Law360 (July 27, 2026, 6:28 PM EDT) -- The Michigan Supreme Court has significantly expanded the state's constitutional protection against double jeopardy, finding prosecutors can be barred from retrying a criminal defendant following a mistrial, even if they did not specifically intend to provoke the defense into requesting one. 

In a 5-2 decision entered Friday, the state high court rejected the U.S. Supreme Court's longstanding federal standard established in the 1982 decision in Oregon v. Kennedy , which held double jeopardy bars retrial following a mistrial only if the prosecutor intentionally provoked the defendant into seeking the mistrial. Instead, the state's justices adopted a broader test under the Michigan Constitution that focuses on whether prosecutors knowingly engaged in intentional misconduct that created a significant risk of a mistrial or reversal.

The ruling vacated a Michigan Court of Appeals decision affirming a man's conviction, after a retrial, for carrying a concealed weapon and sent the case back to the Macomb County Circuit Court to determine whether the prosecutor's conduct satisfies the newly adopted standard. 

Chief Justice Megan K. Cavanagh, writing for the majority, said the federal rule adopted in Kennedy does not fully protect the rights guaranteed by Article 1, Section 15 of the Michigan Constitution.

The case arose from the prosecution of a Clinton Township man charged with carrying a concealed weapon after police recovered a loaded handgun with an obliterated serial number from the glove box of the car he was driving following a 2019 shooting investigation.

During a police interview, Devante K. Jennings answered several questions before refusing to provide a DNA sample and ending the interview by exercising his constitutional right to remain silent. 

During Jennings' first trial in 2019, the prosecutor repeatedly highlighted Jennings' decisions to deny providing a DNA sample and to remain silent. A detective testified that Jennings "did not wish to speak to us anymore" and that officers never obtained a DNA sample because he had "abruptly ended" the interview.

The prosecutor returned to the issue during closing arguments, telling jurors Jennings stopped talking because he realized he was "going to start making admissions" that would get him into more trouble. The prosecutor also displayed the words "guilty conscience" on a board shown to the jury.

Following closing arguments, the trial judge raised the issue without prompting from either party, telling the lawyers the state had "essentially weaponized" Jennings' constitutional right to remain silent "as consciousness of guilt." 

Although the prosecutor conceded error and proposed a curative instruction, the trial court concluded that "there's no unringing the bell" and granted the defense motion for a mistrial. 

The trial court later ruled that a second trial was permissible because there was no evidence the prosecutor intended to provoke the defense into requesting a mistrial under the federal Kennedy standard. The defendant was retried in 2020 and convicted. 

The state high court's majority determined that approach gave prosecutors too much leeway under the Michigan Constitution. 

"The 'hollow shell' can remain equally empty beyond the narrow instance in which the prosecutor intentionally provokes a mistrial," Justice Cavanagh wrote for the majority. 

The state high court said defendants suffer the same constitutional harm when prosecutors intentionally commit serious misconduct to avoid a likely acquittal or strengthen a weak case, even if provoking a mistrial was not their specific objective. 

"As a result, whether the prosecution intentionally pursues an improper course of conduct because it means to goad a defendant into demanding a mistrial or because it is willing to accept a mistrial and start over is a distinction without a difference under Article 1," Section 15, according to the majority ruling. 

The high court's majority also criticized the practical difficulty of applying the federal rule because proving a prosecutor's subjective intent is nearly impossible. 

"Without a concession from the state, proving that a prosecutor harbored the specific intent to goad the defendant into moving for a mistrial is virtually impossible," Justice Cavanagh wrote for the majority. 

Instead, the court adopted a three-part test first announced by the Arizona Supreme Court in their 1984 decision in Pool v. Superior Court.  In that case, the Arizona justices held a prosecutor's misconduct barred a retrial after mistrial under the double jeopardy clause, but they found no evidence that prosecutors acted vindictively by bringing a new indictment. 

Under the new Michigan standard, retrial is barred when a mistrial results from prosecutorial misconduct that is intentional rather than negligent, the prosecutor knows the conduct is improper and prejudicial, acts for an improper purpose while disregarding a significant risk of mistrial or reversal, and the prejudice can't be cured short of a mistrial. 

"Only intentional misconduct opens the door to barring retrial," according to the Michigan high court ruling. "Mere error or negligence is not enough." 

The court also explained that trial courts should evaluate objective evidence surrounding the prosecutor's conduct, including the strength of the state's case and whether there was a genuine danger the defendant might be acquitted. 

Because the Macomb County trial court applied the federal standard instead of the newly adopted state standard, the Michigan Supreme Court declined to decide whether retrial was actually barred in this case. 

Instead, it directed the Macomb County trial court to reconsider the issue and authorized it to receive additional briefing or hold an evidentiary hearing. 

In a dissent joined by Justice Richard H. Bernstein, Justice Brian K. Zahra wrote, "The majority opinion sets aside decade of this court's" case law, adding, "Even worse, it tramples on the clear intent of the ratifiers" of the 1963 Michigan Constitution.

According to the dissent, Michigan courts have consistently interpreted the state's double jeopardy clause the same way federal courts interpret the Fifth Amendment. 

Justice Zahra argued there was "absolutely no reason, let alone a compelling one," to depart from the federal standard established in Kennedy.

"The majority of this court acts without judicial restraint," the justice wrote, adding the high court adopted Arizona's more defendant-friendly rule "not because it is more in line with the ratifiers' intent than the federal test, but because the majority of this court will do, as it has the past several terms, what it wants." 

The dissent further asserted that the instant case was an unsuitable vehicle for changing Michigan law because the Macomb County prosecutor's conduct would not satisfy either the federal Kennedy test or the broader Arizona standard. 

Representatives of the parties did not immediately respond to requests for comment Monday. 

The state is represented by Jonathan A. Mycek, Joshua D. Abbott and Emil Semaan of the Macomb County Prosecutor's Office. 

Jennings is represented by Jason R. Eggert of the Michigan State Appellate Defender Office. 

The case is People v. Jennings, case number 165764, in the Michigan State Supreme Court.

--Editing by Covey Son.

For a reprint of this article, please contact reprints@law360.com.