 70 (highlighting lack of
subsequent cases in which defendant met Kennedy standard).
98. See State v. Rogan, 984 P.2d 1231, 1243 (Haw. 1999) (noting Double Jeopardy Clause protects
defendants against prosecutorial power); People v. Dawson, 397 N.W.2d 277, 282 (Mich. Ct. App. 1986)
(quoting Green v. United States, 335 U.S. 184, 190 (1957)) (opining Double Jeopardy Clause includes
protection from state’s vast resources).
99. E.g., State v. Jorgenson, 10 P.3d 1177, 1179 (Ariz. 2000) (en banc) (applying broader standard
applicable in mistrials to reversed convictions); Rogan, 984 P.2d at 1249 (holding retrial barred for egregious
prosecutorial misconduct resulting in reversed conviction); State v. Breit, 930 P.2d 792, 803 (N.M. 1996)
(including both mistrials and motions for new trials within broader standard); Commonwealth v. Smith, 615
A.2d 321, 322-23 (Pa. 1992) (discharging defendant when prosecutorial misconduct discovered after the first
trial, notwithstanding lack of mistrial).
100. Gore v. State, 784 So. 2d 418, 427 (Fla. 2001) (holding general rule applicable because Kennedy
standard applies to mistrials only); Fugitt v. State, 319 S.E.2d 829, 833-34 (Ga. 1984) (holding Kennedy
inapplicable and reversed conviction based on prosecutorial misconduct no bar to retrial); Ware v. State, 759
A.2d 764, 795-96 (Md. 2000) (noting court consistently follows general rule for reversed convictions and
noting inapplicability of Kennedy standard); State v. Keenan, 689 N.E.2d 929, 939-40 (Ohio 1998) (observing
retrial after reversed conviction well-established in Ohio); State v. Diaz, 521 A.2d 129, 133 (R.I. 1987)
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that the defendant retained his valuable right to have the case submitted to the
first jury to support applying a different rule to reversed convictions.101 In
effect, the “slate has been wiped clean” because the defendant’s successful
appeal and the retrial is considered the first instance where the defendant is
placed in jeopardy.102 Even in Texas, where the expanded standards are used in
the mistrial context, the courts choose not to expand the protection to reversed
convictions and have held that Bauder applies only to mistrials.103
Courts in Hawaii, New Mexico, Arizona, and Pennsylvania expanded
defendants’ protection when they have successfully appealed a conviction
because of prosecutorial misconduct.104 These states apply their respective
standards for mistrials to reversed convictions.105 These courts refuse to draw a
distinction between a defendant who unsuccessfully moves for a mistrial
because of prosecutorial misconduct, then successfully appeals his conviction
on the same basis, and a defendant who successfully requests a mistrial because
of the prosecution’s misconduct.106 Additionally, a defendant may not uncover
the egregious prosecutorial misconduct until after the jury has deliberated, and
therefore the defendant may face punishment because of the prosecution’s
suppression of the misconduct or because the misconduct went undiscovered
(refusing to afford expanded protection in favor of general rule); Ex parte Davis, 957 S.W.2d 9, 14-15 (Tex.
Crim. App. 1997) (declining to extend holding of Bauder to reversed convictions); supra note 20 and
accompanying text (providing general rule for reversed convictions). The courts have recognized a
fundamental difference between mistrials and reversed convictions as they relate to the Double Jeopardy
Clause. United States v. Jorn, 400 U.S. 470, 484-85 (1971). The reversed conviction may warrant less
protection under the Clause because the defendant has already had an opportunity to have his trial completed by
the first tribunal, including the chance for acquittal. Id. A mistrial, when not requested by the defendant,
deprives him of the opportunity to complete his first trial. Id.
101. Ex parte Davis, 957 S.W.2d at 11 (noting numerous cases citing defendant’s access to original jury as
reason for general rule); supra note 20, 100 and accompanying text (listing cases applying same reasoning for
general rule).
102. United States v. McAleer, 138 F.3d 852, 856 (10th Cir. 1998) (acknowledging general rule for
reversed conviction because no termination of original jeopardy).
