People v Jennings

Michigan Supreme Court Lansing, Michigan Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong PEOPLE v JENNINGS Docket No. 165764. Argued April 22, 2026 (Calendar No. 1). Decided July 24, 2026. Devante K. Jennings was convicted, following a jury trial in the Macomb Circuit Court, of carrying a concealed weapon, MCL 750.227. Defendant was driving a vehicle when it was stopped by the police based on a witness’s description of a vehicle that had been involved in a shooting. Officers found a loaded handgun in the glovebox of the vehicle. During a police interview, defendant admitted that he was the driver of the car and had been at the location of the shooting. When a detective asked defendant for permission to obtain a DNA sample to determine whether it matched DNA found on the handgun, defendant refused and ended the interview. At trial, the prosecutor stated during closing argument that ending the interview was evidence of defendant’s “guilty conscience” and showed the jury a board with “guilty conscience” written on it. The prosecutor also highlighted that the other occupants of the vehicle when it was stopped had agreed to speak with the police and had not ended their interviews prematurely. After the trial court, Michael E. Servitto, J., expressed concern that the prosecutor had weaponized defendant’s invocation of his right to remain silent, defense counsel moved for a mistrial, which the court granted. Defendant further argued that retrial was barred by double-jeopardy principles, but the trial court, noting that defendant had not raised any objections, ruled that a second trial would not violate defendant’s double-jeopardy rights because the prosecutor had not specifically intended to provoke defendant into moving for a mistrial. Defendant was convicted following his second trial. On appeal, the Court of Appeals, RICK, P.J., and LETICA, J. (SHAPIRO, J., dissenting), affirmed in a split, unpublished opinion, issued April 20, 2023 (Docket No. 359837), holding that retrial was not barred under Oregon v Kennedy, 456 US 667 (1982), because the record indicated that the prosecutor’s error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial. Judge SHAPIRO would have determined that retrial was barred under Kennedy, but he also urged the Michigan Supreme Court to adopt the standard set forth by the Arizona Supreme Court in Pool v Superior Court, 139 Ariz 98, 108 (1984), because it was easier to apply than Kennedy’s subjective standard and was a more appropriate means of protecting the right against double jeopardy and deterring prosecutorial misconduct. Defendant sought leave to appeal in the Michigan Supreme Court, and the Court ordered oral argument on the application, 513 Mich 977 (2024). Following oral argument, the Court granted leave to appeal. ___ Mich ___; 19 NW3d 329 (2025).  In an opinion by Chief Justice CAVANAGH, joined by Justices WELCH, BOLDEN, THOMAS, and HOOD, the Supreme Court held: The standard announced by the United States Supreme Court in Kennedy for determining when double-jeopardy principles bar retrial on the basis of prosecutorial misconduct conflicts with the double-jeopardy protections guaranteed by Const 1963, art 1, § 15. Kennedy is therefore rejected under state law, and the test set forth in Pool, 139 Ariz at 108, is adopted. Under this standard, retrial is barred when (1) mistrial is granted because of improper conduct or actions by the prosecutor; and (2) such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which the prosecutor pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and (3) the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial. 1. The federal standard from Kennedy, under which a mistrial declared due to prosecutorial misconduct bars retrial only if the prosecution intended to goad the defense into moving for one, fails to reflect the intent of the ratifiers of the 1963 Constitution, and that standard is rejected under Article 1, § 15; instead, the Pool test from the Arizona Supreme Court is adopted because it better effectuates the double-jeopardy protections guaranteed by Article 1, § 15 and this Court’s pre- Kennedy pronouncements on this issue. Both Const 1963, art 1, § 15 and the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution have been construed as prohibiting successive prosecutions and multiple punishments for the same offense. At issue here is the protection against successive prosecutions. This prohibition is not absolute, and two general rules have emerged relating to the permissibility of a retrial after a mistrial is declared. When a mistrial is declared over the defendant’s objection, retrial is usually barred unless the mistrial is occasioned by “manifest necessity.” When the defense seeks and secures a mistrial, as here, retrial is