BORRELLO, J.

Following a jury trial, defendant Tion Terrell1 was convicted of assault with intent to commit murder, MCL 750.83; being a felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The prosecution appeals by leave granted an order granting defendant a new trial on the basis of newly discovered evidence. The issue on appeal is whether the posttrial statements of a codefendant that exculpated the defendant constituted newly discovered evidence sufficient to warrant a new trial when the codefendant invoked his Fifth Amendment right not to testify at trial. For the reasons set forth in this opinion, we adopt the rule expressed by the majority of federal circuit courts that when a defendant knew or should have known that a codefendant could provide exculpatory testimony, but did not obtain that testimony because the codefendant invoked the privilege against self-incrimination, the codefendant's posttrial statements do not constitute newly discovered evidence, but are merely newly available evidence. Accordingly, we reverse the trial court's order granting defendant a new trial and remand this matter to the trial court.

I. FACTS AND PROCEDURAL HISTORY

This case arises from the nonfatal shooting of Deshawn Evans on October 28, 2007. On that date, Evans was on Yacama Street in Detroit, Michigan. Evans's friend, Dana Hudson, was sitting in Hudson's car having a friendly conversation with Evans. A few minutes later, another man, Reginald Myers, drove onto Yacama Street, and Evans and Myers had an argument. According to Evans, during or shortly after the argument with Myers, he received a telephone call from Derrick Steward, whose nickname was "Twin."2 Twin informed him that he could come over and retrieve his cell phone charger. Evans testified that he left to retrieve his charger and that as he left, he saw defendant, who was also his friend, turning onto Yacama Street in a white Impala. Although Evans asserted that he left to retrieve the cell phone charger from a home on Coventry Street3 and denied that he went to the home to obtain a gun, a defense witness testified that Evans came to the home and "basically asked everybody that was there" "for a pistol, a gun." The witness testified that Twin gave Evans a gun. According to Evans, he returned to Yacama Street about 30 to 45 minutes later. Evans testified that when he returned, defendant hit him in the face and head with a gun and then shot him twice, and Myers also shot him in both thighs. Another witness, who lived on Yacama Street, testified that after the shooting, a man drove up in a car, approached the victim, and asked: "`What I want to know is where's the gun. I know he had a gun because I gave him one.'" According to Evans, after they shot him, defendant and Myers ran to Hudson's car, and the men drove off, with Hudson driving.

Defendant and Hudson were tried together. Defendant was convicted of the offenses indicated earlier. Hudson invoked his Fifth Amendment privilege against self-incrimination and was acquitted.

Defendant moved for a new trial on the basis of newly discovered evidence in the form of the testimony of Derrick Steward.4 The trial court held a hearing on defendant's motion. At the hearing, defendant presented the testimony of Steward and the testimony of defendant's codefendant, Hudson, as well as affidavits signed by both men, in support of his motion. The trial court ruled that the testimony of Steward would have been cumulative and therefore did not warrant a new trial. Defendant has not appealed the trial court's ruling in this regard. What is at issue on appeal is the trial court's granting of defendant's motion for a new trial on the basis of the testimony of Hudson. At the hearing, Hudson acknowledged that he and defendant were close friends and had known each other since childhood. Hudson further testified that he was present on October 28, 2007, when Evans was shot and that he observed Evans in possession of a chrome and silver, black-handled nine-millimeter handgun before Evans was shot. According to Hudson, only ten minutes elapsed between the time Evans initially left Yacama Street and the time he returned. Hudson saw Evans approach defendant and Myers and observed Evans pull the gun from underneath his shirt when he was about four feet away from them. According to Hudson, defendant and Evans struggled and fought over the gun, and the gun fell to the ground. Hudson asserted that Myers, not defendant, shot Evans with the gun that had fallen. Hudson testified that he drove away in his car, alone, after the shooting.