103. Ex parte Davis, 957 S.W.2d at 14-15 (refusing to adopt Bauder in reversed conviction context);
Rosenthal, supra note 47, at 930 (commenting on Texas’ refusal to adopt expanded standard for mistrial
notwithstanding Bauder).
104. Supra note 99 and accompanying text (citing cases where courts defined broader standard as applying
to reversed convictions). Although not expanding protection to the same extent as the states, dicta in a federal
court decision suggests that an expanded standard may be appropriate for reversed convictions when the
prosecutor intends to prevent an acquittal through misconduct because he believes acquittal is likely without his
misconduct. United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992).
105. E.g., State v. Jorgenson, 10 P.3d 1177, 1180 (Ariz. 2000) (applying Pool standard in determining
whether defendant afforded same protection after reversed conviction); State v. Rogan, 984 P.2d 1231, 1249
(Haw. 1999) (barring retrial after either mistrial or reversed conviction resulting from prosecutorial
misconduct); State v. Breit, 930 P.2d 792, 804 (N.M. 1996) (including phrase “disregard of resulting . . .
reversal” in standard to show application to reversed convictions).
106. See Breit, 930 P.2d at 797 (emphasizing importance of finding same result when defendant motions
for mistrial or successfully appeals); see also Wallach, 979 F.2d at 916 (advocating no justifiable reason for
distinction); Ex parte Davis, 957 S.W.2d at 29 (Baird, J., dissenting) (admonishing majority for affording
protection when misconduct results in mistrial but not when conviction reversed).
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until after the trial.107 Under the expanded protection interpretation, it is
immaterial when the misconduct came to light, but rather the focus is on
whether the misconduct denied the defendant a fair trial and whether the
prosecution knew of its misconduct.108
4. Alternatives to the Kennedy Standard
Other alternatives to the Kennedy standard have been suggested to attempt to
balance the interests of both defendants and society.109 The plain error standard
poses an alternate solution.110 This two-part test first considers the level or
significance of the misconduct and then considers the availability of alternative
remedies.111 Another possible standard suggests that a court should bar retrial
when the exclusion of tainted evidence, intentionally introduced by the
prosecution, leaves insufficient evidence to support the defendant’s
One author even suggests including all prosecutorial
conviction.”112
misconduct within double jeopardy protection.113
The Kennedy Court may have intended to find a universal standard for
mistrials resulting from prosecutorial misconduct, however, no one standard
has received universal acceptance.114 Instead, states are split between the
This
Kennedy standard or creating their own expanded standard.115
disagreement among the states over the best standard to apply for mistrials
affects cases involving reversed convictions due to prosecutorial misconduct.116
107. See Wallach, 979 F.2d at 916 (arguing for barring retrial when prosecution intends to prevent acquittal
through misconduct unknown to defendant); Ex parte Davis, 957 S.W.2d at 29 (Baird, J., dissenting) (arguing
punishment of defendant wrongful when caused by judge erroneously refusing to grant mistrial); see also
Rosenthal, supra note 47, at 938 (advocating standard gives inducement to commit undiscoverable error to
prevent acquittal yet not bar retrial).
108. See supra notes 90, 92, 105 and accompanying text (discussing expanded standard).
109. Infra notes 110-12 and accompanying text (detailing alternatives suggested by other authors).
110. Young, supra note 6, at 1663 (describing plain error standard’s two-prong test as better standard than
Kennedy).
111. Young, supra note 6, at 1663. Under the two-prong test, any prosecutorial misconduct rising to the
level of plain error would prevent reprosecution if no other remedy, short of mistrial, is available. Id.
112. Bierschbach, supra note 33, at 1363-64 (developing alternative standard balancing defendant’s and
society’s interest while still finding support in Kennedy). Under this balancing standard, the prosecutor must
intend the misconduct, but the court does not investigate the subjective intent of the prosecutor. See id. Rather,
it focuses on whether the misconduct really prejudiced the defendant’s double jeopardy rights by testing
whether, absent the misconduct, a jury would find the defendant guilty. Id.