typically permitted if the mistrial was caused by the innocent conduct of the prosecutor or trial judge, by factors beyond their control, or by defense counsel. But where the mistrial was precipitated by certain types of prosecutorial misconduct, retrial may be barred. Under Kennedy, federal double-jeopardy protections bar retrial only when prosecutorial conduct giving rise to a successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Justice Stevens, joined by three other justices, wrote separately in Kennedy to argue that the Court’s narrow standard conflicted with longstanding double-jeopardy rationales. Kennedy has also been criticized by several state high courts as unduly narrow and not fully protective of the rights that the Double Jeopardy Clause was intended to safeguard. In Pool, for instance, the Arizona Supreme Court agreed with Justice Stevens that the narrow Kennedy standard calls for a subjective inquiry that is too difficult to determine and clashes with the United States Supreme Court’s own double-jeopardy jurisprudence. The Arizona Supreme Court set forth a three-part test in Pool that must be met for double jeopardy to bar retrial when a mistrial has been granted because of the prosecutor’s improper conduct. Although there is no general presumption that federal interpretations of federal law control state interpretations of state law, the history and circumstances surrounding the adoption of Article 1, § 15 indicate an intertwined relationship between the historic interpretations of the Fifth Amendment and Article 1, § 15 because the ratifiers looked to then-existing federal principles in crafting this part of the 1963 Constitution. Therefore, when federal double-jeopardy jurisprudence offered a clear standard at or before the time that Article 1, § 15 was ratified, this Court presumes that the ratifiers intended for that standard to apply under the Michigan Constitution. But federal interpretations first announced after ratification carry no such presumption because the ratifiers could not have spoken to a rule that did not yet exist. Accordingly, whether federal jurisprudence accurately reflects the meaning of Article 1, § 15 or other state constitutional provisions is a case- by-case inquiry that hinges on the history of the precise legal doctrine in question. Mechanically adopting the Kennedy rule, which was announced for the first time 20 years after Article 1, § 15 was ratified, would breach this Court’s duty to determine the law made by the people in ratifying Michigan’s 1963 Constitution. 2. Under Article 1, § 15, retrial is barred when the elements articulated in Pool are satisfied. Because Kennedy does not govern by default, the more nuanced issue presented in this case is when improper prosecutorial conduct bars retrial under Article 1, § 15. Neither the plain text of Article 1, § 15 nor pre-1963 precedent directly addresses the precise issue at hand. But by 1963, well-established double-jeopardy principles protected defendants from the declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict, as well as from harassment by successive prosecutions. These principles also safeguarded a defendant’s valued right to have his trial completed by a particular tribunal that may be favorably disposed to his fate. As recognized in Kennedy, a defendant’s valued right to complete their trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances. But the protections guaranteed by Article 1, § 15 are similarly diluted when, e.g., a mistrial is declared after the prosecutor intentionally engages in egregious misconduct to avoid an acquittal or harass the defendant rather than to goad the defendant into moving for a mistrial. Double-jeopardy protections should apply the same way in that scenario as they do in goading cases. Therefore, because the unduly rigid Kennedy standard conflicts with longstanding principles of double-jeopardy law and fails to fully realize the protections ensured by Article 1, § 15, Kennedy is rejected under state law. Instead, Pool is adopted as more in line with both longstanding double-jeopardy principles incorporated into our state Constitution and Michigan’s pre-Kennedy caselaw on this subject, which recognized a similar, broader standard. But a defendant still bears a heavy burden to bar retrial under this standard, and only intentional misconduct that necessitates a mistrial opens the door to barring retrial. Consequently, this holding should not be read to suggest that all instances of prosecutorial error or misconduct implicate the protections guaranteed by Article 1, § 15. Court of Appeals judgment vacated; case remanded to the trial court. Justice ZAHRA, joined by Justice BERNSTEIN, dissenting, concluded that the majority acted without judicial restraint by overruling this Court’s