with whom Justice Brennan, Justice Marshall, and Justice Blackmun join, concurring in the judgment.
Unless the Oregon Court of Appeals based its decision on Oregon law,1 this is a case in which the state court should have applied the general rule that a defendant’s motion for a mistrial removes any double jeopardy bar to retrial. The prosecutor’s mistake was not the kind of overreaching or harassment identified in our precedents as an exception to the general rule. Instead of explaining why that conclusion is required by settled law, this Court gratuitously lops off a portion of the previously recognized exception. This exercise in lawmaking is objectionable because it is wholly unnecessary and because it compromises an important protection provided by the Double Jeopardy Clause.
i — I
The Double Jeopardy Clause represents a constitutional policy of finality for the defendant’s benefit in criminal pro*682ceedings.2 If the defendant is acquitted by the jury, or if he is convicted and the conviction is upheld on appeal, he may not be prosecuted again for the same offense.3 The defendant’s interest in finality is not confined to final judgments; he also has a protected interest in having his guilt or innocence decided in one proceeding.4 That interest must be balanced against society’s interest in affording the prosecutor one full and fair opportunity to present his evidence to the jury.5 Our decisions in the mistrial setting accordingly have accommodated the defendant’s double jeopardy interests6 with legitimate prosecutorial interests.7
*683The accommodation is reflected in two general rules that govern the permissibility of reprosecution after a mistrial. Which general rule applies turns on whether the defendant has retained control over the course to be followed once error has substantially tainted the initial proceeding.8 When a mistrial is declared over the defendant’s objection, the general rule is that retrial is barred.9 An exception to this general rule exists for cases in which the mistrial was justified by “manifest necessity.”10 The other general rule is that the defendant’s motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution.11 There is an exception to this rule for cases in which the prosecutor12 intended to provoke a mistrial or otherwise engaged in “overreaching” or “harassment. ”13 The prosecutor has the burden *684of proving the former exception for manifest necessity, and the defendant has the burden of proving the latter exception for overreaching.
*685As an initial matter, it is useful to explain why the defendant’s retention of control over the course to be followed once serious prosecutorial error has occurred represents a reasonable accommodation of double jeopardy and prosecutorial interests. A defendant cannot be guaranteed both that there will be only one proceeding and that it will be free of error.14 When unfair prejudice is injected into the proceeding by the prosecutor, the defendant may choose to continue the proceeding despite the taint and, if convicted, seek a reversal on appeal.15 Or he may choose to abort the tainted proceeding and begin anew.16 While it is true that prosecutorial error leaves the defendant with a “Hobson’s choice,”17 it is also true *686that the prosecutor suffers substantial costs no matter how the defendant exercises this choice. If the defendant consents to a mistrial, the prosecutor must go to the time, trouble, and expense of starting all over with the criminal prosecution. If the defendant chooses to continue the proceeding and preserve his objection for appeal, the prosecutor must continue to completion a proceeding in which a conviction may not be sustainable.18
The rationale for the exception to the general rule permitting retrial after a mistrial declared with the defendant’s consent is illustrated by the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial.19 In this situation the defendant’s choice to continue the tainted proceeding or to abort the proceeding and begin anew is inadequate to protect his double jeopardy interests. For, absent a bar to reprosecution, the defendant would simply play into the prosecutor’s hands by moving for a mistrial. The defendant’s other option — to continue the tainted proceeding — would be no option at all if, as we might expect given the prosecutor’s intent, the prosecutorial error has virtually guaranteed conviction. There is no room in the balance of competing interests for this type of manipulation of the mistrial device. Or to put it another way, whereas we tolerate some incidental infringement upon a defendant’s double jeopardy interests for the sake of society’s interest in obtaining a verdict of guilt or innocence, when the prosecutor seeks to obtain an advantage by intentionally subverting double jeopardy interests, the balance invariably tips in favor of a bar to reprosecution.20
*687Today the Court once again recognizes that the exception properly encompasses the situation in which the prosecutor commits prejudicial error with the intent to provoke a mistrial. But the Court reaches out to limit the exception to that one situation,21 rejecting the previous recognition that prosecutorial overreaching or harassment is also within the exception.22
