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title-19•Title 19 — Criminal Procedure
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
No person can be punished for a public offense except upon a legal conviction in a court having jurisdiction thereof.
[(19-101) Cr. Prac. 1864, sec. 5, p. 214; R.S., R.C., & C.L., sec. 7350; C.S., sec. 8616; I.C.A., sec. 19-101.]
Every public offense must be prosecuted by indictment, or information, except:
Where proceedings are had for the removal of civil officers of the state.
Offenses arising in the militia when in actual service, and in the land and naval forces in time of war, or which this state may keep, with the consent of congress, in time of peace.
Offenses tried in justices, and probate courts.
[(19-102) Cr. Prac. 1864, sec. 6, p. 214; R.S., sec. 7351; am. 1899, p. 125; reen. R.C. & C.L., sec. 7351; C.S., sec. 8617; I.C.A., sec. 19-102.]
The proceedings by which a party charged with a public offense is accused and brought to trial and punishment is known as a criminal action.
[(19-103) Cr. Prac. 1864, sec. 7, p.214; R.S., R.C., & C.L., sec. 7352; C.S., sec. 8618; I.C.A., sec. 19-103.]
A criminal action is prosecuted in the name of the state of Idaho, as a party, against the person charged with the offense.
[(19-104) Cr. Prac. 1864, sec. 8, p. 214; R.S., R.C., & C.L., sec. 7353; C.S., sec. 8619; I.C.A., sec. 19-104.]
The party prosecuted in a criminal action is designated in this code as the defendant.
[(19-105) Cr. Prac. 1864, sec. 9, p. 214; R.S., R.C., & C.L., sec. 7354; C.S., sec. 8620; I.C.A., sec. 19-105.]
In a criminal action the defendant is entitled:
To a speedy and public trial.
To be allowed counsel as in civil actions, or to appear and defend in person and with counsel.
[(19-106) Cr. Prac. 1864, sec. 10. p. 214, first two subds.; R.S., R.C., & C.L., sec. 7355; C.S., sec. 8621; I.C.A., sec. 19-106.]
No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.
[19-107, added 1972, ch. 336, sec. 2, p. 982.]
No person can be compelled in a criminal action to be a witness against himself, nor can a person charged with a public offense be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.
[(19-108) Cr. Prac. 1864, sec. 12, p. 214; R.S., R.C., & C.L., sec. 7357; C.S., sec. 8623; I.C.A., sec. 19-108.]
No person can be convicted of a public offense unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon a judgment of a probate or justice’s court, a jury having been waived, in a criminal case not amounting to a felony.
[(19-109) Cr. Prac. 1864, sec. 13, p. 214; R.S., R.C., & C.L., sec. 7358; C.S., sec. 8624; I.C.A., sec. 19-109.]
In all criminal cases and juvenile fact finding hearings that involve a child victim or witness, the court and the prosecuting attorney shall take all appropriate actions to ensure a speedy trial in order to minimize the length of time the child must endure the stress of his or her involvement in the proceedings. In ruling on any motion or other request for a delay or continuance of any proceeding, the court shall consider and give weight to any adverse impact that the requested delay or continuance may have on the well-being of a child victim or witness, and findings of fact shall be made on this issue.
[19-110, added 1989, ch. 303, sec. 1, p. 758.]
Lawful resistance to the commission of a public offense may be made:
By the party about to be injured.
By other parties.
[19-201, added 1972, ch. 336, sec. 3, p. 983.]
It is the intent of the legislature to incorporate provisions of the castle doctrine and stand your ground provided in Idaho case law and jury instructions into certain sections of this chapter and in section 18-4009, Idaho Code.
[19-201A, added 2018, ch. 222, sec. 3, p. 501.]
(1) Resistance sufficient to prevent the offense may be made by the person about to be injured:
(a) To prevent an offense against his person, or his family, or some member thereof; or
(b) To prevent an illegal attempt by force to take or injure property in his lawful possession.
(2) The defensive display or declaration of a firearm by a person is justified when and to the extent a reasonable person would believe that physical force is necessary to protect the person or another person against the use or attempted use of unlawful physical force, including deadly force. The provisions of this subsection do not apply to someone who intentionally provokes another person to use or attempt to use unlawful physical force or deadly physical force. For purposes of this section, "defensive display or declaration of a firearm" shall include:
(a) Verbally informing another person that the person possesses or has available a firearm; and
(b) Exposing, displaying, or placing a person’s hand on a firearm while the firearm is contained in a holster, pocket, purse, or other means of containment or transport in a manner that a reasonable person would understand was meant to protect the person or another against an unlawful use or attempted use of physical force or deadly physical force.
(3) The provisions of this section do not require a defensive display or declaration of a firearm before the use of physical force or deadly physical force, or threat of physical force or deadly physical force, by a person who is otherwise justified in the use or threatened use of physical force or deadly physical force.
(4) A person acting pursuant to this section may use such degree and extent of force as would appear to be reasonably necessary to prevent the threatened injury. Reasonableness is to be judged from the viewpoint of a reasonable person placed in the same position and seeing and knowing what the person then saw and knew without the benefit of hindsight.
[19-202, added 1972, ch. 336, sec. 3, p. 983; am. 2018, ch. 222, sec. 4, p. 501; am. 2023, ch. 295, sec. 1, p. 896.]
(1) No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary, or when coming to the aid of another whom he reasonably believes to be in imminent danger of or the victim of aggravated assault, robbery, rape, murder or other heinous crime.
(2) The defense of self or of another does not require a person to wait until he or she ascertains whether the danger is apparent or real. A person confronted with such danger has a clear right to act upon appearances such as would influence the action of a reasonable person.
(3) In the exercise of the right of self-defense or defense of another, a person need not retreat from any place that person has a right to be. A person may stand his ground and defend himself or another person by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge without the benefit of hindsight. The provisions of this subsection shall not apply to a person incarcerated in jail or prison facilities when interacting with jail or prison staff who are acting in their official capacities.
(4) In any prosecution for the unlawful use of force, including deadly force, or the attempted or threatened use of force contrary to title 18, Idaho Code, the burden is on the prosecution to prove beyond a reasonable doubt that the use of force, attempted use of force or threat to use force was not justifiable.
(5) A person using force or deadly force in defense of a habitation, place of business or employment or occupied vehicle as defined in section 18-4009(3), Idaho Code, is presumed to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the force is used against a person whose entry or attempted entry therein is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.
[19-202A, added 1974, ch. 238, sec. 1, p. 1601; am. 2018, ch. 222, sec. 5, p. 502.]
Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.
[19-203, added 1972, ch. 336, sec. 3, p. 983.]
Public offenses may be prevented by the intervention of the officers of justice:
By requiring security to keep the peace.
By forming a police in cities and towns, and by requiring their attendance in exposed places.
By suppressing riots.
[(19-204) Cr. Prac. 1864, sec. 17, p. 215; R.S., R.C., & C.L., sec. 7375; C.S., sec. 8628; I.C.A., sec. 19-204.]
When the officers of justice are authorized to act in the prevention of public offenses, other persons who, by their command, act in their aid, are justified in so doing.
[19-205, added 1972, ch. 336, sec. 3, p. 983.]
An information may be laid before any magistrate that a person has threatened to commit an offense against the person or property of another.
[(19-206) Cr. Prac. 1864, sec. 19, p. 215; R.S., R.C., & C.L., sec. 7380; C.S., sec. 8630; I.C.A., sec. 19-206.]
When the information is laid before such magistrate he must examine on oath the informer, and any witness he may produce, and must take their depositions in writing and cause them to be subscribed by the parties making them.
[(19-207) Cr. Prac. 1864, sec. 20, p. 216; R.S., R.C., & C.L., sec. 7381; C.S., sec. 8631; I.C.A., sec. 19-207.]
If it appears from the depositions that there is just reason to fear the commission of the offense threatened by the person so informed against, the magistrate must issue a warrant, directed generally to the sheriff of the county or any constable, marshal or policeman in the state, reciting the substance of the information, and commanding the officer forthwith to arrest the person informed of and bring him before the magistrate.
[(19-208) Cr. Prac. 1864, sec. 21, p. 216; R.S., R.C., & C.L., sec. 7382; C.S., sec. 8632; I.C.A., sec. 19-208.]
When the person informed against is brought before the magistrate, if the charge be controverted the magistrate must take testimony in relation thereto. The evidence must be reduced to writing and subscribed by the witnesses.
[(19-209) Cr. Prac. 1864, sec. 22, p. 216; R.S., R.C., & C.L., sec. 7383; C.S., sec. 8633; I.C.A., sec. 19-209.]
If it appears that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged.
[(19-210) Cr. Prac. 1864, sec. 23, p. 216; R.S., R.C., & C.L., sec. 7384; C.S., sec. 8634; I.C.A., sec. 19-210.]
If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $5,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace towards the people of this state, and particularly towards the informer. The undertaking is valid and binding for six months, and may, upon the renewal of the information, be extended for a longer period, or a new undertaking may be required.
[(19-211) Cr. Prac. 1864, sec. 24, p. 216; R.S., R.C., & C.L., sec. 7385; C.S., sec. 8635; I.C.A., sec. 19-211.]
If the undertaking required by the last section is given, the party informed of must be discharged. If he does not give it, the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof and the omission to give the same.
[(19-212) Cr. Prac. 1864, sec. 25, p. 216; R.S., R.C., & C.L., sec. 7386; C.S., sec. 8636; I.C.A., sec. 19-212.]
If the person complained of is committed for not giving the undertaking required, he may be discharged by any magistrate upon giving the same.
[(19-213) Cr. Prac. 1864, sec. 26, p. 216; R.S., R.C., & C.L., sec. 7387; C.S., sec. 8637; I.C.A., sec. 19-213.]
The undertaking must be filed by the magistrate in the office of the clerk of the district court.
[(19-214) Cr. Prac. 1864, sec. 27, p. 216; R.S., R.C., & C.L., sec. 7388; C.S., sec. 8638; I.C.A., sec. 19-214.]
A person who, in the presence of a court magistrate, assaults or threatens to assault another, or to commit an offense against his person or property, may be ordered by the court or magistrate to give security, as in this chapter provided, and if he refuse so to do, may be committed.
[(19-215) Cr. Prac. 1864, sec. 28, p. 216; R.S., R.C., & C.L., sec. 7389; C.S., sec. 8639; I.C.A., sec. 19-215.]
Upon the conviction of the person informed against, of a breach of the peace, the undertaking is broken.
[(19-216) Cr. Prac. 1864, sec. 29. p. 216; R.S., R.C., & C.L., sec. 7390; C.S., sec. 8640; I.C.A., sec. 19-216.]
Upon the prosecuting attorney’s producing evidence of such conviction to the district court of the county, the court must order the undertaking to be prosecuted, and the prosecuting attorney must thereupon commence an action upon it in the name of the state of Idaho.
[(19-217) Cr. Prac. 1864, sec. 30, p. 217; R.S., R.C., & C.L., sec. 7391; I.C.A., sec. 19-217.]
In the action the offense stated in the record of conviction must be alleged as a breach of the undertaking, and such record is conclusive evidence of the breach.
[(19-218) Cr. Prac. 1864, sec. 31, 9. 217; R.S., R.C., & C.L., sec. 7392; C.S., sec. 8642; I.C.A., sec. 19-218.]
Security to keep the peace, or to be of good behavior, cannot be required except as prescribed in this chapter.
[(19-219) Cr. Prac. 1864, sec. 32. p. 217; R.S., R.C., & C.L., sec. 7393; C.S., sec. 8643; I.C.A., sec. 19-219.]
The mayor or other officer having the direction of the police of a city or town, must order a force sufficient to preserve the peace to attend any public meeting, when he is satisfied that a breach of the peace is reasonably apprehended.
[(19-220) Cr. Prac. 1864, sec. 33. p. 217; R.S., R.C., & C.L., sec. 7394; C.S., sec. 8644; I.C.A., sec. 19-220.]
When a sheriff or other public officer, authorized to execute process, finds, or has reason to apprehend, that resistance will be made to the execution of the process, he may command as many bona fide male citizens, residents of his county, as he may think proper to assist him in overcoming the resistance, and, if necessary, in seizing, arresting and confining the persons resisting, their aiders and abettors.
[(19-221) Cr. Prac. 1864, sec. 34, p. 217; R.S., sec. 7400; am. 1893, p. 13, sec. 1; reen. 1899, p. 169, sec. 1; reen. R.C. & C.L., sec. 7400; C.S., sec. 8645; I.C.A., 19-221.]
The officer must certify to the court from which the process is issued, the names of the persons resisting and their aiders and abettors, to the end that they may be proceeded against for their contempt of court.
[(19-222) Cr. Prac. 1864, sec. 35, p. 217; R.S., R.C., & C.L., sec. 7401; C.S., sec. 8646; I.C.A., sec. 19-222.]
If it appears to the governor that the civil power of any county is not sufficient to enable the sheriff to execute process delivered to him, he must, upon the application of the sheriff of the county, order such portion as shall be sufficient, or the whole, if necessary, of the militia of the state, to proceed to the assistance of the sheriff.
[(19-223) Cr. Prac. 1864, sec. 37, p. 217; R.S., R.C., & C.L., sec. 7402; C.S., sec. 8647; I.C.A., sec. 19-223.]
Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies or the officials governing the town or city shall go among the persons assembled, or as near to them as possible, and command them in the name of the people of the state immediately to disperse.
[19-224, added 1972, ch. 336, sec. 3, p. 983; am. 2012, ch. 20, sec. 5, p. 67.]
If the persons assembled do not immediately disperse, such magistrates and officers must arrest them, and to that end may command the aid of all persons present or within the county.
[19-225, added 1972, ch. 336, sec. 3, p. 983.]
When an armed force is called out for the purpose of suppressing an unlawful or riotous assembly, or arresting the offenders, and is placed under the temporary direction of any civil officer, it must obey the orders in relation thereto of such civil officer.
[(19-226) Cr. Prac. 1864, sec. 43, p. 218; R.S., R.C., & C.L., sec. 7405; C.S., sec. 8650; I.C.A., sec. 19-226.]
When the governor is satisfied that the execution of civil or criminal process has been forcibly resisted in any county by bodies of men, or that combinations to resist the execution of process by force exist in any county, and that the power of the county has been exerted and has not been sufficient to enable the officer having the process to execute it, he may, on the application of the officer or of the prosecuting attorney, by proclamation to be published in such papers as he shall direct, declare the county to be in a state of insurrection and may order into the service of the state such number and description of volunteer or uniform companies, or other militia of the state as he shall deem necessary to serve for such term, and under the command of such officer or officers, as he shall direct.
[(19-227) Cr. Prac. 1864, sec. 46, p. 218; R.S., R.C., & C.L., sec. 7406; C.S., sec. 8651; I.C.A., sec. 19-227; am. 2012, ch. 20, sec. 6, p. 67.]
Any person who, after the publication of such proclamation, resists or aids in resisting the execution of process in any county so declared to be in a state of insurrection, or who aids or attempts the rescue or escape of any person from lawful custody or confinement, or who resists or aids in resisting any force ordered out by the governor to quell or suppress an insurrection, shall be punished by imprisonment in the state prison for a term not less than two (2) years.
[19-228, added 1972, ch. 336, sec. 3, p. 983.]
The governor may, when he thinks proper, revoke the proclamation authorized by the last section, or declare that it shall cease at the time and in the manner directed by him.
[(19-229) Cr. Prac. 1864, sec. 47, p. 219; R.S., R.C., & C.L., sec. 7408; C.S., sec. 8653; I.C.A., sec. 19-229.]
(1) Jurisdiction – venue. Every person is liable to punishment by the laws of this state, for a public offense committed by him therein, except where it is by law cognizable exclusively in the courts of the United States. Evidence that a prosecutable act was committed within the state of Idaho is a jurisdictional requisite, and proof of such must be shown beyond a reasonable doubt.
(2) Venue is nonjurisdictional. Proof that venue is proper under this chapter is satisfied if shown by a preponderance of the evidence.
[19-301, added 1972, ch. 336, sec. 4, p. 983; am. 1986, ch. 289, sec. 1, p. 728.]
When the commission of a public offense, commenced without the state is consummated within its boundaries, the defendant is liable to punishment therefor in this state, though he was out of the state at the time of the commission of the offense charged. If he consummated it in this state through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the venue is in the county in which the offense is consummated.
[19-302, added 1972, ch. 336, sec. 4, p. 984; am. 1986, ch. 289, sec. 2, p. 728.]
(1) When a public offense is committed in part in one (1) county and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two (2) or more counties, the venue is in either county.
(2) When more than one (1) felony is committed in more than one (1) county pursuant to a continuing criminal transaction or a common scheme or plan, venue shall be in any county in which one or more of such offenses has occurred.
(3) If a crime has been committed in the state of Idaho but it cannot be shown which county properly has venue, then in such case Ada county shall be the proper county of venue.
[19-304, added 1972, ch. 336, sec. 4, p. 984; am. 1986, ch. 289, sec. 4, p. 728.]
When a public offense is committed on the boundary of two (2) or more counties, or within five hundred (500) yards thereof, if the place where the crime is committed cannot be ascertained with reasonable certainty by the law enforcing officers of either county, or if a misdemeanor or infraction is committed in a city which is located in two (2) counties, then in any such event the venue is in either county. Provided however, that a prosecution in one (1) county shall be a bar to a prosecution for the same act or offense in the other county.
[19-305, added 1972, ch. 336, sec. 4, p. 984; am. 1976, ch. 24, sec. 1, p. 59; am. 1986, ch. 289, sec. 5, p. 729; am. 2001, ch. 121, sec. 1, p. 416.]
When an offense is committed in this state, on board a boat, vessel, railroad train, motor vehicle or aircraft, the venue is in the county through which the boat, vessel, railroad train, motor vehicle, or aircraft passes or in the county where the trip terminates.
[19-306, added 1972, ch. 336, sec. 4, p. 984; am. 1980, ch. 295, sec. 1, p. 766; am. 1986, ch. 289, sec. 6, p. 729.]
In any case where a person:
Seizes, confines, inveigles or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of this state, or in any way held to service or kept or detained against his will; or
Leads, takes, entices away or detains a child under the age of sixteen (16) years, with intent to keep or conceal it from its custodial parent, guardian or other person having lawful care or control thereof, or with intent to steal any article upon the person of the child; or
Abducts, entices or by force or fraud unlawfully takes or carries away another at or from a place without the state, or procures, advises, aids or abets such an abduction, enticing, taking or carrying away, and afterwards sends, brings, has or keeps such person, or causes him to be kept or secreted within this state; or
Seizes, confines, inveigles, leads, takes, entices away or kidnaps another against his will to extort money, property or any other things of value or obtain money, property or reward or any other thing of value for the return or disposition of such person; or
Inveigles or entices any unmarried person of previous chaste character, under the age of eighteen (18) years, into any house of ill-fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any other person; and every person who aids or assists in such inveiglement or enticement; or
Takes away any person under the age of eighteen (18) years from his or her father, mother, guardian, or other person having the legal charge of that person, without their consent, for the purpose of prostitution;
Venue is in the county in which the offense is committed, or out of which the person upon whom the offense was committed may, in the commission of the offense, have been brought, or in which an act was done by the defendant in instigating, procuring, promoting, or aiding in the commission of the offense, or in abetting the parties concerned therein.
[19-307, added 1972, ch. 336, sec. 4, p. 984; am. 1986, ch. 289, sec. 7, p. 729; am. 2026, ch. 251, sec. 5, p. 1055.]
When the offense either of bigamy or incest is committed in one county, and the defendant is apprehended in another, the venue is in either county.
[19-308, added 1972, ch. 336, sec. 4, p. 985; am. 1986, ch. 289, sec. 8, p. 730.]
When property taken in one county by burglary, robbery, or theft has been brought into another, the venue of the offense is in either county. But, if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former.
[19-309, added 1972, ch. 336, sec. 4, p. 985; am. 1986, ch. 289, sec. 9, p. 730.]
The venue of a criminal action for escaping from prison is in any county of the state.
[19-310, added 1972, ch. 336, sec. 4, p. 985; am. 1986, ch. 289, sec. 10, p. 731.]
The venue of a criminal action for stealing, in any other state, the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought.
[19-311, added 1972, ch. 336, sec. 4, p. 985; am. 1986, ch. 289, sec. 11, p. 731.]
The venue of a criminal action for murder or manslaughter, when the injury which caused the death was inflicted in one county and the party injured dies in another county or out of the state, is in the county where the injury was inflicted.
[19-312, added 1972, ch. 336, sec. 4, p. 985; am. 1986, ch. 289, sec. 12, p. 731.]
In the case of an accessory in the commission of a public offense, the venue is in the county where the offense of the accessory was committed, notwithstanding the principal offense was committed in another county.
[19-313, added 1972, ch. 336, sec. 4, p. 986; am. 1986, ch. 289, sec. 13, p. 731.]
The venue of a criminal action against a principal in the commission of a public offense, when such principal is not present at the commission of the principal offense, is in the same county it would be under this code if he were so present and aiding and abetting therein.
[19-314, added 1972, ch. 336, sec. 4, p. 986; am. 1986, ch. 289, sec. 14, p. 731.]
When an act charged as a public offense, is within the venue of another state, territory, or country, as well as of this state, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this state.
[19-315, added 1972, ch. 336, sec. 4, p. 986; am. 1986, ch. 289, sec. 15, p. 731.]
When an offense is within the venue of two (2) or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.
[19-316, added 1972, ch. 336, sec. 4, p. 986; am. 1986, ch. 289, sec. 16, p. 732.]
Notwithstanding any other provision of law, there is no limitation of time within which a prosecution for the following crimes must be commenced:
(1) Murder;
(2) Voluntary manslaughter;
(3) Rape pursuant to section 18-6101(3) through (10), Idaho Code;
(4) Sexual abuse of a child, lewd conduct with a child, or aggravated lewd conduct with a child as set forth in sections 18-1506, 18-1508, 18-1508B, and 18-1508C, Idaho Code;
(5) Producing or making sexually exploitative material as set forth in section 18-1507(2)(b), Idaho Code; or
(6) An act of terrorism as set forth in sections 18-8102, 18-8103, 18-3322, 18-3323 and 18-3324, Idaho Code.
[19-401, added 1972, ch. 336, sec. 5, p. 986; am. 2000, ch. 277, sec. 2, p. 900; am. 2001, ch. 142, sec. 1, p. 507; am. 2003, ch. 280, sec. 2, p. 757; am. 2006, ch. 39, sec. 1, p. 116; am. 2010, ch. 352, sec. 9, p. 927; am. 2011, ch. 27, sec. 3, p. 69; am. 2016, ch. 296, sec. 11, p. 840; am. 2026, ch. 191, sec. 1, p. 847.]
A prosecution for any felony other than those specified in section 19-401, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission, provided however, a prosecution under sections 18-1506A and 18-1506B, Idaho Code, must be commenced within three (3) years after the date of initial disclosure by the victim to law enforcement.
[19-402, added 1972, ch. 336, sec. 5, p. 986; am. 1985, ch. 157, sec. 1, p. 416; am. 1989, ch. 270, sec. 2, p. 659; am. 1990, ch. 210, sec. 3, p. 468; am. 1992, ch. 146, sec. 1, p. 442; am. 2000, ch. 277, sec. 3, p. 900; am. 2001, ch. 142, sec. 2, p. 508; am. 2002, ch. 222, sec. 9, p. 630; am. 2003, ch. 280, sec. 3, p. 757; am. 2006, ch. 39, sec. 2, p. 117; am. 2019, ch. 130, sec. 2, p. 465.]
(1) Except as otherwise provided in this section, a prosecution for any misdemeanor must be commenced by the filing of the complaint or the finding of an indictment within one (1) year after its commission.
(2) A prosecution for failure to report or failure to cause to be reported the abuse, abandonment, or neglect of a child as provided for in section 16-1605, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within four (4) years after its commission.
(3) A prosecution for misuse of funds as provided for in section 18-5702(1), Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within five (5) years after its commission.
(4) A prosecution for a misdemeanor that was dismissed pursuant to section 19-3509, Idaho Code, must be refiled no later than two (2) years after its dismissal.
[19-403, as added by 1972, ch. 336, sec. 5, p. 986; am. 2007, ch. 124, sec. 1, p. 374; am. 2008, ch. 56, sec. 5, p. 146; am. 2019, ch. 305, sec. 5, p. 911.]
If, when the offense is committed, the defendant is out of the state, the indictment may be found within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant of, or usually resident within, the state is part of the limitation.
[19-404, added 1972, ch. 336, sec. 5, p. 986.]
An indictment is found, within the meaning of this chapter, when it is presented by the grand jury in open court, and there received and filed.
[(19-405) Cr. Prac. 1864, sec. 97, p. 225; R.S., R.C., & C.L., sec. 7504; C.S., sec. 8705; I.C.A., sec. 19-405.]
A prosecution for sexual exploitation by a medical care provider under section 18-919, Idaho Code, must be commenced by the filing of the complaint or the finding of an indictment within two (2) years after its commission.
[19-406, added 1996, ch. 300, sec. 2, p. 989.]
The complaint is the allegation in writing, made to a magistrate, that a person has been guilty of some designated public offense.
[(19-501) Cr. Prac. 1864, sec. 99, p. 226; R.S., R.C., & C.L., sec. 7509; C.S., sec. 8706; I.C.A., sec. 19-501; am. 1969, ch. 79, sec. 1, p. 230.]
A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.
[(19-502) Cr. Prac. 1864, sec. 100, p. 226; R.S., R.C., & C.L., sec. 7510; C.S., sec. 8707; I.C.A., sec. 19-502.]
The following persons are magistrates:
(1) The justices of the supreme court.
(2) The judges of the court of appeals.
(3) The district judges.
(4) Magistrates of the district court.