adoption of the Kennedy standard in People v Dawson, 431 Mich 234, 236 (1988), and by arbitrarily adopting the Pool standard. Moreover, this case was not a proper vehicle for adopting a new standard because neither the Kennedy test nor the Pool test was satisfied. This Court determined in People v Nutt, 469 Mich 565, 591 (2004), that the ratifiers of our Constitution intended that Article 1, § 15 was to be construed consistently with its federal counterpart, and the Court has since affirmed this position in other cases. Further, this Court has also held that there is no basis in the language of Article 1, § 15 to conclude that it offers greater protection than the Fifth Amendment. In adopting the Pool standard, the majority incorrectly dispensed with the “compelling reason” test, which provides that the Court should consider whether, e.g., a significant textual difference, longstanding Michigan precedent, or historical factors support interpreting a Michigan constitutional provision more broadly than a parallel provision in the federal Constitution. Here, none of these considerations supported treating the state and federal provisions differently. Justice ZAHRA also noted that the Arizona Supreme Court was not bound by the intent of the ratifiers of the Michigan Constitution, so adopting its standard from Pool did not effectuate the intent of the ratifiers of Michigan’s Constitution. Moreover, Arizona’s double-jeopardy jurisprudence is very different from Michigan’s double- jeopardy jurisprudence, and in rejecting the Kennedy standard, the Arizona Supreme Court, unlike the Michigan Supreme Court, was not bound by decades of precedent holding that its state double jeopardy clause was to be interpreted consistently with the federal Double Jeopardy Clause.  Michigan Supreme Court Lansing, Michigan OPINION Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood FILED July 24, 2026 STATE OF MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 165764 DEVANTE KYRAN JENNINGS, Defendant-Appellant. BEFORE THE ENTIRE BENCH CAVANAGH, C.J. When a criminal defendant successfully moves for a mistrial based on prosecutorial misconduct, federal double-jeopardy protections bar retrial only when the “conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v Kennedy, 456 US 667, 679; 102 S Ct 2083; 72 L Ed 2d 416 (1982). This case calls on us to consider whether the narrow standard first announced in Kennedy properly effectuates the double-jeopardy protections guaranteed by Article 1, § 15, of Michigan’s 1963 Constitution. Through independent interpretation of our state Constitution, we hold that it does not. We therefore reject Kennedy under Michigan law. We further conclude that the standard set forth in Pool v Superior Court, 139 Ariz 98, 108; 677 P2d 261 (1984), better reflects the intent of those who ratified Article 1, § 15. Accordingly, we adopt that standard under Article 1, § 15, vacate the judgment of the Court of Appeals, and remand this case to the trial court for reconsideration of defendant’s double-jeopardy arguments. I. FACTUAL AND PROCEDURAL HISTORY A. FACTS UNDERLYING THE CRIME In the predawn hours of April 30, 2019, defendant was involved in an incident in which a firearm was discharged outside of a Clinton Township apartment building. After someone fired a handgun several times into the air, three individuals—including the shooter—left the scene in a white Dodge Charger. Defendant, who was driving the car, was stopped by police after a witness reported the incident and provided a vehicle description. Officers searched the car and discovered a loaded handgun with an obliterated serial number in the glovebox. The ammunition in the gun matched the spent shell casings recovered outside the apartment. None of the occupants of the car had a concealed pistol license, nor was the gun registered to any of them. Later that day, Clinton Township Police Detective Carl Simon interviewed defendant about the incident. Defendant made several admissions during this interview, including that he was at the apartment building, that there was a disturbance there, and that he was the driver of the car, which was registered in his and his father’s name. But when Detective Simon asked defendant for permission to obtain a DNA swab to determine 2 whether it matched the DNA found on the recovered handgun, defendant declined and ended the interview, thereby exercising his right to silence. B. TRIAL COURT PROCEEDINGS Based on these facts, defendant was charged with carrying a concealed weapon (CCW) in a motor vehicle contrary to MCL 750.227. 