concurring.
I join the Court’s opinion holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause. Because “subjective” intent often may be unknowable, I empha*680size that a court — in considering a double jeopardy motion-should rely primarily upon the objective facts and circumstances of the particular case. See ante, at 675.
' In the present case the mistrial arose from the prosecutor’s conduct in pursuing a line of redirect examination of a key witness. The Oregon Court of Appeals identified a single question as constituting “overreaching” so serious as to bar a retrial. Yet, there are few vigorously contested lawsuits— whether criminal or civil — in which improper questions are not asked. Our system is adversarial and vigorous advocacy is encouraged.
Nevertheless, this would have been a close case for me if there had been substantial factual evidence of intent beyond the question itself. Here, however, other relevant facts and circumstances strongly support the view that prosecutorial intent to cause a mistrial was absent. First, there was no sequence of overreaching prior to the single prejudicial question. See ante, at 669-670, and n. 1. Moreover, it is evident from a colloquy between counsel and the court, out of the presence of the jury, that the prosecutor not only resisted, but also was surprised by, the defendant’s motion for a mistrial. See App. 24-29. Finally, at the hearing on respondent’s double jeopardy motion, the prosecutor testified — and the trial found as a fact and the appellate court agreed — that there was no “‘intention ... to cause a mistrial.’” Ante, at 669.
In view of these circumstances, the Double Jeopardy Clause provides no bar to retrial.