Oregon v. Kennedy

LOCATION: Former land of Valley Forge General Hospital

DOCKET NO.: 80-1991
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: State appellate court

CITATION: 456 US 667 (1982)
ARGUED: Mar 29, 1982
DECIDED: May 24, 1982

Samuel A. Alito, Jr. - on behalf of the united states as amicus curiae
David B. Frohnmayer - on behalf of the Petitioner
Donald C. Walker - on behalf of the Respondent

Facts of the case


Media for Oregon v. Kennedy

Audio Transcription for Oral Argument - March 29, 1982 in Oregon v. Kennedy

Warren E. Burger:

We will hear arguments next in Oregon against Kennedy.

You may proceed whenever you are ready.

David B. Frohnmayer:

Thank you, Mr. Chief Justice, and may it please the Court, this case is here on a writ of certiorari to the Oregon Court of Appeals.

That Court reversed defendant's theft conviction despite the fact that defendant's earlier trial was terminated by defendant's own successful mistrial motion.

The Oregon Court of Appeals held that reprosecution itself was barred because of jeopardy grounds due to the events preceding defendant's successful mistrial motion in the aborted trial.

At issue in this case is whether a convicted thief ought to be able to escape the occasion of that conviction through the consequence of his own deliberate trial strategy.

The relevant facts, we believe, are few and simple.

Early in defendant's first trial, the prosecution asked an admittedly improper seven-word question.

Before the witness answered, defense counsel objected, moved for a mistrial, and asked that the matter be reset for trial.

The trial court granted defendant's motion over the strenuous objection of the prosecution.

Prior to his retrial, defendant then asked a different judge to dismiss the case on double jeopardy grounds.

The trial court declined to do so after making explicit findings that the prosecutor's conduct was not intentional, that the question was not asked in bad faith, and that it was not grossly negligent.

The Oregon Court of Appeals, however, reversed defendant's subsequent conviction, finding that there was nonetheless a Fifth Amendment jeopardy bar because the prosecutor's question constituted something, to wit, called overreaching.

The proposition we would put to this Court is simple, and that is that a defendant who elects to move for a mistrial cannot raise a jeopardy bar to his retrial except in one narrow circumstance, and that is where the prosecutor's conduct itself is intended to provoke that very mistrial, and we note at the outset the anomaly that under the settled law of this Court, had defendant merely objected to the question, been convicted, and then secured successful reversal upon appeal, he could be retried.

So, the issue is whether the defendant, by himself, shortcircuiting the trial process in a full trial on the merits, can be allowed to achieve a different result because his well-taken mistrial motion was granted.

We contend that the defendant cannot create these anomalous results and cannot complain except in the narrow circumstance where the prosecutor intends that the trial not be completed, and where the prosecutor's conduct was intended to provoke that very mistrial.

We believe that our proposed test would assist both the public and criminal defendants, and we believe that to affirm this case would do grave injury to both.

An affirmance would clog court calendars.

It would multiply appeals about the precise degree of prosecutorial misconduct or error which should lead under a blameworthiness standard of some kind to a double jeopardy finding.

It would also, we believe, deter trial judges from granting mistrials in cases where they are appropriate, because they would know for certain that the defendant would go scot free.

Under those circumstances, the delay, the time, the anxiety, the multiplication of appeals, and the cost to the public of hearing clearly meritorious appeals would be, we think, a prohibitively high cost for such a different rule.

We believe that the rule for which we argue is compelled by an understanding of the history and purposes of the double jeopardy clause, that it is implicit, at least, in the dicta and holdings of prior decisions of this Court that a Draconian sanction of barring retrial altogether when the prosecution makes an error ignores the fact that there exist equally effective sanctions against prosecutorial misconduct, and that as a matter of policy the ease and certainty of application of our rule make it a justifiable and appropriate one.

We note at the outset, of course, that one of the pieces of the history and purpose of the double jeopardy clause is to prevent against repeated harassment of a defendant by the prosecution when the prosecution suddenly realized that the case is going badly.

In that sense, this Court has spoken of the defendant's valued right to decision by a first tribunal.

On the other hand, we can find no decision of this Court which has ever found that the double jeopardy bar applies where a mistrial motion on behalf of the defendant is granted at the defendant's request, and that, we believe is for a good reason, and that is because, as this Court has explicitly recognized, in Lee and in other cases, a mistrial declaration, when it is properly made, serves the constitutional prohibition against double jeopardy.

It is a deliberate election on the part of the defendant to avoid a jury verdict which it is his right to achieve, and to challenge whatever error there may be in the record on appeal.

At the same time, that very mistrial motion ordinarily acts as sufficient and complete punishment for whatever prosecutorial error or unfair advantage there might have been, and of course, this Court has also recognized that there is and must be balanced against whatever right there is to a first tribunal, or policy there is in favor of a first tribunal, an important social interest in the completion of criminal proceedings against a defendant once and for all, a rationale which was re-emphasized as recently as the decision of this Court in United States versus Scott.

We think the policies that lie behind this and behind this Court's earlier dicta on the question make an enormous amount of sense, because ordinarily mistrial is itself a very significant sanction against the prosecutor.

It is very easy, I think, to envision the displeasure of the prosecutor's supervisor and the public at the expense of a new trial, let alone the fact that a new trial probably for the prosecution will be more difficult to carry through.

However, the limited exception to the rule, which we believe is implicit in this Court's dicta, at least, is that if the prosecutor wishes that very sanction in this trial to be imposed, then of course it loses its character as a sanction for misconduct, and under those circumstances, a more serious sanction would be called for, because if it is not, then the consequence is the deliberate harassment of the defendant within the central meaning of the double jeopardy clause itself.