113. Felice F. Guerrieri, Comment, Law & Order: Redefining the Relationship Between Prosecutors and
Police, 25 S. ILL. U. L.J. 353, 383 (2001) (detailing solutions for prosecutorial misconduct); see Henning,
supra note 36, at 815 (suggesting attractiveness of all-inclusive double jeopardy protection and ability to
attribute blame to prosecutor).
114. See supra notes 8-10, 17-19 and accompanying text (presenting cases disagreeing on applicable
standard when defendant requests mistrial).
115. See supra notes 8-10, 17-19 and accompanying text; see also supra note 76 and accompanying text
(indicating states following Kennedy standard); supra notes 86-87, 90, 92 and accompanying text (listing states
adopting own standard and detailing their expanded standards).
116. See supra notes 8-10, 17-19 and accompanying text (providing cases debating applicable standard
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Attaining a standard that affords a defendant sufficient protection under the
Double Jeopardy Clause, while still assuring the protection of society through
conviction of the guilty, remains elusive.
III. ANALYSIS
The Kennedy Court correctly recognizes the overbreadth of the
“overreaching” standard, but such an extreme measure for rectifying the
existing ambiguities is unnecessary.117 The Court mistakenly presumes that
because the prosecution’s every act intends to “prejudice” the defendant by
securing his conviction, the “overreaching” standard includes too many
instances of negligible misconduct.118 The Court’s argument for a more
manageable standard also contains flaws.119 A rule that relies on the
determination of a prosecutor’s subjective intent results in a judicial guessing
game that does not form the basis of an appropriate standard.120
Justice Powell’s factors, which attempt to analyze whether the prosecution
intended to goad the defendant into requesting a mistrial, fall short of
adequately addressing the problem.121 The first element determines whether
the prosecutor intended the misconduct, but does not establish the specific
intent of provoking the defendant into requesting a mistrial.122 The third
factor’s unreliability arises because the prosecution will rarely admit to
intentional misconduct if it would set the defendant free.123 The Court’s
argument that the broader standard will not afford the defendant any additional
protection lacks persuasiveness because the Kennedy standard is extremely
difficult to satisfy.124 Although Justice Stevens correctly asserts that the narrow
when defendant successfully reverses conviction). Compare supra note 100 and accompanying text (listing
cases following general rule as to reversed convictions), with supra notes 99, 104-05 and accompanying text
(detailing cases following expanded standard in reversed conviction context).
117. Oregon v. Kennedy, 456 U.S. 667, 674 (1982) (Rehnquist, J., plurality) (characterizing
“overreaching” as not depending on intent); id. at 681 (Stevens, J., concurring) (criticizing plurality for limiting
previous standard).
118. Id. at 674-75 (Rehnquist, J., plurality) (indicating objectionable prosecutorial misconduct present at
every trial); State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999) (creating standard based on egregiousness of
prosecutorial misconduct).
119. See supra note 65 and accompanying text (describing Court’s argument regarding manageability of
Kennedy standard).
120. Kennedy, 456 U.S. at 688 (Stevens, J., concurring) (arguing subjective intent standard too burdensome
for defendant and ultimately removes any bar to retrial); Rosenthal, supra note 47, at 912 (pointing to
impracticability of subjective intent standard); supra notes 96-97 and accompanying text (listing cases
supporting notion of difficulty in determining subjective intent).
121. Supra note 65 and accompanying text (detailing Powell’s factors).
122. See supra note 65 and accompanying text (describing analysis of prosecution’s misconduct but not
explaining its relation to goading defendant).
123. See supra note 65 and accompanying text (demonstrating court relies on prosecution’s own testimony
for determining subjective intent); Henning, supra note 36, at 806-07 (acknowledging unlikelihood of
prosecutor admitting misconduct).