In granting defendant a new trial on the basis of Hudson's testimony, the trial court found that although the testimony was not newly discovered evidence, it was not available to defendant at the time of trial:

In an opinion and order dated July 14, 2008, the trial court granted defendant's motion for a new trial on the basis of Hudson's testimony. This Court granted the prosecution's request for leave to appeal.5

II. ANALYSIS

A. STANDARD OF REVIEW

We review for an abuse of discretion a trial court's decision to grant or deny a new trial. People v. Miller, 482 Mich. 540, 544, 759 N.W.2d 850 (2008). An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes. People v. Blackston, 481 Mich. 451, 467, 751 N.W.2d 408 (2008). Underlying questions of law are reviewed de novo, People v. Washington, 468 Mich. 667, 670-671, 664 N.W.2d 203 (2003), while a trial court's factual findings are reviewed for clear error, MCR 2.613(C); People v. Cress, 468 Mich. 678, 691, 664 N.W.2d 174 (2003). "A trial court may grant a new trial to a criminal defendant on the basis of any ground that would support reversal on appeal or because it believes that the verdict has resulted in a miscarriage of justice." People v. Jones, 236 Mich.App. 396, 404, 600 N.W.2d 652 (1999), citing MCR 6.431(B). Newly discovered evidence does not require a new trial when it would merely be used for impeachment purposes or when it relates only to a witness's credibility. People v. Davis, 199 Mich.App. 502, 516, 503 N.W.2d 457 (1993).

B. NEW TRIAL

A new trial is warranted on the basis of newly discovered evidence when the defendant satisfies a 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." Cress, 468 Mich. at 692, 664 N.W.2d 174, quoting People v. Johnson, 451 Mich. 115, 118 n. 6, 545 N.W.2d 637 (1996).

At issue in this case is whether Hudson's testimony satisfied the first element of this test, i.e., whether his testimony was newly discovered. Hudson chose to invoke his Fifth Amendment right not to incriminate himself and therefore did not testify at trial. After trial, at which defendant was convicted and Hudson was acquitted, Hudson made statements that Evans possessed a gun and struggled with defendant at the time of the shooting and that Myers perpetrated the actual shooting of Evans, not defendant. Defendant did not prepare a brief on appeal, but argued before the trial court that Hudson's posttrial statements constituted newly discovered evidence. According to the prosecution, Hudson's posttrial statements did not constitute newly discovered evidence, but were merely newly available evidence, which is not sufficient to warrant a new trial. Relying on the majority of federal circuit courts that have considered this issue, the prosecution argues that newly available evidence does not equate with newly discovered evidence and, as a consequence, the trial court's order granting defendant a new trial on the basis of Hudson's statements should be reversed. For reasons that we will explain more fully later, we agree with the majority of federal circuit courts that have decided this issue,6 and we conclude that while Hudson's proffered testimony was newly available evidence, it was not newly discovered evidence sufficient to warrant a new trial. Accordingly, we hold that defendant has failed to establish the first element in the four-part test set forth by our Supreme Court in Cress to determine whether a new trial is warranted on the basis of newly discovered evidence.

Pursuant to FR Crim P 33,7 nearly all the federal circuits have articulated the same test to determine whether a new trial is warranted on the basis of newly discovered evidence.

Thus, the test adopted by the federal courts in interpreting FR Crim P 33 essentially mirrors the test for a new trial on the basis of newly discovered evidence that our Supreme Court articulated in Cress. See Cress, 468 Mich. at 692, 664 N.W.2d 174.

A majority of federal circuits have concluded that a codefendant's posttrial or postconviction willingness to provide exculpatory testimony constitutes newly available evidence, not newly discovered evidence, and that if the defendant knew or should have known of the evidence before or during trial, the evidence was not discovered after trial, and a new trial is not warranted:

Our review of the federal circuit court caselaw regarding this issue confirms that most federal circuit courts agree that newly available evidence is not synonymous with newly discovered evidence sufficient to warrant a new trial.8 See, e.g., United States v. Lofton, 333 F.3d 874, 875-876 (C.A.8, 2003) (holding that belated exculpatory testimony by a codefendant who did not testify at trial was not newly discovered evidence warranting the granting of a new trial); United States v. Jasin, 280 F.3d 355, 368 (C.A.3, 2002) (following "the majority rule in concluding that a codefendant's testimony known to the defendant at the time of trial cannot be considered `newly discovered evidence' under Rule 33, regardless of the codefendant's unavailability during trial because of invocation of his Fifth Amendment privilege"); United States v. Theodosopoulos, 48 F.3d 1438, 1448-1449 (C.A.7, 1995) (holding that evidence was not newly discovered when the defendant was aware of the witness's testimony during trial); United States v. Glover, 21 F.3d 133, 138 (C.A.6, 1994) (holding that evidence was not newly discovered when the defendant was aware of the evidence before trial, but the witness asserted his privilege against self-incrimination when called to testify at the defendant's trial); United States v. Muldrow, 19 F.3d 1332, 1339 (C.A.10, 1994) (holding that "[i]f a former codefendant who originally chose not to testify subsequently comes forward and offers testimony exculpating a defendant, the evidence is not newly discovered if the defendant was aware of the proposed testimony prior to trial"); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (C.A.9, 1992) (affirming the view that when a defendant who chose not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not newly discovered); United States v. DiBernardo, 880 F.2d 1216, 1224 (C.A.11, 1989) (holding that newly available testimony of a witness was not considered newly discovered evidence when the defendant was aware of the evidence before trial); United States v. Metz, 652 F.2d 478, 480 (C.A.5, 1981) (holding that because defense counsel was aware of the codefendant's testimony before trial, that testimony could not be considered newly discovered even if the codefendant was unavailable to testify at their joint trial because he invoked the Fifth Amendment).

In Owen, the United States Court of Appeals for the Second Circuit based its decision that newly available evidence did not constitute newly discovered evidence on the defendant's awareness of the evidence before trial and the plain meaning of the word "discover":

Other federal circuits that have rejected the notion that newly available evidence constitutes newly discovered evidence have recognized that a defendant's awareness of the existence of evidence affects the determination regarding whether evidence was newly discovered or merely newly available. As the Sixth Circuit noted in United States v. Turns, 198 F.3d 584, 587 (C.A.6, 2000), "[t]he key to deciding whether evidence is `newly discovered' or only `newly available' is to ascertain when the defendant found out about the information at issue. A witness's shifting desire to testify truthfully does not make that witness's testimony `newly discovered' evidence." Similarly, the Sixth Circuit stated in Glover: "[The defendant] acknowledges that he was well aware of [the witness's] testimony prior to trial.... While [the witness's] testimony may have been newly available, it was not in fact `newly discovered evidence' within the meaning of Rule 33." Glover, 21 F.3d at 138. In addition, in DiBernardo, the Eleventh Circuit affirmed the denial of the defendant's motion for new trial, concluding that there was not newly discovered evidence sufficient to warrant a new trial: "Here, [the defendant was] well aware of [the witness's] proposed testimony prior to trial. Therefore, the testimony cannot be deemed `newly discovered evidence' within the meaning of Rule 33." DiBernardo, 880 F.2d at 1224.

This Court similarly has a long history of rejecting defendants' claims that evidence that the defendant knew existed before trial constituted newly discovered evidence. As far back as People v. Lewis, 31 Mich.App. 433, 437, 188 N.W.2d 107 (1971), this Court stated:

There are also legal policy considerations that support the conclusion that a codefendant's posttrial testimony does not constitute newly discovered evidence when the defendant was aware of the evidence before trial. The first of these legal policy considerations involves the lack of reliability of a codefendant's posttrial statements and the concern that courts might encourage perjury by granting a new trial to another codefendant on the basis of such unreliable evidence. In Jasin, the Third Circuit explained this policy consideration:

Although defendant's codefendant in this case was acquitted rather than convicted, the policy rationale against encouraging perjury is no less applicable. Irrespective of whether a codefendant's trial ends in an acquittal or a conviction, the codefendant cannot be retried, and in either case posttrial testimony from a codefendant would be equally untrustworthy. Hudson's testimony would be no more trustworthy than the testimony of a codefendant who had been convicted.