1 His first trial took place in November 2019. During that trial, the prosecutor asked Detective Simon how the interview with defendant ended. Simon testified that it ended because defendant “did not wish to speak to us anymore.” The prosecutor then asked Detective Simon about the interviews with the other occupants of defendant’s vehicle. Detective Simon explained that they had agreed to speak to the police, had provided full statements, and had not ended the interviews prematurely. He added that the police never obtained an elimination sample of defendant’s DNA because defendant had “abruptly ended” the interview. Defense counsel did not object to this testimony. The prosecutor returned to the topic of defendant’s interview during closing arguments. Specifically, the prosecutor stated that defendant had “agreed to waive his [Miranda] rights, he said he understood everything, . . . but low and behold [sic], after answering a few questions he says, no, I don’t want to talk anymore.” The prosecutor cited 1 The prosecution also charged defendant with altering marks of identity on a firearm, MCL 750.230. After the close of proofs at defendant’s first trial, the prosecutor requested a jury instruction on this charge that included a presumption that the person in possession of a weapon with an altered identification mark was the individual who altered the weapon. The trial court rejected this presumption because it did not “work with the People’s burden.” The prosecution dismissed this charge after defendant’s first trial. 3 this fact as evidence of defendant’s “guilty conscience” and went on to hypothesize defendant’s reasoning for terminating the interview: [L]ike, well, okay, if I start going down this road further I am going to get into some territory that’s not good for me. I am going to start making admissions that I know are going to push me in further trouble. Maybe if I keep my mouth shut at this point, I can kind of walk out of this. The record also reflects that the prosecutor included the words “guilty conscience” on a board shown to the jury. Again, defense counsel did not object to the prosecutor’s argument. After closing arguments concluded and the jury was excused for deliberation, the trial court instructed the prosecutor and defense counsel to remain in the courtroom to discuss a “concern.” That “concern” stemmed from the prosecutor’s argument regarding defendant’s invocation of his right to remain silent. The trial court explained that the prosecutor had “essentially weaponized” defendant’s invocation “as consciousness of guilt” and the court concluded that it was “potentially prosecutorial misconduct.” In response, defense counsel requested a mistrial. After the parties were allowed to briefly research the issue, the prosecutor sought a curative instruction that would explain how defendant had a right to remain silent, that defendant’s invocation of that right cannot be used against him, and that “[a]ny evidence [sic] in this regard is stricken from the record.” The trial court asked the prosecutor if he was conceding error, to which the prosecutor answered in the affirmative. The trial court then explained that a prosecutor cannot comment on a defendant’s invocation of his right to remain silent after he has been accused or brought into custody and arrested. Because “[t]here’s no unringing this bell,” 4 the trial court rejected the prosecutor’s proposed remedy and granted defendant’s motion for a mistrial. That same day, the parties reappeared before the trial court to discuss scheduling a second trial. Defense counsel argued that retrial was barred on double-jeopardy grounds. The trial court, however, agreed with the prosecutor that a second trial would not violate defendant’s double-jeopardy rights because the record lacked evidence that the prosecutor specifically intended to provoke defendant into moving for a mistrial. The trial court also cited defense counsel’s lack of objections, adding that “I’m not even sure that we would have a mistrial motion brought before this Court if this Court did not highlight the fact that the prosecution had overstepped their bounds.” Accordingly, the trial court denied defendant’s request to bar retrial. Defendant’s second trial followed in February 2020. Although the prosecution called the same witnesses at the second trial, its theory of the case was somewhat different. At the first trial, the prosecution posited that defendant may have been the person who shot the gun, although there were some discrepancies between the descriptions of the shooter’s clothing and the clothes defendant was wearing when he was stopped by the police. At the second trial, the prosecution proceeded on an aiding-and-abetting theory and argued that defendant was not the person who shot the gun. At the end of this trial, a jury convicted him of CCW. The trial court subsequently sentenced defendant to serve one to five years in prison. 