[(19-503) Cr. Prac. 1864, sec. 101, p. 226; R.S., R.C., & C.L., sec. 7511; C.S., sec. 8708; I.C.A., sec. 19-503; am. 1972, ch. 35, sec. 1, p. 55; am. 2012, ch. 20, sec. 7, p. 68.]
When a complaint which has been subscribed to under oath by the party or parties lodging the same is laid before a magistrate alleging facts constituting the commission of a public offense, triable within the county, and the magistrate finds that the complaint alleges a public offense under the Idaho Code or county or city ordinance, the magistrate shall order the clerk of the court to file the complaint and refer the complaint to the appropriate county or city prosecuting attorney for further action.
[(19-504) Cr. Prac. 1864, sec. 102, p. 226; R.S., R.C., & C.L., sec. 7516; C.S., sec. 8709; I.C.A., sec. 19-504; am. 1969, ch. 79, sec. 2, p. 230; am. 1998, ch. 91, sec. 1, p. 330.]
The complaint must set forth the facts stated by the complaining witness, tending to establish the commission of the public offense and the guilt of the defendant.
[(19-505) Cr. Prac. 1864, sec. 103, p. 226; R.S., R.C., & C.L., sec. 7517; C.S., sec. 8710; I.C.A., sec. 19-505; am. 1969, ch. 79, sec. 3, p. 230.]
A magistrate may issue a warrant for the arrest of the defendant only after making a determination that there is probable cause to believe that an offense has been committed and that the defendant committed it.
[(19-506) Cr. Prac. 1864, sec. 104, p. 226; R.S., R.C., & C.L., sec. 7518; C.S., sec. 8711; I.C.A., sec. 19-506; am. 1998, ch. 91, sec. 2, p. 330.]
A warrant of arrest is an order in writing, in the name of the state of Idaho, signed by a magistrate, commanding the arrest of the defendant, and may be substantially in the following form:
County of …., state of Idaho.
To any sheriff, constable, marshal, or policeman of said state, or of the county of ….:
A complaint on oath, having this day been laid before me, by A.B., that the crime of (designating it) has been committed, and accusing C.D. thereof, you are therefore commanded forthwith to arrest the above named C.D. and bring him before me at (naming the place), or in the case of my absence or inability to act, before the nearest or most accessible magistrate in this county.
Dated at …., this …. day of …., …..
[(19-507) Cr. Prac. 1864, sec. 105, p. 226; R.S., R.C., & C.L., sec. 7519; C.S., sec. 8712; I.C.A., sec. 19-507; am. 2002, ch. 32, sec. 2, p. 47.]
The warrant must specify the name of the defendant, or, if it is unknown to the magistrate, the defendant may be designated therein by any name. It must also state the time of issuing it, and the county, city, or town where it is issued, and be signed by the magistrate, with his name of office, and state the offense charged.
[(19-508) Cr. Prac. 1864, sec. 106, p. 227; R.S., R.C., & C.L., sec. 7520; C.S., sec. 8713; I.C.A., sec. 19-508.]
The warrant must be directed to and executed by a peace officer.
[(19-509) Cr. Prac. 1864, sec. 107, p. 227; R.S., R.C., & C.L., sec. 7521; C.S., sec. 8714; I.C.A., sec. 19-509.]
A peace officer is a sheriff of a county, or a constable, marshal, or policeman of a city or town.
[(19-510) Cr. Prac. 1864, sec. 108, p. 227; R.S., R.C., & C.L., sec. 7522; C.S., sec. 8715; I.C.A., sec. 19-510.]
All employees of the state board of correction who receive peace officer certification from the Idaho peace officer standards and training council shall have all the authority given by statute to peace officers of the state of Idaho. All other employees designated by the board of correction pursuant to section 20-209C, Idaho Code, shall be empowered with the rights and duties of peace officers when engaged in transportation of prisoners or apprehension of prisoners or wards who have escaped, or apprehension and arrest of persons who are suspected of having violated the terms and conditions of their probation or parole, or when present with and at the request of a local, state or federal law enforcement officer.
[19-510A, as added by 1973, ch. 170, sec. 1, p. 359; am. 1980, ch. 100, sec. 1, p. 220; am. 2005, ch. 131, sec. 1, p. 417; am. 2011, ch. 28, sec. 1, p. 70.]
The governor of the state of Idaho is authorized and empowered, upon the application of any railroad or steamboat company to appoint and commission during his pleasure any person designated by such company to serve at the expense of such company as policeman, with the powers of a police officer, and who, after being duly sworn, may act as such policeman upon the premises, cars or boats of such company. The company designating such person shall be responsible civilly for any abuse of his authority. Every such policeman shall, when on duty, wear in plain view a shield bearing the words, "railroad police" or "steamboat police," as the case may be, and the name of the company for which he is commissioned.
[(19-511) 1909, p. 110, sec. 1; compiled and reen. C.L., sec. 7522a; C.S., sec. 8716; I.C.A., sec. 19-511.]
If a warrant is issued by a magistrate, it may be directed generally to any sheriff, constable, marshal or policeman in the state, and may be executed by any of those officers to whom it may be delivered.
[(19-512) Cr. Prac. 1864, sec. 109, p. 227; R.S., R.C., & C.L., sec. 7523; C.S., sec. 8717; I.C.A., sec. 19-512; am. 1951, ch. 244, sec. 1, p. 516; am. 2012, ch. 20, sec. 8, p. 68.]
If the offense charged is a felony, the officer making the arrest must cause the defendant to be taken before the magistrate who issued the warrant, or in the case of his absence or inability to act, before the nearest or most accessible magistrate in the same county, and must at the same time deliver to the magistrate the warrant, with his return thereon endorsed and subscribed by him, but all hearings on preliminary examinations must, as far as possible, be had before the magistrate most convenient to the majority of the witnesses for the prosecution, unless for good cause it is ordered to be held elsewhere, and in all such cases the preliminary examinations must be had as hereinafter provided, unless such person shall waive his right to such examination.
If the offense charged is a misdemeanor, and the defendant is arrested in another county, the officer must, upon the request of the defendant, take him before a magistrate in that county, who may admit him to bail in an amount which, in his judgment, will be reasonable and sufficient for the appearance of the defendant, and said magistrate must direct the defendant to appear before the court or magistrate by whom the warrant was issued on or before a day certain which shall in no case be more than fourteen (14) days after such admittance to bail. If bail shall be forthwith given, the magistrate shall take the same and endorse thereon a memorandum of the aforesaid order for the appearance of the defendant. On taking of said bail, the magistrate must certify that fact on the warrant, and deliver the warrant and undertaking of bail to the officer in charge of the defendant. The officer must then discharge the defendant from arrest, and must without delay, deliver the warrant and undertaking to the court at which the defendant is required to appear.
If bail is not forthwith given by the defendant, the officer must cause the defendant to be taken before the magistrate who issued the warrant, or in case of his absence or inability to act before the nearest and most accessible magistrate in the same county, and at the same time deliver to the magistrate the warrant with his return endorsed thereon.
[(19-514) Cr. Prac. 1864, secs. 111, 112, p. 227; R.S., sec. 7525; am. 1899, p. 433, sec. 1; reen. R.C., sec. 7525; compiled and reen. C.L., sec. 7525; C.S., sec. 8719; I.C.A., sec. 19-514; am. 1951, ch. 244, sec. 2, p. 516; am. 2003, ch. 115, sec. 1, p. 359.]
The defendant must in all cases be taken before the magistrate without unnecessary delay, and any attorney at law entitled to practice in courts of record of the state of Idaho may, at the request of the prisoner after such arrest, visit the person so arrested.
[(19-515) Cr. Prac. 1864, sec. 116, p. 228; R.S., R.C., & C.L., sec. 7529; C.S., sec. 8720; I.C.A., sec. 19-515.]
If the defendant is brought before a magistrate other than the one who issued the warrant, the complaint upon which the warrant was issued must be sent to that magistrate, or, if such complaint can not be procured, the complaining witness must be summoned to lodge a new complaint before such magistrate.
[(19-516) Cr. Prac. 1864, sec. 118, p. 228; R.S., R.C., & C.L., sec. 7531; C.S., sec. 8722; I.C.A., sec. 19-516; am. 1969, ch. 79, sec. 4, p. 230.]
When a complaint is laid before a magistrate of the commission of a public offense, triable in another county of the state, but showing that defendant is in the county where the complaint is laid, the same proceedings must be had as prescribed in this chapter, except that the warrant must require the defendant to be taken before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable, and the complaint must be delivered by the magistrate to the officer to whom the warrant is delivered.
[(19-517) Cr. Prac. 1864, sec. 117, p. 228; R.S., R.C., & C.L., sec. 7530; C.S., sec. 8721; I.C.A., sec. 19-517; am. 1969, ch. 79, sec. 5, p. 230.]
The officer who executes the warrant must take the defendant before the magistrate most accessible to the witnesses for the prosecution, but in the county in which the offense is triable, and must deliver to him the complaint and the warrant, with his return indorsed thereon, and the magistrate must then proceed in the same manner as upon a warrant issued by himself.
[(19-518) Cr. Prac. 1864, sec. 119, p. 228; R.S., R.C., & C.L., sec. 7532; C.S., sec. 8723; I.C.A., sec. 19-518; am. 1969, ch. 79, sec. 6, p. 230.]
(1) At any time after arraignment before a magistrate upon a complaint and upon written demand of the prosecuting attorney, the defendant shall serve, within ten (10) days or at such different time as the court may direct, upon the prosecuting attorney, a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.
(2) Within ten (10) days after receipt of the defendant’s notice of alibi but in no event less than ten (10) days before trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or his attorney a written notice stating the names and addresses of the witnesses upon whom the prosecution intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
(3) If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (1) or subsection (2) of this section, the party shall promptly notify the other party or his attorney of the existence and identity of such additional witness.
(4) Upon the failure of either party to comply with the requirements of this section, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at, the scene of the alleged offense. This section shall not limit the right of the defendant to testify in his own behalf.
(5) For good cause shown the court may grant an exception to any of the requirements of subsections (1) through (4) of this section.
[19-519, added 1978, ch. 301, sec. 1, p. 758.]
An arrest is taking a person into custody in a case and in the manner authorized by law. An arrest may be made by a peace officer or by a private person.
[(19-601) Cr. Prac. 1864, secs. 121, 122, p. 228; R.S., R.C., & C.L., sec. 7538; C.S., sec. 8724; I.C.A., sec. 19-601.]
An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of an officer. The defendant must not be subjected to any more restraint than is necessary for his arrest and detention.
[(19-602) Cr. Prac. 1864, secs. 125, 126. pp. 228 and 229; R.S., R.C., & C.L., sec. 7539; C.S., sec. 8725; I.C.A., sec. 19-602.]
A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:
For a public offense committed or attempted in his presence.
When a person arrested has committed a felony, although not in his presence.
When a felony has in fact been committed and he has reasonable cause for believing the person arrested to have committed it.
On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
At night, when there is reasonable cause to believe that he has committed a felony.
When upon immediate response to a report of a commission of a crime there is probable cause to believe that the person has committed a violation of section 18-901 (assault), 18-903 (battery), 18-918 (domestic violence), 18-7905 (first-degree stalking), 18-7906 (second-degree stalking), 39-6312 (violation of a protection order), 18-920 (violation of a no contact order), or 18-3302I (threatening violence upon school grounds — firearms and other deadly or dangerous weapons), Idaho Code.
When there is reasonable cause to believe, based upon physical evidence observed by the officer or statements made in the presence of the officer upon immediate response to a report of a commission of a crime aboard an aircraft, that the person arrested has committed such a crime.
[(19-603) Cr. Prac. 1864, secs. 131, 133, p. 229; R.S., R.C., & C.L., sec. 7540; C.S., sec. 8726; I.C.A., sec. 19-603; am. 1979, ch. 307, sec. 1, p. 832; am. 1988, ch. 271, sec. 1, p. 902; am. 1994, ch. 318, sec. 1, p. 1020; am. 1997, ch. 89, sec. 1, p. 214; am. 1997, ch. 314, sec. 4, p. 930; am. 2004, ch. 337, sec. 5, p. 1010; am. 2019, ch. 207, sec. 1, p. 633.]
A private person may arrest another:
For a public offense committed or attempted in his presence.
When the person arrested has committed a felony, although not in his presence.
When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
[(19-604) Cr. Prac. 1864, sec. 137, p. 229; R.S., R.C., & C.L., sec. 7541; C.S., sec. 8727; I.C.A., sec. 19-604.]
A magistrate may orally order a peace officer or private person to arrest any one committing or attempting to commit a public offense in the presence of such magistrate.
[(19-605) Cr. Prac. 1864, sec. 136, p. 229; R.S., R.C., & C.L., sec. 7542; C.S., sec. 8728; I.C.A., sec. 19-605.]
Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein.
[(19-606) Cr. Prac. 1864, sec. 123, p. 228; R.S., R.C., & C.L., sec. 7543; C.S., sec. 8729; I.C.A., sec. 19-606.]
If the offense charged is a felony, the arrest may be made on any day, and at any time of the day or night. If the offense charged is a misdemeanor, the arrest shall not be made inside a person’s residence between 8:00 p.m. and 8:00 a.m., unless upon the direction of the magistrate, as endorsed upon the warrant, or where consent was given to enter the residence by a person with real or apparent authority.
[(19-607) Cr. Prac. 1864, sec. 124, p. 228; R.S., R.C., & C.L., sec. 7544; C.S., sec. 8730; I.C.A., sec. 19-607; am. 2002, ch. 132, sec. 1, p. 364.]
The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit, an offense, or is pursued immediately after its commission, or after an escape.
[(19-608) Cr. Prac. 1864, sec. 134, p. 229; R.S., R.C., & C.L., sec. 7545; C.S., sec. 8731; I.C.A., sec. 19-608.]
If the person making the arrest is acting under the authority of a warrant, he must show the warrant, if required.
[(19-609) Cr. Prac. 1864, sec. 127, p. 229; R.S., R.C., & C.L., sec. 7546; C.S., sec. 8732; I.C.A., sec. 19-609.]
When the arrest is being made by an officer under the authority of a warrant or when the arrest is being made without a warrant but is supported by probable cause to believe that the person has committed an offense, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all reasonable and necessary means to effect the arrest and will be justified in using deadly force under conditions set out in section 18-4011, Idaho Code.
[(19-610) Cr. Prac. 1864, sec. 128, p. 229; R.S., R.C., & C.L., sec. 7547; C.S., sec. 8733; I.C.A., sec. 19-610; am. 1986, ch. 303, sec. 1, p. 754; am. 1987, ch. 117, sec. 1, p. 231.]
To make an arrest, if the offense is a felony, a private person, if any public offense, a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which there is reasonable ground for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.
[(19-611) Cr. Prac. 1864, secs. 129, 132, 139, pp. 229 and 230; R.S., R.C., & C.L., sec. 7548; C.S., sec. 8734; I.C.A., sec. 19-611.]
Any person who has lawfully entered a house for the purpose of making an arrest, may break open the door or window thereof if detained therein, when necessary for the purpose of liberating himself, and an officer may do the same when necessary for the purpose of liberating a person who, acting in his aid, lawfully entered for the purpose of making an arrest, and is detained therein.
[(19-612) Cr. Prac. 1864, secs. 129, 132, 139, pp. 229 and 230; R.S., R.C., & C.L., sec. 7549; C.S., sec. 8735; I.C.A., sec. 19-612.]
Any person making an arrest may take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.
[(19-613) R.S., R.C., & C.L., sec. 7550; C.S., sec. 8736; I.C.A., sec. 19-613.]
A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him to a peace officer.
[(19-614) Cr. Prac. 1864, sec. 140, p. 230; R.S., R.C., & C.L., sec. 7551; C.S., sec. 8737; I.C.A., sec. 19-614.]
When an arrest is made without a warrant by a peace officer or private person the person arrested must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and an information, stating the charge against the person, must be laid before such magistrate.
[(19-615) Cr. Prac. 1864, sec. 140, p. 230; R.S., R.C., & C.L., sec. 7552; C.S., sec. 8738; I.C.A., sec. 19-615.]
A warrant of arrest may be sent by telecommunication process or facsimile process to one (1) or more peace officers and a copy of a warrant sent in such manner is as effectual in the hands of any officer, and he must proceed in the same manner under it as though he held an original warrant.
[(19-616) R.S., R.C., & C.L., sec. 7553; C.S., sec. 8739; I.C.A., sec. 19-616; am. 2012, ch. 78, sec. 1, p. 227.]
If a person arrested escape or is rescued, the person from whose custody he escaped or was rescued, may immediately pursue and retake him at any time and in any place within the state.
[(19-618) Cr. Prac. 1864, sec. 141, p. 230; R.S., R.C., & C.L., sec. 7559; C.S., sec. 8741; I.C.A., sec. 19-618.]
To retake the person escaping or rescued, the person pursuing may break open an outer or inner door or window of a dwelling-house, if, after notice of his intention, he is refused admittance.
[(19-619) Cr. Prac. 1864, sec. 142, p. 230; R.S., R.C., & C.L., sec. 7560; C.S., sec. 8742; I.C.A., sec. 19-619.]
For the purpose of this act, a "temporary road block" means any structure, device or means used by duly authorized law enforcement officers of the state of Idaho and of its political subdivisions for the purpose of controlling all traffic through a point on a highway whereby all vehicles may be slowed or stopped.
[19-620, added 1957, ch. 31, sec. 1, p. 49.]
The duly elected or appointed sheriffs, state policemen or policemen of cities of the first or second class of the state of Idaho are hereby authorized to establish, in their respective or adjacent jurisdictions, temporary road blocks upon the highways of this state or city streets for the purpose of apprehending persons reasonably believed by such officers to be wanted for violation of the laws of this state, of any other state, or of the United States, and using such highways or streets.
[19-621, added 1957, ch. 31, sec. 2, p. 49.]
For the purpose of warning and protecting the traveling public, the minimum requirements to be met by such officers establishing temporary road blocks, if time and circumstances allow, are:
The temporary road block must be established at a point on the highway or street clearly visible at a distance of not less than 100 yards in either direction.
At the point of the temporary road block, a sign shall be placed on the center line of the highway or street displaying the word "stop" in letters of sufficient size and luminosity to be readable at a distance of not less than 50 yards, in both directions, either in daytime or darkness.
At the same point of the temporary road block, at least one (1) blue light, on and burning, must be placed at the side of the highway or street which shall be a flashing or intermittent beam of light, clearly visible to the oncoming traffic, at a distance of not less than 100 yards.
At a distance of not less than 200 yards from the point of the temporary road block, warning signs must be placed at the side of the highway or street, containing any wording of sufficient size and luminosity, to warn the oncoming traffic that a "police stop" lies ahead. A burning beam light, flare or reflector must be placed near such signs for the purpose of attracting the attention of the traffic to the sign.
[19-622, added 1957, ch. 31, sec. 3, p. 49; am. 1972, ch. 285, sec. 1, p. 717.]
Any person who shall proceed or travel through a road block without subjecting himself to the traffic control so established shall be guilty of a misdemeanor, and shall be punished by a fine of not more than $300.00, or by imprisonment in the county jail for not more than 6 months, or by both fine and imprisonment.
[19-623, added 1957, ch. 31, sec. 4, p. 49.]
Any arrest that may be lawfully made with an original warrant, may be made with a copy thereof, certified by the issuing magistrate to be a true and correct copy of the original warrant that is in his possession.
[19-624, added 1967, ch. 114, sec. 1, p. 222.]
(1) A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense which is a felony may make written application upon oath or affirmation to a judge of any district court, or magistrates division thereof, for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the jurisdiction over which the judicial officer presides. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the judicial officer upon a showing under oath of all the following:
(A) Probable cause for belief that a specifically described criminal offense which is a felony has been committed.
(B) Reasonable grounds exist, which may or may not amount to probable cause, to believe that the identified or particularly described individual committed the criminal offense.
(C) Procurement of evidence of identifying physical characteristics from the identified or particularly described individual may contribute to the identification of the individual who committed such offense.
(D) Such evidence cannot otherwise be obtained by the investigating officer.
(2) Any order issued pursuant to the provisions of this section shall specify the following:
(A) The alleged criminal offense which is the subject of the application.
(B) The specific type of identifying physical characteristic evidence which is sought.
(C) The relevance of such evidence to the particular investigation.
(D) The identity or description of the individual who may be detained for obtaining such evidence.
(E) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.
(F) The place at which the obtaining of such evidence shall be effectuated.
(G) The time that such evidence shall be taken except that no person may be detained for a period of more than three (3) hours for the purpose of taking such evidence.
(H) That the individual so identified or described shall have the right to legal counsel during the detention when such evidence is obtained and if he is unable to afford private counsel an attorney shall be provided at public expense as provided by section 19-6009, Idaho Code.
(I) That the individual will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance unless sound of voice identification is required.
(J) The period of time, not exceeding ten (10) days, during which the order shall continue in force and effect. If the order is not executed within ten (10) days, a new order may be issued, pursuant to the provisions of this section.
(3) The order issued pursuant to this section shall be returned to the court not later than fifteen (15) days after its date of issuance and shall be accompanied by a sworn statement indicating how and when the evidence was taken and the type of evidence taken. The court shall give to the person from whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.
(4) For the purposes of this section, "identifying physical characteristics" shall mean the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.
[19-625, added 1972, ch. 116, sec. 1, p. 230; am. 2001, ch. 142, sec. 3, p. 508; am. 2023, ch. 220, sec. 35, p. 681.]
Any member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit and continues within this state in such fresh pursuit, of a person in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody, as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.
[19-701, added 1941, ch. 69, sec. 1, p. 133.]
Any peace officer of this state in fresh pursuit of a person who is reasonably believed by him to have committed a felony in this state or has committed, or attempted to commit, any criminal offense or traffic infraction in this state in the presence of such officer, or for whom a warrant of arrest is outstanding for a criminal offense, shall have authority to pursue, arrest and hold in custody or cite such person anywhere in this state. All privileges and immunities from liability, exemption from law, ordinances and rules, all pension relief, disability, workmen’s compensation, and other benefits which normally apply to peace officers while they perform their duties in their own jurisdiction shall also apply to them when acting as contemplated above. In addition, this protection shall also be applicable when a peace officer is acting in response to a request for assistance out of his employing jurisdiction. The cost of this protection shall be borne by the individual peace officer’s employing jurisdiction.
[19-701A, added 1980, ch. 152, sec. 1, p. 322; am. 1981, ch. 137, sec. 1, p. 241; am. 1987, ch. 85, sec. 2, p. 160.]
If an arrest is made in this state by an officer of another state in accordance with the provisions of section 1 of this act he shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state or admit him to bail for such purpose. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.
[19-702, added 1941, ch. 69, sec. 2, p. 133.]
Section 1 of this act shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
[19-703, added 1941, ch. 69, sec. 3, p. 133.]
For the purpose of this act the word "state" shall include the District of Columbia.
[19-704, added 1941, ch. 69, sec. 4, p. 133.]
The term "fresh pursuit" as used in this act shall include fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
[19-705, added 1941, ch. 69, sec. 5, p. 133.]
Upon the passage and approval by the governor of this act, it shall be the duty of the secretary of state (or other officer) to certify a copy of this act to the executive department of each of the states of the United States.
[19-706, added 1941, ch. 69, sec. 6, p. 133.]
This act may be cited as the "Uniform Act on Fresh Pursuit."
[19-707, added 1941, ch. 69, sec. 8, p. 133.]
When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.
[(19-801) Cr. Prac. 1864, sec. 143, p. 230; R.S., R.C., & C.L., sec. 7565; C.S., sec. 8743; I.C.A., sec. 19-701.]
He must also allow the defendant a reasonable time to send for counsel, and postpone the examination for that purpose, and must upon the request of the defendant, require a peace officer to take a message to any counsel in the township or city the defendant may name. The officer must, without delay and without fee, perform that duty.
[(19-802) Cr. Prac. 1864, sec. 144, p. 230; R.S., R.C., & C.L., sec. 7566; C.S., sec. 8744; I.C.A., sec. 19-702.]
The magistrate shall conduct a preliminary examination unless the same is waived by the defendant. At such preliminary examination, the magistrate shall first read the complaint to the defendant unless the defendant waives such reading, and it shall be the duty of the magistrate at such examination to determine whether or not a public offense has been committed and whether or not there is probable or sufficient cause to believe that the defendant committed such public offense. Once commenced, the examination must be completed at one (1) session unless the magistrate for good cause shown by court order postpones it, or unless the parties stipulate in writing or upon the court record to a continuance to a date certain. If the defendant is incarcerated, the postponement or continuance cannot be for more than six (6) days or, if the defendant is not incarcerated, for more than twenty (20) days, unless on motion by or with the consent of the defendant the court orders a longer continuance or postponement.
[(19-804) Cr. Prac. 1864, sec. 146, p. 230; R.S., R.C., & C.L., sec. 7568; C.S., sec. 8746; I.C.A., sec. 19-704; am. 1969, ch. 467, sec. 1, p. 1339; am. 1976, ch. 282, sec. 1, p. 967.]
If a postponement is had the magistrate must commit the defendant for examination, admit him to bail or discharge him from custody upon the deposit of money as provided in this code, as security for his appearance at the time to which the examination is postponed.
[(19-805) Cr. Prac. 1864, sec. 147, p. 230; R.S., R.C., & C.L., sec. 7569; C.S., sec. 8747; I.C.A., sec. 19-705.]
The commitment for examination is made by an indorsement, signed by the magistrate on the warrant of arrest, to the following effect:
"The within named A.B. having been brought before me under this warrant, is committed for examination to the sheriff of ….."
If the sheriff is not present, the defendant may be committed to the custody of a peace officer.
[(19-806) Cr. Prac. 1864, sec. 148, p. 231; R.S., R.C., & C.L., sec. 7570; C.S., sec. 8748; I.C.A., sec. 19-706.]
The magistrate shall, prior to the preliminary examination, issue subpoenas, subscribed by him, for witnesses required by the prosecution who are in the state, and for witnesses required by the defendant who are in the state.