Another legal policy consideration that supports the conclusion that newly available evidence does not constitute newly discovered evidence concerns the potential for defendants to engage in a form of legal gamesmanship through "judicial sandbagging." In Turns, the Sixth Circuit explained this concern:

Although the majority of federal circuit courts have ruled that that a codefendant's posttrial or postconviction testimony did not constitute newly discovered evidence sufficient to warrant a new trial when the defendant was aware of the evidence before trial, the First Circuit has reached a contrary conclusion on this issue. See United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (C.A.1, 1997). In Montilla-Rivera, the First Circuit held that the trial court erred by denying the defendant's motion for new trial, ruling that the posttrial testimony of codefendants who did not testify at trial because they exercised their Fifth Amendment privilege constituted newly discovered evidence. In so ruling, the First Circuit stated that its decision was based on years of precedent: "This circuit has, for almost twenty years, held that the `newly discovered' language of Rule 33 encompasses evidence that was `unavailable.'" Id. at 1066, citing Vega Pelegrina v. United States, 601 F.2d 18, 21 (C.A.1, 1979). The First Circuit reasoned that the codefendants were not available to testify given the defendant's inability to compel their testimony in light of their assertion of the Fifth Amendment privilege and stated that "there seems little distinction between evidence which a defendant could not present because he did not know of it and evidence which he could not present because the witness was unavailable despite exercising due diligence."9 Montilla-Rivera, 115 F.3d at 1066.

We are not persuaded by the First Circuit's minority position regarding this issue. To the contrary, we are persuaded by the majority of federal circuit courts that a codefendant's posttrial or postconviction testimony does not constitute newly discovered evidence sufficient to warrant a new trial when the defendant was aware of the evidence before trial, and we hold that MCR 6.431(B)10 does not authorize the grant of a new trial on the basis of such evidence because it is not newly discovered, but merely newly available. In so holding, we are mindful that courts "must exercise great caution in considering evidence to be `newly discovered' when it existed all along and was unavail[a]ble only because a co-defendant, since convicted, had availed himself of his privilege not to testify." Jacobs, 475 F.2d at 286 n. 33. Although neither this Court nor our Supreme Court has issued an opinion regarding this issue, we note that our Supreme Court has stated that the first prong of the test to determine whether a defendant is entitled to a new trial on the basis of newly discovered evidence is whether "`the evidence itself, not merely its materiality, was newly discovered[.]'" Cress, 468 Mich. at 692, 664 N.W.2d 174, quoting Johnson, 451 Mich. at 118 n. 6, 545 N.W.2d 637. This is consistent with the holding in Owen that "[o]ne does not `discover' evidence after trial that one was aware of prior to trial. To hold otherwise stretches the meaning of the word `discover' beyond its common understanding." Owen, 500 F.3d at 89-90.

We are aware of the fact that when a codefendant invokes the 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 F.3d at 91. This is a consequence of the Fifth Amendment privilege.11 However, we stress that in such cases there exist proper procedural remedies. As noted in Owen, a trial court could grant a severance if it is persuaded that the deprivation would cause the defendant prejudice. Id. The court in Owen also noted that in the severed trial the prosecutor could confer limited immunity on the codefendant so that the codefendant might testify truthfully and that, as a last resort, a defendant could take the stand and convey his or her story. Id. at 92. Indeed, pursuant to MCR 6.121(C), in this case, defendant would have been entitled to a severance if he had made a "showing that severance is necessary to avoid prejudice to substantial rights of the defendant." This is not a case in which defendant had no clue of the existence of Hudson's testimony before trial. Our review of the record leads us to conclude that defendant was, or should have been, aware of Hudson's testimony before trial and that he should have engaged in due diligence and employed the proper procedural avenues, including trial severance and limited immunity for Hudson, to secure Hudson's testimony at trial.12 Had he done so, he would not have been denied the benefit of any potentially exculpatory testimony that Hudson could have offered. We decline to characterize Hudson's testimony as newly discovered evidence because to do so would negate defendant's duty to engage in due diligence to secure the proffered testimony and effectively condone defendant's attempt at judicial sandbagging.

Having adopted the view of the majority of federal circuits, we must determine what defendant knew about the evidence at issue before and during trial. The Second Circuit in Owen held that the pertinent inquiry is whether the defendant knew or should have known that the codefendant could offer material testimony regarding the defendant's role in the charged crime. Owen, 500 F.3d at 91. Application of this test requires an examination of the facts presented in this case to ascertain whether defendant knew or should have known that his codefendant had exculpatory information.

