Newly available evidence versus newly discovered evidence

In People v Terrell, __ Mich App __ (#286834, 8/26/2010) the Court of Appeals held that when a defendant knew or should have known that his codefendant could provide exculpatory testimony; the codefendant asserting his/her privilege against self-incrimination does equal newly discovered evidence but is instead merely newly available evidence.


A new trial based on newly discovered evidence is warranted where the defendant satisfies the following four part test: “(1) ‘the evidence itself, not merely its materiality, was newly discovered’; (2) ‘the newly discovered evidence was not cumulative’; (3) ‘the party could not, using reasonable diligence, have discovered and produced the evidence at trial’; and (4) the new evidence makes a different result probable on retrial.” People v Cress, 468 Mich 678, 691, 692 (2003). Quoting People v Johnson, 451 Mich 115, 118 n 6 (1996).

If a codefendant invokes his privilege against self incrimination and refuses to testify, a defendant can be denied the benefit of any potentially exculpatory testimony the codefendant might have provided. See Owen, 500 F3d at 91. In such case, the trial court could grant a severance if it is persuaded that the deprivation causes the defendant prejudice. Id. The prosecutor could confer limited immunity on the codefendant so he may testify truthfully and that, as a last resort, a defendant could take the stand and convey his story. Id. at 92. Under MCR 6.121(C) a defendant is entitled to severance if he makes a “showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”

Although newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, this does not preclude the possibility that a codefendant’s post-trial or post-conviction exculpatory statements may ever qualify as newly discovered evidence under MCR 6.431(B). There may be cases where such evidence does indeed constitute newly discovered evidence. However, in this case, defendant knew or should have known that his codefendant could offer material testimony regarding defendant’s role in the charged crime; therefore, defendant cannot claim that he “discovered” that evidence only after trial.