[(19-807) Cr. Prac. 1864, sec. 149, p. 231; R.S., R.C., & C.L., sec. 7571; C.S., sec. 8749; I.C.A., sec. 19-707; am. 1969, ch. 467, sec. 2, p. 1339.]
The witnesses for the prosecution must be examined under oath in the presence of the defendant, and may be cross-examined in his behalf.
[(19-808) Cr. Prac. 1864, sec. 150, p. 231; R.S., R.C., & C.L., sec. 7572; C.S., sec. 8750; I.C.A., sec. 19-708; am. 1969, ch. 467, sec. 3, p. 1339.]
When the examination of witnesses on the part of the people is closed, the defendant may produce any material witnesses, which witnesses must be sworn, examined and cross-examined in the presence of the defendant.
[(19-809) R.S., R.C., & C.L., sec. 7573; C.S., sec. 8751; I.C.A., sec. 19-709; am. 1969, ch. 467, sec. 4, p. 1339.]
Notwithstanding the provisions of sections 19-808 and 19-809, Idaho Code, and any rules promulgated by the Idaho supreme court, in any preliminary examination, the magistrate shall receive into evidence any out-of-court statement of a child under the age of ten (10) years provided the magistrate finds the source of the evidence credible.
[19-809A, added 1986, ch. 195, sec. 1, p. 493.]
While a witness is under examination the magistrate must, upon motion of either of the parties, exclude all witnesses who have not been examined. He may also cause the witnesses to be kept separate, and to be prevented from conversing with each other until all witnesses have been examined.
[(19-810) Cr. Prac. 1864, sec. 157, p. 232; R.S., R.C., & C.L., sec. 7574; C.S., sec. 8752; I.C.A., sec. 19-710; am. 1969, ch. 467, sec. 5, p. 1339.]
The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, the prosecutor and his counsel, the attorney general, the prosecuting attorney of the county, the defendant and his counsel, and the officer having the defendant in custody.
[(19-811) Cr. Prac. 1864, sec. 158, p. 232; R.S., R.C., & C.L., sec. 7575; C.S., sec. 8753; I.C.A., sec. 19-711.]
In all cases which must afterward be investigated by the grand jury, or prosecuted by information, the preliminary examination must be taken and as ordered by the district court duly transcribed, unless the person charged with the offense shall waive his right to such examination, and the same can not be unreasonably delayed by either party.
A verbatim record of the proceedings and evidence at the preliminary examination before a magistrate shall be maintained either by electrical devices or by stenographic means as the magistrate may direct, but if any party to the action requests stenographic reporting of the proceedings, the reporting shall be done stenographically. The requesting party shall pay the costs of reporting the proceedings.
The opening statements and closing argument of counsel for the parties need not be transcribed and made a part of the transcript unless the transcription of the same is requested in advance by either of such parties.
The transcript of the proceedings and evidence at the preliminary examination shall be certified to as true and correct by the stenographer or by the person designated to transcribe the proceedings from the electrical devices.
[(19-812) R.S., sec. 7576; am. 1905, p. 376; reen. R.C., sec. 7576; compiled and reen. C.L., sec. 7576; C.S., sec. 8754; I.C.A., sec. 19-712; am. 1969, ch. 467, sec. 6, p. 1339; am. 1971, ch. 73, sec. 1, p. 167; am. 1979, ch. 206, sec. 1, p. 589.]
The magistrate must keep the depositions of witnesses or transcript of preliminary examination taken at such preliminary examination until the same is returned to the proper court; and such magistrate must not permit the same to be examined or copied by any person except a judge of a court having jurisdiction of the offense, or authorized to issue writs of habeas corpus, the attorney-general, prosecuting attorney, or other prosecuting attorney, and the defendant and his counsel.
[(19-813) R.S., R.C., & C.L., sec. 7577; C.S., sec. 8755; I.C.A., sec. 19-713; am. 1969, ch. 467, sec. 7, p. 1339.]
If, after hearing the evidence adduced at the preliminary examination, the magistrate finds either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must dismiss the complaint and order the defendant to be discharged.
[(19-814) Cr. Prac. 1864, sec. 159, p. 232; R.S., R.C., & C.L., sec. 7578; C.S., sec. 8756; I.C.A., sec. 19-714; am. 1969, ch. 467, sec. 8, p. 1339.]
If, after hearing the evidence adduced at the preliminary examination, the magistrate finds that a public offense has been committed, and that there is probable or sufficient cause to believe the defendant guilty thereof, the magistrate shall enter an order holding the defendant to answer to said public offense, which order shall be substantially as follows: "It appearing to me that the offense set forth in the complaint (or any offense, according to the evidence presented at the preliminary examination, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A.B. guilty thereof, I order that he be held to answer the same."
[(19-815) Cr. Prac. 1864, sec. 160; R.S., R.C., & C.L., sec. 7579; C.S., sec. 8757; I.C.A., sec. 19-715; am. 1969, ch. 467, sec. 9, p. 1339.]
A defendant once held to answer to a criminal charge under this chapter may challenge the sufficiency of evidence educed at the preliminary examination by a motion to dismiss the commitment, signed by the magistrate, or the information filed by the prosecuting attorney. Such motion to dismiss shall be heard by a district judge.
If the district judge finds that the magistrate has held the defendant to answer without reasonable or probable cause to believe that the defendant has committed the crime for which he was held to answer, or finds that no public offense has been committed, he shall dismiss the complaint, commitment or information and order the defendant discharged.
[I.C., sec. 19-815A, as added by S.L. 1971, ch. 250, sec. 1, p. 1005.]
If the offense is not bailable the following words must be added to the commitment required by section 19-818: "and he is hereby committed to the sheriff of the county of ….."
[(19-816) Cr. Prac. 1864, sec. 161, p. 232; R.S., R.C., & C.L., sec. 7580; C.S., sec. 8758; I.C.A., sec. 19-716; am. 1969, ch. 467, sec. 10, p. 1339.]
If the offense is bailable, and the defendant is admitted to bail, the following words must be added to commitment required by section 19-818: "And that he is admitted to bail in the sum of …. dollars, and is committed to the sheriff of the county of …. until he gives such bail."
[(19-817) Cr. Prac. 1864, sec. 163, p. 232; R.S., R.C., & C.L., sec. 7581; C.S., sec. 8759; I.C.A., sec. 19-717; am. 1969, ch. 467, sec. 11, p. 1339.]
If the magistrate order the defendant to be committed he must make out a commitment, signed by him, with his name of office, and deliver it, with the defendant, to the officer to whom he is committed, or, if that officer is not present, to a peace officer, who must deliver the defendant into the proper custody, together with the commitment.
[(19-818) Cr. Prac. 1864, sec. 164, p. 233; R.S., R.C., & C.L., sec. 7582; C.S., sec. 8760; I.C.A., sec. 19-718.]
The commitment must be to the following effect:
County of (as the case may be). The state of Idaho to the sheriff of the county of ….:
An order having been this day made by me, that A.B. be held to answer upon a charge of (stating briefly the nature of the offense, and giving as near as may be the time when and the place where the same was committed), you are commanded to receive him into your custody and detain him until he is legally discharged.
Dated this …. day of …., …..
[(19-819) Cr. Prac. 1864, sec. 165, p. 233; R.S., R.C., & C.L., sec. 7583; C.S., sec. 8761; I.C.A., sec. 19-719; am. 2007, ch. 90, sec. 9, p. 250.]
On holding the defendant to answer, the magistrate may take from each of the material witnesses examined before him on the part of the people a written undertaking to the effect that he will appear and testify at the court to which the depositions and statements are to be sent, or that he will forfeit the sum of $500.00.
[(19-820) Cr. Prac. 1864, sec. 166, p. 233; R.S., R.C., & C.L., sec. 7584; C.S., sec. 8762; I.C.A., sec. 19-720.]
When the magistrate or a judge of the court in which the action is pending is satisfied, by proof on oath, that there is reason to believe that any such witness will not appear and testify unless security is required, he may order the witness to enter into a written undertaking, with sureties, in such sum as he may deem proper, for his appearance as specified in the preceding section.
[(19-821) Cr. Prac. 1864, sec. 167, p. 233; R.S., R.C., & C.L., sec. 7585; C.S., sec. 8763; I.C.A., sec. 19-721.]
Infants and married women who are material witnesses against the defendant may be required to procure sureties for their appearance, as provided in the last section.
[(19-822) Cr. Prac. 1864, sec. 168, p. 233; R.S., R.C., & C.L., sec. 7586; C.S., sec. 8764; I.C.A., sec. 19-722.]
If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate must commit him to prison until he complies or is legally discharged.
[(19-823) Cr. Prac. 1864, sec. 169, p. 233; R.S., R.C., & C.L., sec. 7587; C.S., sec. 8765; I.C.A., sec. 19-723.]
When, however, it satisfactorily appears by examination on oath of the witness, or any other person, that the witness is unable to procure sureties, he may be forthwith conditionally examined on behalf of the people. Such examination must be by question and answer in the presence of the defendant, or after notice to him, if on bail, and conducted in the same manner as the examination before a committing magistrate is required by this chapter to be conducted, and the witness thereupon be discharged; but this section does not apply to an accomplice in the commission of the offense charged.
[(19-824) Cr. Prac. 1864, sec. 170, p. 233; R.S., R.C., & C.L., sec. 7588; C.S., sec. 8766; I.C.A., sec. 19-724.]
When a magistrate has held a defendant to answer for the commission of a public offense, he must, without unnecessary delay and after the transcript of preliminary examination has been transcribed or the depositions of witnesses have been reduced to writing in compliance with section 19-812, Idaho Code, return to the clerk of the district court to which the defendant has been held to answer, the complaint, the warrant, if any, the transcript of preliminary examination or depositions of witnesses testifying at the preliminary examination, a certified copy of the transcript of his docket, the order holding defendant to answer, all undertakings of bail or for the appearance of witnesses taken by him, together with any other written documents on file which the magistrate is required by law to transmit to said district court.
[(19-825) Cr. Prac. 1864, sec. 172, p. 234; R.S., R.C., & C.L., sec. 7589; C.S., sec. 8767; I.C.A., sec. 19-725; am. 1969, ch. 467, sec. 12, p. 1339.]
All public offenses triable in the district court must be prosecuted by indictment, or information, except as provided in the next section.
[(19-901) Cr. Prac. 1864, sec. 173, p. 234; R.S., sec. 7600; am. R.C. & C.L., sec. 7600; C.S., sec. 8768; I.C.A., sec. 19-801.]
When the proceedings are had for the removal of district, county, municipal or precinct officers they may be commenced by an accusation or information, in writing, as provided in chapter 41 of this title.
[(19-902) Cr. Prac. 1864, sec. 174, p. 234; R.S., R.C., & C.L., sec. 7601; C.S., sec. 8769; I.C.A., sec. 19-802.]
All accusations against district, county, municipal and precinct officers, and all indictments, must be found in the district court.
[(19-903) Cr. Prac. 1864, sec. 175, p. 234; R.S., R.C., & C.L., sec. 7602; C.S., sec. 8770; I.C.A., sec. 19-803.]
The people, or a person held to answer a charge for a public offense, may challenge the panel of a grand jury, or an individual juror.
[(19-1001) Cr. Prac. 1864, sec. 177, p. 235; R.S., R.C., & C.L., sec. 7607; C.S., sec. 8771; I.C.A., sec. 19-901.]
A challenge to the panel may be interposed for one or more of the following causes only:
That the requisite number of ballots was not drawn from the jury box of the county.
That notice of the drawing of the grand jury was not given.
That the drawing was not had in the presence of the officers designated by law.
[(19-1002) Cr. Prac. 1864, sec. 178, 235; R.S., R.C., & C.L., sec. 7608; C.S., sec. 8772; I.C.A., sec. 19-902.]
A challenge to an individual grand juror may be interposed for one or more of the following causes:
That he is a minor.
That he is an alien.
That he is insane.
That he is a prosecutor upon a charge against the defendant.
That he is a witness on the part of the prosecution, and has been served with process or bound by an undertaking as such.
That he has formed or expressed an unqualified opinion or belief that the defendant is guilty or not guilty of the offense charged; but a hypothetical opinion, founded on hearsay or information supposed to be true, unaccompanied with malice or ill will, shall not disqualify a grand juror or be a cause of challenge.
That a state of mind exists on his part in reference to the case, or to either party, which satisfies the court that he cannot act impartially and without prejudice to the substantial rights of the party challenging.
[(19-1003) Cr. Prac. 1864, sec. 179, 235; R.S., R.C., & C.L., sec. 7609; C.S., sec. 8773; I.C.A., sec. 19-903.]
The challenges mentioned in the last three sections may be oral, or in writing, and must be tried by the court.
[(19-1004) Cr. Prac. 1864, sec. 180, 235; R.S., R.C., & C.L., sec. 7610; C.S., sec. 8774; I.C.A., sec. 19-904.]
The court must allow or disallow the challenge, and the clerk must enter its decisions upon the minutes.
[(19-1005) Cr. Prac. 1864, sec. 181, 235; R.S., R.C., & C.L., sec. 7611; C.S., sec. 8775; I.C.A., sec. 19-905.]
If a challenge to the panel is allowed the grand jury are prohibited from inquiring into the charge against the defendant, by whom the challenge was interposed. If, notwithstanding, they do so, and find an indictment against him, the court must direct it to be set aside.
[(19-1006) Cr. Prac. 1864, sec. 182, p, 235; R.S., R.C., & C.L., sec. 7612; C.S., sec. 8776; I.C.A., sec. 19-906.]
If a challenge to an individual grand juror is allowed he can not be present or take part in the consideration of the charge as to which he was challenged against the defendant who interposed the challenge, or the deliberations of the grand jury thereon. The grand jury must inform the court of a violation of this section, and it is punishable by the court as a contempt.
[(19-1007) Cr. Prac. 1864, secs. 183, p. 235, 184; R.S., R.C., & C.L., sec. 7613; C.S., sec. 8777; I.C.A., sec. 19-907.]
If more than three challenges to individual grand jurors are allowed to the same defendant in reference to the same charge, the court must fill the panel to sixteen as to that charge by causing a sufficient number of competent jurors from those summoned and not before called, or if a sufficient number are not in attendance, then from the bystanders or from the body of the county to be sworn to act as jurors with the regular panel, upon the examination of that charge; and, if necessary to secure the full number of sixteen competent jurors, the court may require the sheriff to summon the required number.
[(19-1008) R.S., R.C., & C.L., sec. 7614; C.S., sec. 8778; I.C.A., sec. 19-908.]
A person held to answer to a charge for a public offense can take advantage of any objection to the panel or to any individual grand juror in no other mode than by challenge.
[(19-1009) Cr. Prac. 1864, sec. 185, p. 235; R.S., R.C., & C.L., sec. 7615; C.S., sec. 8779; I.C.A., sec. 19-909.]
From the persons summoned to serve as grand jurors and appearing, the court must appoint a foreman. The court must also appoint a foreman when the person already appointed is excused or discharged before the grand jury is dismissed.
[(19-1010) Cr. Prac. 1864, sec. 186, p. 235; R.S., R.C., & C.L., sec. 7616; C.S., sec. 8780; I.C.A., sec. 19-910.]
The following oath must be administered to the foreman of the grand jury:
You, as foreman of the grand jury, will diligently inquire into and true presentment make, of all public offenses against the state of Idaho, committed or triable within this county, of which you shall have or can obtain legal evidence. You will keep your own counsel, and that of your fellows, and of the government, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said nor the manner in which you or any other grand juror may have voted in any matter before you. You will present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise or hope thereof; but in all your presentments you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, so help you God.
[(19-1011) Cr. Prac. 1864, sec. 187, p. 236; R.S., R.C., & C.L., sec. 7617; C.S., sec. 8781; I.C.A., sec. 19-911.]
The following oath must be immediately thereupon administered to the other grand jurors present:
The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part, so help you God.
[(19-1012) Cr. Prac. 1864, sec. 188, p. 236; R.S., R.C., & C.L., sec. 7618; C.S., sec. 8782; I.C.A., sec. 19-912.]
The grand jury being impaneled and sworn, must be charged by the court. In doing so, the court must give them such information as it may deem proper, or as is required by law, as to their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury.
[(19-1013) Cr. Prac. 1864, sec. 189, p. 236; R.S., R.C., & C.L., sec. 7619; C.S., sec. 8783; I.C.A., sec. 19-913.]
The grand jury must then retire to a private room and inquire into the offenses cognizable by them. On the completion of the business before them, they must be discharged by the final adjournment of the court.
[(19-1014) Cr. Prac. 1864, secs. 190, 191, p. 236; R.S., R.C., & C.L., sec. 7620; C.S., sec. 8784; I.C.A., sec. 19-914.]
If an offense is committed during the sitting of the court, after the discharge of the grand jury, the court may, in its discretion, direct an order to be entered that the sheriff summon another grand jury.
[(19-1015) Cr. Prac. 1864, sec. 192, p. 236; R.S., R.C., & C.L., sec. 7621; C.S., sec. 8785; I.C.A., sec. 19-915.]
The order must require the sheriff to summon twenty persons, qualified to serve as grand jurors, to appear at a time specified, and a copy thereof, under the seal of the court, must, by the clerk be delivered to the sheriff.
[(19-1016) Cr. Prac. 1864, sec. 193. p. 236; R.S., R.C., & C.L., sec. 7622; C.S., sec. 8786; I.C.A., sec. 19-916.]
The sheriff must execute the order and return it, with a list of names of the persons summoned.
[(19-1017) Cr. Prac. 1864, sec. 194, p. 236; R.S., R.C., & C.L., sec. 7623; C.S., sec. 8787; I.C.A., sec. 19-917.]
At the time appointed the list must be called over, and the names of those in attendance be written by the clerk on separate ballots and put into a box, from which a grand jury must be drawn.
[(19-1018) Cr. Prac. 1864, sec. 195, p. 236; R.S., R.C., & C.L., sec. 7624; C.S., sec. 8788; I.C.A., sec. 19-918.]
The grand jury must inquire into all public offenses committed or triable within the county, and present them to the court, either by presentment or by indictment.
[(19-1101) Cr. Prac. 1864, sec. 201, p. 237; R.S., R.C., & C.L., sec. 7630; C.S., sec. 8789; I.C.A., sec. 19-1001.]
A presentment is a formal statement in writing, by the grand jury, representing to the court that a public offense has been committed which is triable in the county, and that there is reasonable ground for believing that a particular individual named or described therein has committed it.
[(19-1102) Cr. Prac. 1864, sec. 203, p. 237; R.S., R.C., & C.L., sec. 7631; C.S., sec. 8790; I.C.A., sec. 19-1002.]
An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense.
[(19-1103) Cr. Prac. 1864, sec. 202, p. 237; R.S., R.C., & C.L., sec. 7632; C.S., sec. 8791; I.C.A., sec. 19-1003.]
The foreman may administer an oath to any witness appearing before the grand jury.
[(19-1104) Cr. Prac. 1864, sec. 204, p. 237; R.S., R.C., & C.L., sec. 7633; C.S., sec. 8792; I.C.A., sec. 19-1004.]
In the investigation of a charge for the purpose of either presentment or indictment, the grand jury can receive any evidence that is given by witnesses produced and sworn before them except as hereinafter provided, furnished by legal documentary evidence, the deposition of a witness in the cases provided by this code or legally admissible hearsay. No witness whose testimony has been taken and reduced to writing on a preliminary examination must be subpoenaed or required to appear before the grand jury, until such testimony has been first submitted to and considered by the grand jury, but if such testimony has been lost or cannot be found, or if the grand jury after considering the same still desires the presence of any such witnesses, they may be subpoenaed.
[(19-1105) Cr. Prac. 1864, secs. 205, 206, p. 237; R.S., R.C., & C.L., sec. 7634; C.S., sec. 8793; I.C.A., sec. 19-1005; am. 1989, ch. 49, sec. 1, p. 62.]
The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence within their reach will explain away the charge, they should order such evidence to be produced, and for that purpose may require the prosecuting attorney to issue process for the witnesses.
[(19-1106) Cr. Prac. 1864, sec. 207, p. 237; R.S., R.C., & C.L., sec. 7635; C.S., sec. 8794; I.C.A., sec. 19-1006.]
The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury.
[(19-1107) Cr. Prac. 1864, sec. 208, p. 238; R.S., R.C., & C.L., sec. 7636; C.S., sec. 8795; I.C.A., sec. 19-1007.]
If a member of a grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow jurors, who must thereupon investigate the same.
[(19-1108) Cr. Prac. 1864, sec. 209, p. 238; R.S., R.C., & C.L., sec. 7637; C.S., sec. 8796; I.C.A., sec. 19-1008.]
They are also entitled to free access, at all reasonable times, to the public prisons, and to the examination, without charge, of all public records within the county.
[(19-1110) Cr. Prac. 1864, sec. 211, p. 238; R.S., R.C., & C.L., sec. 7639; C.S., sec. 8798; I.C.A., sec. 19-1010.]
The grand jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the prosecuting attorney; but unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The prosecuting attorney of the county may at all times appear before the grand jury for the purpose of giving them information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he think it necessary, but no other person is permitted to be present during the sessions of the grand jury, except the members, witnesses actually under examination, an interpreter when necessary, a supporting person for a child witness requested by the prosecuting attorney as authorized by section 19-3023, Idaho Code, and the person designated by the district judge or the presiding juror to report the proceedings, and no person must be permitted to be present during the expressions of their opinions, or giving their votes upon any matter before them.
[(19-1111) Cr. Prac. 1864, sec. 212, p. 238; R.S., R.C., & C.L., sec. 7640; C.S., sec. 8799; I.C.A., sec. 19-1011; am. 2023, ch. 42, sec. 1, p. 177.]
Every member of the grand jury must keep secret whatever he himself, or any other grand juror may have said, or in what manner he or any other grand juror may have voted on a matter before them; and such matters shall be subject to disclosure according to chapter 1, title 74, Idaho Code, but may, however, be required by any court to disclose the testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any person, upon a charge against such person for perjury in giving his testimony, or upon trial therefor.
[(19-1112) Cr. Prac. 1864, secs. 213, 214, p. 238; R.S., R.C., & C.L., sec. 7641; C.S., sec. 8800; I.C.A., sec. 19-1012; am. 1990, ch. 213, sec. 13, p. 499; am. 2015, ch. 141, sec. 19, p. 401.]
A grand juror cannot be questioned for anything he may say, or any vote he may give in the grand jury relative to a matter legally pending before the jury, except for a perjury of which he may have been guilty, in making an accusation or giving testimony to his fellow jurors.
[(19-1113) Cr. Prac. 1864, sec. 215, p. 238; R.S., R.C., & C.L., sec. 7642; C.S., sec. 8801; I.C.A., sec. 19-1013.]
In any criminal proceeding or in any investigation or proceeding before a grand jury in connection with any criminal offense, if a person has advised the prosecuting attorney that he will refuse to answer a question or produce evidence, if called as a witness, on the ground that he may be incriminated thereby, the person may agree in writing with the prosecuting attorney of the county to testify voluntarily pursuant to this section. Upon written request of such prosecuting attorney being made to the district court in and for that county, said district court shall approve such written agreement, unless the court finds that to do so would be clearly contrary to the public interest. If after court approval of such agreement, and if, but for this section, the person would have been privileged to withhold the answer given or the evidence produced by him, the answer given, or evidence produced, and any information directly or indirectly derived from the answer or evidence, may not be used against the person in any manner in a criminal case but the person may, nevertheless, be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering or in producing evidence in accordance with such agreement. If such person fails to give any answer or to produce any evidence in accordance with such agreement, that person shall be prosecuted or subjected to penalty or forfeiture in the same manner and to the same extent as he would be prosecuted or subjected to penalty or forfeiture but for this section: provided, that if such person fails to give any answer or to produce any evidence in accordance with such agreement, the prosecuting attorney may request the district court to compel the person to answer or produce evidence, in accordance with section 19-1115, Idaho Code.
[19-1114, added 1970, ch. 60, sec. 1, p. 146; am. 2000, ch. 238, sec. 1, p. 668.]
In any criminal proceeding or in any investigation or proceeding before a grand jury in connection with any criminal offense, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and if the prosecuting attorney of the county in writing requests the district court in and for that county to order that person to answer the question or produce the evidence, a judge of the district court shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, the answer given, or evidence produced, and any information directly or indirectly derived from the answer or evidence, may not be used against the compelled person in any manner in a criminal case, except that he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order.
[19-1115, added 1970, ch. 60, sec. 2, p. 146; am. 2000, ch. 238, sec. 2, p. 669.]
Upon the petition by affidavit of a prosecuting attorney of any county of the state of Idaho for the appointment of a special inquiry judge to conduct an inquiry into the existence of suspected crime or corruption within his jurisdiction, the administrative district court judge of the judicial district wherein the county is situated, may designate a judge from the magistrate division of the district court to preside over said inquiry.
[19-1116, added 1980, ch. 251, sec. 1, p. 661.]
(1) When the prosecuting attorney of any county has reason to suspect crime or corruption, within his jurisdiction, and there is reason to suspect that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption, such attorney may issue subpoenas directed to such persons commanding them to appear at a designated time and place in said county before the special inquiry judge and to then and there answer such questions under oath concerning the suspected crime or corruption as may be asked by the prosecuting attorney or special inquiry judge.
(2) At any time after service of such subpoenas and before the return date thereof, the prosecuting attorney may apply to the special inquiry judge for an order vacating or modifying the subpoena on the grounds that such is in the public interest. Upon such application, the court may in its discretion vacate the subpoena, extend its return date, attach reasonable conditions to directions, or make such other qualification thereof as is appropriate.
(3) The proceedings to summon a person and compel him to testify or provide evidence shall as far as possible be the same as proceedings to summon witnesses and compel their attendance. Such persons shall receive only those fees paid witnesses in district court criminal trials.
