Cornell Law Review, Vol. 69, No. 1 (November 1983), pp. 76-100


This article examines the effect of Oregon v. Kennedy on the Burger Court's double jeopardy jurisprudence in cases where government misconduct has interfered with the integrity of a first trial. The article proposes the complete elimination of current distinctions between mistrial and appellate reversal cases for double jeopardy analysis, on the ground that those distinctions no longer have intellectual or practical support. Moreover, against the contention of the Court in Oregon v. Kennedy that any test for overreaching necessarily would be standardless, this article proposes the adoption of a "plain error" standard. Under this test, "plain" government error, engaged in with the purpose of improperly seeking a conviction, that results in a mistrial or appellate reversal will preclude a second jeopardy. The article concludes that the principles that have evolved in recent double jeopardy decisions undercut both the mandatory language of the clause and its "underlying idea."