¶ 59. (dissenting). When a defendant demonstrates, following a mistrial, that a prosecutor has added a more serious charge or has brought additional charges based on the same course of conduct as the initial charge, I conclude that the defendant has established a realistic likelihood that the prosecutor acted vindictively.
¶ 60. Accordingly I conclude that the burden is on the prosecutor in the present case to rebut this find*710ing of a realistic likelihood of vindictiveness. The State must explain what objective circumstances led the prosecutor to bring the new charges. The prosecutor must explain his or her actions so that a "reasonable person would [not] think that there existed a realistic likelihood of vindictiveness." See Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 13.7(c) at 106 (2nd ed. 1999) (quoting United States v. Andrews, 663 F.2d 449 (6th Cir. 1980)).1
¶ 61. In the present case, the second count of sexual assault and the burglary charge were added after the mistrial. These charges related to the same conduct for which the first sexual assault charge was brought. The State does not contest the defendant's contention that the prosecutor did not learn anything new about this case after the prosecutor filed the one-count information on which the first trial was based.
¶ 62. The majority opinion errs by equating the situation presented by this case with a pre-trial scenario in which the prosecutor is properly afforded great latitude in deciding what charges to bring. The majority opinion states, "[W]e find no reason that a different rule should apply after a mistrial caused by a hung jury." Majority op. at ¶ 43. A case in which no mistrial occurred is different from one in which a mistrial is declared. Saying the two are the same does not make them the same.
¶ 63. The majority's analysis does not properly account for what the U.S. Supreme Court has termed *711an "institutional bias" against re-trying cases. United States v. Goodwin, 457 U.S. 368, 377 (1982). While the present case resulted in a mistrial and not a conviction, the "institutional bias" recognized in Goodwin also applies in this case.2 In both a new trial after an appeal and a new trial after a mistrial, a defendant's exercise of the protected right to trial forces a prosecutor to expend additional resources to re-try a case.
¶ 64. The majority opinion refers to several cases consistent with its holding. The rule I endorse also has support in other courts. In Twiggs v. Superior Ct. of San Francisco, 667 P.2d 1165 (Cal. 1983), the defendant endured a trial and a mistrial due to a hung jury and was, upon remand, offered a "plea bargain" by the prosecution. The defendant refused the offer and demanded a jury trial. The prosecutor added charges based on the defendant's prior felony convictions, which the prosecutor had known about before the first trial. The California Supreme Court said these circumstances "strongly suggest that the prosecutor unilaterally imposed a penalty in response to the *712defendant's insistence on facing a jury retrial. . . Twiggs, 667 P.2d at 1171.3 See also In re Bower, 700 P.2d 1269 (Cal. 1985) (presumption of vindictiveness attached when the defendant was charged with a more severe crime after a mistrial); Murphy v. State, 453 N.E.2d 219, 227 (Ind. 1983) (same); United States v. Jamison, 505 F.2d 407, 413-16 (D.C. Cir. 1974) (same); United States v. D'Alo, 486 F. Supp. 954, 959-60 (D.R.I. 1980) (same). Although all of these cases except Twiggs involved the situation where the mistrial was granted on the defendant's motion, their applicability to this case is not diminished. In any mistrial situation there is a realistic likelihood that the prosecutor is adding charges to punish the defendant for exercising his or her protected right to proceed with a second trial.
*713¶ 65. I agree with the court of appeals that the cause be remanded to the circuit court for an eviden-tiary hearing. The circuit court should determine whether the prosecutor has met its burden to rebut the finding of a realistic likelihood of vindictiveness.
¶ 66. For the reasons stated, I dissent.
¶ 67. I am authorized to state that JUSTICE WILLIAM A. BABLITCH joins this dissent.1n United States v. Andrews, 633 F.2d 449, 455-456 (6th Cir. 1980) (en banc), the government increased the charges after the defendants' pre-trial bail motion. The court stated, "[W]e think that only objective, on-the-record explanations can suffice to rebut a finding of realistic likelihood of vindictiveness." Andrews, 633 F.2d at 456.
The Goodwin analysis is instructive:
In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
United States v. Goodwin, 457 U.S. 368, 381 (1982); see also State v. Edwardsen, 146 Wis. 2d 198, 203, 430 N.W.2d 604 (Ct. App. 1988), stating:
Institutional dislike of retrials — rather than legitimate concerns for the public welfare — might subconsciously motivate a vindictive judicial or prosecutorial response to a defendant's exercise of his right to obtain a retrial of a decided question.
The California Supreme Court explained:
The same considerations that led the [U.S. Supreme] court to condemn such prosecutorial conduct in the context of a postconviction appeal are applicable when the defendant ásserts his right to a retrial after a mistrial. As a prosecutor would have a considerable stake in discouraging appeals requiring trials de novo, so too would the prosecution in a case such as this have a great interest in discouraging defendant's assertion of a retrial, particularly since the prosecution was unable to obtain a conviction in the first trial. Here, the defendant has endured a trial and a mistrial due to a hung jury, and when he asserts his right to a jury retrial rather than plead guilty and accept a prison term, he is faced with the possibility of greater punishment than he could have received if the prosecution had secured a conviction, apparently as a result of pursuing his right to be tried by a jury on retrial. Such a situation calls for invoking the prophylactic rule enunciated in Perry to protect against both the possibility that defendant will be deterred from exercising a legal right, as well as the danger that the state might be retaliating against the defendant for maintaining his innocence and facing a retrial.
Twiggs v. Superior Ct. of San Francisco, 667 P.2d 1165, 1170 (Cal. 1983).