[19-1117, added 1980, ch. 251, sec. 2, p. 661.]
The judge serving as a special inquiry judge shall be disqualified from acting as a magistrate or judge in any subsequent court proceeding arising from such inquiry except alleged contempt for neglect or refusal to appear, testify or provide evidence at such inquiry in response to an order, summons or subpoena.
[19-1118, added 1980, ch. 251, sec. 3, p. 662.]
Upon petition of a prosecuting attorney to the special inquiry judge that there is reason to suspect that there exists evidence of crime and corruption in another county, and with the concurrence of the special inquiry judge and prosecuting attorney of the other county, the special inquiry judge shall direct the prosecuting attorney of the initiating county to attend and participate in special inquiry judge proceedings in the other county held to inquire into crime and corruption which relates to crime or corruption under investigation in the initiating county. The proceedings of such special inquiry judge may be transcribed, certified and filed in the county of the initiating prosecuting attorney’s jurisdiction at the expense of that county.
[19-1119, added 1980, ch. 251, sec. 4, p. 662.]
(1) A prosecuting attorney may call as a witness, in a special inquiry judge proceeding, any person suspected by him to possess information or knowledge relevant thereto and may issue legal process and subpoena to compel his attendance and the production of evidence.
(2) The special inquiry judge may cause to be called as a witness any person suspected by him to possess relevant information or knowledge. If the special inquiry judge desires to hear any such witness who was not called by a prosecuting attorney, it may direct the prosecuting attorney to issue and serve a subpoena upon such witness and the prosecuting attorney must comply with such direction.
[19-1120, added 1980, ch. 251, sec. 5, p. 662.]
Any individual called to testify before a special inquiry judge, whether as a witness or principal, if not represented by an attorney appearing with the witness before the special inquiry judge, must be told of his privilege against self-incrimination. Such an individual must be informed that he has the right to have an attorney present to advise him as to his rights, obligations and duties before the special inquiry judge. Such attorney may be present as an observer and advisor during all proceedings, unless immunity has been granted pursuant to sections 19-1114, 19-1115 or 19-1122, Idaho Code. After immunity has been granted, such an individual may leave the special inquiry room to confer with his attorney.
[19-1121, added 1980, ch. 251, sec. 6, p. 663.]
If in any proceedings before a special inquiry judge, a person refuses, or indicates in advance a refusal, to testify or provide evidence of any other kind on the ground that he may be incriminated thereby, and if a prosecuting attorney requests the court to order that person to testify or provide the evidence, the court shall then hold a hearing and shall so order unless it finds that to do so would be clearly contrary to the public interest, and that person shall comply with the order.
If, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but none of the testimony nor evidence presented by the witness relative to the issue under investigation before the special inquiry judge, nor any information directly or indirectly derived from his testimony, can be used against him in any further criminal proceeding. He may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or for offering false evidence to the special inquiry judge.
[19-1122, added 1980, ch. 251, sec. 7, p. 663.]
(1) No individual, who is present during a special inquiry judge proceeding or who shall gain information with regard to said inquiry, shall disclose the testimony of a witness examined before the special inquiry judge or other evidence received by him, except such testimony or evidence may be disclosed in the following cases: when the district court requires disclosure of such testimony to determine whether it is consistent with testimony given by the witness before district court; by a prosecuting attorney when communicating with any law enforcement officer; upon a charge against the witness for perjury in giving his testimony in the special inquiry judge proceeding or upon trial therefor; or when permitted by the district court in the furtherance of justice.
(2) The prosecuting attorney shall have access to all special inquiry judge evidence and may introduce such evidence before any grand jury or judicial proceeding in which the same may be relevant.
(3) Any witness testimony, given before a special inquiry judge and relevant to any subsequent proceeding against the witness, shall be made available to the witness upon proper application to the district court. The district court may also, upon proper application and upon a showing of good cause, make available to a defendant in a subsequent criminal proceeding other testimony or evidence when given or presented before a special inquiry judge, if the court finds that doing so is necessary to prevent an injustice and that there is no reason to believe that doing so would endanger the life or safety of any witness or his family. The cost of any such transcript made available shall be borne by the applicant.
[19-1123, added 1980, ch. 251, sec. 8, p. 663.]
A presentment cannot be found without the concurrence of at least twelve (12) grand jurors. When so found, it must be signed by the foreman.
[(19-1201) Cr. Prac. 1864, sec. 216, p. 239; R.S., R.C., & C.L., sec. 7647; C.S., sec. 8802; I.C.A., sec. 19-1101.]
The presentment, when found, must be presented by the foreman, in presence of the grand jury, to the court, and must be filed with the clerk.
[(19-1202) Cr. Prac. 1864, sec. 217, p. 239; R.S., R.C., & C.L., sec. 7648; C.S., sec. 8803; I.C.A., sec. 19-1102.]
If the facts stated in the presentment constitute a public offense, triable in the county, the court must direct the clerk to issue a bench warrant for the arrest of the defendant.
[(19-1203) Cr. Prac. 1864, sec. 220, p. 239; R.S., R.C., & C.L., sec. 7649; C.S., sec. 8804; I.C.A., sec. 19-1103.]
The clerk, on the application of the judge or prosecuting attorney, may accordingly, at any time after the order, whether the court be sitting or not, issue a bench warrant under his signature and the seal of the court into one or more counties.
[(19-1204) Cr. Prac. 1864, sec. 221, p. 239; R.S., R.C., & C.L., sec. 7650; C.S., sec. 8805; I.C.A., sec. 19-1104.]
The bench warrant, upon presentment, must be substantially in the following form:
County of ….. The state of Idaho to any sheriff, constable, marshal or policeman in this state: A presentment having been made on the …. day of …., …. to the district court of the county of …., charging C.D. with the crime of …., (designating it generally) you are therefore commanded forthwith to arrest the above named C.D., and take him before E.F., a magistrate of this county, or in case of his absence or inability to act, before the nearest and most accessible magistrate in this county. Given under my hand with the seal of said court affixed, this …. day of …., …..
By order of the court.
(Seal.)
[(19-1205) Cr. Prac. 1864, sec. 222, p. 239; R.S., R.C., & C.L., sec. 7651; C.S., sec. 8806; I.C.A., sec. 19-1105; am. 2007, ch. 90, sec. 10, p. 251.]
The bench warrant may be served in any county, and the officer serving it must proceed thereon as upon a warrant of arrest on an information.
[(19-1206) Cr. Prac. 1864, sec. 223, p. 239; R.S., R.C., & C.L., sec. 7652; C.S., sec. 8807; I.C.A., sec. 19-1106.]
The magistrate, when the defendant is brought before him, must proceed upon the charges contained in the presentment, in the same manner as upon a warrant of arrest on an information.
[(19-1207) Cr. Prac. 1864, sec. 224, p. 239; R.S., R.C., & C.L., sec. 7653; C.S., sec. 8808; I.C.A., sec. 19-1107.]
The several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try, and determine prosecutions upon information for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein as they possess and may exercise in cases of like prosecutions upon indictments.
[(19-1301) 1890-1891, p. 184, sec. 1; reen. 1899, p. 125, sec. 1; reen. R.C. & C.L., sec. 7655; C.S., sec. 8809; I.C.A., sec. 19-1201.]
All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney as informant to which he shall subscribe his name.
[(19-1302) 1890-1891, p. 184, sec. 2; reen. 1899, p. 125, sec. 2; am. R.C., sec. 7656; am. 1913, ch. 41, p. 144; am. 1915, ch. 68, sec. 1, p. 176; reen. C.L., sec. 7656; C.S., sec. 8810; I.C.A., 19-1202; am. 1989, ch. 343, sec. 1, p. 867.]
The offense charged in all informations shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases, and in all cases defendant or defendants shall have the same rights as to proceedings therein as he or they would have if prosecuted for the same offense upon indictment.
[(19-1303) 1890-1891, p. 184, sec. 3; am. 1893, p. 164, sec. 1; reen. 1899, p. 125, sec. 3; reen. R.C. & C.L., sec. 7657; C.S., sec. 8811; I.C.A., sec. 19-1203.]
The provisions of this code in relation to indictments, and all other provisions of law applying to prosecutions upon indictments, to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments, or the execution of any sentence, and to all other proceedings in cases of indictment, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as near as may be, apply to informations and all prosecutions and proceedings thereon.
[(19-1304) 1890-1891, p. 184, sec. 4; reen. 1899, p. 125, sec. 4; am. R.C. & C.L., sec. 7658; C.S., sec. 8812; I.C.A., sec. 19-1204.]
Any person who may according to law be committed to jail, or become recognized or held to bail with sureties for his appearance in court to answer to any indictment may, in like manner, so be committed to jail or become recognized and held to bail for his appearance to answer to any information or indictment, as the case may be.
[(19-1305) 1890-1891, p. 184, sec. 5; reen. 1899, p. 125, sec. 5; reen. R.C. & C.L., sec. 7659; C.S., sec. 8813; I.C.A., sec. 19-1205.]
It shall be the duty of the prosecuting attorney to inquire into and make full examination of all the facts and circumstances connected with any case of preliminary examination as provided by law, touching the commission of any offense wherein the offender shall be committed to jail or become recognized or held to bail, and if the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe and file with the clerk of the court a statement in writing containing his reasons, in fact and in law, for not filing an information in such case, and such statement shall be filed at and during the term of court at which the offender shall be held for his appearance: provided, that in such case such court may examine said statement, together with the evidence filed in the case; and if, upon such examination, the court shall not be satisfied with said statement, the prosecuting attorney shall be directed by the court to file the proper information and bring the case to trial.
[(19-1306) 1890-1891, p. 184, sec. 6; reen. 1899, p. 125, sec. 6; reen. R.C. & C.L., sec. 7660; C.S., sec. 8814; I.C.A., sec. 19-1206.]
Grand juries shall not hereafter be drawn, summoned, or required to attend at the sittings of any court within the state, as provided by law, unless the judge thereof shall so direct in writing, under his hand, and filed with the clerk of said court.
[(19-1307) 1890-1891, p. 184, sec. 7; reen. 1899, p. 125, sec. 7; reen. R.C. & C.L., sec. 8815; I.C.A., sec. 19-1207.]
No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: provided, that information may be filed without such examination against fugitives from justice, and any fugitive from justice against whom an information shall be filed may be demanded by the governor of this state of the executive authority of any other state or territory, or of any foreign government, in the same manner, and the same proceedings may be had thereon, as provided by law in like cases of demand upon indictment filed.
[(19-1308) 1890-1891, p. 184, sec. 8; reen. 1899, p. 125, sec. 8; reen. R.C. & C.L., sec. 7662; C.S., sec. 8816; I.C.A., sec. 19-1208.]
(1) Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph any relevant:
(a) written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney,
(b) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney, and
(c) recorded testimony of the defendant before a grand jury.
(2) Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subsection (1)(b), this section does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by state agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the defendant) to agents of the state.
(3) If the court grants relief sought by the defendant under subsection (1)(b) or subsection (2) of this section, it may, upon motion of the state, condition its order by requiring that the defendant permit the state to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at the trial and which are within his possession, custody or control, upon a showing of materiality to the preparation of the state’s case and that the request is reasonable. Except as to scientific or medical reports, this subsection does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, his agents or attorneys.
(4) An order of the court granting relief under this section shall specify the time, place and manner of making the discovery and inspection permitted and may prescribe such terms and conditions as are just.
(5) Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred, or make such other order as is appropriate. Upon motion by the state, the court may permit the state to make such showing, in whole or in part, in the form of a written statement to be inspected by the court in camera. If the court enters an order granting relief following a showing in camera, the entire text of the state’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.
(6) A motion under this section may be made only within ten (10) days after arraignment or at such reasonable later time as the court may permit. The motion shall include all relief sought under this section. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.
(7) If, subsequent to compliance with an order issued pursuant to this section, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under the section, he shall promptly notify the other party or his attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
[I.C., sec. 19-1309, as added by 1969, ch. 243, sec. 1, p. 761.]
An indictment cannot be found without the concurrence of at least twelve (12) grand jurors. When so found it must be endorsed, a true bill, and the endorsement must be signed by the foreman of the grand jury.
[(19-1401) Cr. Prac. 1864, sec. 225, p. 241; R.S., R.C., & C.L., sec. 7665; C.S., sec. 8817; I.C.A., sec. 19-1301.]
If twelve (12) grand jurors do not concur in finding an indictment against a defendant who has been held to answer, the depositions, if any, transmitted to them must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.
[(19-1402) Cr. Prac. 1864, sec. 226, p. 241; R.S., R.C., & C.L., sec. 7666; C.S., sec. 8818; I.C.A., sec. 19-1302.]
The dismissal of the charge does not prevent its resubmission to a grand jury as often as the court may direct, but without such direction it cannot be resubmitted.
[(19-1403) Cr. Prac. 1864, sec. 227, p. 241; R.S., R.C., & C.L., sec. 7667; C.S., sec. 8819; I.C.A., sec. 19-1303.]
When an indictment is found, the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, must be inserted at the foot of the indictment, or endorsed thereon, before it is presented to the court.
[(19-1404) Cr. Prac. 1864, sec. 228, p. 241; R.S., R.C., & C.L., sec. 7668; C.S., sec. 8820; I.C.A., sec. 19-1304.]
An indictment, when found by the grand jury, must be presented by their foreman, in their presence, to the court, and must be filed with the clerk.
[(19-1405) Cr. Prac. 1864, sec. 229, p. 241; R.S., R.C., & C.L., sec. 7669; C.S., sec. 8821; I.C.A., sec. 19-1305.]
When an indictment is found against a defendant not in custody, the same proceedings must be had as are described by sections 19-1501 to 19-1516, against a defendant who fails to appear for arraignment.
[(19-1406) Cr. Prac. 1864, sec. 230, p. 241; R.S., R.C., & C.L., sec. 7670; C.S., sec. 8822; I.C.A., sec. 19-1306.]
All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code.
[(19-1407) Cr. Prac. 1864, sec. 231, p. 241; R.S., R.C., & C.L., sec. 7675; C.S., sec. 8823; I.C.A., sec. 19-1307.]
The first pleading on the part of the people is the indictment.
[(19-1408) Cr. Prac. 1864, sec. 232, p. 242; R.S., R.C., & C.L., sec. 7676; C.S., sec. 8824; I.C.A., sec. 19-1308.]
The indictment must contain:
The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties.
A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.
[(19-1409) Cr. Prac. 1864, sec. 233, p. 242; R.S., R.C., & C.L., sec. 7677; C.S., sec. 8825; I.C.A., sec. 19-1309.]
It may be substantially in the following form:
The state of Idaho against A.B., in the district court of the …. judicial district, in the county of ….. …. term, …..
A.B. is accused by the grand jury of the county of …. by this indictment, of the crime of (giving its legal appellation, such as murder, arson, or the like), committed as follows:
The said A.B., on the …. day of …., …., at the county of …., (here set forth the act or omission charged as an offense).
[(19-1410) Cr. Prac. 1864, sec. 234, p. 242; R.S., R.C., & C.L., sec. 7678; C.S., sec. 8826; I.C.A., sec. 19-1310; am. 2002, ch. 32, sec. 3, p. 48.]
It must be direct and certain as it regards:
The party charged.
The offense charged.
The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.
[(19-1411) Cr. Prac. 1864, sec. 235, p. 242; R.S., R.C., & C.L., sec. 7679; C.S., sec. 8827; I.C.A., sec. 19-1311.]
When a defendant is indicted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being indicted by the name mentioned in the indictment.
[(19-1412) Cr. Prac. 1864, sec. 236, p. 242; R.S., R.C., & C.L., sec. 7680; C.S., sec. 8828; I.C.A., sec. 19-1312.]
The precise time at which the offense was committed need not be stated in the indictment; but it may be alleged to have been committed at any time before the finding thereof, except where the time is a material ingredient in the offense.
[(19-1414) Cr. Prac. 1864, sec. 238, p. 242; R.S., R.C., & C.L., sec. 7682; C.S., sec. 8830; I.C.A., sec. 19-1314.]
When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.
[(19-1415) Cr. Prac. 1864, sec. 239, p. 242; R.S., R.C., & C.L., sec. 7683; C.S., sec. 8831; I.C.A., sec. 19-1315.]
The words used in an indictment are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning.
[(19-1416) Cr. Prac. 1864, sec. 240, p. 242; R.S., R.C., & C.L., sec. 7684; C.S., sec. 8832; I.C.A., sec. 19-1316.]
Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used.
[(19-1417) Cr. Prac. 1864, sec. 241, p. 242; R.S., R.C., & C.L., sec. 7685; C.S., sec. 8833; I.C.A., sec. 19-1317.]
The indictment is sufficient if it can be understood therefrom:
That it is entitled in a court having authority to receive it, though the name of the court be not stated.
That it was found by a grand jury of the county in which the court was held.
That the defendant is named, or, if his name cannot be discovered that he is described by a fictitious name, with a statement that his true name is to the jury unknown.
That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
That the offense was committed at some time prior to the time of finding the indictment.
That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case.
[(19-1418) Cr. Prac. 1864, sec. 242, p. 243; R.S., R.C., & C.L., sec. 7686; C.S., sec. 8834; I.C.A., sec. 19-1318.]
No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits.
[(19-1419) Cr. Prac. 1864, sec. 243, p. 243; R.S., R.C., & C.L., sec. 7687; C.S., sec. 8835; I.C.A., sec. 19-1319.]
An indictment or information may be amended by the prosecuting attorney without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.
[(19-1420) C.S., sec. 8835-A as added by 1929, ch. 72, sec. 1, p. 110; I.C.A., sec. 19-1320.]
Neither presumptions of law nor matters of which judicial notice is taken, need be stated in an indictment.
[(19-1421) Cr. Prac. 1864, sec. 244, p. 243; R.S., R.C., & C.L., sec. 7688; C.S., sec. 8836; I.C.A., sec. 19-1321.]
In pleading a judgment or other determination of, or proceeding before, a court or officer of special jurisdiction, it is not necessary to state the facts constituting jurisdiction; but the judgment or determination may be stated as given or made, or the proceedings had. The facts constituting jurisdiction, however, must be established on the trial.
[(19-1422) Cr. Prac. 1864, sec. 245, p. 243; R.S., R.C., & C.L., sec. 7689; C.S., sec. 8837; I.C.A., sec. 19-1322.]
In pleading a private statute, or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its passage, and the court must thereupon take judicial notice thereof.
[(19-1423) Cr. Prac. 1864, sec. 246, p. 243; R.S., R.C., & C.L., sec. 7690; C.S., sec. 8838; I.C.A., sec. 19-1323.]
An indictment for libel need not set forth any extrinsic facts for the purpose of showing the application to the party libeled, or of the defamatory matter on which the indictment is founded; but it is sufficient to state generally that the same was published concerning him, and the fact that it was so published must be established on the trial.
[(19-1424) Cr. Prac. 1864, sec. 247, p. 243; R.S., R.C., & C.L., sec. 7691; C.S., sec. 8839; I.C.A., sec. 19-1324.]
When an instrument which is the subject of an indictment for forgery has been destroyed or withheld by the act or the procurement of the defendant, and the fact of such destruction or withholding is alleged in the indictment and established on the trial, the misdescription of the instrument is immaterial.
[(19-1425) Cr. Prac. 1864, sec. 248, p. 243; R.S., R.C., & C.L., sec. 7692; C.S., sec. 8840; I.C.A., sec. 19-1325.]
In an indictment for perjury, or subornation of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to which the offense was committed, and in what court and before whom the oath alleged to be false was taken, and that the court, or the person before whom it was taken, had authority to administer it, with proper allegations of the falsity of the matter on which the perjury is assigned; but the indictment need not set forth the pleadings, record, or proceedings with which the oath is connected, nor the commission or authority of the court or person before whom the perjury was committed.
[(19-1426) Cr. Prac. 1864, sec. 249, p. 244; R.S., R.C., & C.L., sec. 7693; C.S., sec. 8841; I.C.A., sec. 19-1326.]
In an indictment for the larceny or embezzlement of money, bank notes, certificates of stock, or valuable securities, or for a conspiracy to cheat or defraud a person of any such property, it is sufficient to allege the larceny or embezzlement, or the conspiracy to cheat and defraud, to be of money, bank notes, certificates of stock, or valuable securities, without specifying the coin, number, denomination, or kind thereof.
[(19-1427) R.S., R.C., & C.L., sec. 7694; C.S., sec. 8842; I.C.A., sec. 19-1327.]
An indictment for exhibiting, publishing, passing, selling, or offering to sell, or having in possession, with such intent, any lewd or obscene book, pamphlet, picture, print, card, paper, or writing, need not set forth any portion of the language used or figures shown upon such book, pamphlet, picture, print, card, paper, or writing; but it is sufficient to state generally the fact of the lewdness or obscenity thereof.
[(19-1428) R.S., R.C., & C.L., sec. 7695; C.S., sec. 8843; I.C.A., sec. 19-1328.]
Upon an indictment against several defendants, any one or more may be convicted or acquitted.
[(19-1429) Cr. Prac. 1864, sec. 250, p. 244; R.S., R.C., & C.L., sec. 7696; C.S., sec. 8844; I.C.A., sec. 19-1329.]
The distinction between an accessory before the fact and a principal and between principals in the first and second degree, in cases of felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.
[(19-1430) Cr. Prac. 1864, sec. 251, p. 244; R.S., R.C., & C.L., sec. 7697; C.S., sec. 8845; I.C.A., sec. 19-1330.]
An accessory to the commission of a felony may be indicted, tried, and punished, though the principal may be neither indicted nor tried.
[(19-1431) Cr. Prac. 1864, sec. 252, p. 244; R.S., R.C., & C.L., sec. 7698; C.S., sec. 8846; I.C.A., sec. 19-1331.]
Two (2) or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
[I.C., sec. 19-1432, as added by 1972, ch. 336, sec. 6, p. 987.]
In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any of the provisions of chapters 22, 25, 27, 28, 29, 30, 31, 32, or 33, title 37, Idaho Code, it shall not be necessary to negate any exception, excuse, proviso, or exemption, contained in those chapters, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.
[19-1433, added 1970, ch. 186, sec. 1, p. 540.]
When the indictment is filed, the defendant must be arraigned thereon before the court in which it is found.
[(19-1501) Cr. Prac. 1864, sec. 254, p. 244; R.S., R.C., & C.L., sec. 7710; C.S., sec. 8847; I.C.A., sec. 19-1401.]
If the indictment is for a felony the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel.
[(19-1502) Cr. Prac. 1864, sec. 255, p. 244; R.S., R.C., & C.L., sec. 7711; C.S., sec. 8848; I.C.A., sec. 19-1402.]
When his personal appearance is necessary, if he is in custody, the court may direct and the officer in whose custody he is must bring him before it to be arraigned.
[(19-1503) Cr. Prac. 1864, sec. 256, p. 244; R.S., R.C., & C.L., sec. 7712; C.S., sec. 8849; I.C.A., sec. 19-1403.]
If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear to be arraigned when his personal attendance is necessary, the court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.
[(19-1504) Cr. Prac. 1864, sec. 257, p. 244; R.S., R.C., & C.L., sec. 7713; C.S., sec. 8850; I.C.A., sec. 19-1404.]
The clerk, on the application of the prosecuting attorney, may, at any time after the order, whether the court is sitting or not, issue a bench warrant to one (1) or more counties.
[(19-1505) Cr. Prac. 1864, sec. 258, p. 245; R.S., R.C., & C.L., sec. 7714; C.S., sec. 8851; I.C.A., sec. 19-1405.]
The bench warrant upon the indictment must, if the offense be a felony, be substantially in the following form:
County of …..
The state of Idaho, to any sheriff, constable, marshal or policeman of this state:
An indictment having been found on the …. day of …., …., in the district court of the …. judicial district, in and for the county of …., charging C.D. with the crime of …. (designating it generally); you are therefore commanded forthwith to arrest the above named C.D., and bring him before that court to answer said indictment; or if the court has adjourned for the term, that you deliver him into the custody of the sheriff of the county of …..
Given under my hand with the seal of said court affixed, this …. day of …., …..
By order of said court.
(Seal.)
[(19-1506) Cr. Prac. 1864, sec. 259, p. 245; R.S., R.C., & C.L., sec. 7715; C.S., sec. 8852; I.C.A., sec. 19-1406; am. 2002, ch. 32, sec. 4, p. 48.]
The defendant, when arrested under a warrant for an offense not bailable, must be held in custody of the sheriff of the county in which the indictment is found, unless admitted to bail after an examination upon a writ of habeas corpus; but if the offense is bailable, there must be added to the body of the bench warrant a direction to the following effect, "or, if he requires it, that you take him before any magistrate in that county, or in the county in which you arrest him, that he may give bail to answer to the indictment"; and the court, upon directing it to issue, must fix the amount of bail, and an endorsement must be made thereon and signed by the clerk, to the following effect: "The defendant is to be admitted to bail in the sum of …. dollars."
[(19-1507) Cr. Prac. 1864, secs. 260-262, p. 245; R.S., R.C., & C.L., sec. 7716; C.S., sec. 8853; I.C.A., sec. 19-1407.]
The bench warrant may be served in any county, in the same manner as a warrant of arrest.
[(19-1508) Cr. Prac. 1864, sec. 263, p. 245; R.S., R.C., & C.L., sec. 7717; C.S., sec. 8854; I.C.A., sec. 19-1408.]
If the defendant is brought before a magistrate of another county for the purpose of giving bail, the magistrate must proceed in respect thereto in the same manner as if the defendant had been brought before him upon a warrant of arrest, and the same proceedings must be had thereon.
[(19-1509) Cr. Prac. 1864, sec. 264, p. 245; R.S., R.C., & C.L., sec. 7718; C.S., sec. 8855; I.C.A., sec. 19-1409.]
When the indictment is for a felony and the defendant, before the finding thereof, has given bail for his appearance to answer the charge, the court to which the indictment is presented may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order.
