Double jeopardy; Prosecutorial misconduct; Mistrial; Retrial; Const 1963, art 1, § 15; US Const, Am V; State constitutional interpretation; Alleged use of an invocation of right to silence; Consciousness of guilt; Oregon v Kennedy; Pool v Superior Court (AZ); People v Dawson

The court held that the Kennedy “intent to goad” standard does not properly effectuate Const 1963, art 1, § 15 double-jeopardy protections, and adopted the broader Pool standard for defense-requested mistrials based on prosecutorial misconduct. Defendant was charged with CCW after police found a handgun in the car he drove. At his first trial the prosecutor elicited testimony and argued in closing that his decision to end a police interview showed a “guilty conscience.” The trial court found the prosecutor had “essentially weaponized” defendant’s invocation of silence, granted his mistrial motion, but denied his request to bar retrial under Kennedy. He was convicted at a second trial. On appeal, the court rejected Kennedy under Michigan law, reasoning that its narrow rule “fails to fully realize the protections ensured by Article 1, § 15” because double-jeopardy interests may also be impaired by “intentional misconduct beyond goading.” The court held that retrial is barred when a mistrial is granted because of improper prosecutorial conduct, the conduct is not merely legal error, negligence, mistake, or insignificant impropriety but amounts to “intentional conduct which the prosecutor knows to be improper and prejudicial” and pursues for an improper purpose with indifference to a significant danger of mistrial or reversal, and the prejudice cannot be cured short of mistrial. It further held that courts should assess knowledge and intent through “objective factors,” including the prosecutor’s situation, case strength, evidence of knowledge and intent, and any danger of acquittal. Because the trial court applied Kennedy and did not make the findings necessary under Pool, the court vacated the Court of Appeals’ judgment (which affirmed the trial court) and remanded for application of the new state standard.

Justice Zahra, joined by Justice Bernstein, dissented. He concluded that the majority improperly abandoned Dawson and decades of cases recognizing that Const 1963, art 1, § 15 is interpreted consistently with the Fifth Amendment. He reasoned the ratifiers intended to provide the “same double jeopardy protection” as federal law, that the majority did not identify a “compelling reason” or conduct a stare decisis analysis, and that the Arizona Pool test had “no relation” to Michigan’s constitutional text or ratifier intent. He also would have affirmed because neither Kennedy nor Pool was satisfied where the prosecutor opposed mistrial, the trial court credited his explanation that he was trying “to get the jury to find [defendant] guilty, not for a mistrial,” and the conduct at most reflected negligence or mistake rather than intentional misconduct.