dissenting.
I respectfully dissent; I believe that in the specific circumstances of this case, Brandon Eddins’ motion for a new trial should be granted if Justin Eddins will give in-court testimony supporting the motion.
The majority concludes that Justin’s proffered testimony is not newly discovered evidence because it was known, though unusable by Brandon, at Brandon’s trial. I disagree. The standard for a new trial based upon newly discovered evidence articulated in State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978 (1976) requires newly discovered evidence, not newly discovered information. In this context, “evidence” is testimony or tangible items that can be presented to the trier of fact in a judicial proceeding. Justin’s testimony therefore was not “evidence” known to Brandon at the time of Brandon’s trial. Brandon was aware of the information held by Justin, but it was not evidence because it could not be presented in court. Justin’s new willingness to testify therefore gives Brandon newly discovered evidence even if its content was previously known. In the administration of justice, I can discern no reason to differentiate between a witness who could not be found prior to trial, as in *430State v. Ames, 112 Idaho 144, 730 P.2d 1064 (Ct.App.1986), and a witness who could not be compelled to testify, as in the present case. I would therefore hold that Brandon’s motion for a new trial satisfies the four-part test enunciated in Drapeau.
The majority opinion relies upon the rule, followed in many jurisdictions, that evidence is not “newly discovered” if it is newly available exculpatory testimony from a co-defendant who could not be compelled to testify at the defendant’s trial. That rule has generally been applied in cases where the co-defendant becomes willing to testify after his or her own prosecution has been concluded and the co-defendant, having been either convicted or acquitted of the charge following the defendant’s original trial, no longer has anything to lose by claiming responsibility and exculpating the defendant. As explained in United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (1992):
Testifying now ... is safe for the co-defendants, as they have already been sentenced. It would encourage perjury to allow a new trial once co-defendants have determined that testifying is no longer harmful to themselves. They may say whatever they think might help their co-defendant, even to the point of pinning all the guilt on themselves, knowing they are safe from retrial. Such testimony would be untrustworthy and should not be encouraged.
This policy reason to distrust the belated confession of a co-defendant is unquestionably legitimate and weighty, but it does not justify a categorical rule that a third party’s confession exonerating the defendant can never qualify as newly discovered evidence. This policy consideration can be more justly factored into the Drapeau analysis under the third prong of the Drapeau test, which requires a showing that the new evidence will probably produce an acquittal. The untrustworthiness of a confession from a co-defendant who has nothing to lose could well lead a trial court to conclude that the evidence would not be likely to produce an acquittal if the defendant wei’e granted a new trial. This is precisely how we applied the Drapeau test in Small v. State, 132 Idaho 327, 333-36, 971 P.2d 1151, 1157-60 (Ct.App.1998), where we concluded that the co-defendant’s offer to give exculpatory testimony eleven years after the defendant’s conviction was newly discovered evidence, but affirmed the trial court’s finding that the co-defendant’s testimony probably would not produce an acquittal and therefore did not warrant a new trial for the defendant. Several other jurisdictions are in accord with this approach. See, e.g., United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir.1997); People v. Shoals, 8 Cal.App.4th 475, 10 Cal.Rptr.2d 296, 302 (1992); Totta v. State, 740 So.2d 57, 58 (Fl.Dist.Ct.App.1999); State v. Condon, 157 Ohio App.3d 26, 808 N.E.2d 912, 915 (2004). Allowing the trial court to consider the credibility of the co-defendant’s confession in this manner would be a flexible and far more just application of the Drapeau standards than is a categorical rule disregarding the testimony from a witness who was known before trial but who could not be compelled to testify. The inflexible rule applied by the majority not only deprives wrongfully convicted defendants of an opportunity to demonstrate their innocence — it also allows the guilty to escape prosecution in circumstances like those presented here where the confessor has never been prosecuted and cannot be prosecuted so long as the conviction of the first defendant stands.
Importantly for the present case, the policy justification, as expressed in Reyes-Alvarado, for disallowing a co-defendant’s confession as newly discovered evidence is not applicable here, for Justin does not have any immunity from prosecution. He could very well be charged if Brandon is acquitted in a new trial. The state asserts, and the majority opinion agrees, that Justin faces no realistic risk of prosecution because the prosecutor could never charge him in the face of the police officer’s insistence that Brandon was the driver. I disagree, for the prosecutor would possess an abundance of evidence that could lead a jury to conclude that the officer was mistaken or that his perception was colored by the fact that it was Brandon, not Justin, that the officer was able to locate and arrest on the night in question. In addition to having Justin’s own confession of guilt, the prosecutor could *431present the testimony of Justin’s father identifying Justin as the driver; and if Brandon were acquitted in a new trial, he then could be compelled to testify against Justin. There is also significant circumstantial evidence that Justin was the driver, for when the officer relocated the pickup a few minutes after having lost sight of it, it was Justin who had disappeared, perhaps having fled from consciousness of guilt. Brandon remained nearby, but the keys to the pickup were not found on Brandon nor in the vehicle, leading to an inference that Justin possessed the keys. Although the prosecutor could refuse to prosecute Justin notwithstanding the availability of all of this inculpatory evidence, the choice that may be made by the prosecutor cannot be known to Justin and he is, at this point, facing a very real risk of prosecution.
To ensure that Justin’s testimony will, in fact, be available at a new trial for Brandon, the district court could require Justin to testify at an evidentiary hearing, subject to cross-examination, before acting on Brandon’s motion. This procedure would ensure that a transcript (or videotape) of Justin’s testimony could be used at Brandon’s new trial should Justin again attempt to invoke the Fifth Amendment privilege or otherwise become unavailable to testify, and the transcript could also be utilized in any subsequent prosecution of Justin.
For the foregoing reasons, I would vacate the district court’s order denying Brandon’s motion for a new trial and remand for an evidentiary hearing at which Justin’s testimony could be received.