Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's 676*676 motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact."
United States v. Scott, 437 U. S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, "[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error."
United States v. Dinitz, supra, at 609. 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.
Intent, however, is determined in the usual way:
By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.
Few cases command the degree of attention that this case did, given the high profile of the defendant and its interest and impact on the cultural institution of baseball, the great American pastime.
To conclude that the government did not intent to goad the defense into moving for a mistrial, and thus waiving the defendant's double jeopardy protections, one would have to believe that the prosecution was so mind-bogglingly incompetent, so wholly incapable of performing their function with the barest minimum competence, as to not be aware that a video it presented to the jury contained the very testimony it had been admonished not to show.
