The following excerpt is from U.S. v. Benson, 9 F.3d 1554 (9th Cir. 1993):
We have previously acknowledged that three objective factors may be considered for the purpose of determining whether the intent of the government misconduct was to provoke a motion for mistrial. First, the court may consider whether "the government's case was going badly, causing the prosecutor to fear acquittal and affirmatively to seek a mistrial." Lun, 944 F.2d at 644 (citing United States v. Curtis, 683 F.2d 769 (3d Cir.), cert. denied, 459 U.S. 1018 (1982)). Second, consideration may be given to "the advantages the government would gain from a second trial." Id. at 645 (citing, inter alia, Curtis, 683 F.2d 769). Finally, the court may examine evidence that "the government committed repeated acts of misconduct, which deprived defendant [ ] of [the] primary control over whether to request a mistrial." Id. at 646.
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