[(19-1510) Cr. Prac. 1864, sec. 265, p. 245; R.S., R.C., & C.L., sec. 7719; C.S., sec. 8856; I.C.A., sec. 19-1410.]
If the defendant is present when the order is made he must be forthwith committed. If he is not present a bench warrant must be issued and proceeded upon in the manner provided in this chapter.
[(19-1511) Cr. Prac. 1864, sec. 266, p. 246; R.S., R.C., & C.L., sec. 7720; C.S., sec. 8857; I.C.A., sec. 19-1411.]
If the defendant appears for arraignment without counsel he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel.
[(19-1512) Cr. Prac. 1864, sec. 267, p. 246; R.S., R.C. & C.L., sec. 7721; C.S., sec. 8858; I.C.A., sec. 19-1412; am. 1967, ch. 181, sec. 20, p. 599.]
The arraignment must be made by the court, or by the clerk or prosecuting attorney, under its direction, and consists in reading the indictment to the defendant and delivering to him a copy thereof and of the endorsements thereon, including the list of witnesses, and asking him whether he pleads guilty or not guilty to the indictment.
[(19-1514) Cr. Prac. 1864, sec. 268, p. 246; R.S., R.C., & C.L., sec. 7722; C.S., sec. 8860; I.C.A., sec. 19-1414.]
When the defendant is arraigned he must be informed that if the name by which he is indicted is not his true name, he must then declare his true name, or be proceeded against by the name in the indictment. If he gives no other name the court may proceed accordingly; but if he alleges that another name is his true name, the court must direct an entry thereof in the minutes of the arraignment, and the subsequent proceedings on the indictment may be had against him by that name, referring also to the name by which he is indicted.
[(19-1515) Cr. Prac. 1864, secs. 269-271, p. 246; R.S., R.C., & C.L., sec. 7723; C.S., sec. 8861; I.C.A., sec. 19-1415.]
If, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one (1) day, to answer the indictment. He may, in answer to the arraignment, move to set aside, demur, or plead to, the indictment.
[(19-1516) Cr. Prac. 1864, secs. 272, 273, p. 246; R.S., R.C., & C.L., sec. 7724; C.S., sec. 8862; I.C.A., sec. 19-1416.]
The indictment must be set aside by the court in which the defendant is arraigned, upon his motion, in either of the following cases:
When it is not found, endorsed and presented as prescribed in this code.
When the names of the witnesses examined before the grand jury, or whose depositions may have been read before them, are not inserted at the foot of the indictment, or endorsed thereon.
When a person is permitted to be present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as provided in chapter 11 of this title.
When the defendant has not been held to answer before the finding of the indictment, on any ground which would have been good ground for challenge, either to the panel or to any individual grand juror.
[(19-1601) Cr. Prac. 1864, secs. 274, 275, pp. 246 and 247; R.S., R.C., & C.L., sec. 7730; C.S., sec. 8863; I.C.A., sec. 19-1501; am. 1970, ch. 60, sec. 3, p. 146; am. 2003, ch. 140, sec. 1, p. 408.]
If the motion to set aside the indictment is not made the defendant is precluded from afterward taking the objections mentioned in the last section.
[(19-1602) Cr. Prac. 1864, sec. 276, p. 247; R.S., R.C., & C.L., sec. 7731; C.S., sec. 8864; I.C.A., sec. 19-1502.]
The motion must be heard at the time it is made, unless for cause the court postpones the hearing to another time. If the motion is denied, the defendant must immediately answer the indictment, either by demurring or pleading thereto. If the motion is granted, the court must order that the defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of bail, that the same be refunded to him, unless it directs that the case be resubmitted to the same or another grand jury.
[(19-1603) Cr. Prac. 1864, secs. 277-279, p. 247; R.S., R.C., & C.L., sec. 7732; C.S., sec. 8865; I.C.A., sec. 19-1503.]
If the court directs the case to be resubmitted, the defendant, if already in custody, must so remain, unless he is admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the appearance of the defendant to answer a new indictment; and, unless a new indictment is found before the next grand jury of the county is discharged, the court must, on the discharge of such grand jury, make the order prescribed by the preceding section.
[(19-1604) Cr. Prac. 1864, secs. 280, p. 247, 281; R.S., R.C., & C.L., sec. 7733; C.S., sec. 8866; I.C.A., sec. 19-1504.]
An order to set aside an indictment, as provided in this chapter, is no bar to a future prosecution for the same offense.
[(19-1605) Cr. Prac. 1864, sec. 282, p. 247; R.S., R.C., & C.L., sec. 7734; C.S., sec. 8867; I.C.A., sec. 19-1505.]
The only pleading on the part of the defendant is either a demurrer or a plea.
[(19-1701) Cr. Prac. 1864, sec. 283, p. 247; R.S., R.C., & C.L., sec. 7740; C.S., sec. 8868; I.C.A., sec. 19-1601.]
Both the demurrer and plea must be put in, in open court, either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.
[(19-1702) Cr. Prac. 1864, sec. 284, p. 247; R.S., R.C., & C.L., sec. 7741; C.S., sec. 8869; I.C.A., sec. 19-1602.]
The defendant may demur to the indictment when it appears upon the face thereof, either:
That the grand jury by which it was found had no legal authority to inquire into the offense charged, by reason of its not being within the legal jurisdiction of the county.
That it does not substantially conform to the requirements of sections 19-1409, 19-1410 and 19-1411.
That more than one offense is charged in the indictment.
That the facts stated do not constitute a public offense.
That the indictment contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.
[(19-1703) Cr. Prac. 1864, sec. 285, p. 247; R.S., R.C., & C.L., sec. 7742; C.S., sec. 8870; I.C.A., sec. 19-1603.]
The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It must distinctly specify the grounds of objection to the indictment, or it must be disregarded.
[(19-1704) Cr. Prac. 1864, sec. 286, p. 248; R.S., R.C., & C.L., sec. 7743; C.S., sec. 8871; I.C.A., sec. 19-1604.]
Upon the demurrer being filed, the argument upon the objections presented thereby must be heard, either immediately or at such time as the court may appoint.
[(19-1705) Cr. Prac. 1864, sec. 287, p. 248; R.S., R.C., & C.L., sec. 7744; C.S., sec. 8872; I.C.A., sec. 19-1605.]
Upon considering the demurrer, the court must give judgment either allowing or disallowing it, and an order to that effect must be entered upon the minutes.
[(19-1706) Cr. Prac. 1864, sec. 288, p. 248; R.S., R.C., & C.L., sec. 7745; C.S., sec. 8873; I.C.A., sec. 19-1606.]
If the demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or another grand jury.
[(19-1707) Cr. Prac. 1864, sec. 289, p. 248; R.S., R.C., & C.L., sec. 7746; C.S., sec. 8874; I.C.A., sec. 19-1607.]
If the court does not direct the case to be resubmitted, the defendant, if in custody, must be discharged, or if admitted to bail, his bail is exonerated, or if he has deposited money instead of bail, the money must be refunded to him.
[(19-1708) Cr. Prac. 1864, sec. 290, p. 248; R.S., R.C., & C.L., sec. 7747; C.S., sec. 8875; I.C.A., sec. 19-1608.]
If the court directs that the case be resubmitted, the same proceedings must be had thereon as when the indictment is set aside on motion.
[(19-1709) Cr. Prac. 1864, sec. 291, p. 248; R.S., R.C., & C.L., sec. 7748; C.S., sec. 8876; I.C.A., sec. 19-1609.]
If the demurrer is disallowed, the court must permit the defendant at his election to plead, which he must do forthwith, or at such time as the court may direct. If he does not plead, the plea of not guilty must be entered for him.
[(19-1710) Cr. Prac. 1864, sec. 292, p. 248; R.S., R.C., & C.L., sec. 7749; C.S., sec. 8877; I.C.A., sec. 19-1610.]
When the objections declared grounds of demurrer by this chapter appear upon the face of the indictment, they can only be taken by demurrer, except that the objections to the jurisdiction of the court over the subject of the indictment, or that the facts stated do not constitute a public offense, may be taken at the trial under the plea of not guilty, or after the trial in arrest of judgment.
[(19-1711) Cr. Prac. 1864, sec. 293, p. 248; R.S., R.C., & C.L., sec. 7750; C.S., sec. 8878; I.C.A., sec. 19-1611.]
There are four (4) kinds of pleas to an indictment. A plea of:
Guilty.
Not guilty.
A former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty.
Once in jeopardy.
[(19-1712) Cr. Prac. 1864, sec. 294, p. 248; R.S., R.C., & C.L., sec. 7755; C.S., sec. 8879; I.C.A., sec. 19-1612.]
Every plea must be oral, and entered upon the minutes of the court in substantially the following form:
If the defendant pleads guilty: "The defendant pleads that he is guilty of the offense charged."
If he pleads not guilty: "The defendant pleads that he is not guilty of the offense charged."
If he pleads a former conviction or acquittal: "The defendant pleads that he has already been convicted (or acquitted) of the offense charged by the judgment of the court of …. (naming it) rendered at …. (naming the place), on the …. day of ….."
If he pleads once in jeopardy: "The defendant pleads that he has been once in jeopardy for the offense charged (specifying the time, place and court)."
[(19-1713) Cr. Prac. 1864, secs. 295, 296, p. 248; R.S., R.C., & C.L., sec. 7756; C.S., sec. 8880; I.C.A., sec. 19-1613.]
A plea of guilty can be put in by the defendant himself only in open court, unless upon indictment against a corporation, in which case it may be put in by counsel. The court may at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted: provided, that upon the application of the defendant, a plea of guilty may be received, and sentence may be passed, at chambers as provided in section 1-901.
[(19-1714) Cr. Prac. 1864, secs. 297, 298, p. 249; R.S., sec. 7757; am. R.C. & C.L., sec. 7757; C.S., sec. 8881; I.C.A., sec. 19-1614.]
The plea of not guilty puts in issue every material allegation of the indictment, information or complaint except that mental disease or defect excluding responsibility may be raised as a defense only in the manner provided for in this act.
[(19-1715) Cr. Prac. 1864, sec. 299, p. 249; R.S., R.C., & C.L., sec. 7758; C.S., sec. 8882; I.C.A., sec. 19-1615; am. 1970, ch. 31, sec. 13, p. 61.]
All matters of fact tending to establish a defense other than former conviction or acquittal, or once in jeopardy, may be given in evidence under the plea of not guilty.
[(19-1716) Cr. Prac. 1864, sec. 300, p. 249; R.S., R.C., & C.L., sec. 7759; C.S., sec. 8883; I.C.A., sec. 19-1616.]
If the defendant was formerly acquitted on the ground of variance between the indictment and the proof, or the indictment was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.
[I.C., sec. 19-1717 as added by 1972, ch. 336, sec. 7, p. 987.]
Whenever the defendant is acquitted on the merits he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment on which the trial was had.
[I.C., sec. 19-1718 as added by 1972, ch. 336, sec. 7, p. 987.]
When the defendant is convicted or acquitted, or has once been placed in jeopardy upon an indictment, the conviction, acquittal or jeopardy is a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense included therein, of which he might have been convicted under that indictment.
[I.C., sec. 19-1719 as added by 1972, ch. 336, sec. 7, p. 987.]
If the defendant refuses to answer the indictment by demurrer or plea, a plea of not guilty must be entered.
[(19-1720) Cr. Prac. 1864, sec. 304, p. 249; R.S., R.C., & C.L., sec. 7763; C.S., sec. 8887; I.C.A., sec. 19-1620.]
A criminal action, prosecuted by indictment, may be removed from the court in which it is pending, on the application of the defendant, on the ground that a fair and impartial trial cannot be had in the county where the indictment is pending.
[(19-1801) Cr. Prac. 1864, sec. 305, p. 249; R.S., R.C., & C.L., sec. 7768; C.S., sec. 8888; I.C.A., sec. 19-1701.]
The application must be made in open court and in writing, verified by the affidavit of the defendant, a copy of which must be served upon the prosecuting attorney at least one (1) day before the application is made. Whenever the affidavit shows that the defendant can not safely appear in person to make the application, because the popular excitement against him is so great as to endanger his personal safety, and such statement is sustained by other testimony, the application may be made by counsel, and heard and determined in the absence of the defendant, though he is indicted for felony, and has not at the time of such application been arrested, or given bail, or been arraigned, or pleaded or demurred to the indictment.
[(19-1802) Cr. Prac. 1864, sec. 306, p. 249; R.S., R.C., & C.L., sec. 7769; C.S., sec. 8889; I.C.A., sec. 19-1702.]
If the court is satisfied that the representation of the defendant is true, an order must be made for the removal of the action to the proper court of a county free from a like objection.
[(19-1803) Cr. Prac. 1864, sec. 307, p. 249; R.S., R.C., & C.L., sec. 7770; C.S., sec. 8890; I.C.A., sec. 19-1703.]
The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal, record, pleadings and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses.
[(19-1804) Cr. Prac. 1864, sec. 308, p. 250; R.S., R.C., & C.L., sec. 7771; C.S., sec. 8891; I.C.A., sec. 19-1704.]
If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned to the custody of the sheriff of the county to which the action is removed.
[(19-1805) Cr. Prac. 1864, sec. 309, p. 250; R.S., R.C., & C.L., sec. 7772; C.S., sec. 8892; I.C.A., sec. 19-1705.]
The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must, at any time, upon application of the prosecuting attorney or the defendant, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. The costs accruing upon such removal and trial are a charge against the county in which the indictment was found.
[(19-1806) Cr. Prac. 1864, secs. 310, 674, pp. 250 and 296; R.S., R.C., & C.L., sec. 7773; C.S., sec. 8893; I.C.A., sec. 19-1706.]
The clerk of the court in the county to which such action is, or may be, removed must certify the amount of said costs to the auditor of the proper county, which must be allowed and paid as other county charges.
[(19-1807) Cr. Prac. 1864, sec. 675, p. 297; R.S., R.C., & C.L., sec. 7774; C.S., sec. 8894; I.C.A., sec. 19-1707.]
The district courts of this state, within their respective districts, are hereby empowered to change the place of trial in criminal cases, other than misdemeanors, upon the application of the state, on the relation of the county attorney of the county in which any indictment or information may be filed, or upon the relation of any attorney duly and especially appointed to prosecute said cause, such application to be sustained by the affidavits of at least two (2) resident taxpayers in the county where the offense is alleged to have been committed, on the ground that a fair and impartial trial cannot be had in the county where the criminal act is alleged to have been committed.
[(19-1808) 1907, p. 168, sec. 1; reen. R.C. & C.L., sec. 7775; C.S., sec. 8895; I.C.A., sec. 19-1708.]
Such application must be made in open court and in writing, verified by the affidavit of the relator, a copy of which must be served upon the defendant or his attorney at least one (1) day before the application is made.
[(19-1809) 1907, p. 168, sec. 2; reen. R.C. & C.L., sec. 7776; C.S., sec. 8896; I.C.A., sec. 19-1709.]
If the court is satisfied, from the facts set forth in such application and affidavit, that a fair and impartial trial cannot be had, an order must be made for the removal of the action to the proper court of a county free from a like objection.
[(19-1810) 1907, p. 168, sec. 3; reen. R.C. & C.L., sec. 7777; C.S., sec. 8897; I.C.A., sec. 19-1710.]
The order of removal must be entered upon the minutes, and the clerk must immediately make out and transmit to the court to which the action is removed a certified copy of the order of removal, record, pleadings and proceedings in the action, including the undertakings for the appearance of the defendant and of the witnesses.
[(19-1811) 1907, p. 168, sec. 4; reen. R.C. & C.L., sec. 7778; C.S., sec. 8896; I.C.A., sec. 19-1711.]
If the defendant is in custody, the order must direct his removal, and he must be forthwith removed by the sheriff of the county where he is imprisoned to the custody of the sheriff of the county to which the action is removed.
[(19-1812) 1907, p. 168, sec. 5; reen. R.C. & C.L., sec. 7779; C.S., sec. 8899; I.C.A., sec. 19-1712.]
The court to which the action is removed must proceed to trial and judgment therein as if the action had been commenced in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the action is removed must, at any time, upon application of the county attorney or the relator, order such papers or pleadings to be transmitted by the clerk, a certified copy thereof being retained. The costs accruing upon such removal and trial are a charge against the county from which such criminal action was removed.
[(19-1813) 1907, p. 168, sec. 6; reen. R.S. & C.L., sec. 7779a; C.S., sec. 8900; I.C.A., sec. 19-1713.]
The clerk of the court in the county to which said action is, or may be, removed must certify the amount of said costs to the auditor of the proper county, which must be allowed and paid as other county charges.
[(19-1814) 1907, p. 168, sec. 7; reen. R.C. & C.L., sec. 7779b; C.S., sec. 8901; I.C.A., sec. 19-1714.]
The sufficiency, in both law and fact, of the application and supporting affidavits may be reviewed by the supreme court on appeal from an order of the district court denying such application, and such appeal may be taken by the state on the relation of the county attorney of the county in which such application is made, or of any other attorney duly appointed and acting in the prosecution of such cause, and the procedure governing such appeal shall be, as near as may be, the same as provided by law for appeals in other criminal cases.
[(19-1815) 1907, p. 168, sec. 8; reen. R.C. & C.L., sec. 7779c; C.S., sec. 8902; I.C.A., sec. 19-1715.]
(a) As an alternative to entering the order of removal provided in the preceding sections of this chapter, the court may instead enter an order directing that jurors be impaneled from the county to which venue would otherwise have been transferred, if it finds:
That a fair and impartial jury cannot be impaneled in the county where the criminal complaint, information or indictment is filed;
That it would be more economical to transport the jury than to transfer the pending action; and
That justice will be served thereby.
(b) The jury shall be summoned and impaneled as if the trial were to take place in the county where the jury was summoned. Thereafter, the jury shall be transported for purpose of the trial to the county in which the complaint, information or indictment is filed.
(c) All court costs incurred under this section shall be paid by the county where the complaint, information or indictment is filed.
(d) The provisions of this section do not affect the power of the court to order a change of venue.
[19-1816, added 1983, ch. 17, sec. 1, p. 51.]
An issue of fact arises:
Upon a plea of not guilty.
Upon a plea of a former conviction or acquittal of the same offense.
Upon a plea of once in jeopardy.
[(19-1901) Cr. Prac. 1864, sec. 311, p. 250; R.S., R.C., & C.L., sec. 7780; C.S., sec. 8903; I.C.A., sec. 19-1801.]
Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases by the consent of both parties expressed in open court and entered in the minutes. In case of misdemeanor the jury may consist of six (6) or any number less than six (6) upon which the parties may agree in open court. There shall be no right to trial by jury for an infraction.
[(19-1902) R.S., sec. 7781; am. 1890-1891, p. 165, sec. 1; reen. 1899, p. 110, sec. 1; reen. R.C. & C.L., sec. 1781; C.S., sec. 8904; I.C.A., sec. 19-1802; am. 1965, ch. 80, sec. 1, p. 130; am. 1982, ch. 353, sec. 8, p. 878; am. 2000, ch. 69, sec. 1, p. 152; am. 2014, ch. 236, sec. 3, p. 597.]
If the indictment is for a felony, the defendant must be personally present at the trial; but if for misdemeanor, the trial may be had in the absence of the defendant.
[(19-1903) R.S., R.C., & C.L., sec. 7782; C.S., sec. 8905; I.C.A., sec. 19-1803.]
A court may direct that one (1) or more jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. All jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges prior to deliberations. At the conclusion of closing arguments, jurors exceeding the number required of a regular panel shall be removed by lot. Those removed by lot may be discharged after the jury retires to consider its verdict. If more than one (1) additional juror is called, each party is entitled to two (2) peremptory challenges in addition to those otherwise allowed by law; provided however, that if only one (1) additional juror is called, each party shall be entitled to one (1) peremptory challenge in addition to those otherwise provided by law.
[19-1904, added 2002, ch. 94, sec. 10, p. 262.]
Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.
[(19-1905) Cr. Prac. 1864, sec. 313, p. 250; R.S., R.C., & C.L., sec. 7787; C.S., sec. 8906; I.C.A., sec. 19-1805.]
The clerk must prepare a calendar of all criminal actions pending in the court, enumerating them according to the date of the filing of the indictment, specifying opposite the title of each action whether it is for a felony or a misdemeanor, and whether the defendant is in custody or on bail.
[(19-1906) Cr. Prac. 1864, sec. 314, p. 250; R.S., R.C., & C.L., sec. 7788; C.S., sec. 8907; I.C.A., sec. 19-1806.]
The issues on the calendar must be disposed of in the following order, unless upon application of either party, for good causes shown by affidavit, and upon two (2) days’ notice to the opposite party, with service of a copy of the affidavit in support of the application, the court shall direct an indictment to be tried out of its order:
Indictments for felony, when the defendant is in custody.
Indictments for misdemeanor, when the defendant is in custody.
Indictments for felony, when the defendant is on bail.
Indictments for misdemeanor, when the defendant is on bail.
[(19-1907) Cr. Prac. 1864, sec. 315, p. 250; R.S., R.C., & C.L., sec. 7789; C.S., sec. 8908; I.C.A., sec. 19-1807.]
After his plea the defendant is entitled to at least two (2) days to prepare for trial.
[(19-1908) Cr. Prac. 1864, sec. 316, p. 250; R.S., R.C., & C.L., sec. 7790; C.S., sec. 8909; I.C.A., sec. 19-1808.]
When an indictment is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day of the same or of the next term.
[(19-1909) Cr. Prac. 1864, sec. 317, p. 250; R.S., R.C., & C.L., sec. 7795; C.S., sec. 8910; I.C.A., sec. 19-1809.]
(1) All pretrial risk assessment tools shall be transparent, and:
(a) All documents, data, records, and information used by the builder to build or validate the pretrial risk assessment tool and ongoing documents, data, records, and written policies outlining the usage and validation of the pretrial risk assessment tool shall be open to public inspection, auditing, and testing;
(b) A party to a criminal case wherein a court has considered, or an expert witness has relied upon, a pretrial risk assessment tool shall be entitled to review all calculations and data used to calculate the defendant’s own risk score; and
(c) No builder or user of a pretrial risk assessment tool may assert trade secret or other intellectual property protections in order to quash discovery of the materials described in paragraph (a) of this subsection in a criminal or civil case.
(2) For purposes of this section, "pretrial risk assessment tool" means a pretrial process that creates or scores particular factors in order to estimate a person’s level of risk to fail to appear in court, risk to commit a new crime, or risk posed to the community in order to make recommendations as to bail or conditions of release based on such risk, whether made on an individualized basis or based on a grid or schedule.
[19-1910, added 2019, ch. 258, sec. 1, p. 768.]
A challenge is an objection made to trial jurors and is of two kinds:
To the panel.
To an individual juror.
[(19-2001) Cr. Prac. 1864, sec. 318, p. 250; R.S., R.C., & C.L., sec. 7815; C.S., sec. 8911; I.C.A., sec. 19-1901.]
When several defendants are tried together they can not sever their challenges, but must join therein.
[(19-2002) Cr. Prac. 1864, sec. 319, p. 250; R.S., R.C., & C.L., sec. 7816; C.S., sec. 8912; I.C.A., sec. 19-1902.]
The panel is a list of jurors returned by a sheriff to serve at a particular court or for the trial of a particular action.
[(19-2003) Cr. Prac. 1864, sec. 320, p. 250; R.S., R.C., & C.L., sec. 7817; C.S., sec. 8913; I.C.A., sec. 19-1903.]
A challenge to the panel is an objection made to all the jurors returned, and may be taken by either party.
[(19-2004) Cr. Prac. 1864, sec. 321, p. 250; R.S., R.C., & C.L., sec. 7818; C.S., sec. 8914; I.C.A., sec. 19-1904.]
A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions, or on the intentional omission of the sheriff to summon one (1) or more of the jurors drawn.
[(19-2005) Cr. Prac. 1864, sec. 322, p. 250; R.S., R.C., & C.L., sec. 7819; C.S., sec. 8915; I.C.A., sec. 19-1905.]
A challenge to the panel must be taken before a juror is sworn, and must be in writing, and must plainly and distinctly state the facts constituting the ground of challenge.
[(19-2006) Cr. Prac. 1864, sec. 323, p. 250; R.S., R.C., & C.L., sec. 7820; C.S., sec. 8916; I.C.A., sec. 19-1906.]
If the sufficiency of the facts alleged as ground of the challenge is denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered on the minutes of the court, and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.
[(19-2007) Cr. Prac. 1864, secs. 324, 325, p. 250; R.S., R.C., & C.L., sec. 7821; C.S., sec. 8917; I.C.A., sec. 19-1907.]
If, on the exception, the court finds the challenge sufficient, it may, if justice require it, permit the party excepting to withdraw his exception, and to deny the facts alleged in the challenge. If the exception is allowed the court may, in like manner, permit an amendment of the challenge.
[(19-2008) Cr. Prac. 1864, sec. 326, p. 250; R.S., R.C., & C.L., sec. 7822; C.S., sec. 8918; I.C.A., sec. 19-1908.]
If the challenge is denied, the denial may be oral, and must be entered on the minutes of the court, and the court must proceed to try the question of fact; and upon such trial, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge.
[(19-2009) Cr. Prac. 1864, secs. 327, 328, p. 250; R.S., R.C., & C.L., sec. 7823; C.S., sec. 8919; I.C.A., sec. 19-1909.]
When the panel is formed, or in part formed, from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner, as if made to a juror.
[(19-2010) Cr. Prac. 1864, sec. 329, p. 250; R.S., R.C., & C.L., sec. 7824; C.S., sec. 8920; I.C.A., sec. 19-1910.]
If, either upon an exception to the challenge or a denial of the facts, the challenge is allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned. If it is disallowed, the court must direct the jury to be impaneled.