5  C. APPELLATE PROCEEDINGS Defendant appealed his conviction, and the Court of Appeals affirmed in a split decision. People v Jennings, unpublished per curiam opinion of the Court of Appeals, issued April 20, 2023 (Docket No. 359837). Relevant here, the majority rejected defendant’s argument that double-jeopardy principles barred his retrial. Id. at 4. Applying the rule from Kennedy—that retrial is impermissible only when the prosecutor intended to goad the defense into moving for a mistrial—the majority first observed that “the prosecutor did not concede that he intended to cause a mistrial.” Id. The prosecutor instead explained that his goal was to convict defendant. Id. Moreover, the majority reasoned that “the record indicates that the prosecutor’s error was the result of recklessness, negligence, or a lack of skill rather than an intentional effort to goad the defense into requesting a mistrial in this relatively straight-forward case.” Id. Consequently, the majority held that defendant’s double-jeopardy rights were not violated when he was retried. Id. Judge SHAPIRO dissented. He would have held that, even under the stringent Kennedy standard, double-jeopardy principles barred defendant’s retrial because the “prosecutor’s questions and closing argument were not minor foot faults.” Id. (SHAPIRO, J., dissenting) at 3. Indeed, the errors were serious enough for the trial court “to sua sponte raise the question of a mistrial.” Id. On these facts, Judge SHAPIRO concluded that “there was an intent to cause a mistrial, or at minimum to take the very substantial risk that one would be granted in order to introduce prejudicial and unconstitutional evidence.” Id. Judge SHAPIRO added that the test under the Michigan Constitution should differ from the one announced in Kennedy. See id. at 1, 4. In his view, establishing “that a prosecutor specifically intended to cause a mistrial insufficiently protects the principles of 6 double jeopardy because absent an admission of such . . . , it is virtually impossible to determine what the prosecutor’s subjective intent was.” Id. at 4. Judge SHAPIRO thus turned to the test set forth by the Arizona Supreme Court in Pool, 139 Ariz 98, which “chang[es] the standard from specific intent to cause a mistrial to ‘intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal[.]’ ” Id., quoting People v Dawson, 154 Mich App 260, 272; 397 NW2d 277 (1986); see also Pool, 139 Ariz at 108-109. Because he found the Pool standard to be “both easier to apply than Kennedy’s subjective standard and a more appropriate means of protecting the right against double jeopardy and deterring prosecutorial misconduct,” Judge SHAPIRO would have adopted it under the Michigan Constitution. Jennings (SHAPIRO, J., dissenting), unpub op at 1. 2 Defendant next sought leave to appeal in this Court. We first ordered oral argument on the application, directing the parties to address whether the Double Jeopardy Clauses of the United States Constitution, US Const, Am V, XIV, and the Michigan Constitution, Const 1963, art 1, § 15, barred the defendant’s retrial. The parties shall specifically address: (1) what standard the Court should apply to determine whether prosecutorial misconduct bars retrial under Michigan’s Double Jeopardy Clause, see, e.g., [Kennedy, 456 US at 676]; Pool[, 139 Ariz at 108-109]; State v McClaugherty, 144 NM 483, 491[; 2008-NMSC-044; 188 P3d 1234] (2008); Commonwealth v Smith, 532 Pa 177, 186[; 615 A2d 321] (1992); People v Batts, 30 Cal 4th 660, 695-696[; 68 P3d 357] (2003); State v Rogan, 91 2 The majority rejected the dissent’s invitation to adopt a different standard as to when double jeopardy bars retrial in this context because, in the majority’s opinion, “there is little evidence to support the conclusion that defendant could meet” either of the proffered tests. Jennings, unpub op at 4 n 2. 7  Hawai‘i 405, 423-424[; 984 P2d 1231] (1999); and (2) whether retrial was impermissible in this case. [People v Jennings, 513 Mich 977, 977 (2024).] After hearing oral argument on the application, we granted leave to appeal. Our order directed the parties to address the following additional issues: (1) whether there is a “compelling reason” under the Michigan Constitution to adopt a different test from the one set forth in [Kennedy, 456 US at 675- 676], to determine whether prosecutorial misconduct bars retrial, see People v Bullock, 440 Mich 15, 28-35[; 485 NW2d 866] (1992); but see People v Nutt, 469 Mich 565, 590[; 677 NW2d 1] (2004); (2) if so, whether this Court should adopt a test from another state or develop factors that expound on the “bad faith” test previously adopted in Michigan, see United States v Dinitz, 424 US 600, 611[; 96 S Ct 1075; 47 L Ed 2d 267] (1976); People v Anderson, 409 Mich 474, 485[; 295 NW2d 482] (1980); Pool[, 139 Ariz at 108-109]; and People v Tyson, 423 Mich 357, 371-372[; 377 