*688Even if I agreed that the balance of competing interests tipped in favor of a bar to reprosecution only in the situation in which the prosecutor intended to provoke a mistrial, I would not subscribe to a standard that conditioned such a bar on the determination that the prosecutor harbored such intent when he committed prejudicial error. It is almost inconceivable23 that a defendant could prove that the prosecutor’s deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant.24 The defendant must shoulder a strong burden to establish a bar to reprosecution when he has consented to the mistrial, but the Court’s subjective intent standard would eviscerate the exception.25
*689A broader objection to the Court’s limitation of the exception is that the rationale for the exception extends beyond the situation in which the prosecutor intends to provoke a mistrial. There are other situations in which the defendant’s double jeopardy interests outweigh society’s interest in obtaining a judgment on the merits even though the defendant has moved for a mistrial. For example, a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction.26 In such a case, with the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions. Another example is when the prosecutor seeks to inject enough unfair prejudice into the trial to ensure a conviction but not so much as to cause a reversal of that conviction.27 This kind of overreaching would not be covered by the Court’s standard because, by hypothesis, the prosecutor’s intent is to obtain a conviction, not to provoke a mistrial. Yet the defendant’s choice — to continue the tainted proceeding or to abort it and begin anew — can be just as “hollow”28 in this situation as when the prosecutor intends to provoke a mistrial.
To invoke the exception for overreaching, a court need not divine the exact motivation for the prosecutorial error. It is sufficient that the court is persuaded that egregious prosecu-torial misconduct has rendered unmeaningful the defendant’s choice to continue or to abort the proceeding. It is unnecessary and unwise to attempt to identify all the factors that *690might inform the court’s judgment, but several considerations follow from the rationale for recognizing the exception. First, because the exception is justified by the intolerance of intentional manipulation of the defendant’s double jeopardy interests, a finding of deliberate misconduct normally would be a prerequisite to a reprosecution bar.29 Second, because the defendant’s option to abort the proceeding after prosecu-torial misconduct would retain real meaning for the defendant in any case in which the trial was going badly for him,30 normally a required finding would be that the prosecutorial error virtually eliminated, or at least substantially reduced, the probability of acquittal in a proceeding that was going badly for the government.31 It should be apparent from these observations that only in a rare and compelling case will a mistrial declared at the request of the defendant or with his consent bar a retrial.
No one case, of course, is a proper vehicle for identifying the limits of the exception. The Court repeatedly has shunned inflexible standards in applying the comparable “manifest necessity” exception to the general rule that a de*691fendant is entitled to go to final judgment before the initial tribunal.32 The value of the overreaching standard, like “[t]he value of the [manifest necessity standard,] thus lies in [its] capacity for informed application under widely different circumstances without injury to defendants or to the public interest.” Wade v. Hunter, 336 U. S. 684, 691. The inexactitude of the standard used to protect defendants in the exceptional case surely should not concern the Court any more than the equally ill-defined formula used to protect prosecutors in the exceptional case. The scarcity of cases in which the exception has been invoked33 counsels against preempting the judgment reflected in our decisions that an exception for overreaching or harassment should remain available for the rare case in which it may be needed.34 We *692should simply decide this case on its facts, as we did in United States v. Dinitz and Lee v. United States;35 and thereby continue to give meaning to the “abstract formula”36 in the context of actual cases.
I — I HH
The petitioner,37 and the state court that denied the respondent’s motion to dismiss,38 have correctly pointed out that it is unnecessary to cut back on the recognized exception, or even to disavow the most liberal construction given it by the federal courts, to conclude that the exception has not been established on the facts of this case. The isolated pros-ecutorial error occurred early in the trial, too early to determine whether the case was going badly for the prosecution. If anyone was being harassed at that time, it was the prosecutor, who was frustrated by improper defense objections in her attempt to rehabilitate her witness. The gist of the comment that the respondent was a “crook” could fairly have been elicited from the witness, since defense counsel injected the respondent’s past alleged improprieties into the trial by questioning the witness about his bias towards the *693defendant. The comment therefore could not have injected the kind of prejudice that would render unmeaningful the defendant’s option to proceed with the trial.
