In the case of Oregon v. Kennedy in 1981, the U.S Supreme Court ruled that a defendant's motion for mistrial could be granted only if it was proven that prosecutorial misconduct was intended to provoke the defendant into moving for a mistrial. The case arose when an attorney representing Oregon during a criminal trial made comments and gestures which were seen as prejudicial against the defense, leading them to request a mistrial. However, upon appeal by Oregon on grounds of double jeopardy (being tried twice for the same crime), it was determined by SCOTUS that while there had been misconduct from prosecution side, there wasn't sufficient evidence to prove this behavior aimed at provoking a mistrial request from defense side. Therefore, retrial wouldn’t violate Double Jeopardy Clause under Fifth Amendment.

In the dissenting opinion for Oregon v. Kennedy, Justice Stevens argued that the majority's decision to allow a retrial based on prosecutorial misconduct was too broad and could potentially lead to abuse of this rule by defense attorneys. He believed that there should be more specific criteria for determining when a prosecutor's actions are so egregious as to warrant a mistrial, rather than simply relying on whether or not those actions were intended to provoke the defendant into requesting one. Furthermore, he contended that it is often difficult if not impossible to accurately discern an attorney’s intent in such situations. Therefore, he felt it would be better policy-wise and fairer towards defendants if courts focused instead on whether or not their right to a fair trial had been violated due its prejudice effect regardless of any alleged intent behind prosecutors' conduct.