124. Kennedy, 456 U.S. at 675 (Rehnquist, J., plurality) (discussing Court’s opinion regarding broader
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Kennedy standard excludes egregious misconduct from which the defendant
deserves protection, the factors he suggests still focus unacceptably on the
prosecution’s intent.125
States following the Kennedy standard rely on the availability of alternate
methods to punish prosecutors or find that a mistrial is sufficient punishment
because the prosecution must expend time and money to retry the defendant.126
These arguments relate little to the preservation of a defendant’s rights,
suggesting instead that the existing standards focus more on sanctioning the
prosecutor than on protecting the defendant’s rights.127 Most of the state court
standards opposing Kennedy concentrate more on the defendant’s right to a fair
trial than the Kennedy standard, but fail to do so sufficiently because of the
state standards’ continuing reliance on determining the general intent of the
prosecutor.128
A viable alternative to the Kennedy standard is the “plain error” standard
because it addresses the effect of the misconduct on the defendant’s rights.129
Ultimately, this standard fails because it focuses on the availability of
alternative methods despite the fact that most cases of egregious prosecutorial
misconduct result in mistrial or reversed conviction.130 Additionally, the “plain
error” standard differentiates between a defendant who has alternative
remedies, but none that will cure the misconduct, and a defendant with no
alternative remedies and a bar to reprosecution.131 Another suggestion, based
standard’s lack of protection for defendant in practice); supra note 70 and accompanying text (noting absence
of cases where defendant succeeded under standard).
125. Supra note 70 and accompanying text (examining misconduct where retrial appropriately barred but
Kennedy standard offers no protection); supra note 72 and accompanying text (employing factors such as
deliberate misconduct in determining whether pre-Kennedy standard applicable).
126. Supra notes 78, 82 and accompanying text (noting proponents’ alternative means for punishing
prosecutors and emphasizing consequences of retrial on prosecution).
127. See supra notes 78, 82 and accompanying text (focusing on alternate means of penalizing prosecution
and disregarding purpose of Double Jeopardy clause).
128. Supra notes 87, 90, 92 and accompanying text (defining standards expanding protection for
defendants, but universally requiring prosecutor’s general intent to commit misconduct).
129. Young, supra note 6, at 1663 (preferring “plain error” standard’s two-prong test to Kennedy). The
first prong of this standard focuses on the level and significance of the prosecutorial misconduct. Id.
130. See Young, supra note 6, at 1663 (outlining second prong’s search for alternate remedies rather than
grant of mistrial). The “plain error” standard mandates one of three possible outcomes. Id. at 1664. Under the
first possibility, the court finds a mistrial unnecessary and instead implements an alternative remedy to cure the
misconduct. Id. The second outcome suggests that where other remedies exist but none completely cure the
misconduct, the judge can ask the defendant to choose whether to continue the trial or pursue a mistrial on the
condition that the prosecution can retry the defendant. Id. Under the third possibility, the judge finds that no
alternate remedies sufficiently cure the misconduct, and grants a mistrial with the additional protection of
barring reprosecution. Id. at 1664-65; see Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984); People v.
Dawson, 397 N.W.2d 277, 284 (Mich. Ct. App. 1986); State v. Breit, 930 P.2d 792, 803 (N.M. 1996) (barring
reprosecution when defendant shows only mistrial will cure misconduct).
131. Supra note 130 and accompanying text (detailing second and third possibilities under “plain error”
standard). Under the “plain error” standard, a defendant who has alternative remedies available, but none that
can cure the damage already done, must agree to reprosecution if he opts for a mistrial. Id. A defendant who
shows that no alternative remedies exist can escape retrial. Id. There should be no fundamental difference
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on excluding the intended misconduct, pertains to reversed convictions and has
The test requires the prosecution’s
little applicability to mistrials.132
introduction of tainted evidence and excludes situations when the prosecution
intentionally withholds evidence until the conclusion of the trial.133 Although a
court has discretion to reverse a conviction based on insufficient evidence, this
standard improperly extends the appellate court’s authority to invade the
province of the jury.134
The suggestion that all prosecutorial misconduct should trigger a defendant’s
double jeopardy protection raises equally troublesome issues.135 If double
jeopardy protection exists to preserve defendants’ rights instead of punishing
prosecutors, only misconduct that substantially affects those rights should result
in the defendant’s release.136 The standard should instead focus on the double
jeopardy protection afforded to a defendant, and disregard the prosecutorial
intent to commit the misconduct.137 Intentional prosecutorial misconduct that
denies a defendant a fair trial achieves the same end, from the defendant’s point
of view, as inadvertent yet equally serious prosecutorial misconduct.138 This
distinguishes little in most cases, as misconduct egregious enough to deny a
defendant a fair trial rarely occurs intentionally.139 The test should rely solely
on whether the egregious prosecutorial misconduct denied the defendant a fair
trial.140
Looking solely at whether the egregious prosecutorial misconduct denied the
between a defendant who has alternative remedies that won’t cure the misconduct and a defendant that has no
alternative remedies available. See id.