Because the present case quite clearly does not come within the recognized exception, I join the Court’s judgment. I cannot, however, join the Court’s opinion because it totally fails to justify its disavowal of the Court’s precedents.
Although I am willing to accept the Court’s reading of the Oregon Court of Appeals’ opinion as having been based on federal law, I find the question somewhat more difficult than does the Court because the Oregon Supreme Court declined to review the case without explaining its reasons. Since the Oregon Supreme Court seems to have interpreted the state constitutional protection against double jeopardy to be broader than the federal provision, see State v. Rathbun, 287 Ore. 421, 600 P. 2d 392 (1979), it is entirely possible that that court’s refusal to review the Court of Appeals’ decision was predicated on its view that the decision was sound as a matter of state law regardless of whether it was compelled by federal precedents.
United, States v. Jorn, 400 U. S. 470, 479 (plurality opinion).
United States v. Ball, 163 U. S. 662.
Arizona v. Washington, 434 U. S. 497, 503.
Id., at 505. The Court in Wade v. Hunter, 336 U. S. 684, explained:
“The double-jeopardy provision of the Fifth Amendment . . . 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. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id., at 688-689 (footnote omitted).
“The reasons why [the defendant’s ‘valued right to have his trial completed by a particular tribunal’] merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk than an *683innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington, supra, at 503-505 (footnotes omitted).
Society’s interest, of course, is not simply to convict the guilty. Rather, its interest is “in fair trials designed to end in just judgments.” Wade v. Hunter, supra, at 689.
See United States v. Dinitz, 424 U. S. 600, 609.
Arizona v. Washington, 434 U. S., at 505.
Ibid.
United States v. Jorn, 400 U. S., at 485.
The exception also encompasses comparable judicial misconduct. Because we are confronted with prosecutorial error, this opinion will address only that context.
Ibid. The Court has never invoked the exception to bar reprosecution after a mistrial. In only two cases has the Court actually been confronted with a claim that the exception applied. In United States v. Dinitz, supra, the trial court had granted the defendant’s motion for a mistrial after expelling defense counsel for repeated misconduct. In holding that retrial was not barred by the Double Jeopardy Clause, this Court articulated the exception and the reasons why it was not established on the facts of that case:
“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecu*684tions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, at 485, threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U. S., at 736. See Gori v. United States, 367 U. S., at 369; United States v. Jorn, supra, at 489 (Stewart, J., dissenting); cf. Wade v. Hunter, 336 U. S., at 692.
“But here the trial judge’s banishment of Wagner from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, Wagner ‘was guilty of improper conduct’ during his opening statement which ‘may have justified disciplinary action,’ 492 F. 2d, at 60-61. Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling Wagner from the courtroom, ibid., the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent.” 424 U. S., at 611 (footnote omitted).
The exception was also unsuccessfully claimed in Lee v. United States, 432 U. S. 23. In Lee the defendant had moved to dismiss a defective information prior to the attachment of j eopardy. The trial court tentatively denied the motion, but then granted it at the close of the evidence. Treating the motion to dismiss as a motion for a mistrial, this Court quoted extensively from Dinitz for the statement of the exception and then explained why the exception had not been established:
“It follows under Dinitz that there was no double jeopardy barrier to petitioner’s retrial unless the judicial or prosecutorial error that prompted petitioner’s motion was ‘intended to provoke’ the motion or was otherwise ‘motivated by bad faith or undertaken to harass or prejudice’ petitioner. Supra, at 33. Here, two underlying errors are alleged: the prosecutor’s failure to draft the information properly and the court’s denial of the motion to dismiss prior to the attachment of jeopardy. Neither error — even assuming the court’s action could be so characterized — was the product of the kind of overreaching outlined in Dinitz. The drafting error was at most an act of negligence, as prejudicial to the Government as to the defendant. And the court’s failure to postpone the taking of evidence until it could give full consideration to the defendant’s motion, far from evidencing bad faith, was entirely reasonable in light of the last-minute timing of the motion and the failure of counsel to request a continuance or otherwise im*685press upon the court the importance to petitioner of not being placed in jeopardy on a defective charge.” 432 U. S., at 33-34 (footnote omitted).