[(19-2011) Cr. Prac. 1864, sec. 330, p. 250; R.S., R.C., & C.L., sec. 7825; C.S., sec. 8921; I.C.A., sec. 19-1911.]
Before a juror is called the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so before the jury is sworn.
[(19-2012) Cr. Prac. 1864, sec. 331, p. 252; R.S., R.C., & C.L., sec. 7826; C.S., sec. 8922; I.C.A., sec. 19-1912.]
A challenge to an individual juror is either:
For cause; or,
Peremptory.
[(19-2013) Cr. Prac. 1864, sec. 332, p. 252; R.S., R.C., & C.L., sec. 7827; C.S., sec. 8923; I.C.A., sec. 19-1913.]
It must be taken before the jury is sworn to try the cause.
[(19-2014) Cr. Prac. 1864, sec. 333, p. 252; R.S., R.C., & C.L., sec. 7828; C.S., sec. 8924; I.C.A., sec. 19-1914.]
A peremptory challenge can be taken by either party and may be oral. It is an objection to a juror for which no reason need be given, but upon which the court must exclude him.
[(19-2015) Cr. Prac. 1864, sec. 334, p. 252; R.S., R.C., & C.L., sec. 7829; C.S., sec. 8925; I.C.A., sec. 19-1915.]
If the offense charged is punishable with death or with imprisonment in the state prison for life, the defendant is entitled to ten (10) and the state to ten (10) peremptory challenges. On a trial for any other offense the defendant is entitled to six (6) and the state six (6) peremptory challenges.
[(19-2016) Cr. Prac. 1864, sec. 335, p. 252; R.S., sec. 7830; am. 1907, p. 171, sec. 1; reen. R.C., & C.L., sec. 7830; C.S., sec. 8926; I.C.A., sec. 19-1916.]
A challenge for cause may be taken by either party. It is an objection to a particular juror, and is either:
General–That the juror is disqualified from serving in any case; or,
Particular–That he is disqualified from serving in the action on trial.
[(19-2017) Cr. Prac. 1864, sec. 336, p. 252; R.S., R.C., & C.L., sec. 7831; C.S., sec. 8927; I.C.A., sec. 19-1917.]
General causes of challenge are:
A conviction of felony.
A want of any of the qualifications prescribed by law to render a person a competent juror.
Unsoundness of mind, or such defect in the faculties of the mind or organs of the body as render him incapable of performing the duties of a juror.
[(19-2018) Cr. Prac. 1864, sec. 337, p. 252; R.S., R.C., & C.L., sec. 7832; C.S., sec. 8928; I.C.A., sec. 19-1918.]
Particular causes of challenge are of two kinds:
For such a bias as, when the existence of the fact is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias.
For the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the inference that he will not act with entire impartiality, and which is known in this code as actual bias.
[(19-2019) Cr. Prac. 1864, sec. 338, p. 252; R.S., R.C., & C.L., sec. 7833; C.S., sec. 8929; I.C.A., sec. 19-1919.]
A challenge for implied bias may be taken for all or any of the following causes and for no other:
Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or to the defendant.
Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family or boarder or lodger of the defendant, or of the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or in his employment on wages.
Being a party adverse to the defendant in a civil action or having complained against or been accused by him in a criminal prosecution.
Having served on the grand jury which found the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the indictment.
Having served on a trial jury which has tried another person for the offense charged in the indictment.
Having been one of a jury formerly sworn to try the same charge, and whose verdict was set aside or which was discharged without a verdict after the case was submitted to it, or being a witness for the prosecution, or subpoenaed as such.
Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged.
If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.
[(19-2020) Cr. Prac. 1864, sec. 339, p. 252; R.S., R.C., & C.L., sec. 7834; C.S., sec. 8930; I.C.A., sec. 19-1920.]
An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted.
[(19-2021) Cr. Prac. 1864, sec. 340, p. 253; R.S., R.C., & C.L., sec. 7835; C.S., sec. 8931; I.C.A., sec. 19-1921.]
In a challenge for implied bias, one or more of the legal causes must be alleged. In a challenge for actual bias, it must be alleged that the juror is biased against the party challenged. In either case the challenge may be oral, but must be entered on the minutes of the court.
[(19-2022) Cr. Prac. 1864, sec. 341, p. 253; R.S., R.C., & C.L., sec. 7836; C.S., sec. 8932; I.C.A., sec. 19-1922.]
The adverse party may except to the challenge in the same manner as to a challenge to the panel, and the same proceedings must be had thereon. The adverse party may also orally deny the facts alleged as the ground of challenge.
[(19-2023) Cr. Prac. 1864, sec. 342, p. 253; R.S., R.C., & C.L., sec. 7837; C.S., sec. 8933; I.C.A., sec. 19-1923.]
If the facts are denied the challenge must be tried by the court.
[(19-2024) Cr. Prac. 1864, sec. 343, p. 253; R.S., sec. 7838; am. 1905, p. 9, sec. 1; reen. R.C. & C.L., sec. 7838; C.S., sec. 8934; I.C.A., sec. 19-1924.]
Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.
[(19-2025) Cr. Prac. 1864, sec. 346, p. 253; R.S., R.C., & C.L., sec. 7841; C.S., sec. 8935; I.C.A., sec. 19-1925.]
Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.
[(19-2026) Cr. Prac. 1864, sec. 347, p. 254; R.S., R.C., & C.L., sec. 7842; C.S., sec. 8936; I.C.A., sec. 19-1926.]
On the trial of a challenge for either implied or actual bias, the court must determine the law and the fact, and must either allow or disallow the challenge, and direct an entry accordingly upon the minutes.
[(19-2027) Cr. Prac. 1864, secs. 348, 349, p. 254; R.S., sec. 7843; am. 1905, p. 9, sec. 1; reen. R.C. & C.L., sec. 7843; C.S., sec. 8937; I.C.A., sec. 19-1927.]
All challenges to an individual juror, except peremptory, must be taken, first by the people, and then by the defendant, and each party must exhaust all his challenges for cause before the other begins.
[(19-2028) Cr. Prac. 1864, sec. 351, p. 254; R.S., R.C., & C.L., sec. 7846; C.S., sec. 8938; I.C.A., sec. 19-1928.]
The challenges of either party for cause need not all be taken at once, but they must be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class:
To the panel.
To an individual juror, for a general disqualification.
To an individual juror, for an implied bias.
To an individual juror, for an actual bias.
[(19-2029) Cr. Prac. 1864, sec. 352, p. 254; R.S., R.C., & C.L., sec. 7847; C.S., sec. 8939; I.C.A., sec. 19-1929.]
After the jury is passed for cause, both parties alternately, beginning with the people, may take their peremptory challenges. But no challenge is lost by failure to alternate if the panel is opened by the other party; and each party is entitled to a full panel before exercising a peremptory challenge. Provided, however, in the discretion of the court, the number of jurors who will hear the case, plus a number of jurors representing the total number of possible peremptory challenges, may be called and examined for cause before the parties begin to exercise their peremptory challenges.
[(19-2030) Cr. Prac. 1864, sec. 353, p. 254; R.S., R.C., & C.L., sec. 7848; C.S., sec. 8940; I.C.A., sec. 19-1930; am. 1986, ch. 202, sec. 1, p. 505.]
The jury having been impaneled and sworn, the trial must proceed in the following order:
If the indictment is for a felony, the clerk must read it and state the plea of the defendant to the jury. In all other cases this formality may be dispensed with.
The prosecuting attorney or other counsel for the people must open the cause and offer the evidence in support of the indictment.
The defendant or his counsel may then open the defense and offer his evidence in support thereof.
The parties may then respectively offer rebutting testimony only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case.
When the evidence is concluded, unless the case is submitted to the jury on either side, or on both sides, without argument, the prosecuting attorney or other counsel for the people must open, and the prosecuting attorney may conclude, the argument.
The judge must then charge the jury if requested by either party; he may state the testimony and declare the law, but must not charge the jury in respect to matters of fact; such charge must be reduced to writing before it is given, unless by the mutual consent of the parties it is given orally.
[(19-2101) Cr. Prac. 1864, sec. 354, p. 255; R.S., R.C., & C.L., sec. 7855; C.S., sec. 8941; I.C.A., sec. 19-2001.]
When the state of the pleadings requires it, or in any other case for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from.
[(19-2102) Cr. Prac. 1864, sec. 355, p. 256; R.S., R.C., & C.L., sec. 7856; C.S., sec. 8942; I.C.A., sec. 19-2002.]
If the indictment is for an offense punishable with death, two (2) counsel on each side may argue the cause to the jury. If it is for any other offense, the court may, in its discretion, restrict the argument to one (1) counsel on each side.
[(19-2103) Cr. Prac. 1864, sec. 356, p. 256; R.S., R.C., & C.L., sec. 7857; C.S., sec. 8943; I.C.A., sec. 19-2003.]
A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.
[19-2104, added 1972, ch. 336, sec. 8, p. 987.]
When it appears that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.
[19-2105, added 1972, ch. 336, sec. 8, p. 987.]
When two (2) or more defendants are jointly indicted or informed against for a felony or for any criminal offense, the defendants may be tried separately or jointly, in the discretion of the court.
[19-2106, added 1972, ch. 336, sec. 8, p. 988.]
When two (2) or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of the prosecuting attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people.
[19-2107, added 1972, ch. 336, sec. 8, p. 988.]
When two (2) or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must order him to be discharged from the indictment before the evidence is closed, that he may be a witness for his codefendants.
[19-2108, added 1972, ch. 336, sec. 8, p. 988.]
The order mentioned in the last two (2) sections is an acquittal of the defendant discharged, and is a bar to another prosecution for the same offense.
[19-2109, added 1972, ch. 336, sec. 8, p. 988.]
The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this code.
[(19-2110) R.S., R.C., & C.L., sec. 7864; C.S., sec. 8950; I.C.A., sec. 19-2010.]
Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one (1) or more overt acts are expressly alleged in the indictment, nor unless one (1) of the acts alleged is proved; but other overt acts not alleged in the indictment may be given in evidence.
[19-2111, added 1972, ch. 336, sec. 8, p. 988.]
Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but the same may be proved by such evidence as is admissible to prove a marriage in other cases; and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.
[I.C., sec. 19-2113, as added by 1972, ch. 336, sec. 8, p. 988.]
Upon a trial for forging any bill or note purporting to be the bill or note of an incorporated company or bank, or for passing or attempting to pass, or having in his possession, with intent to pass, any such forged bill or note, it is not necessary to prove the incorporation of such bank or company by the charter or act of incorporation, but it may be proved by a general reputation, and persons of skill are competent witnesses to prove that such bill or note is forged or counterfeited.
[19-2114, added 1972, ch. 336, sec. 8, p. 988.]
Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting therein, or for inveigling, enticing, or taking away an unmarried female of previous chaste character, under the age of eighteen (18) years, for the purpose of prostitution, or aiding or assisting therein, the defendant cannot be convicted upon the testimony of the woman upon or withwhom the offense was committed, unless she is corroborated by other evidence.
[(19-2115) R.S., R.C., & C.L., sec. 7869; C.S., sec. 8955; I.C.A., sec. 19-2015.]
Upon a trial for having with intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person, any money, personal property, or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language, unaccompanied by a false token or writing, unless the pretense or some note or memorandum thereof be in writing, subscribed by or in the hand writing of the defendant, or unless the pretense be proven by the testimony of two (2) witnesses, or that of one (1) witness and corroborating circumstances; but this section shall not apply to a prosecution for falsely representing or personating another, and, in such assumed character, marrying, or receiving any money or property.
[19-2116, added 1972, ch. 336, sec. 8, p. 989.]
A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.
[(19-2117) Cr. Prac. 1864, sec. 364, p. 256; R.S., R.C., & C.L., sec. 7871; C.S., sec. 8957; I.C.A., sec. 19-2017.]
The court may direct the jury to be discharged where it appears that it has not jurisdiction of the offense, or that the facts charged in the indictment do not constitute an offense punishable by law.
[(19-2118) Cr. Prac. 1864, sec. 367, p. 257; R.S., R.C., & C.L., sec. 7872; C.S., sec. 8958; I.C.A., sec. 19-2018.]
If the jury is discharged because the court has not jurisdiction of the offense charged in the indictment, and it appears that it was committed out of the jurisdiction of this state, the defendant must be discharged.
[(19-2119) Cr. Prac. 1864, sec. 368, p. 257; R.S., R.C., & C.L., sec. 7873; C.S., sec. 8959; I.C.A., sec. 19-2019.]
If the offense was committed within the exclusive jurisdiction of another county of this state, the court must direct the defendant to be committed for such time as it deems reasonable, to await a warrant from the proper county for his arrest; or if the offense is a misdemeanor only, it may admit him to bail in an undertaking, with sufficient sureties, that he will, within such time as the court may appoint, render himself amenable to a warrant for his arrest from the proper county, and, if not sooner arrested thereon, will attend at the office of the sheriff of the county where the trial was had, at a certain time particularly specified in the undertaking, to surrender himself upon the warrant, if issued, or that his bail will forfeit such sum as the court may fix, to be mentioned in the undertaking; and the clerk must forthwith transmit a certified copy of the indictment, and of all the papers filed in the action, to the prosecuting attorney of the proper county, the expense of which transmission is chargeable to that county.
[(19-2120) Cr. Prac. 1864, secs. 369, 370, p. 257; R.S., R.C., & C.L., sec. 7874; C.S., sec. 8960; I.C.A., sec. 19-2020.]
If the defendant is not arrested on a warrant from the proper county, as provided in the last section, he must be discharged from custody, or his bail in the action exonerated, or money deposited instead of bail must be refunded, as the case may be, and the sureties in the undertaking, as mentioned in that section, must be discharged. If he is arrested, the same proceedings must be had thereon as upon the arrest of a defendant in another county on a warrant of arrest issued by a magistrate.
[(19-2121) Cr. Prac. 1864, secs. 371, 372, p. 257; R.S., R.C., & C.L., sec. 7875; C.S., sec. 8961; I.C.A., sec. 19-2021.]
If the jury is discharged because the facts as charged do not constitute an offense punishable by law, the court must order that the defendant, if in custody, be discharged; or if admitted to bail, that his bail be exonerated; or if he has deposited money instead of bail, that the money be refunded to him, unless in its opinion a new indictment can be framed upon which the defendant can be legally convicted, in which case it may direct that the case be submitted to the same or another grand jury.
[(19-2122) Cr. Prac. 1864, sec. 373, p. 257; R.S., R.C., & C.L., sec. 7876; C.S., sec. 8962; I.C.A., sec. 19-2022.]
If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant. But the jury are not bound by the advice.
[(19-2123) Cr. Prac. 1864, sec. 375, p. 258; R.S., R.C., & C.L., sec. 7877; C.S., sec. 8963; I.C.A., sec. 19-2023.]
When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to the place, which must be shown to them by a person appointed by the court for that purpose; and the sheriff must be sworn to suffer no person to speak or communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into court without unnecessary delay, or at a specified time.
[(19-2124) Cr. Prac. 1864, secs. 376, 377, p. 258; R.S., R.C., & C.L., sec. 7878; C.S., sec. 8964; I.C.A., sec. 19-2024.]
If a juror has any personal knowledge respecting a fact in controversy in a cause, he must declare the same in open court during the trial. If, during the retirement of the jury, a juror declares a fact which could be evidence in the cause, as of his own knowledge, the jury may return into court. In either of these cases, the juror making the statement must be sworn as a witness and examined in the presence of the parties.
[(19-2125) Cr. Prac. 1864, sec. 378, p. 258; R.S., R.C., & C.L., sec. 7879; C.S., sec. 8965; I.C.A., sec. 19-2025.]
The jury sworn to try any felony may, at any time during the trial, and after the submission of the cause, in the discretion of the court, be permitted to separate, or they may be kept together, in the charge of a proper officer. Provided however, that in causes where the defendant has been charged with first-degree murder, and the prosecuting attorney has filed a notice of intent to seek the death penalty pursuant to section 18-4004A, Idaho Code, and such notice has not been withdrawn, the jury may not be permitted to separate after submission of the cause and completion of the special sentencing proceeding held pursuant to section 19-2515 or 19-2515A, Idaho Code. Before permitting the jury to separate after the cause has been submitted, the court shall permit counsel to place objections, if any, on the record outside the presence of the jury. In case the court orders the jury to be kept together the county must provide a suitable place for the board and lodging of the jury, at the expense of the county, and when first given custody of the jury the officer or bailiff must be sworn to keep the jury together during each recess and adjournment during the trial; to allow no person to speak to or communicate with them, or any of them, nor to do so himself, on any subject connected with the trial, and to return them into court as ordered by the court.
[(19-2126) Cr. Prac. 1864, sec. 379, p. 258; am. 1881, p. 227, sec. 4; R.S., R.C., & C.L., sec. 7880; C.S., sec. 8966; am. 1929, ch. 14, sec. 1, p. 14; I.C.A., sec. 19-2026; am. 1981, ch. 229, sec. 1, p. 466; am. 1987, ch. 145, sec. 1, p. 290; am. 2002, ch. 94, sec. 11, p. 262; am. 2003, ch. 19, sec. 3, p. 72; am. 2003, ch. 136, sec. 2, p. 394; am. 2008, ch. 22, sec. 1, p. 35.]
The jury must also, at each adjournment of the court, whether permitted to separate or kept in charge of officers, be admonished by the court that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.
[(19-2127) Cr. Prac. 1864, sec. 380, p. 259; R.S., R.C., & C.L., sec. 7881; C.S., sec. 8967; I.C.A., sec. 19-2027.]
If, before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterwards impaneled; provided, however, that where substitute jurors have been impaneled in the manner provided by law, such substitute juror or jurors shall be used as provided by the law authorizing the impaneling of substitute jurors.
[(19-2128) Cr. Prac. 1864, sec. 381, p. 259; R.S., R.C., & C.L., sec. 7882; C.S., sec. 8968; am. 1923, ch. 31, sec. 1, p. 34; I.C.A., sec. 19-2028.]
The court must decide all questions of law which arise in the course of a trial.
[(19-2129) Cr. Prac. 1864, sec. 382, p. 259; R.S., R.C., & C.L., sec. 7883; C.S., sec. 8969; I.C.A., sec. 19-2029.]
On the trial of an indictment for libel, the jury have the right to determine the law and the fact.
[(19-2130) Cr. Prac. 1864, sec. 383, p. 259; R.S., R.C., & C.L., sec. 7884; C.S., sec. 8970; I.C.A., sec. 19-2030.]
On the trial of an indictment for any other offense than libel, questions of law are to be decided by the court, questions of fact by the jury; and although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.
[(19-2131) Cr. Prac. 1864, sec. 384, p. 259; R.S., R.C., & C.L., sec. 7885; C.S., sec. 8971; I.C.A., sec. 19-2031.]
(a) In charging the jury, the court must state to them all matters of law necessary for their information. Either party may present to the court any written charge and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused, the court must indorse and sign its decision. If part be given and part refused, the court must distinguish, showing by the indorsement what part of the charge was given and what part refused.
(b) The court shall instruct the jury with respect to a lesser included offense if:
(1) Either party requests such an instruction; and
(2) There is a reasonable view of the evidence presented in the case that would support a finding that the defendant committed such lesser included offense but did not commit the greater offense.
(c) If a lesser included offense is submitted to the jury for consideration, the court shall instruct the jury that it may not consider the lesser included offense unless it has first considered each of the greater offenses within which it is included, and has concluded in its deliberations that the defendant is not guilty of each of such greater offenses.
[(19-2132) Cr. Prac. 1864, secs. 385-387, p. 259; R.S., R.C., & C.L., sec. 7886; C.S., sec. 8972; I.C.A., sec. 19-2032; am. 1977, ch. 154, sec. 7, p. 394; am. 1988, ch. 327, sec. 1, p. 989.]
After hearing the charge, the jury may either decide in court or may retire for deliberation. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not permit any person to speak or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.
[(19-2133) Cr. Prac. 1864, sec. 388, p. 259; R.S., R.C., & C.L., sec. 7887; C.S., sec. 8973; I.C.A., sec. 19-2033.]
When a defendant who has given bail appears for trial, the court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly.
[(19-2134) Cr. Prac. 1864, sec. 389, p. 259; R.S., R.C., & C.L., sec. 7888; C.S., sec. 8974; I.C.A., sec. 19-2034.]
If the prosecuting attorney fails to attend the trial, the court must appoint some attorney at law to perform the duties of the prosecuting attorney on such trial.
[(19-2135) R.S., R.C., & C.L., sec. 7889; C.S., sec. 8975; I.C.A., sec. 19-2035.]
A room must be provided by the commissioners of each county for the use of the jury upon their retirement for deliberation, with suitable furniture, fuel, lights and stationery. If the commissioners neglect, the court may order the sheriff to do so, and the expenses incurred by him in carrying the order into effect, when certified by the court, are a county charge.
[(19-2201) Cr. Prac. 1864, sec. 390, p. 260; R.S., R.C., & C.L., sec. 7900; C.S., sec. 8976; I.C.A., sec. 19-2101.]
While the jury are kept together, either during the progress of the trial or after their retirement for deliberation, they must be provided by the sheriff, at the expense of the county, with suitable and sufficient food and lodging.
[(19-2202) Cr. Prac. 1864, sec. 391, p. 260; R.S., R.C., & C.L., sec. 7901; C.S., sec. 8977; I.C.A., sec. 19-2102.]
Upon retiring for deliberation, the jury may take with them all exhibits and all papers (except depositions) which have been received in evidence in the cause, or copies of such public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession. They may also take with them the written instructions given and notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.
[(19-2203) Cr. Prac. 1864, secs. 392, 393, p. 260; R.S., & R.C., sec. 7902; am. 1911, ch. 23, sec. 1, p. 49; reen. C.L., sec. 7902; C.S., sec. 8978; I.C.A., sec. 19-2103.]
After the jury have retired for deliberation, if there is any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called.
[(19-2204) Cr. Prac. 1864, sec. 394, p. 260; R.S., R.C., & C.L., sec. 7903; C.S., sec. 8979; I.C.A., sec. 19-2104.]
If, after the retirement of the jury, one (1) of them be taken so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept for deliberation, the jury may be discharged.
[(19-2205) Cr. Prac. 1864, sec. 395, p. 260; R.S., R.C., & C.L., sec. 7904; C.S., sec. 8980; I.C., sec. 19-2105.]
Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.
[(19-2206) Cr. Prac. 1864, sec. 396, p. 260; R.S., R.C., & C.L., sec. 7905; C.S., sec. 8981; I.C.A., sec. 19-2106.]
In all cases where a jury are discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged from the indictment during the progress of the trial or after the cause is submitted to them, the cause may be again tried at the same or another term.
[(19-2207) Cr. Prac. 1864, sec. 397, p. 260; R.S., R.C., & C.L., sec. 7906; C.S., sec. 8982; I.C.A., sec. 19-2107.]
While the jury are absent, the court may adjourn from time to time, as to other business, but it must nevertheless be open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.
[(19-2208) Cr. Prac. 1864, sec. 398, p. 261; R.S., R.C., & C.L., sec. 7907; C.S., sec. 8983; I.C.A., sec. 19-2108.]
A final adjournment of the court discharges the jury.
[(19-2209) Cr. Prac. 1864, sec. 399, p. 261; R.S., R.C., & C.L., sec. 7908; C.S., sec. 8984; I.C.A., sec. 19-2109.]
When two (2) or more counties are joined for judicial purposes, the expense of the trial of a cause must be paid by the county where the offense is alleged to have been committed.
[(19-2210) Cr. Prac. 1864, sec. 400, p. 261; R.S., R.C., & C.L., sec. 7909; C.S., sec. 8985; I.C.A., sec. 19-2110.]
When the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried at the same or another term.
[(19-2301) Cr. Prac. 1864, sec. 401, p. 261; R.S., R.C., & C.L., sec. 7915; C.S., sec. 8986; I.C.A., sec. 19-2201.]
If indicted for a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence.
[(19-2302) Cr. Prac. 1864, sec. 402, p. 261; R.S., R.C., & C.L., sec. 7916; C.S., sec. 8987; I.C.A., sec. 19-2202.]
When the jury appear they must be asked by the court or clerk whether they have agreed upon their verdict, and if the foreman answers in the affirmative they must, on being required, declare the same.
[(19-2303) Cr. Prac. 1864, sec. 403, p. 261; R.S., R.C., & C.L., sec. 7917; C.S., sec. 8988; I.C.A., sec. 19-2203.]
The jury may render a general verdict, or, when they are in doubt as to the legal effect of the facts proved, they may, except upon an indictment for libel, find a special verdict.
[(19-2304) Cr. Prac. 1864, sec. 404, p. 261; R.S., R.C., & C.L., sec. 7918; C.S., sec. 8989; I.C.A., sec. 19-2204.]
A general verdict upon a plea of not guilty is either "guilty" or "not guilty," which imports a conviction or acquittal of the offense charged in the indictment.
[(19-2305) Cr. Prac. 1864, sec. 405, p. 261; 1875, p. 421, sec. 403; R.S., R.C., & C.L., sec. 7919; C.S., sec. 8990; I.C.A., sec. 19-2205; am. 1982, ch. 368, sec. 8, p. 924.]
A special verdict is that by which the jury finds the facts only, leaving the judgment to the court. It must present the conclusions of fact as established by the evidence, and not the evidence to prove them, and these conclusions of fact must be so presented as that nothing remains to the court but to draw conclusions of law upon them.
[(19-2306) Cr. Prac. 1864, sec. 406, p. 261; R.S., R.C., & C.L., sec. 7920; C.S., sec. 8991; I.C.A., sec. 19-2206.]
The special verdict must be reduced to writing by the jury, or in their presence entered upon the minutes of the court, read to the jury and agreed to by them, before they are discharged.
[(19-2307) Cr. Prac. 1864, sec. 107, p. 261; R.S., R.C., & C.L., sec. 7921; C.S., sec. 8992; I.C.A., sec. 19-2207.]