132. Bierschbach, supra note 33, at 1363-64 (noting inapplicability to mistrials because second prong
requires defendant’s conviction).
133. Bierschbach, supra note 33, at 1363-64 (requiring introduction of tainted evidence at trial and
precluding any tainted evidence uncovered after trial).
134. Supra note 52 and accompanying text (explaining established general rule regarding insufficient
evidence as one exception to allowing reprosecution); Bierschbach, supra note 33, at 1363-64 (employing
appellate court to decide whether excluding tainted evidence can result in insufficient evidence). This standard
allows the appellate court to determine what the jury would have decided had the case not involved tainted
evidence. See Bierschbach, supra note 33, at 1363-64.
135. Supra note 113 (listing commentators who suggest expanding double jeopardy protection to all
prosecutorial misconduct).
136. Guerrieri, supra note 113, at 383-84 (recognizing need to focus on misconduct affecting constitutional
rights); Henning, supra note 36, at 830 (describing inadequacy of constitutional remedies to change behavior of
prosecutors).
137. See State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999) (determining standard based on egregiousness
of misconduct instead of prosecutorial intent).
138. See Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996) (barring reprosecution when
prosecutor recklessly denied defendant fair trial).
139. Id. (noting prosecutor likely intended misconduct if egregious enough for court to determine
prosecutor crossed line); see Tarlow, supra note 13, at 52 (suggesting prosecutorial misconduct not normal
course of conduct, therefore most likely intentional when it occurs).
140. See Rogan, 984 P.2d at 1249 (demonstrating support for standard based solely on effect of
prosecutorial misconduct); id. (noting retrial burden attributable to prosecution’s misconduct even without
specific intent); id. at 1248 (arguing prosecutor’s subjective intent irrelevant when determining protections
afforded to defendant).
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defendant a fair trial focuses on the wording and purpose of the Double
Jeopardy clause by protecting a defendant’s right not to be put in jeopardy
twice.141 It no longer requires a determination of the prosecutor’s subjective
Instead, courts should determine the egregiousness of the
intent.142
prosecutorial misconduct and whether it made the defendant’s request for a
mistrial unavoidable, or his conviction inevitable.143 Such a causal relationship
should bar the prosecutor from retrying the defendant.144 Society has an
interest in incarcerating the guilty.145 This interest is unaffected by such an
approach because the prosecutor’s intent is unrelated to the defendant’s guilt or
innocence.146 The government has one opportunity to prosecute its case and
loses it by securing a conviction after egregious prosecutorial misconduct.147 In
such cases, prosecutorial misconduct might inequitably compensate for the
prosecution’s weak case against the defendant.148
This new approach applies equally to mistrials and reversed convictions.149
A defendant’s unsuccessful request for a mistrial and subsequent reversal of
conviction should not have a different result than a successfully requested
mistrial, because both scenarios may potentially involve the same egregious
prosecutorial misconduct.150 Applying the same standard to both situations
discourages prosecutors from concealing misconduct until after a trial in order
to prevent a bar on retrial.151 Furthermore, the approach prevents the appellate
court from invading the province of the jury because the court analyzes the
141. Supra note 7 and accompanying text (citing Fifth Amendment’s Double Jeopardy Clause); Pool v.
Superior Court, 677 P.2d 261, 271 (Ariz. 1984) (treating standard as resting on defendant’s constitutional
guarantees under Double Jeopardy Clause).
142. Rogan, 984 P.2d at 1249 (excluding analysis of prosecutor’s subjective intent).
143. See Rogan, 984 P.2d at 1249 (observing standard applies when defendant receives unfair trial because
of prosecutorial misconduct).