Examination of the record in the instant case reveals that although Hudson testified at the hearing on defendant's motion for a new trial that he had never spoken with defense counsel about the case until it was over, defendant knew or should have known that Hudson could have offered material testimony regarding defendant's role in the charged crime. Defendant and Hudson had known each other since childhood. Hudson testified that he and defendant were close friends. According to Hudson, he was present with defendant at the scene of the shooting. Even if Hudson and defendant never had a conversation about Hudson's testimony before or during their trial, defendant was certainly aware at all times that Hudson had the ability to provide his proffered testimony.13 Therefore, the record clearly leads us to conclude that defendant knew or should have known before trial that Hudson could have provided the testimony.

In holding that newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, we note that our holding does not preclude the possibility that a codefendant's posttrial or postconviction exculpatory statements might qualify as newly discovered evidence under MCR 6.431(B). There may be cases in which 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. Consequently, because defendant knew or should have known that his codefendant could offer material testimony about defendant's role in the charged crime, his inability or unwillingness to procure that testimony before or during trial should not be redressed by granting him a new trial.

Reversed and remanded to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.

METER, P.J., concurred.

SHAPIRO, J. (concurring).

I concur in the result in this case because I do not believe that defendant provided an adequate basis for the trial court to grant his motion for a new trial pursuant to MCR 6.431(B), whether we apply the test employed by the majority of federal circuits or the test enunciated by the United States Court of Appeals for the First Circuit. Therefore, I do not believe we need to reach the question of which test to apply. However, the majority having reached it, I respectfully suggest that the more appropriate test is that enunciated by the First Circuit.

In United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (C.A.1, 1997), the First Circuit held that "the better rule is not to categorically exclude the testimony of a codefendant who asserted his Fifth Amendment privilege at trial under the first prong but to consider it, albeit with great skepticism...." The court recognized that "[i]t is true that there is a greater need for caution in considering [such] motions where the new evidence comes from a codefendant who was `unavailable' at trial because he chose to exercise his privilege." Id. Indeed, the First Circuit did not order a new trial, but merely directed that the trial court hold a hearing to hear the "new" evidence, and further noted that even having such a hearing is "[not] required in the usual course."1 Id. at 1067. The First Circuit's approach would not open the floodgates for new trials on the basis of "newly available" codefendant testimony. Rather, it would take the prudent and limited step of not foreclosing the possibility that justice may require the granting of a new trial in a particular case involving newly available evidence.

In this case, defendant is not entitled to a new trial under the First Circuit's test. First, there was other evidence admitted that showed the victim was armed. Thus, defendant was able to present evidence in support of his self-defense claim. Second, defense counsel did not interview or attempt to interview the codefendant, thus undercutting the likelihood that there was a good-faith belief that he could offer exculpatory testimony. Third, there was no request for severance or for the codefendant's trial to occur first, a mechanism that might have avoided the Fifth Amendment problem. Fourth, there was no attempt to call the codefendant at trial and to require him to assert his Fifth Amendment privilege outside the presence of the jury. Fifth, there was no offer of proof at trial about what defendant believed his codefendant could testify to if he did not assert his Fifth Amendment privilege. These failures strongly suggest that the issue in this case related more to the desirability of an appellate parachute rather than the existence of known exculpatory testimony that was genuinely unavailable before defendant's conviction.

I agree with the majority that postconviction claims of exculpatory testimony from a codefendant should be viewed with a high degree of suspicion. However, that is a matter best addressed on a case-by-case basis and not with a bright-line rule. I also recognize that the majority does not view the rule it adopts today as foreclosing a case-by-case approach. Indeed, the majority makes this clear by positing that "[t]here may be cases in which [a codefendant's posttrial or postconviction exculpatory statement] does indeed constitute newly discovered evidence." I believe the majority and I are in agreement that a trial court should not be precluded from granting a new trial when the defendant made appropriate efforts to obtain the testimony at trial and the trial court, in an exercise of sound discretion after hearing all the evidence, concluded that a miscarriage of justice may have occurred. I am concerned, however, that this critical exception to the rule otherwise excluding newly available evidence might be lost in subsequent cases. I believe that in order to assure that it is not, the more prudent course would be to adopt the First Circuit's standard, which more explicitly provides for the exception.