Subsequently, in a footnote, this Court indicated that the third element of the test, "[t]hat the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial," requires "that a defendant be diligent in determining whether false testimony will be presented and in offering any available evidence to rebut it." State v. Lawrence, 112 Idaho 149, 152 n. 2, 730 P.2d 1069, 1072 n. 2 (Ct.App. 1986) (citing Larrison, 24 F.2d at 88). The two tests differ in several ways, most significantly with regard to the likelihood that the new evidence would produce a different result at trial.

In order for a convicted defendant to receive a new trial due to recanted testimony, he must make a showing (a) that the testimony given at trial was false; (b) that the testimony was material to the outcome; and (c) that he was diligent in challenging the testimony, or did not know of its falsity until after the trial.See State v. Scroggins, 110 Idaho 380, 384, 716 P.2d 1152, 1156 (1985), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986); State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App. 1986) (review denied). See also State v. Lankford, 116 Idaho 860, 873-74, 781 P.2d 197, 210-11 (1989) (quoting from State v. Lawrence, supra).

It is improper for a court to penalize a defendant merely because he or she exercises the right to put the government to its proof at trial. Stedtfeld v. State, 114 Idaho 273, 276, 755 P.2d 1311, 1314 (Ct.App. 1988); State v. Lawrence, 112 Idaho 149, 157, 730 P.2d 1069, 1077 (Ct.App. 1986). And because the defendant retains the right to appeal a judgment of conviction, a court may not coerce a defendant into sacrificing that right by threatening a more severe sentence if the defendant does not abandon his or her assertion of innocence.

However, Scroggins established that the less stringent Larrison test for a new trial applied to petitions based upon recanted testimony in Idaho. The Drapeau and Scroggins tests were followed by both this Court and the Court of Appeals ( see, e.g., Estes v. State, 111 Idaho 430, 725 P.2d 135 (1986) (new scientific evidence would only be grounds for new trial according to Drapeau); State v. Ames, 112 Idaho 144, 730 P.2d 1064 (Ct.App. 1986) (new evidence to support defendant's alibi is measured against the Drapeau standard)), until State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App. 1986). In Lawrence, the Court of Appeals discussed the test for new trial based upon the recantation of testimony by the defendant's husband.

However, several jurisdictions have been troubled by the idea that recanted testimony is a special type of newly discovered evidence. See, e.g., State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App. 1986); State v. Taylor, 287 N.W.2d 576 (Iowa 1980); Thacker v. Commonwealth, 453 S.W.2d 566 (Ky. 1970); State v. Caldwell, 322 N.W.2d 574 (Minn. 1982); State v. Sena, 103 N.M. 312, 706 P.2d 854 (1985); see generally 3 C. Wright, Federal Practice and Procedure, 557.1 (2d ed. 1982) (hereinafter cited as Wright). It "affects the integrity of the judicial process in a way that overlooked evidence does not."

114 Idaho 688, 694, 760 P.2d 27, 33 (1988), citing State v. Lindsey, 149 Ariz. 472, 720 P.2d 73 (1986). Similarly, in State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (1987), the Court addressed the propriety of allowing an expert to testify concerning the reporting delays associated with victims of sexual abuse, particularly where the defendant raises the fact of delay in an attempt to impeach an alleged victim's credibility. Ruling that the expert testimony on this type of conduct is admissible, the Court explained:

State v. Scroggins, 110 Idaho 380, 385, 716 P.2d 1152, 1157 (1986), cert. denied, 479 U.S. 989, 107 S.Ct. 582, 93 L.Ed.2d 585 (1986). In State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App. 1986), this Court noted the use of the word "material" by the court in Scroggins, when used in the context of a recantation. We determined that "[t]estimony is material if it reasonably could have affected the outcome."

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. As the Idaho Court of Appeals noted in State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App. 1986), there are two different judicial approaches to determining whether the interests of justice require that a new trial be granted on the basis of recanted testimony. One approach has been to treat the recantation as a form of newly discovered evidence.

It is improper for a court to penalize a defendant for exercising his right to go to trial. State v. Lawrence, 112 Idaho 149, 157, 730 P.2d 1069, 1077 (Ct. App. 1986). On the other hand, a sentencing judge must consider the primary goals of sentencing, including rehabilitation, and many courts have held that an acknowledgement of guilt is a critical first step toward rehabilitation.

Id. at 711-12, 864 P.2d at 157-58. In State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct. App. 1986), this Court deemed the entirety of a witness's trial testimony to be recanted after the witness's post-trial statement that his trial testimony was "completely false in that he had no personal knowledge as to the statements he made." Id. at 151, 730 P.2d at 1071.