NW2d 738] (1985); and (3) whether retrial was permissible in this case. [People v Jennings, ___ Mich ___, ___; 19 NW3d 329, 329-330 (2025).] II. STANDARD OF REVIEW AND GENERAL PRINCIPLES OF CONSTITUTIONAL INTERPRETATION We review de novo questions of state constitutional interpretation. People v Parks, 510 Mich 225, 245; 987 NW2d 161 (2022). This Court is “the ultimate authority with regard to the meaning and application of Michigan law.” Bullock, 440 Mich at 27. Similarly, a “double-jeopardy challenge presents a question of constitutional law that this Court reviews de novo.” Nutt, 469 Mich at 573. When interpreting the Michigan Constitution, our “primary objective” is to “determine the text’s original meaning to the ratifiers, the people, at the time of ratification.” Wayne Co v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). We thus aim to “realize the intent of the people by whom and for whom the constitution was ratified.” Studier v Mich Pub Sch Employees Retirement Bd, 472 Mich 642, 652; 698 NW2d 350 (2005) (quotation marks and citation omitted). We must also consider “the 8 circumstances leading to the adoption of the provision and the purpose sought to be accomplished.” People v Nash, 418 Mich 196, 209; 341 NW2d 439 (1983) (opinion by BRICKLEY, J.) (citation omitted). At bottom, because a “constitution is made for the people and by the people,” the “interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it.” Citizens Protecting Michigan’s Constitution v Secretary of State, 503 Mich 42, 61; 921 NW2d 247 (2018) (quotation marks and citation omitted). III. ANALYSIS This case concerns the scope of double-jeopardy protections afforded by Article 1, § 15, of Michigan’s 1963 Constitution. In particular, we must determine the circumstances under which retrial is barred when a mistrial is declared based on improper prosecutorial conduct. Before turning to the question of whether the Michigan Constitution affords greater protection than its federal analogue in this realm, we first outline fundamental double-jeopardy principles that guide our analysis. We then turn to the different lines of cases applying these principles to circumstances similar to those presented in this case. Finally, because we conclude that the federal standard debuted in Kennedy, 456 US 667, fails to reflect the intent of those who ratified Michigan’s 1963 Constitution two decades earlier, we reject that standard under Article 1, § 15. We instead adopt the test set forth by the Arizona Supreme Court in Pool, 139 Ariz 98, 3 as that test better effectuates the double- 3 As explained in more detail below, the Pool test was first adopted by our Court of Appeals in Dawson, 154 Mich App at 272. On appeal before this Court, the prosecution in that case conceded error under the federal standard at oral argument, so we declined to determine if we should incorporate the test articulated in Pool under our state Constitution. People v Dawson, 431 Mich 234, 251; 427 NW2d 886 (1988). 9 jeopardy protections guaranteed by Article 1, § 15 and our pre-Kennedy pronouncements on this issue. A. DOUBLE-JEOPARDY BACKGROUND Broadly speaking, both the Michigan and United States Constitutions protect against being twice placed in jeopardy for the same offense. Const 1963, art 1, § 15; US Const, Am V. Article 1, § 15, of Michigan’s 1963 Constitution provides that “[n]o person shall be subject for the same offense to be twice put in jeopardy,” while the Fifth Amendment to the United States Constitution similarly states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb[.]” 4 We have recognized that the ratifiers of Michigan’s 1963 Constitution intended to incorporate contemporaneous common-law and federal double-jeopardy principles into Article 1, § 15. Nutt, 469 Mich at 575, 591. Against this backdrop, Article 1, § 15 and the Fifth Amendment have been construed as prohibiting both successive prosecutions and multiple punishments for the same offense. Id. at 575 & n 11. At issue in this case is the protection against successive prosecutions. The “principal thrust” of double-jeopardy protection under “our federal and state constitutional provision[s] is protection from repeated prosecutions for the same criminal offense arising out of the same conduct.” People v Harding, 443 Mich 693, 705; 506 NW2d 482 (1993). This venerable safeguard is “deeply ingrained in at least the Anglo- 4 The Double Jeopardy Clause of the Fifth Amendment was made applicable to the states in Benton v Maryland, 395 US 784, 787; 89 S Ct 2056; 23 L Ed 2d 707 (1969). 10 American system of jurisprudence.” Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957). One primary rationale underlying the protection is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. [Id. 5] Put another way, the prohibition on successive prosecutions ensures that the state cannot “repeatedly prosecute persons for the same crime, transforming the trial process itself into a punishment and effectively punishing the accused without his having been adjudged guilty of an offense meriting punishment.” People v Dawson, 431 Mich 234, 250; 327 NW2d 886 (1988). The protection against successive prosecutions has also been described as insulating a “defendant’s valued right to have his trial completed by a particular tribunal . . . .” Wade v Hunter, 336 US 684, 689; 69 S Ct 834; 93 L Ed 974 (1949). This right furthers the defendant’s interest of “being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v Jorn, 400 US 470, 486; 91 S Ct 547; 27 L Ed 2d 543 (1971). The bar on successive prosecutions also serves as a check on state-sanctioned gamesmanship. As the United States Supreme Court has explained, “Implicit in this is the thought that if the Government may reprosecute, it gains an advantage from what it learns 5 We have several times endorsed Green’s articulation of the purposes of constitutional double-jeopardy protections. See, e.g., Nutt, 469 Mich at 575 n 10; People v Herron, 464 Mich 593, 601; 628 NW2d 528 (2001); Dawson, 431 Mich at 251; Anderson, 409 Mich at 483 n 15. 11 at the first trial about the strengths of the defense case and the weaknesses of its own.” United States v DiFrancesco, 449 US 117, 128; 101 S Ct 426; 66 L Ed 2d 328 (1980). So double-jeopardy protections “forbid[] a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v United States, 437 US 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978). See also Anderson, 409 Mich at 483 n 15. For these reasons, the general rule is that a prosecutor is entitled “to one, and only one, opportunity to require an accused to stand trial.” Arizona v Washington, 434 US 497, 505; 98 S Ct 824; 54 L Ed 2d 717 (1978). And because jeopardy usually attaches once the jury is “selected and sworn,” 6 this constitutional guarantee advances “an accused’s interest in avoiding multiple prosecutions even where no determination of guilt or innocence has been made.” People v Lett, 466 Mich 206, 215; 644 NW2d 743 (2002). In other words, double-jeopardy protections kick in at the beginning of trial, not at the end after the jury returns its verdict. Dawson, 431 Mich at 251 (“An accused is placed in jeopardy as soon as the jury is selected and sworn. Hence, double jeopardy protection attaches before the conclusion of the trial.”). 7 6 Or, in a bench trial, “once the court begins to hear evidence.” See, e.g., People v Hicks, 447 Mich 819, 826-827; 528 NW2d 136 (1994) (opinion by GRIFFIN, J.). 7 This general proposition appears to have also been the understanding of delegates to the 1961 Constitutional Convention, who drafted Michigan’s 1963 Constitution. See, e.g., 1 Official Record, Constitutional Convention 1961, p 541 (indicating that one delegate explained that “it is not necessary that a trial be completed on its merits in order to put the defendant in jeopardy” because, “[a]s has been stated by Delegate Stevens, he is in jeopardy the minute a jury has been empaneled . . .”). 12  In light of the protections against double jeopardy, “[r]etrials are an exception to the general double jeopardy bar,” not the norm. Id. at 257. Yet, like many general rules of constitutional law, the prohibition on successive prosecutions is not an absolute one. For example, it does not “mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.” Wade, 336 US at 688. Instead, a criminal defendant’s rights must be balanced against society’s interest in “punishing one whose guilt is clear.” United States v Tateo, 377 US 463, 466; 84 S Ct 1587; 12 L Ed 2d 448 (1964). See also Lett, 466 Mich at 215. This is because it “would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” Tateo, 377 US at 466. Two general rules have thus emerged relating to the permissibility of retrial after a mistrial is declared. First, when a mistrial is declared over the defendant’s objection (often at the request of the prosecutor), retrial is usually barred unless “the mistrial is occasioned by ‘manifest necessity.’ ” Lett, 466 Mich at 215 (citations omitted). 8 The most common type of 8 We have adopted Justice Story’s “classic formulation” of the “manifest necessity” standard: “We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . .” [People v Hicks, 447 Mich 819, 828; 528 NW2d 136 (1994) (opinion by GRIFFIN, J.), quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824).] 13 “manifest necessity” is a deadlocked jury. See People v Thompson, 424 Mich 118, 128; 379 NW2d 49 (1985). But because of the possibility that the state may pursue a mistrial for its own advantage, the prosecutor bears the “ ‘heavy’ burden” of establishing “manifest necessity.” See People v Beck