dissenting. In determining whether to retry a defendant after one or more mistrials resulting from jury deadlock, it is certainly proper to consider such factors as the possible effect of a retrial on the victim, the age of the evidence, and the likelihood of obtaining a conviction. These are among the considerations that any prosecutor would weigh in responsibly exercising prosecutorial authority. That they are also criteria which — according to the majority — any judge may regularly assess in deciding whether to dismiss criminal charges over a prosecutor’s objection reveals the essence of the constitutional conflict in this case. In the name of the “interests of justice,” the majority has virtually usurped the prosecutor’s core constitutional function, in violation of the separation of powers clause of the Vermont Constitution. Vt. Const., ch. II, § 5.11 therefore respectfully dissent.
I recognize that my position runs counter to the Court’s recent holding in State v. Sauve, 164 Vt. 134, 666 A.2d 1164 (1995). In my view, however, that decision overlooked critical arguments which — properly considered — would have yielded a very different result. Thus, while I respect the doctrine of stare decisis, as Justice Jackson once observed, “I see no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U.S. 611, 639-40 (1948) (Jackson, J., dissenting).
A reexamination of Sauve reveals several critical omissions. Although the Court acknowledged that V.R.Cr.P. 48(b)(2) was based upon a proposed, but unadopted, amendment to Federal Rule of Criminal Procedure 48, it ignored the well founded reasons for its rejection. The Advisory Committee Note to the proposed federal rule cited two circumstances in which dismissals “in the interests of justice” might be proper: when the court is faced with a “de minimis” violation, and “when the prosecution has been unable to bring the matter promptly to disposition.” Proposed Amendments to Criminal Rules, 48 F.R.D. 553, 640-41 (1970). Sauve rejected the significance of the *120advisory committee notes, which were incorporated into the reporter’s notes to our own rule, observing that neither of the examples contained therein constituted an “exclusive list” of the circumstances in which the court can dismiss a case with prejudice. 164 Vt. at 139; 666 A.2d at 1166.
What Sauve did not consider was the fate of the proposed amendment to the federal rule, which was ultimately rejected based upon the recommendations of a Special Committee on Federal Rules of Procedure. See Report of the Special Committee on Federal Rules of Procedure, 52 F.R.D. 87, 104 (1971). Notwithstanding the limited scope of the amendment contemplated in the advisory committee note, the special committee expressed serious reservations about its potential impact upon the role of the prosecutor and the public interest. The committee observed, for example, that cases which might on the surface appear to be “de minimis” to a court could, to the government agency enforcing the statute, be of “great importance to a legitimate public end.” Id. at 105. The fundamental flaw in the proposed rule, however, was its potential for conflating the traditional roles of the court and prosecutor:
To authorize a court to dismiss a criminal case for reasons other than on its merits or to prevent infringement of fundamental rights of the accused, appears to this Committee to be an unwise departure from the traditional function of the court. The Executive Department through the United States attorney, and the people through their grand jury, have the function of deciding who will be tried and for what offenses. Other ways should be found to clear a docket backlog rather than to make this substantial departure from the court’s traditional role.
Id.
Thus, even the relatively modest expansion of judicial power contemplated by the federal amendment — the direct model for our own rule — was rejected as an unwarranted intrusion upon the prosecutor’s traditional charging authority. It remains the prevailing view among the federal courts that a judge does not possess “an overriding power to terminate a criminal prosecution in which the Government’s evidence has passed the test of legal sufficiency simply because he thinks that course would be most consonant with the interests of justice.” United States v. Weinstein, 452 F.2d 704, 714-15 (2d Cir. 1971); see also United States v. Brown, 602 F.2d 1073, 1076 (2d *121Cir. 1979) (court lacked power to dismiss indictment following mistrial based upon hung jury “simply because it deems the dismissal to be in the interests of justice”).
Sauve relied, as well, upon a number of decisions from other states recognizing a judicial power to dismiss criminal charges without the prosecutor’s consent. Most of these decisions, however, were based upon either long-standing statutes or implied judicial authority, not — as in Vermont — upon a limited federal model. See, e.g., State v. Moriwake, 647 P.2d 705, 708 (Haw. 1982) (court concluded trial court had inherent power to dismiss indictment with prejudice after two mistrials); State v. Abbati, 493 A.2d 513, 517 (N.J. 1985) (trial court has inherent power to dismiss indictment over prosecutor’s objection); People v. Kirby, 460 N.Y.S.2d 572, 573 (App. Div. 1983) (trial court has inherent authority to terminate prosecution after mistrials based on deadlocked juries); State v. Witt, 572 S.W.2d 913, 917 (Term. 1978) (trial court had “inherent authority” to terminate prosecution).
Moreover, while is true that a number of state courts have adopted a broad view of the judicial power to dismiss in the interests of justice, others have resisted the temptation to expand their authority at the expense of the executive. In People v. Sierb, 581 N.W.2d 219 (Mich. 1998), for example, the defendant moved to dismiss arson charges after two mistrials based upon hung juries. The trial court found that a new trial would be “fundamentally unfair” and dismissed the charges with prejudice. Id. at 220. A divided court of appeals affirmed. Id.
The Michigan Supreme Court, however, reversed. While acknowledging that a number of courts had declared their inherent authority over the administration of justice to preclude retrials attributable to jury deadlock, the Michigan court “rejected] the rationale that the administration of justice confers authority on this Court to allocate resources available to law enforcement ... or to assess the relative priority of discrete charges in a given community.” Sierb, 581 N.W.2d at 222.
