concurring in part and dissenting in part.
I concur "with the majority in remanding this case for a trial on the merits. I dissent, however, in two respects. First, it is my opinion that the majority has erred by “not [reviewing] this order under an abuse of discretion standard;” second, the majority errs in failing to impose sanctions for what both the majority and the dissent agree were flagrant abuses of the discovery process.
I disagree with the majority’s signal conclusion that “the trial justice did not have the authority to dismiss twenty-two counts of this indictment.” (Emphasis added.) The dissent, correctly I believe, points out that Rule 16 of the Superior Court Rules of Criminal Procedure clearly grants to a trial justice the authority to dismiss an indictment in appropriate circumstances. Rule 16(i) explicitly provides that
“[i]f at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, [the court] may order such party to provide the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material which or testimony of a witness whose identity or statement [was] not disclosed, or it may enter such other order as it deems appropriate.” (Emphasis added.)
The majority errs in disavowing this Court’s long-standing practice of applying an abuse-of discretion standard when reviewing a trial justice’s imposition of sanctions, including dismissal, for discovery violations. See, e.g., State v. St. Jean, 554 A.2d 206, 210 (R.I.1989); State v. Ramos, 553 A.2d 1059, 1068 (R.I.1989); State v. Quintal, 479 A.2d 117, 119 (R.I.1984); State v. Verlaque, 465 A.2d 207, 218 (R.I.1983).
In applying the heretofore unquestioned abuse-of-discretion standard, I conclude that the dismissal of the twenty-two counts of the indictment was an abuse of the trial justice’s discretion in this case. In discussing the imposition of sanctions for discovery violations, the federal courts have identified three factors that trial justices must consider in exercising their discretion in respect to sanctions.
“These include: (1) the reasons for the government’s delay in producing the materials, including whether it acted intentionally or in bad faith; (2) the degree of prejudice, if any, to the defendant; and (3) whether the prejudice to the defendant can be cured with a less severe course of action, such as granting a continuance or a recess.” United States v. Maples, 60 F.3d 244, 247 (6th Cir.1995).
See also United States v. Hastings, 126 F.3d 310, 317 (4th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1388, 140 L.Ed.2d 648 (1998); United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir.1988). The third prong of this well-reasoned test has been interpreted to require a trial justice to impose the least severe sanction that will cure the prejudice in order to achieve the required remedial effect.
Although this Court has never explicitly adopted the “least severe sanction necessary” doctrine of the federal courts, the rule comports with our prior ease law. For example, in State v. Silva, 118 R.I. 408, 412, 374 A.2d 106, 109 (1977), we reversed a judgment of conviction and held that the trial court abused its discretion in excluding the defendant’s alibi testimony. The trial justice had excluded the alibi testimony as a sanction for the defendant’s noncompliance with his obligations under Rule 16(c). In reversing the trial justice, we concluded that “the circumstances certainly did not justify the extreme action taken by the trial justice,” and the case was remanded for a new trial. Id. at 411, 412, 374 A.2d at 108, 109. In State v. Darcy, 442 A.2d 900 (R.I.1982), we vacated the defendant’s convictions of driving to endanger, death resulting, and held that the requested mistrial should have been granted because the trial justice admitted into evidence “a highly prejudicial statement made *1278by the defendant, although the state had not disclosed the existence of that statement in response to the defendant’s request for discovery.” Id. at 901. In so holding, we observed that “[t]he imposition of any Rule 16 sanction is a matter within the sound discretion of the trial justice. * * * If no other available discretionary measures can possibly neutralize the harmful effect of improperly admitted evidence, then a mistrial should be declared.” Id. at 902. (Emphases added.)
Under the least-severe-sanction-necessary rule, a dismissal for discovery violations would be upheld on appeal only if the defendant has suffered incurable prejudice. Although defendants in this case made such an allegation, the trial justice made no express finding of incurable prejudice. Rather, the trial justice, rightly concerned about deterring future prosecutorial misconduct, chose to dismiss the charges. Although the trial justice had evaluated sanctions less severe than dismissal, he rejected them after concluding that less drastic sanctions would do “nothing to impress upon the prosecution that it cannot be allowed to benefit from having acted in a manner that is less than constitutional and ethical in the pursuit of convictions.” Such a concern is a noble one but is neither sufficient, standing alone, to justify dismissal, nor the least severe remedy available under the test articulated above to cure the prejudice suffered by defendants. Accordingly, I conclude that the trial justice abused his discretion in dismissing the indictments, and I would sustain the state’s appeal on that basis.
