concurring specially.
I concur in the result in Part I. I concur fully in Part II.
I agree with my colleagues in Part I that Bean fails to meet the three-part test enunciated in Larrison v. United States, 24 F.2d 82 (7th Cir.1928). However, this case and the case of State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), recently decided by our Supreme Court, have raised doubts in my mind whether the Larrison test is or ought to be the standard for deciding motions for new trials based on recantation of testimony where neither a “government” witness is involved nor any prosecutorial misconduct is shown. I am also persuaded by the analysis and reasoning of Sanders v. Sullivan, 863 F.2d 218 (2d Cir.1988), that — without infringing upon an accused’s right to receive a fair trial — one of the requirements of the Larrison test could be tightened.
Moreover, if I read Lankford correctly, the Supreme Court’s test of whether recanted testimony is “material” now may be closer to the approach the Court took in State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976), than to the approach we took in State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App.1987) (review denied). In Lankford, as in Drapeau, the Court makes it clear that recanted testimony is deemed to be “a form of new evidence.” See I.C. § 19-2406(7). Emphasizing the trial court’s discretionary power, the Supreme Court said in Lankford:
The trial judge does not abuse his or her discretion unless a new trial is granted for a reason that is not delineated in the code or unless the decision to grant or deny a new trial is manifestly contrary to the interests of justice. (Emphasis added.)
116 Idaho at 873, 781 P.2d at 210.
In Drapeau, the Supreme Court applied the widely accepted “Berry” test named after the case of Berry v. State, 10 Ga. 511 (1851). The test includes a requirement that the new evidence “probably” would produce a different result. As we noted in Lawrence, this factor is perceptibly different from the statement later made in State v. Scroggins, 110 Idaho 380, 385, 716 P.2d 1152, 1157, cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986), that “where a defendant makes a showing that such changed testimony may be material *650to a finding of guilt or innocence, a new trial should be held.” (Emphasis added.)
In Lankford, the Supreme Court quoted parts of the district court’s order denying a motion for new trial, including the following statement:
It is the opinion of this Court that it cannot be said that the recantation reasonably could affect the outcome of the trial. Furthermore, this Court does not conclude that evidence of the recantation would probably produce a different verdict. [Emphasis added here.] Finally, and based upon the foregoing, the recantation evidence does not, in the interests of justice, require that a new trial be granted.
116 Idaho at 875, 781 P.2d at 212. Although the Supreme Court affirmed the district court’s order on the basis that the district court found the recanted testimony not to be credible, the language used by the district court above was seemingly approved. It suggests, at least, that an element of the “Berry” test still plays a part in determining whether recanted testimony is “material.” I would prefer that it does. Even so, my concerns are academic in this case. I agree that even under the less structured Larrison test, Bean has not shown entitlement to a new trial.