As to the defendant’s claim premised upon “fundamental fairness,” or substantive due process, the court acknowledged that continual reprosecution, particularly when no new evidence exists, may well visit hardships upon the defendant, the witnesses, and the victim. The court concluded, nevertheless, that the decision to dismiss must — under our constitutional framework — reside with the prosecutor, and ultimately with the people:
*122We hold that in dismissing this case in the circumstances here presented, the trial judge violated the doctrine of separation of powers.
The amorphous claim endorsed by the trial court and the Court of Appeals would inevitably call for courts to decide what policy of retrial is best for all the people of Michigan. . . . ‘Which policy is best for the people ... is a complex question, answered different ways at different times in this nation ... — but it is a question about moral and efficient law enforcement for the people to debate and resolve.”. . .
[AJbsent a violation of the constitution or specific statutory authority, we are not persuaded that we have the authority or the wisdom to monitor the performance of the elected prosecutor.
Id. at 225 (quoting Mays v. City of East St. Louis, 123 F.3d 999, 1003 (7th Cír. 1997)).2
Other cases are in accord. See, e.g., State v. Kinchen, 707 A.2d 1255, 1261 (Conn. 1998) (respect for separation of powers compelled conclusion that trial court lacks authority to dismiss complaint absent “constitutional infirmity or other fundamental defect in the state’s exercise of its prosecutorial authority”); People v. Morrow, 542 N.W.2d 324, 326 (Mich. Ct. App. 1995) (“trial court’s authority over the discharge of the prosecutor’s duties is limited to those activities or decisions by the prosecutor that are unconstitutional, illegal, or ultra vires”); Sullivan v. State, 874 S.W.2d 699, 704 (Tex. Ct. App. 1994) (absent specific statutory or constitutional authority, trial court lacked power to dismiss after two hung juries except on motion of prosecutor); State v. Blackwell, 845 P.2d 1017, 1022 (Wash. 1993) (court lacks power to dismiss criminal charges absent showing of “arbitrary action or governmental misconduct”).
Maintaining the separation of powers in this context represents more than mere adherence to form. As the United States Supreme Court has explained, judicial respect for the independence of the prosecutor “rests largely on the recognition that the decision to *123prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Wayte v. United States, 470 U.S. 598, 607 (1985). Accordingly, in the absence of a fundamental defect in the information, a constitutional violation such as a denial of the right to a speedy trial or double jeopardy, or a patent abuse of prosecutorial power, the courts should — indeed they must — “‘abstain from setting policy for the performance of the prosecutorial function.’ ” Kinchen, 707 A.2d at 1261 (quoting State v. Ellis, 497 A.2d 974 (Conn. 1985)).
The consequences of Sauve’s decision to disregard these warnings and to vest the judiciary with a power to dismiss coextensive with the executive branch are readily apparent in this case. Following two trials on charges of sexual assault and related offenses, and two deadlocked juries, the trial court concluded that a third trial would not “serve the ends of justice,” and therefore granted defendant’s motion to dismiss pursuant to V.R.Cr.P. 48(b)(2). The State had vigorously opposed the motion, arguing that it was not, as contemplated in Sauve, one of those “rare and unusual cases when compelling circumstances require such a result.” 164 Vt. at 140, 666 A.2d at 1167. The State noted that the charges, including forcible rape, were extremely serious; the harm to the victim and her family was severe; the victim remained cooperative; and the evidence — even without more — was sufficient to support a conviction. The offense — which carried a six-year statute of limitations — had occurred only two years earlier. The two prior juries had split seventeen-to-seven for conviction. And, finally, the State maintained that a retrial was necessary from a “community” perspective for the message that it would send to victims of rape, and for the purpose of maintaining public confidence in the judicial system.
Although the trial court did not overtly reject the State’s arguments, it found that they were overbalanced by “the anxiety, embarrassment and public exposure to ridicule” a third trial would cause defendant, the fact that the State had not adduced new evidence, and the likelihood — in the court’s view — that the results of a third trial would not be different. Because the trial court carefully reviewed and weighed the Sauve factors, and reached a reasonable result, the majority here concludes that the court did not abuse its discretion, and therefore must be affirmed.
*124Thus, under Sauve a reasonable prosecutorial decision to retry a defendant for sexual assault has been effectively subjected to judicial review, with deference accorded judicial rather than executive judgment. The commingling of power is complete; the executive’s core constitutional function of deciding whether or not to prosecute has been virtually appropriated by the judicial branch. The violation of the separation of powers clause could not, in my view, be more clear. See In re D.L., 164 Vt. 223, 229, 669 A.2d 1172, 1176 (1995) (focus of separation of powers inquiry is whether one branch “so encroaches upon another branch’s power as to usurp from that branch its constitutionally defined function”). Accordingly, I would hold that the trial court lacked the power to dismiss the information in this case, and reverse the judgment.
That section provides: “The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.”
The Michigan court distinguished cases holding that double jeopardy principles may bar a retrial, after numerous mistrials following deadlocked juries, where the court concludes that jeopardy has attached. See, e.g., Green v. United States, 355 U.S. 184, 187-88 (1957); Preston v. Blackledge, 332 F. Supp. 681, 687-88 (E.D.N.C. 1971).