144. Supra note 143 and accompanying text (barring reprosecution when misconduct results in unfair trial).
145. Supra note 45 and accompanying text (noting importance of society’s interest in effective law
enforcement and in protecting innocent persons).
146. See State v. Torres, 744 A.2d 699, 705 (N.J. Super. Ct. App. Div. 2000) (arguing bar to reprosecution
not related to guilt of defendant or prosecutor’s misconduct). Prosecutor’s intent does not change the fact of a
defendant’s guilt or innocence. Id.
147. Supra note 46 and accompanying text (stressing importance of giving prosecution full and fair
opportunity to present case); see Pool v. Superior Court, 677 P.2d 261, 272 (Ariz. 1984) (attributing
misconduct causing mistrial to prosecution and suggesting prosecution had opportunity to present case).
148. Tarlow, supra note 13, at 52 (presuming prosecution’s engagement in intentional misconduct because
it believed defendant otherwise likely to obtain acquittal); see Oregon v. Kennedy, 456 U.S. 667, 689-90 (1982)
(Stevens, J., concurring) (determining when pre-Kennedy standard applies and noting standard applicable when
government’s case unlikely to succeed).
149. See supra note 105 and accompanying text (indicating cases where courts applied same standard for
both mistrials and reversed convictions).
150. State v. Jorgenson, 10 P.3d 1177, 1178-79 (Ariz. 2000) (en banc) (barring reprosecution where court
finds misconduct necessitated mistrial but resulted in reversed conviction); id. at 1180 (describing importance
of applying equal standard as “pragmatic necessity”); see State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999)
(attributing burden of new trial to prosecution’s misconduct whether caused by mistrial or reversed conviction).
151. United States v. Wallach, 979 F.2d 912, 916 (2d Cir. 1992) (noting prosecution’s opportunity for
retrial if defendant kept unaware of misconduct).
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objective facts and circumstances of the misconduct rather than determining
what the jury would have decided without the tainted evidence.152 This new
standard serves to convict the guilty in a fair trial using untainted evidence and
to acquit a defendant when the government resorts to egregious misconduct in
order to secure a conviction.153
IV. CONCLUSION
Although the Double Jeopardy Clause has a long history in the United
States, the applicability of its protection to cases of prosecutorial misconduct
remains in dispute. In determining whether to bar retrial, the United States
Supreme Court and several state courts focus on the prosecutor’s intent,
analyzing whether the prosecution specifically intended to goad the defendant
into requesting a mistrial. Several other states suggested that the pre-Kennedy
standard better protected the rights of a defendant and created their own
expanded standards when determining whether to bar retrial. The courts
dispute this issue in both the mistrial and reversed conviction settings.
Courts should focus on balancing the constitutional protection of the
defendant with society’s interest in convicting the guilty, but they should err on
the side of protecting a defendant’s rights. The Kennedy standard does not
provide enough protection for a defendant, while the pre-Kennedy standard
provides more protection to the defendant than is necessary. The expanded
standards address the overbroad issue criticized by the Kennedy Court while
simultaneously providing the defendant with sufficient protection. Although
several commentators suggested alternate solutions, the preferred approach
completely disregards the prosecutor’s intent under double jeopardy analysis
and concentrates solely on whether the egregiousness of the misconduct denied
the defendant a fair trial. Additionally, courts should not differentiate between
mistrials and reversed convictions because the rights of the defendant should
not depend on the time at which the court discovers the inequity of the
proceedings. A universal standard will remain elusive until the Court
acknowledges the fallacies of its limited standard.
Jessica L. Edwards
152. Compare Rogan, 984 P.2d at 1249 (incorporating objective standpoint into standard for determining
whether egregious misconduct denied defendant fair trial), with Bierschbach, supra note 33, at 1363-64
(employing appellate court to decide whether excluding tainted evidence would result in insufficient evidence).
153. Supra notes 148, 151 and accompanying text (noting prosecution’s temptation to use tainted evidence
or secure conviction through misconduct).