(concurring in part and dissenting in part). I concur in part and dissent in part. I concur with the majority holding that the constitutional guarantees of due process may, on occasion, require dismissal of the charges against a defendant, over the prosecutor’s objections. I would also concur that double jeopardy does not bar retrying a defendant after a jury deadlock. I would further concur that there is not any specific number of mistrials due to jury deadlock that will automatically violate a defendant’s right to due process, justifying dismissal.
I dissent, however, with the outcome reached in this case. On the basis of the record before me, I would vote to reverse the trial court’s order and reinstate the charges against the defendant so as to allow him to be retried at least one more time. Analyzing this case under the combined factors enumerated in State v Abbati, 99 NJ 418; 493 A2d 513 (1985), and State v Moriwake, 65 Hawaii 47; 647 P2d 705 (1982), I would find that the defendant’s right to due process would not be violated in such a way to justify dismissal.
First, the severity of the offense is considered. Here, the defendant is charged with one count of burning real property, MCL 750.73; MSA 28.268, and one count of burning insured property, MCL 750.75; MSA 28.270. These are serious and dangerous crimes. There have been only two trials, and the split among the jurors indicates that the prosecutor presented a strong case against the defendant.1 It appears that *137this proposed third trial would present basically the same evidence as presented in the two prior trials, with the exception of attorney and expert witness fees, the costs would not be unduly burdensome upon the defendant. Furthermore, hung jury mistrials have consistently been considered as nullities and subsequent retrials have been determined to be nothing more than a continuation of the same case. People v Thompson, 424 Mich 118, 127; 379 NW2d 49 (1985). With regard to the likelihood of any substantial difference in another trial, I cannot gauge that likelihood. In this instance, the trial court never made a determination concerning either the relative strength or weakness of the prosecutor’s case or the professional conduct or diligence of the respective counsel.
The two additional factors cited by the Abbati court are the basis of the prosecutor’s decision to reprosecute and the effect on the defendant in terms of hardship and unfairness. Abbati, supra at 436. With respect to these factors, I can only speculate. There is nothing in the record to indicate that the prosecutor is being vindictive or has improper motives in reaching the decision to try the defendant for a third time. The prosecutor’s job is to see that justice is done by retrying this case; that is probably what he is trying to accomplish. The number of jurors on the two juries who would have found the defendant guilty was also probably a factor in the prosecutor’s decision to reprosecute. I do feel that another retrial will result in some hardship on the defendant, but that it will not necessarily result in any unfairness to him. Defendant *138will undoubtedly incur additional costs in defending against the reprosecution, but this is just one factor. If the jurors’ votes had been mostly not guilty, perhaps to retry the defendant would be unfair, but that is not the case.
Like the majority, I am not ready to set a specific number of retrials after jury deadlocks that would violate a defendant’s due process rights sufficiently to justify dismissal. If there is to be a change in the manner in which retrials following a mistrial due to a hung jury are conducted, then it is for the Michigan Supreme Court to decide the factors that a trial court should consider when deciding whether the defendant’s rights to due process would be violated by a retrial after a hung jury. In this case, especially considering the results of the pollings of the two juries that have already heard the case, the prosecutor is not pursuing a meritless case. In this case, I would vote to reverse the trial court’s order and remand the case for a retrial.
In response to my question to appellate counsel concerning the nature of the jury splits at the first and second trials, I recollect that counsel *137stated the juries’ votes were deadlocked in the first trial at eight for guilty and four not guilty and at six guilty and six not guilty at the second trial.