The trial justice pointed out in his decision one claim of incurable prejudice made by defendants.
“Defendants claim that they have been forced to surrender the element of surprise, which is vital to effective cross-examination, in an effort to ensure that their clients’ constitutional rights to exculpatory information prior to trial be protected. The defendants argue that this result, thrust upon them by prosecutorial misconduct, constitutes substantive prejudice which a continuance for any length of time cannot cure.”
The trial justice, however, made no finding that he agreed with this defense argument. Even were the trial justice to make such a finding upon the remand of this case, dismissal is not the least severe remedy available to rectify the situation. Under Rule 16, the testimony of witnesses implicated by pri- or prosecutorial misconduct could be limited or excluded, within the discretion of the trial justice, so that the playing field is once again level. See Super. R.Crim. P. 16(i) (“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may * * * prohibit the party from introducing in evidence the material which or testimony of a witness whose identity or statement were not disclosed.”); see also State v. Gomes, 690 A.2d 310, 319 (R.I.1997) (concluding that trial justice did not abuse his discretion in precluding defendant’s witnesses from testifying when the defendant had failed to comply with rules of discovery); State v. Engram, 479 A.2d 716, 719 (R.I.1984) (same).
Whenever a party has failed to comply with the requirements of Rule 16, resulting in the withholding of information incontrovertibly essential to the opposing party in carrying out effective cross-examination of witnesses, the sanction of testimony or witness exclusion is appropriate. Here the prosecution apparently immunized witnesses, entered into nonprosecution agreements, took other active steps to sanitize state witnesses, and then deliberately withheld this information from defendants. The failure to sanction this tactical withholding renders nugatory the avowed purpose of Rule 16 “to ferret out procedural * * * prejudice.” State v. Coelho, 454 A.2d 241, 245 (R.I.1982). Because of the state’s efforts on its witnesses’ behalves, one can reasonably surmise that those witnesses became sufficiently indebted to the prosecution to become transformed, in essence, into blank slates upon which the state could write the story of its choice. Certainly a trial justice would.be acting within his or her discretion in excluding the testimony of those witnesses entirely.
*1279The solicitude that both the trial justice and my dissenting colleague have shown for the rights and protections of defendants is warranted. The majority apparently accepts the trial justice’s findings of fact in tato, along with the disquieting picture of prosecu-torial misconduct painted by those facts. Equally troubling, however, is an outcome permitting such conduct to go unsanctioned. Although the resources available to defendants here were instrumental in uncovering the state’s wrongdoing, most defendants are unable to engage in protracted discovery battles. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899 (1956) (Black, J.).
The prosecution’s behavior in this case amounted to a fraud on the court that might never have been discovered but for the zealous efforts of defendants’ attorneys. The trial justice found that “the prosecutors acted deliberately with the intent to mislead the defendants and the court.” At the very least, the prosecutors’ conduct in this case showed a reckless disregard for the government’s obligations to comply with the rules and orders of the Superior Court and “to take no steps that prevent an adversaiy from presenting his case fully and fairly.” Demjanjuk v. Petrovsky, 10 F.3d 338, 354 (6th Cir.1993). In Demjanjuk the Court of Appeals for the Sixth Circuit took the unusual step of reopening a case on the court’s own motion and then vacating a prior judgment on the basis of prosecutorial misconduct by attorneys of the federal government. Observing that “[n]o court system can function without safeguards against actions that interfere with its administration of justice,” the Sixth Circuit insisted that “[a]s an officer of the court, every attorney has a duty to be completely honest in conducting litigation.” Id. at 352.
As a result of the prosecutors’ misconduct, the defendants here have suffered prejudice, additional attorneys’ fees, expenses in countering that misconduct, and delay in bringing their case to a resolution. Although the delay caused by the dismissals and subsequent appeal may have had a curative effect by allowing the defendants time to incorporate into their defense the materials contained in the delayed discovery, that benefit has come only at considerable cost to the defendants. The state, however, should not be permitted to benefit from the delay. Accordingly, it is my opinion that the state should be precluded from using at trial any evidence discovered subsequent to May 16, 1996, the date on which this Court issued its order vacating the trial court’s dismissal of the extortion counts. Furthermore, an award of attorneys’ fees should be made to compensate the defendants for the financial burdens that they would not have borne but for the state’s delay in producing the additional materials.