The special verdict need not be in any particular form, but is sufficient if it present intelligibly the facts found by the jury.
[(19-2308) Cr. Prac. 1864, sec. 408, p. 261; R.S., R.C., & C.L., sec. 7922; C.S., sec. 8993; I.C.A., sec. 19-2208.]
The court must give judgment upon the special verdict as follows:
If the plea is not guilty and the facts prove the defendant guilty of the offense charged in the indictment, or of any other offense of which he could be convicted under that indictment, judgment must be given accordingly. But if otherwise, judgment of acquittal must be given.
If the plea is a former conviction or acquittal of the same offense, the court must give judgment of acquittal or conviction, as the facts prove or fail to prove the former conviction or acquittal.
[(19-2309) Cr. Prac. 1864, sec. 409, p. 261; R.S., R.C., & C.L., sec. 7923; C.S., sec. 8994; I.C.A., sec. 19-2209.]
If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact from the evidence, as established to their satisfaction, the court must order a new trial.
[(19-2310) Cr. Prac. 1864, sec. 410, p. 262; R.S., R.C., & C.L., sec. 7924; C.S., sec. 8995; I.C.A., sec. 19-2210.]
Whenever a crime is distinguished into degrees the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.
[(19-2311) 1874, p. 363, sec. 409; R.S., R.C., & C.L., sec. 7925; C.S., sec. 8996; I.C.A., sec. 19-2211.]
The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense.
[(19-2312) Cr. Prac. 1864, sec. 411, p. 262; R.S., R.C., & C.L., sec. 7926; C.S., sec. 8997; I.C.A., sec. 19-2212.]
On an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judgment must be entered accordingly, and the case as to the others may be tried by another jury.
[(19-2313) Cr. Prac. 1864, sec. 412, p. 262; R.S., R.C., & C.L., sec. 7927; C.S., sec. 8998; I.C.A., sec. 19-2213.]
When there is a verdict of conviction, in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the court can not require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the court may direct them to reconsider it, and it can not be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the court.
[(19-2314) Cr. Prac. 1864, secs. 413, 414, p. 262; R.S., R.C., & C.L., sec. 7928; C.S., sec. 8999; I.C.A., sec. 19-2214.]
If the jury persist in finding an informal verdict, from which, however, it can be clearly understood that their intention is to find in favor of the defendant upon the issue, it must be entered in the terms in which it is found, and the court must give judgment of acquittal. But no judgment of conviction can be given unless the jury expressly find against the defendant upon the issue, or judgment is given against him on a special verdict.
[(19-2315) Cr. Prac. 1864, sec. 415, p. 262; R.S., R.C., & C.L., sec. 7929; C.S., sec. 9000; I.C.A., sec. 19-2215.]
When a verdict is rendered and before it is recorded, the jury may be polled at the request of either party, in which case they must be severally asked whether it is their verdict; and if each juror answer in the affirmative, then the verdict shall be recorded; but if a less number answer in the affirmative, the jury must be sent out for further deliberation.
[(19-2316) Cr. Prac. 1864, sec. 416, p. 262; R.S., sec. 7930; am. 1890-1891, p. 165, sec. 2; reen. 1899, p. 110, sec. 2; reen. R.C. & C.L., sec. 7930; C.S., sec. 9001; I.C.A., sec. 19-2216; am. 1967, ch. 44, sec. 1, p. 85.]
When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case.
[(19-2317) Cr. Prac. 1864, sec. 417, p. 263; R.S., R.C., & C.L., sec. 7931; C.S., sec. 9002; I.C.A., sec. 19-2217.]
If judgment of acquittal is given on a general verdict and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given, except where the acquittal is because of a variance between the proof and the indictment, which may be obviated by a new indictment, the court may order his detention to the end that a new indictment may be preferred, in the same manner and with like effect as provided in case where the indictment does not state a public offense.
[(19-2318) Cr. Prac. 1864, sec. 418, p. 263; R.S., R.C., & C.L., sec. 7932; C.S., sec. 9003; I.C.A., sec. 19-2218.]
If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody, or if on bail he may be committed to the proper officer of the county to await the judgment of the court upon the verdict. When committed, his bail is exonerated, or if money is deposited instead of bail, it must be refunded to the defendant.
[(19-2319) Cr. Prac. 1864, sec. 419, p. 263; R.S., R.C., & C.L., sec. 7933; C.S., sec. 9004; I.C.A., sec. 19-2219.]
Any party desiring to procure a record of the evidence, proceedings and exhibits made during the trial of a criminal action in the district court for use on appeal to the Supreme Court may procure such transcript and exhibits in the same way in which a transcript and exhibits are obtained in a civil action. Said transcript shall be ordered, prepared, served, settled, lodged, filed and used in the same way and with the same effect as in a civil action. The provisions of section 10-509 shall apply to a reporter’s transcript in a criminal action.
[(19-2402) 1927, ch. 135, sec. 1, p. 178; I.C.A., sec. 19-2302; am. 1949, ch. 179, sec. 1, p. 381.]
The ruling and decision of the court in criminal cases disallowing a challenge to the panel of the jury, or to any individual juror, for any of the causes set forth in sections 19-2018, 19-2019 shall be deemed excepted to on the part of the defendant.
[(19-2403) 1905, p. 328, sec. 1; reen. R.C. & C.L., sec. 7947; C.S., sec. 9014; I.C.A., sec. 19-2304.]
A new trial is a reexamination of the issue in the same court, before another jury, after a verdict has been given.
[(19-2404) Cr. Prac. 1864, sec. 426, p. 264; R.S., R.C., & C.L., sec. 7950; C.S., sec. 9015; I.C.A., sec. 19-2305.]
The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict can not be used or referred to either in evidence or in argument.
[(19-2405) Cr. Prac. 1864, sec. 426, p. 264; R.S., R.C., & C.L., sec. 7951; C.S., 9016; I.C.A., sec. 19-2306.]
When a verdict has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only:
When the trial has been had in his absence, if the indictment is for a felony.
When the jury has received any evidence out of court other than that resulting from a view of the premises.
When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented.
When the verdict has been decided by lot or by any means other than a fair expression of opinion on the part of all the jurors.
When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial.
When the verdict is contrary to law or evidence.
When new evidence is discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly-discovered evidence, the defendant must produce at the hearing in support thereof the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.
[(19-2406) 1874, p. 363, sec. 424; R.S., R.C., & C.L., sec. 7952; C.S., sec. 9017; I.C.A., sec. 19-2307.]
The application for a new trial may be made before or after judgment; and must be made within the time provided by the Idaho criminal rules unless the court or judge extends the time.
[(19-2407) Cr. Prac. 1864, sec. 428, p. 264; R.S., R.C., & C.L., sec. 7953; C.S., sec. 9018; I.C.A., sec. 19-2308; am. 1989, ch. 83, sec. 1, p. 145; am. 1993, ch. 87, sec. 1, p. 216.]
A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment that are grounds of demurrer, unless the objection to the indictment has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment.
[(19-2408) Cr. Prac. 1864, secs. 429, 431, po. 264 and 265; R.S., R.C., & C.L., sec. 7960; C.S., sec. 9019; I.C.A., sec. 19-2309.]
The court may also, on its own view of any of these defects, arrest the judgment without motion.
[(19-2409) Cr. Prac. 1864, sec. 430, p. 265; R.S., R.C., & C.L., sec. 7961; C.S., sec. 9020; I.C.A., sec. 19-2310.]
The effect of allowing a motion in arrest of judgment is to place the defendant in the same situation in which he was before the indictment was found.
[(19-2410) Cr. Prac. 1864, sec. 432, p. 265; R.S., R.C., & C.L., sec. 7962; C.S., sec. 9021; I.C.A., sec. 19-2311.]
If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new indictment can be framed, upon which he may be convicted, the court may order him to be recommitted to the office of the proper county, or admitted to bail anew, to answer the new indictment. If the evidence shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution or indictment. But if no evidence appears sufficient to charge him with any offense he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been deposited instead of bail, it must be refunded to the defendant; and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment was founded.
[(19-2411) Cr. Prac. 1864, sec. 433, p. 265; R.S., R.C., & C.L., sec. 7963; C.S., sec. 9022; I.C.A., sec. 19-2312.]
After a plea or verdict of guilty, or after a verdict against the defendant on the plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed.
[(19-2501) Cr. Prac. 1864, secs. 434, 435, p. 266; R.S., R.C., & C.L., sec. 7980; C.S., sec. 9023; I.C.A., sec. 19-2401.]
Upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree.
[(19-2502) R.S., R.C., & C.L., sec. 7981; C.S., sec. 9024; I.C.A., sec. 19-2402.]
For the purpose of judgment, if the conviction is for a felony, the defendant must be personally present; if for a misdemeanor, judgment may be pronounced in his absence.
[(19-2503) Cr. Prac. 1864, sec. 436, p. 266; R.S., R.C., & C.L., sec. 7982; C.S., sec. 9025; I.C.A., sec. 19-2403.]
When the defendant is in custody the court may direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so.
[(19-2504) Cr. Prac. 1864, sec. 437, p. 266; R.S., R.C., & C.L., sec. 7983; C.S., sec. 9026; I.C.A., sec. 19-2404.]
If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear for judgment when his personal appearance is necessary, the court, in addition to the forfeiture of the undertaking of bail, or of the money deposited, may direct the clerk to issue a bench warrant for his arrest.
[(19-2505) Cr. Prac. 1864, sec. 438, p. 266; R.S., R.C., & C.L., sec. 7984; C.S., sec. 9027; I.C.A., sec. 19-2405.]
The clerk, on the application of the prosecuting attorney, may, at any time after the order, whether the court be sitting or not, issue a bench warrant into one or more counties.
[(19-2506) Cr. Prac. 1864, sec. 439, p. 266; R.S., R.C., & C.L., sec. 7985; C.S., sec. 9028; I.C.A., sec. 19-2406.]
The bench warrant must be substantially in the following form:
County of …..
The state of Idaho, to any sheriff, constable, marshal or policeman in this state:
A.B., having been on the …. day of …., …. duly convicted in the district court of the …. judicial district of the state of Idaho, in and for the county of …., of the crime of …. (designating it generally), you are therefore commanded forthwith to arrest the above named A.B. and bring him before that court for judgment; or if the court has adjourned for the term, that you deliver him into the custody of the sheriff of the county of …..
Given under my hand, with the seal of said court affixed, this …. day of …., …..
By order of the court.
(Seal)
[(19-2507) Cr. Prac. 1864, sec. 440, p. 266; R.S., R.C., & C.L., sec. 7986; C.S., sec. 9029; I.C.A., sec. 19-2407; am. 2007, ch. 90, sec. 11, p. 251.]
The bench warrant may be served in any county in the same manner as a warrant of arrest, and when served in another county it need not be endorsed by a magistrate of that county.
[(19-2508) Cr. Prac. 1864, sec. 441, p. 266; R.S., R.C., & C.L., sec. 7987; C.S., sec. 9030; I.C.A., sec. 19-2408.]
Whether the bench warrant is served in the county in which it was issued or in another county, the officer must arrest the defendant and bring him before the court or commit him to the officer mentioned in the warrant, according to the command thereof.
[(19-2509) Cr. Prac. 1864, sec. 442, p. 267; R.S., R.C., & C.L., sec. 7988; C.S., sec. 9031; I.C.A., sec. 19-2409.]
When the defendant appears for judgment he must be informed by the court, or by the clerk, under its direction, of the nature of the indictment and of his plea, and the verdict if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.
[(19-2510) Cr. Prac. 1864, sec. 443, p. 267; R.S., R.C., & C.L., sec. 7989; C.S., sec. 9032; I.C.A., sec. 19-2410.]
He may show, for cause against the judgment that he has good cause to offer, either in arrest of judgment or for a new trial, in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment or for a new trial.
[(19-2511) Cr. Prac. 1864, sec. 444, p. 267; R.S., R.C., & C.L., sec. 7990; C.S., sec. 9033; I.C.A., sec. 19-2411; am. 1970, ch. 31, sec. 14, p. 61.]
If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered.
[(19-2512) Cr. Prac. 1864, sec. 445, p. 267; R.S., & R.C., sec. 7991; reen. 1915, ch. 104, sec. 1, p. 244; reen. C.L., sec. 7991; C.S., sec. 9034; I.C.A., sec. 19-2412.]
At the time of a guilty plea, conviction, or sentencing, the court shall order the collection of a DNA sample and thumbprint impression from any person who is convicted of, or pleads guilty to, any serious crime, as defined in section 19-5502(10), Idaho Code, according to the process set forth in this chapter.
[19-2512A, added 2026, ch. 40, sec. 1, p. 169.]
(1) Whenever any person is convicted of having committed a felony, the court shall, unless it shall commute the sentence, suspend or withhold judgment and sentence or grant probation, as provided in chapter 26, title 19, Idaho Code, or unless it shall impose the death sentence as provided by law, sentence such offender to the custody of the state board of correction. The court shall specify a minimum period of confinement and may specify a subsequent indeterminate period of custody. The court shall set forth in its judgment and sentence the minimum period of confinement and the subsequent indeterminate period, if any, provided, that the aggregate sentence shall not exceed the maximum provided by law. During a minimum term of confinement, the offender shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct except for meritorious service as provided in section 20-101D, Idaho Code, or for medical parole as provided in section 20-1006, Idaho Code. The offender may be considered for parole or discharge at any time during the indeterminate period of the sentence and as provided in section 20-1006, Idaho Code.
(2) If the offense carries a mandatory minimum penalty as provided by statute, the court shall specify a minimum period of confinement consistent with such statute. If the offense is subject to an enhanced penalty as provided by statute, or if consecutive sentences are imposed for multiple offenses, the court shall, if required by statute, direct that the enhancement or each consecutive sentence contain a minimum period of confinement; in such event, all minimum terms of confinement shall be served before any indeterminate periods commence to run.
(3) Enactment of this amended section shall not affect the prosecution, adjudication or punishment of any felony committed before the effective date of enactment.
[19-2513, added 1909, p. 82, H.B. 214, sec. 1; am. 1911, ch. 200, sec. 1, p. 664; compiled and reen. C.L., sec. 7991a; C.S., sec. 9035; I.C.A., sec. 19-2413; am. 1947, ch. 46, sec. 1, p. 50; am. 1957, ch. 47, sec. 1, p. 82; am. 1970, ch. 143, sec. 1, p. 425; am. 1986, ch. 232, sec. 3, p. 639; am. 1993, ch. 106, sec. 2, p. 272; am. 2014, ch. 150, sec. 19, p. 430; am. 2017, ch. 182, sec. 6, p. 421; am. 2021, ch. 196, sec. 21, p. 536; am. 2024, ch. 164, sec. 1, p. 623.]
Any person convicted for the third time of the commission of a felony, whether the previous convictions were had within the state of Idaho or were had outside the state of Idaho, shall be considered a persistent violator of law, and on such third conviction shall be sentenced to a term in the custody of the state board of correction which term shall be for not less than five (5) years and said term may extend to life.
[(19-2514) C.S., sec. 9035A, as added by 1923, ch. 109, sec. 1, p. 139; I.C.A., sec. 19-2414; am. 1970, ch. 143, sec. 2, p. 425.]
(1) Except as provided in section 19-2515A, Idaho Code, a person convicted of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under shall be liable for the imposition of the penalty of death if such person killed, intended a killing, or acted with reckless indifference to human life, irrespective of whether such person directly committed the acts that caused death or the aggravated lewd conduct.
(2) Where a person is sentenced to serve a term in the penitentiary, after conviction of a crime which falls within the provisions of section 20-1005, Idaho Code, except in cases where the court retains jurisdiction, the comments and arguments of the counsel for the state and the defendant relative to the sentencing and the comments of the judge relative to the sentencing shall be recorded. If the comments are recorded electronically, they need not be transcribed. Otherwise, they shall be transcribed by the court reporter.
(3) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless:
(a) A notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code; and
(b) The jury, or the court if a jury is waived, finds beyond a reasonable doubt at least one (1) statutory aggravating circumstance for murder and at least three (3) statutory aggravating circumstances, as listed in subsection (10) of this section, for aggravated lewd conduct with a minor child twelve (12) years of age or under. Where a statutory aggravating circumstance is found, the defendant shall be sentenced to death unless mitigating circumstances which may be presented are found to be sufficiently compelling that the death penalty would be unjust. The jury shall not direct imposition of a sentence of death unless it unanimously finds at least one (1) statutory aggravating circumstance and unanimously determines that the penalty of death should be imposed.
(4) Notwithstanding any court rule to the contrary, when a defendant is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, no presentence investigation shall be conducted; provided however, that if a special sentencing proceeding is not held or if a special sentencing proceeding is held but no statutory aggravating circumstance has been proven beyond a reasonable doubt, the court may order that a presentence investigation be conducted.
(5)(a) If a person is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, and a notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code, a special sentencing proceeding shall be held promptly for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. Information concerning the victim and the impact that the death or aggravated lewd conduct of the victim has had on the victim’s family is relevant and admissible. Such information shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community or impact caused by the victim’s death or lewd conduct of the victim. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information. The special sentencing proceeding shall be conducted before a jury unless a jury is waived by the defendant with the consent of the prosecuting attorney.
(b) If the defendant’s guilt was determined by a jury verdict, the same jury shall hear the special sentencing proceeding; provided however, that if it is impracticable to reconvene the same jury to hear the special sentencing proceeding due to an insufficient number of jurors, the trial court may dismiss that jury and convene a new jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code.
(c) If the defendant’s guilt was determined by a plea of guilty or by a decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including, but not limited to, a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code, unless such jury is waived.
(d) If a special sentencing proceeding is conducted before a newly impaneled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of this section, the state and the defense may present evidence to inform the jury of the nature and circumstances of the murder or aggravated lewd conduct for which the defendant was convicted. The newly impaneled jury shall be instructed that the defendant has previously been found guilty of first-degree murder or aggravated lewd conduct with a minor child twelve (12) years of age or under and that the jury’s purpose is limited to making findings relevant for sentencing.
(6) At the special sentencing proceeding, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation. Disclosure of evidence to be relied on in the sentencing proceeding shall be made in accordance with Idaho criminal rule 16. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.
(7) The jury shall be informed as follows:
(a) If the jury finds that a statutory aggravating circumstance exists and no mitigating circumstances exist which would make the imposition of the death penalty unjust, the defendant will be sentenced to death by the court.
(b) If the jury finds the existence of a statutory aggravating circumstance but finds that the existence of mitigating circumstances makes the imposition of the death penalty unjust or the jury cannot unanimously agree on whether the existence of mitigating circumstances makes the imposition of the death penalty unjust, the defendant will be sentenced to a term of life imprisonment without the possibility of parole; and
(c) If the jury does not find the existence of a statutory aggravating circumstance or if the jury cannot unanimously agree on the existence of a statutory aggravating circumstance, the defendant will be sentenced by the court to a term of life imprisonment with a fixed term of not less than ten (10) years for first-degree murder or thirty (30) years for aggravated lewd conduct with a minor child twelve (12) years of age or under.
(8) Upon the conclusion of the evidence and arguments in mitigation and aggravation:
(a) With regard to each statutory aggravating circumstance alleged by the state, the jury shall return a special verdict stating:
(i) Whether the statutory aggravating circumstance has been proven beyond a reasonable doubt; and
(ii) If the statutory aggravating circumstance has been proven beyond a reasonable doubt, whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust.
(b) If a jury has been waived, the court shall:
(i) Make written findings setting forth any statutory aggravating circumstance found beyond a reasonable doubt;
(ii) Set forth in writing any mitigating circumstances considered; and
(iii) Upon weighing all mitigating circumstances against each statutory aggravating circumstance separately, determine whether mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust and detail in writing its reasons for so finding.
(9) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed for murder in the first degree:
(a) The defendant was previously convicted of another murder.
(b) At the time the murder was committed the defendant also committed another murder.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(g) The murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(h) The murder was committed in the perpetration of, or attempt to perpetrate, lewd and lascivious conduct with a minor, sexual abuse of a child under sixteen (16) years of age, ritualized abuse of a child, sexual exploitation of a child, sexual battery of a minor child sixteen (16) or seventeen (17) years of age, or forcible sexual penetration by use of a foreign object, and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(i) The defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
(j) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty or because of the victim’s former or present official status.
(k) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.
(10) The following are statutory aggravating circumstances, at least three (3) of which must be found to have existed during the commission of or to accomplish the lewd conduct beyond a reasonable doubt before a sentence of death can be imposed for aggravated lewd conduct with a minor child twelve (12) years of age or under, as provided in section 18-1508C, Idaho Code:
(a) The defendant engaged in three (3) or more incidents of lewd conduct of a child involving the same victim on separate occasions;
(b) The defendant penetrated, however slight, the oral, anal, or vaginal opening of the victim with a penis;
(c) The victim was kidnapped as defined in section 18-4501, Idaho Code;
(d) The defendant committed the crime of human trafficking, as defined in section 18-8602, Idaho Code, against the victim;
(e) The defendant has been found guilty of or has plead guilty to any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code;
(f) The defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional, or occupational status and used the position of trust or power to accomplish the lewd conduct; or the defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the lewd conduct;
(g) The defendant tortured the victim by the intentional infliction of extreme and prolonged pain with the intent to cause suffering or by the infliction of extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering;
(h) The defendant used force or coercion;
(i) The defendant was armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon;
(j) The defendant caused great bodily injury, as defined in section 19-2520B, Idaho Code, or mutilation to the victim;
(k) The defendant’s commission of the offense involved more than one (1) victim;
(l) The defendant’s commission of the offense involved more than one (1) perpetrator;
(m) The victim contracted a sexually transmitted disease as a result of the lewd conduct;
(n) The victim was impregnated as a result of the lewd conduct;
(o) The defendant willfully and unlawfully choked or attempted to strangle the victim during the commission of the lewd conduct;
(p) The defendant provided alcohol, drugs, or other intoxicating substances to the victim; or
(q) The defendant knew or had reason to know that the victim had a developmental disability as defined in section 66-402(5), Idaho Code.
Sentence in capital cases — Special sentencing proceeding — Statutory aggravating circumstances — Special verdict or written findings. [effective January 1, 2027]
(1) Except as provided in section 19-2515A, Idaho Code, a person convicted of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under shall be liable for the imposition of the penalty of death if such person killed, intended a killing, or acted with reckless indifference to human life, irrespective of whether such person directly committed the acts that caused death or the aggravated lewd conduct.
(2) Where a person is sentenced to serve a term in the penitentiary, after conviction of a crime which falls within the provisions of section 20-1005, Idaho Code, except in cases where the court retains jurisdiction, the comments and arguments of the counsel for the state and the defendant relative to the sentencing and the comments of the judge relative to the sentencing shall be recorded. If the comments are recorded electronically, they need not be transcribed. Otherwise, they shall be transcribed by the court reporter.
(3) Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless:
(a) A notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code; and
(b) The jury, or the court if a jury is waived, finds beyond a reasonable doubt at least one (1) statutory aggravating circumstance for murder and at least three (3) statutory aggravating circumstances, as listed in subsection (10) of this section, for aggravated lewd conduct with a minor child twelve (12) years of age or under. Where a statutory aggravating circumstance is found, the defendant shall be sentenced to death unless mitigating circumstances which may be presented are found to be sufficiently compelling that the death penalty would be unjust. The jury shall not direct imposition of a sentence of death unless it unanimously finds at least one (1) statutory aggravating circumstance and unanimously determines that the penalty of death should be imposed.
(4) Notwithstanding any court rule to the contrary, when a defendant is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, no presentence investigation shall be conducted; provided however, that if a special sentencing proceeding is not held or if a special sentencing proceeding is held but no statutory aggravating circumstance has been proven beyond a reasonable doubt, the court may order that a presentence investigation be conducted.
(5)(a) If a person is adjudicated guilty of murder in the first degree or aggravated lewd conduct with a minor child twelve (12) years of age or under, whether by acceptance of a plea of guilty, by verdict of a jury, or by decision of the trial court sitting without a jury, and a notice of intent to seek the death penalty was filed and served as provided in section 18-4004A, Idaho Code, a special sentencing proceeding shall be held promptly for the purpose of hearing all relevant evidence and arguments of counsel in aggravation and mitigation of the offense. Information concerning the victim and the impact that the death or aggravated lewd conduct of the victim has had on the victim’s family is relevant and admissible. Such information shall be designed to demonstrate the victim’s uniqueness as an individual human being and the resultant loss to the community or impact caused by the victim’s death or lewd conduct of the victim. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information. The special sentencing proceeding shall be conducted before a jury unless a jury is waived by the defendant with the consent of the prosecuting attorney.
(b) If the defendant’s guilt was determined by a jury verdict, the same jury shall hear the special sentencing proceeding; provided however, that if it is impracticable to reconvene the same jury to hear the special sentencing proceeding due to an insufficient number of jurors, the trial court may dismiss that jury and convene a new jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code.
(c) If the defendant’s guilt was determined by a plea of guilty or by a decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including, but not limited to, a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code, unless such jury is waived.
(d) If a special sentencing proceeding is conducted before a newly impaneled jury pursuant to the provisions of subsection (5)(b) or (5)(c) of this section, the state and the defense may present evidence to inform the jury of the nature and circumstances of the murder or aggravated lewd conduct for which the defendant was convicted. The newly impaneled jury shall be instructed that the defendant has previously been found guilty of first-degree murder or aggravated lewd conduct with a minor child twelve (12) years of age or under and that the jury’s purpose is limited to making findings relevant for sentencing.
(6) At the special sentencing proceeding, the state and the defendant shall be entitled to present all relevant evidence in aggravation and mitigation. Disclosure of evidence to be relied on in the sentencing proceeding shall be made in accordance with Idaho criminal rule 16. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.