For other descriptions of the overreaching or harassment exception, see, e. g., Arizona v. Washington, supra, at 508 (“using the superior resources of the State to harass or to achieve a tactical advantage over the accused”) (footnote omitted); Illinois v. Somerville, 410 U. S. 458, 464 (error “that would lend itself to prosecutorial manipulation”); United States v. Jorn, 400 U. S., at 485 (“prosecutorial . . . overreaching”); id., at 485, n. 12 (“prosecutorial impropriety designed to avoid an acquittal”); United States v. Tateo, 377 U. S. 463, 468, n. 3 (“prosecutorial. . . impropriety ... resulting] from a fear that the jury was likely to acquit the accused”).
United States v. Jorn, 400 U. S., at 484.
Id., at 484, n. 11. See also United States v. Tateo, supra, at 474 (Goldberg, J., dissenting) (“Many juries acquit defendants after trials in which reversible error has been committed, and many experienced trial lawyers will forego a motion for a mistrial in favor of having his case decided by the jury”).
“[I]t is evident that when judicial or prosecutorial error seriously prejudices a defendant, he may have little interest in completing the trial and obtaining a verdict from the first jury. The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause — the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.” United States v. Dinitz, 424 U. S., at 608.
Id., at 609.
See Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 101-102.
The prosecutor might wish to provoke a mistrial “in order to shop for a more favorable trier of fact, or to correct deficiencies in [his] case, or to obtain an unwarranted preview of the defendant’s evidence.” Id., at 94.
Cf. Brock v. North Carolina, 344 U. S. 424, 429 (Frankfurter, J., concurring).
Compare ante, at 675-676 (“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause”), with ante, at 676 (“Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion”), and ante, at 679 (“But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial”).
The Court offers two reasons for cutting back on the exception. First, the Court states that “[t]he difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application.” Ante, at 674. As I indicate in the text, however, some generality in the formula is a virtue and, in any event, meaningful and principled standards can be developed on a case-by-case basis that will not inhibit legitimate prosecution practices. See infra, at 689-692. Moreover, the general standards could hardly be more difficult to apply than the Court’s subjective intent standard. On this point, it is noteworthy that Justice Rehnquist recently cited the exception for “prosecutorial overreaching or misconduct” to illustrate that double jeopardy analysis rests on “balancing and fairness” rather than ‘“bright line’ distinction[s].” Finch v. United States, 433 U. S. 676, 680 (dissenting opinion).
Second, the Court is “not sure that criminal defendants as a class would be aided” by a broader exception. Ante, at 676. If a mistrial will more frequently constitute a bar to reprosecution, the Court supposes that trial judges will tend to refuse the defendant’s mistrial motion and permit the error to be corrected on appeal of the conviction, in which event there would be no bar to reprosecution. This reasoning is premised on the *688assumption that an appellate court that concluded not only that the defendant’s mistrial motion should have been granted but also that the prosecutor intended to provoke a mistrial would not be obligated to bar reprosecution as well as reverse the conviction. The assumption is “irrational.” Commonwealth v. Potter, 478 Pa. 251, 282, 386 A. 2d 918, 933 (1978) (Roberts, J.); see id., at 259-260, 386 A. 2d, at 921-922 (Pomeroy, J.); Westen & Drubel, supra, at 103, 106, n. 130; see generally Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 773-776 (1980).
For an example of the kind of case that the Court’s limited exception would cover, see Commonwealth v. Warfield, 424 Pa. 555, 227 A. 2d 177 (1967).
“As an initial matter, I question the validity of the lower court’s assumption that the Government in such cases tailors its misconduct to achieve one improper result as opposed to another. It is far more likely that in cases such as this, where the prosecution is concerned that the trial may result in an acquittal, that the Government engages in misconduct with the general purpose of prejudicing the defendant. In this case, for example, the Government stood to benefit from Dixon’s misconduct, regardless of whether it resulted in a guilty verdict or a mistrial. Moreover, even if such subtle differences in motivation do exist, I suspect that a defendant seeking to prevent a retrial will seldom be able to prove the Government’s actual motivation.” Green v. United States, 451 U. S. 929, 931, n. 2 (Marshall, J., dissenting from denial of certiorari).
