In Oregon v. Kennedy, 456 U.S. 667 (1982), defendant Kennedy's motion for mistrial was granted. When he moved for dismissal of the charges based on double jeopardy, the court denied the motion, finding that the prosecutor did not intend to cause a mistrial. ( Id. at p. 669.) The Court of Appeals accepted the trial court's finding but sustained the double jeopardy claim because the prosecutor's conduct constituted "'overreaching.'" ( Id. at p. 670.) The United States Supreme Court reversed the Court of Appeals and established the aforementioned rule. In conclusion it stated: "Since the Oregon trial court found, and the Oregon Court of Appeals accepted, that the prosecutorial conduct culminating in the termination of the first trial in this case was not so intended by the prosecutor, that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution." ( Id. at p. 679.) The United States Supreme Court decided that when government conduct at trial is "intended to goad a defendant into moving for a mistrial ... a defendant may raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." The Court further stated that government conduct "that might be viewed as harassment or overreaching" does not bar a retrial under double jeopardy principles "absent prosecutorial intent to subvert double jeopardy protections." Id. The double jeopardy interest that Kennedy claimed to promote was "the defendant's valued right to complete his trial before the first jury." Kennedy, 102 S. Ct. at 2088. Kennedy is usually characterized as holding that double jeopardy principles bar a retrial when the government "intentionally goads" a defendant into successfully moving for a mistrial. In Kennedy, the Supreme Court apparently was applying the "former acquittal" double jeopardy protection because in other parts of its opinion it refers to a "prosecutor's actions giving rise to a defendant's motion for mistrial ... in order to goad the defendant into requesting a mistrial" when the record shows that "the jury was likely to acquit the accused." Kennedy, 102 S. Ct. at 2088 n. 4, 2091. So Kennedy might only be aimed at a prosecutor goading a defendant into moving for a mistrial when the defendant's mistrial motion is necessitated by "prosecutorial impropriety designed to avoid an acquittal." See id. The Supreme Court held that the double jeopardy clause of the Fifth Amendment of the United States Constitution was not offended by a second prosecution for the same offense where the earlier trial was terminated as a result of the defendant's motion for mistrial. But, if the State intentionally and deliberately set out to provoke the mistrial, then the defendant's right under the double jeopardy clause to have his trial decided by the first tribunal was violated. Oregon v. Kennedy, supra. In Oregon v. Kennedy, a divided Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. at 676. In Kennedy, the State charged the defendant with theft of an oriental rug. Id. at 669. The prosecution called an expert on Middle Eastern rugs to testify about the value and identity of the stolen rug. During cross-examination and in an attempt to establish the witness' bias, defense counsel asked the expert if he had filed criminal charges against Kennedy. On redirect, the prosecutor asked the witness to explain why he had filed those charges, but when the trial court sustained the defendant's objections, the following occurred: Prosecutor: Have you ever done business with the Kennedys? Witness: No, I have not.Prosecutor: Is that because he is a crook? Id. The trial court immediately granted the defendant's motion for mistrial. Kennedy then moved to have the charges dismissed based on double jeopardy, but the trial court denied that motion, finding that the prosecutor did not intend to cause a mistrial. Id. at 669-70. The Oregon Supreme Court reversed, concluding that, even if the prosecutor had not intended to cause the mistrial, his actions were motivated by bad faith or to harass or prejudice the defendant. Id. at 670. The Supreme Court, in turn, reversed the Oregon court. The Oregon Court of Appeals decided that the double jeopardy clause barred the defendant's retrial after the first trial ended in a mistrial granted on his own motion. The Oregon court reasoned that a retrial was precluded because the prosecutorial misconduct that occasioned the mistrial in the first instance amounted to overreaching. The United States Supreme Court reversed. Writing for the majority, Chief Justice Rehnquist stressed that a criterion based upon prosecutorial "overreaching" or "bad faith" offered "virtually no standard for its application." Id. at 674, 102 S. Ct. at 2089, 72 L. Ed. 2d at 424. Noting that resolution of double jeopardy questions by state trial courts are reviewable not only within the state court system but in the federal court system on habeas corpus as well, the Court emphasized the desirability of "an easily applied principle." Id. at 675, 102 S. Ct. at 2089, 72 L. Ed. 2d at 424. The Court reasoned that where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, the important consideration for double jeopardy purposes is that the defendant retain primary control over the course to be followed. Id. at 676, 102 S. Ct. at 2089, 72 L. Ed. 2d at 425. A defendant's motion for a mistrial even when occasioned by prosecutorial bad faith was said to constitute a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact. Ibid. The Court thus held that "prosecutorial 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 Jeopardy Clause." Id. at 675-76, 102 S. Ct. at 2089, 72 L. Ed. 2d at 424. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Ibid. In separate concurring opinions, Justices Powell and Stevens provided factors for determining whether or not a prosecutor's misconduct was intended to provoke a mistrial. Noting that subjective intent often may be unknowable, Justice Powell emphasized that "a court--in considering a double jeopardy motion--should rely primarily upon the objective facts and circumstances of the particular case." Id. at 680, 102 S. Ct. at 2092, 72 L. Ed. 2d at 427 (Powell, J., concurring). Specifically, the court should consider: (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; (4) the timing of the error. Ibid.