Does the Double Jeopardy Clause bar retrial when a prosecutor's misconduct, committed for the purposes of diminishing a defendant's chance of acquittal is not discovered until after the jury has rendered a guilty verdict?

QUESTION PRESENTED In Oregon v. Kennedy, 456 U.S. 667 (1982), this Court held that when a prosecutor intentionally commits misconduct to provoke a defense request for mistrial and thereby to ensure a second chance to prosecute a defendant, the Double Jeopardy Clause of the Fifth Amendment bars retrial. Kennedy did not determine when, if ever, prosecutorial misconduct that does not result in a mistrial but nonetheless results in the reversal of the defendant’s conviction might also implicate double jeopardy protections. The Circuits are split over a possible ; extension of Kennedy in situations where misconduct during trial is not discovered until after trial, making a mistrial request based on this misconduct impossible. The question presented is: Does the Double Jeopardy Clause bar retrial when a prosecutor’s misconduct, committed for the purposes of diminishing a defendant’s chance of acquittal is not discovered until after the jury has rendered a guilty verdict? 2