Moreover, a standard that requires a prosecutor to take the stand to explain his trial strategy and his train of thought prior to making a serious error is of questionable wisdom.
See, e. g., Shaw v. Garrison, 328 F. Supp. 390 (ED La. 1971), aff’d, 467 F. 2d 113 (CA5 1972), cert. denied, 409 U. S. 1024.
The defendant’s successful argument for a bar to reprosecution in United States v. Kessler, 530 F. 2d 1246, 1253 (CA5 1976), was that “otherwise ‘a prosecutor would have the option of first trying his case with inadmissible, prejudicial, and irrelevant evidence — that is, committing known error — in hopes of “getting away” with it, with the ability to retry the case properly if the first trial is aborted by a mistrial.’ ”
Ante, at 673.
Deliberate misconduct generally must be inferred from the objective evidence. The more egregious the prosecutorial error, and the harsher its impact on the defendant, the more readily the inference could be drawn.
Justice Harlan aptly described the defendant’s interest as “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 U. S., at 486. There is a corresponding societal interest against the historical and abhorrent practice of terminating trials whenever it appeared that the government’s evidence was insufficient to convict. See Arizona v. Washington, 434 U. S., at 507-508.
In a case in which the prosecutor’s intent is primarily to harass the defendant, and only secondarily to obtain a conviction, this consideratir; would, of course, carry much less weight. The Double Jeopardy Clause protects a defendant not only from “declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” but also from “[hjarassment of an accused by successive prosecutions.” Downum v. United States, 372 U. S. 734, 736.
See especially the Court’s opinion in Illinois v. Somerville, 410 U. S. 458. Justice Marshall criticized the majority in that case for “abandon-ting] th[e] tradition [of elaboration of rules which give increasing guidance as case after case is decided] and [adopting] a new balancing test whose elements are stated on such a high level of abstraction as to give judges virtually no guidance at all in deciding subsequent cases.” Id., at 483 (dissenting opinion).
The petitioner and the United States as amicus curiae cite only a few cases in which the exception has been invoked to bar reprosecution. One commentator discovered only two eases in which a Federal Court of Appeals barred reprosecution. Note, Double Jeopardy: An Illusory Remedy for Governmental Overreaching at Trial, 29 Buffalo L. Rev. 759, 760, n. 16 (1980).
“We should not be so unmindful, even when constitutional questions are involved, of the principle of stare decisis, by whose circumspect observance the wisdom of this Court as an institution transcending the moment can alone be brought to bear on the difficult problems that confront us. . . . Furthermore, we are not here called upon to weigh considerations generated by changing concepts as to minimum standards of fairness, which interpretation of the Due Process Clause inevitably requires. Instead, the defense of double jeopardy is involved, whose contours are the product of history. In this situation the passage of time is not enough, and the conviction borne to the mind of the rightness of an overturning decision must surely be of a highly compelling quality to justify overruling a well-estab*692lished precedent when we are presented with no considerations fairly deemed to have been wanting to those who preceded us.” Green v. United States, 355 U. S. 184, 215 (Frankfurter, J., dissenting).
See n. 13, supra.
Wade v. Hunter, 336 U. S., at 691.
“The Oregon Court of Appeals’ holding that retrial of this case was barred on double jeopardy grounds is erroneous by any standard of pros-ecutorial overreaching which the lower courts of this country had previously derived from the decisions of this Court.” Brief for Petitioner 43.
“I have reviewed the transcript and the wording, as put, and I would agree that the question was improper as put. I do not find, however, that it constitutes bad faith or was intentional impropriety. The question of whether or not it constitutes overreaching is one of those gray areas where we have to determine what ‘overreaching’ means, and in looking to the case which the defense has cited, United States v. Kessler, prosecutorial overreaching is there defined as being such as must have been a result of gross *693negligence or intentional misconduct which prejudiced the defendant so that he cannot receive a fair trial, and I wouldn’t find that the overreaching or the erroneous conduct in this matter reaches that degree of aggravation. I don’t think it amounted to gross negligence or intentional misconduct.” App. 53.