# Oregon v. Kennedy

> Supreme Court of the United States · May 24, 1982 · 456 U.S. 667

URL: https://www.frixlaw.com/law-library/cases/9428775

## Case

- **Full name:** Oregon v. Kennedy
- **Court:** Supreme Court of the United States
- **Decided:** May 24, 1982
- **Citations:** 456 U.S. 667; 50 U.S.L.W. 4544; 102 S. Ct. 2083; 72 L. Ed. 2d 416; 1982 U.S. LEXIS 111
- **Precedential status:** Published
- **Opinion:** Concurrence by Brennan
- **Judges:** Rehnquist, Burgee, White, Powell, O'Connor, Brennan, Marshall, Stevens, Blackmun
- **Cited by:** 1,810 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by Ex parte Kelly, 1986 Tex. App. LEXIS 8021 (1986).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428775

## How later opinions describe it (automated extraction)

- explaining that the “intentional goading” standard was designed to protect a defendant whose motion for mistrial could not fairly be considered a result of his own free will; "[i]n such a case, the defendant’s valued right to complete his trial before the first jury would be a…
- holding that "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Je…
- holding that “[pjrosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeop…
- recognizing the narrow exception that the Double Jeopardy Clause precludes retrial of a defendant whose mistrial request is granted when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a *436 mistrial”
- concluding that because “trial court found” that “conduct culminating in the termination of the first trial in this case was not so intended . . . , that is the end of the matter for purposes of the Double Jeopardy Clause”

## Opinion text

Justice Brennan,
with whom Justice Marshall joins, concurring in the judgment.
I concur in the judgment and join in the opinion of Justice Stevens. However, it should be noted that nothing in the holding of the Court today prevents the state courts, on remand, from concluding that respondent’s retrial would violate the provision of the Oregon Constitution that prohibits double jeopardy, Ore. Const., Art. I, § 12, as that provision *681 has been interpreted by the state courts, State v. Rathbun, 287 Ore. 421 , 600 P. 2d 392 (1979). See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (Marshall, J., dissenting), on remand, State v. Opperman, 247 N. W. 2d 673 (S. D. 1976) (original State Supreme Court judgment adhered to as a matter of state constitutional law); Oregon v. Hass, 420 U. S. 714, 726 (1975) (Marshall, J., dissenting).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428775. Public record. Not legal advice.