(7) The jury shall be informed as follows:
(a) If the jury finds that a statutory aggravating circumstance exists and no mitigating circumstances exist which would make the imposition of the death penalty unjust, the defendant will be sentenced to death by the court.
(b) If the jury finds the existence of a statutory aggravating circumstance but finds that the existence of mitigating circumstances makes the imposition of the death penalty unjust or the jury cannot unanimously agree on whether the existence of mitigating circumstances makes the imposition of the death penalty unjust, the defendant will be sentenced to a term of life imprisonment without the possibility of parole; and
(c) If the jury does not find the existence of a statutory aggravating circumstance or if the jury cannot unanimously agree on the existence of a statutory aggravating circumstance, the defendant will be sentenced by the court to a term of life imprisonment with a fixed term of not less than ten (10) years for first-degree murder or thirty (30) years for aggravated lewd conduct with a minor child twelve (12) years of age or under.
(8) Upon the conclusion of the evidence and arguments in mitigation and aggravation:
(a) With regard to each statutory aggravating circumstance alleged by the state, the jury shall return a special verdict stating:
(i) Whether the statutory aggravating circumstance has been proven beyond a reasonable doubt; and
(ii) If the statutory aggravating circumstance has been proven beyond a reasonable doubt, whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust.
(b) If a jury has been waived, the court shall:
(i) Make written findings setting forth any statutory aggravating circumstance found beyond a reasonable doubt;
(ii) Set forth in writing any mitigating circumstances considered; and
(iii) Upon weighing all mitigating circumstances against each statutory aggravating circumstance separately, determine whether mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust and detail in writing its reasons for so finding.
(9) The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed for murder in the first degree:
(a) The defendant was previously convicted of another murder.
(b) At the time the murder was committed the defendant also committed another murder.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The murder was committed for remuneration or the promise of remuneration or the defendant employed another to commit the murder for remuneration or the promise of remuneration.
(e) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(f) By the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(g) The murder was committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(h) The murder was committed in the perpetration of, or attempt to perpetrate, lewd and lascivious conduct with a minor, sexual abuse of a child under sixteen (16) years of age, ritualized abuse of a child, sexual exploitation of a child, sexual battery of a minor child sixteen (16) or seventeen (17) years of age, or forcible sexual penetration by use of a foreign object, and the defendant killed, intended a killing, or acted with reckless indifference to human life.
(i) The defendant, by his conduct, whether such conduct was before, during or after the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.
(j) The murder was committed against a former or present peace officer, executive officer, officer of the court, judicial officer or prosecuting attorney because of the exercise of official duty or because of the victim’s former or present official status.
(k) The murder was committed against a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.
(10) The following are statutory aggravating circumstances, at least three (3) of which must be found to have existed during the commission of or to accomplish the lewd conduct beyond a reasonable doubt before a sentence of death can be imposed for aggravated lewd conduct with a minor child twelve (12) years of age or under, as provided in section 18-1508C, Idaho Code:
(a) The defendant engaged in three (3) or more incidents of lewd conduct of a child involving the same victim on separate occasions;
(b) The defendant penetrated, however slight, the oral, anal, or vaginal opening of the victim with a penis;
(c) The victim was kidnapped as defined in section 18-4501, Idaho Code;
(d) The defendant committed the crime of human trafficking, as defined in section 18-8602, Idaho Code, against the victim;
(e) The defendant has been found guilty of or has plead guilty to any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code;
(f) The defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant’s legal, professional, or occupational status and used the position of trust or power to accomplish the lewd conduct; or the defendant had, at the time of the offense, parental or custodial authority over the victim and used the authority to accomplish the lewd conduct;
(g) The defendant tortured the victim by the intentional infliction of extreme and prolonged pain with the intent to cause suffering or by the infliction of extreme and prolonged acts of brutality irrespective of proof of intent to cause suffering;
(h) The defendant used force or coercion;
(i) The defendant was armed with a weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a weapon;
(j) The defendant caused great bodily injury, as defined in section 19-2520B, Idaho Code, or mutilation to the victim;
(k) The defendant’s commission of the offense involved more than one (1) victim;
(l) The defendant’s commission of the offense involved more than one (1) perpetrator;
(m) The victim contracted a sexually transmitted disease as a result of the lewd conduct;
(n) The victim was impregnated as a result of the lewd conduct;
(o) The defendant willfully and unlawfully choked or attempted to strangle the victim during the commission of the lewd conduct;
(p) The defendant provided alcohol, drugs, or other intoxicating substances to the victim; or
(q) The defendant knew or had reason to know that the victim had a developmental disability as defined in section 66-402 (4), Idaho Code.
[19-2515, R.S., R.C. & C.L., sec. 7992; C.S. sec. 9036; I.C.A. sec. 19-2415; am. 1977, ch. 154, sec. 4, p. 390; am. 1984, ch. 230, sec. 1, p. 549; am. 1995, ch. 140, sec. 1, p. 594; am. 1998, ch. 96, sec. 3, p. 344; am. 2000, ch. 287, sec. 1, p. 969; am. 2003, ch. 19, sec. 4, p. 72; am. 2003, ch. 136, sec. 3, p. 395; am. 2004, ch. 317, sec. 1, p. 889; am. 2005, ch. 152, sec. 1, p. 468; am. 2006, ch. 129, sec. 1, p. 375; am. 2021, ch. 196, sec. 22, p. 537; am. 2022, ch. 124, sec. 20, p. 453; am. 2025, ch. 177, sec. 7, p. 836; am. 2026, ch. 79, sec. 17, p. 407.]
(1) As used in this section:
(a) "Mentally retarded" means significantly subaverage general intellectual functioning that is accompanied by significant limitations in adaptive functioning in at least two (2) of the following skill areas: communication, self-care, home living, social or interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. The onset of significant subaverage general intelligence functioning and significant limitations in adaptive functioning must occur before age eighteen (18) years.
(b) "Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below.
(2) In any case in which the state has provided notice of an intent to seek the death penalty pursuant to section 18-4004A, Idaho Code, and where the defendant intends to claim that he is mentally retarded and call expert witnesses concerning such issue, the defendant shall give notice to the court and the state of such intention at least ninety (90) days in advance of trial, or such other period as justice may require, and shall apply for an order directing that a mental retardation hearing be conducted. Upon receipt of such application, the court shall promptly conduct a hearing without a jury to determine whether the defendant is mentally retarded; provided however, that no court shall, over the objection of any party, receive the evidence of any expert witness on the issue of mental retardation unless such evidence is fully subject to the adversarial process in at least the following particulars:
(a) If a defendant fails to provide notice as required in this subsection, an expert witness shall not be permitted to testify until such time as the state has a complete opportunity to consider the substance of such testimony and prepare for rebuttal through such opposing experts as the state may choose.
(b) A party who expects to call an expert witness to testify on the issue of mental retardation shall, on a schedule to be set by the court, furnish to the opposing party a written synopsis of the findings of such expert or a copy of a written report. The court may authorize the taking of depositions to inquire further into the substance of such synopsis or report.
(c) Raising the issue of mental retardation shall constitute a waiver of any privilege that might otherwise be interposed to bar the production of evidence on the subject and, upon request, the court shall order that the state’s experts shall have access to the defendant in such cases for the purpose of having its own experts conduct an examination in preparation for any legal proceeding at which the defendant’s mental retardation may be in issue.
(d) The court is authorized to appoint at least one (1) expert at public expense upon a showing by an indigent defendant that there is a need to inquire into questions of the defendant’s mental retardation. The defendant shall pay the costs of examination if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code. The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(e) If an examination cannot be conducted by reason of the unwillingness of the defendant to cooperate with either a court-appointed examiner or with any state expert, the examiner or expert shall so advise the court in writing and include, if possible, an opinion as to whether such unwillingness of the defendant was the result of mental retardation. The court may consider the defendant’s lack of cooperation for its effect on the credibility of the defendant’s mental retardation claim.
(3) If the court finds by a preponderance of the evidence that the defendant is mentally retarded, the death penalty shall not be imposed. The jury shall not be informed of the mental retardation hearing or the court’s findings concerning the defendant’s claim of mental retardation.
(4) In the event of a conviction of first-degree murder of a person who has been found to be mentally retarded pursuant to subsections (2) and (3) of this section, a special sentencing proceeding shall be held promptly to determine whether the state has proven beyond a reasonable doubt the existence of any of the statutory aggravating circumstances set forth in subsections 19-2515(9)(a) through (k), Idaho Code.
(a) The special sentencing proceeding shall be conducted before a jury unless a jury is waived by the defendant with the consent of the prosecuting attorney.
(i) If the defendant’s guilt was determined by a jury verdict, the same jury shall hear the special sentencing proceeding; provided however, that if it is impracticable to reconvene the same jury to hear the special sentencing proceeding due to an insufficient number of jurors, the trial court may dismiss that jury and convene a new jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code.
(ii) If the defendant’s guilt was determined by a plea of guilty or by a decision of the trial court sitting without a jury, or if a retrial of the special sentencing proceeding is necessary for any reason including, but not limited to, a mistrial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve (12) persons, plus alternate jurors as the trial court deems necessary pursuant to section 19-1904, Idaho Code, unless such jury is waived.
(iii) If a special sentencing proceeding is conducted before a newly impaneled jury, the state and the defense may present evidence to inform the jury of the nature and circumstances of the murder for which the defendant was convicted. The newly impaneled jury shall be instructed that the defendant has previously been found guilty of first-degree murder and that the jury’s purpose is limited to making findings relevant for sentencing.
(b) At the special sentencing proceeding, the state and the defendant shall be entitled to present all evidence relevant to the determination of whether or not a statutory aggravating circumstance has been proven beyond a reasonable doubt. Disclosure of evidence to be relied on in the sentencing proceeding shall be made in accordance with Idaho criminal rule 16. Evidence admitted at trial shall be considered and need not be repeated at the sentencing hearing.
(c) If a unanimous jury, or the court if a jury is waived, finds the existence of a statutory aggravating circumstance beyond a reasonable doubt, the court shall impose a fixed life sentence. If a unanimous jury, or the court if a jury is waived, does not find the existence of a statutory aggravating circumstance beyond a reasonable doubt, the court shall impose a life sentence with a minimum period of confinement of not less than ten (10) years during which period of confinement the defendant shall not be eligible for parole or discharge or credit or reduction of sentence for good conduct, except for meritorious service.
(5) Nothing in this section is intended to alter the application of any rule of evidence or limit or extend the right of any party to assert any claim or defense otherwise available to that party.
(6) Any remedy available by post-conviction procedure or habeas corpus shall be pursued according to the procedures and time limits set forth in section 19-2719, Idaho Code.
[19-2515A, added 2003, ch. 136, sec. 4, p. 398; am. 2006, ch. 129, sec. 2, p. 378.]
If a court orders a presentence investigation to be conducted, the court shall order the defendant to pay an amount to be determined by the department of correction, not to exceed one hundred dollars ($100), of the cost of conducting the presentence investigation and preparing the presentence investigation report. Such court orders shall be included in the judgment. Any such amount to be paid by the defendant shall be determined by the department of correction and shall be based on the defendant’s ability to pay. In determining a defendant’s ability to pay, the department of correction may consider such factors as the defendant’s income, property owned, outstanding obligations and the number and ages of dependents. Such payments shall be made to the department of correction and will be placed in the probation and parole receipts account created pursuant to section 20-225A, Idaho Code, and utilized as reimbursement for the cost of conducting the presentence investigation and preparing the presentence investigation report. Moneys in the probation and parole receipts account may be expended only after appropriation by the legislature.
[19-2516, added 2011, ch. 74, sec. 1, p. 156.]
(1) If the court orders a presentence investigation to be conducted, the investigation report shall include current recidivism rates for:
(a) Offenders placed on probation after an expired period of retained jurisdiction under section 19-2601 4., Idaho Code;
(b) Offenders placed on probation under section 19-2601 2. or 3., Idaho Code; and
(c) Offenders sentenced directly to a term of imprisonment.
(2) The reported recidivism rates shall be differentiated based on offender risk levels of low, moderate and high.
[19-2517, added 2014, ch. 150, sec. 1, p. 414.]
A judgment that the defendant pay a fine, pay costs, or pay fine and costs, constitutes a lien in like manner as a judgment for money in a civil action.
[(19-2518) Cr. Prac. 1864, sec. 448, p. 267; R.S., sec. 7995; 1899, p. 379; sec. 2; reen. R.C. & C.L., sec. 7995; C.S., sec. 9039; I.C.A., sec. 19-2418.]
(a) When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction was had and must without unnecessary delay annex together and file the following papers, which constitute a record of the action:
A copy of the minutes of a challenge interposed by the defendant to the panel of a grand jury, or to an individual grand juror, and the proceedings and the decisions thereon.
The indictment and copy of the minutes of the plea or demurrer.
A copy of the minutes of a challenge interposed to the panel of the trial jury or to an individual juror, and the proceedings and decision thereon.
A copy of the minutes of the trial.
A copy of the minutes of the judgment.
Any bill or bills of exceptions.
The written charges asked of the court, and refused with the court’s endorsement thereon.
A copy of all requested instruction showing those given and those refused with the court’s endorsement thereon, together with a copy of all instructions given on the court’s own motion.
(b) As soon as possible upon entry of the judgment of conviction the clerk shall deliver to the sheriff of the county a certified copy of the judgment along with a copy of the presentence investigation report, if any, for delivery to the director of correction pursuant to section 20-237, Idaho Code.
[(19-2519) Cr. Prac. 1864, sec. 449, p. 267; R.S. & R.C., sec. 7996; am. 1915, ch. 149, p. 323; reen. C.L., sec. 7996; C.S., sec. 9040; I.C.A., sec. 19-2419; am. 1991, ch. 116, sec. 2, p. 245.]
Any person convicted of a violation of sections 18-905 (aggravated assault defined), 18-907 (aggravated battery defined), 18-909 (assault with intent to commit a serious felony defined), 18-911 (battery with intent to commit a serious felony defined), 18-1401 (burglary defined), 18-1508(3), 18-1508(4), 18-1508(5), 18-1508(6) (lewd conduct with minor or child under sixteen), 18-2501 (rescuing prisoners), 18-2505 (escape by one charged with or convicted of a felony), 18-2506 (escape by one charged with or convicted of a misdemeanor), 18-4003 (degrees of murder), 18-4006 (manslaughter), 18-4015 (assault with intent to murder), 18-4501 (kidnapping defined), 18-5001 (mayhem defined), 18-6101 (rape defined), 18-6501 (robbery defined), 37-2732(a) (delivery, manufacture or possession of a controlled substance with intent to deliver) or 37-2732B (trafficking), Idaho Code, who displayed, used, threatened, or attempted to use a firearm or other deadly weapon while committing or attempting to commit the crime, shall be sentenced to an extended term of imprisonment. The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by fifteen (15) years.
For the purposes of this section, "firearm" means any deadly weapon capable of ejecting or propelling one (1) or more projectiles by the action of any explosive or combustible propellant, and includes unloaded firearms and firearms which are inoperable but which can readily be rendered operable.
The additional terms provided in this section shall not be imposed unless the fact of displaying, using, threatening, or attempting to use a firearm or other deadly weapon while committing the crime is separately charged in the information or indictment and admitted by the accused or found to be true by the trier of fact at the trial of the substantive crime.
This section shall apply even in those cases where the use of a firearm is an element of the offense.
[19-2520, added 1977, ch. 10, sec. 1, p. 20; am. 1980, ch. 296, sec. 1, p. 767; am. 1983, ch. 183, sec. 1, p. 496; am. 1986, ch. 319, sec. 2, p. 785; am. 1988, ch. 328, sec. 1, p. 990; am. 1993, ch. 264, sec. 1, p. 897; am. 2006, ch. 249, sec. 1, p. 758.]
(1) Any person who inflicts great bodily injury, and the injury was either intended or the act causing the injury was done with a reckless disregard for the safety of another person, on any person, other than an accomplice, in the commission or attempted commission of a felony or conspiracy to commit such a felony shall be sentenced to an extended term sentence. The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by twenty (20) years. A term of imprisonment shall be extended as provided in this section unless infliction of great bodily injury is an element of the offense of which he is found guilty. (2) As used in this section, "great bodily injury" means a significant or substantial physical injury.
(3) The extended term of imprisonment required by this section shall apply to any aider or abettor; a person who acts in concert with, or a person who conspires with, the perpetrator of the crime.
(4) The additional terms provided in this section shall not be imposed unless the fact of great bodily injury is separately charged in the accusatory pleading and admitted by the accused or found to be true by the trier of fact after a verdict or finding of guilty on the substantive crime.
[19-2520B, added 1981, ch. 150, sec. 1, p. 260; am. 1983, ch. 183, sec. 3, p. 498; am. 1986, ch. 319, sec. 3, p. 785.]
(1) Any person who is found guilty of violation of the provisions of sections 18-2401 (extortion), 18-4501 (kidnapping), 18-6101 (rape), or 18-1508 (lewd and lascivious conduct), Idaho Code, or any attempt or conspiracy to commit such crime(s); and committed such crime(s) by force, violence, duress, menace or threat of great bodily injury and who has been previously found guilty of any such crime, shall be sentenced to an extended term sentence. The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by fifteen (15) years; provided, however, that no extension shall be imposed under this section for any such crime occurring prior to a period of fifteen (15) years during which the person remained free of prison custody, parole and being found guilty of a crime which is a felony; provided further that no extension shall be imposed under this subsection when the provisions of section 19-2520B, Idaho Code, would be applicable.
(2) Any person found guilty of an offense specified in subsection (1) of this section who has served two (2) or more prior prison terms for any crime specified in subsection (1) hereof, shall be sentenced to an extended term sentence. The extended term of imprisonment authorized in this section shall be computed by increasing the maximum sentence authorized for the crime for which the person was convicted by twenty (20) years; provided, that no extended term of imprisonment shall be imposed under this subsection for any prison term served prior to a period of fifteen (15) years during which the person remained free of prison custody, parole and being found guilty of a crime which is a felony.
(3) The extended terms of imprisonment required by this section shall apply to any aider or abettor; a person who acts in concert with, or a person who conspires with, the perpetrator of the crime.
(4) Any extended term of imprisonment required by this section shall not be imposed unless the fact of the prior commission of a crime is separately charged in the accusatory pleading and admitted by the accused or found to be true by the trier of fact after a verdict or finding of guilty on the substantive crime.
[19-2520C, added 1981, ch. 150, sec. 2, p. 261; am. 1983, ch. 183, sec. 4, p. 498; am. 1984, ch. 63, sec. 3, p. 113; am. 1986, ch. 319, sec. 4, p. 786; am. 2022, ch. 124, sec. 21, p. 455.]
Every person who has been found guilty in any other state, country or jurisdiction of an offense for which, if committed within this state, such person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if such prior conviction had taken place in a court of this state.
[19-2520D, added 1981, ch. 150, sec. 3, p. 262.]
Notwithstanding the enhanced penalty provisions in sections 19-2520, 19-2520A, 19-2520B and 19-2520C, Idaho Code, any person convicted of two (2) or more substantive crimes provided for in the above code sections, which crimes arose out of the same indivisible course of conduct, may only be subject to one (1) enhanced penalty.
[19-2520E, added 1983, ch. 183, sec. 5, p. 499.]
Every person who has been found guilty of a commission of a felony on the grounds of a correctional facility located in this state shall have the sentence for such offense begin after all previous sentences have ended.
[19-2520F, added 1990, ch. 238, sec. 1, p. 676.]
(1) Pursuant to section 13, article V of the Idaho constitution, the legislature intends to provide mandatory minimum sentences for repeat offenders who have previously been found guilty of or pleaded guilty to child sexual abuse. The legislature hereby finds and declares that the sexual exploitation of children constitutes a wrongful invasion of a child and results in social, developmental and emotional injury to the child. It is the policy of the legislature to protect children from the physical and psychological damage caused by their being used in sexual conduct. In order to protect children from becoming victims of this type of conduct by perpetrators, it is necessary to provide the mandatory minimum sentencing format contained in subsection (2) of this section. By enacting mandatory minimum sentences, the legislature does not seek to limit the court’s power to impose in any case a longer sentence as provided by law.
(2) Any person who is found guilty of or pleads guilty to any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code, or any attempt or conspiracy to commit such a crime, shall be sentenced to a mandatory minimum term of confinement to the custody of the state board of correction for a period of not less than fifteen (15) years, if it is found by the trier of fact that previous to the commission of such crime the defendant has been found guilty of or has pleaded guilty to a violation of any crime or an offense committed in this state or another state which, if committed in this state, would require the person to register as a sexual offender as set forth in section 18-8304, Idaho Code.
(3) The mandatory minimum term provided in this section shall be imposed where the aggravating factor is separately charged in the information or indictment and admitted by the accused or found to be true by the trier of fact at a trial of the substantive crime. A court shall not have the power to suspend, withhold, retain jurisdiction, or commute a mandatory minimum sentence imposed pursuant to this section. Any sentence imposed under the provisions of this section shall run consecutive to any other sentence imposed by the court.
[19-2520G, added 1993, ch. 152, sec. 1, p. 387; am. 2006, ch. 154, sec. 1, p. 469; am. 2011, ch. 311, sec. 25, p. 903.]
(1) The policy of the state of Idaho regarding sentencing of persons convicted of a crime is as follows, unless otherwise provided by law:
(a) The sentencing court should first consider placement in the community. The goals of sentencing include the primary consideration of the protection of society, followed by the possibility of risk reduction through rehabilitation, deterrence of the individual and the public generally, and punishment or retribution for wrongdoing and the impact on the victim; and
(b) Each discretionary sentence should be specifically tailored to the individual defendant and take into account the totality of all relevant facts and circumstances.
(2) The following factors, while not controlling the discretion of the court, shall be accorded weight in favor of avoiding a sentence of imprisonment:
(a) The defendant’s criminal conduct neither caused nor threatened harm;
(b) The defendant did not contemplate that his criminal conduct would cause or threaten harm;
(c) The defendant’s criminogenic needs indicate that the defendant will benefit from supervision and treatment in the community;
(d) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(e) The victim of the defendant’s criminal conduct induced or facilitated the commission of the crime;
(f) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that was sustained; provided, however, nothing in this section shall prevent the appropriate use of imprisonment and restitution in combination;
(g) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime;
(h) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(i) The character and attitudes of the defendant indicate that the commission of another crime is unlikely; and
(j) The defendant demonstrates amenability to treatment.
(3) The following factors, while not controlling the discretion of the court, shall be accorded weight in favor of a sentence of imprisonment:
(a) There is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime harmful to another person;
(b) A lesser sentence will depreciate the seriousness of the defendant’s crime;
(c) Imprisonment will provide appropriate punishment and deterrent to the defendant;
(d) Imprisonment will provide an appropriate deterrent for other persons in the community; and
(e) The defendant is a multiple offender or professional criminal.
(4) As used in this section, "criminogenic needs" means those dynamic factors associated with the likelihood of reoffending but that may be changed through effective intervention.
[(19-2521) 19-2520 added 1977, ch. 46, sec. 1, p. 85; am. and redesig. 1993, ch. 86, sec. 1, p. 215; am. and redesig. 1993, ch. 101, sec. 1, p. 255; am. 2014, ch. 150, sec. 2, p. 414; am. 2020, ch. 210, sec. 1, p. 616.]
(1) If there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. The costs of examination shall be paid by the defendant if he is financially able. The determination of ability to pay shall be made in accordance with chapter 8, title 19, Idaho Code. The order appointing or requesting the designation of a psychiatrist or licensed psychologist shall specify the issues to be resolved for which the examiner is appointed or designated.
(2) In making such examination, any method may be employed which is accepted by the examiner’s profession for the examination of those alleged to be suffering from a mental illness or defect.
(3) The report of the examination shall include the following:
(a) A description of the nature of the examination;
(b) A diagnosis, evaluation or prognosis of the mental condition of the defendant;
(c) An analysis of the degree of the defendant’s illness or defect and level of functional impairment;
(d) A consideration of whether treatment is available for the defendant’s mental condition;
(e) An analysis of the relative risks and benefits of treatment or nontreatment;
(f) A consideration of the risk of danger which the defendant may create for the public if at large.
(4) The report of the examination shall be filed in triplicate with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.
(5) When the defendant wishes to be examined by an expert of his own choice, such examiner shall be permitted to have reasonable access to the defendant for the purpose of examination.
(6) If a mental health examination of the defendant has previously been conducted, whether pursuant to section 19-2524, Idaho Code, or for any other purpose, and a report of such examination has been submitted to the court, and if the court determines that such examination and report provide the necessary information required in subsection (3) of this section, and the examination is sufficiently recent to reflect the defendant’s present mental condition, then the court may consider such prior examination and report as the examination and report required by this section and need not order an additional examination of the defendant’s mental condition. The provisions of this subsection shall not apply to examinations and reports performed or prepared pursuant to section 18-211 or 18-212, Idaho Code, for the purpose of determining the defendant’s fitness to proceed, unless the defendant knowingly, voluntarily and intelligently consents to having such examination and report used at sentencing.
(7) Nothing in this section is intended to limit the consideration of other evidence relevant to the imposition of sentence.
[19-2522, added 1982, ch. 368, sec. 9, p. 925; am. 2009, ch. 124, sec. 1, p. 390; am. 2012, ch. 225, sec. 1, p. 611.]
(1) Evidence of mental condition shall be received, if offered, at the time of sentencing of any person convicted of a crime. In determining the sentence to be imposed in addition to other criteria provided by law, if the defendant’s mental condition is a significant factor, the court shall consider such factors as:
(a) The extent to which the defendant is mentally ill;
(b) The degree of illness or defect and level of functional impairment;
(c) The prognosis for improvement or rehabilitation;
(d) The availability of treatment and level of care required;
(e) Any risk of danger which the defendant may create for the public, if at large, or the absence of such risk;
(f) The capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the offense charged.
(2) The court shall authorize treatment during the period of confinement or probation specified in the sentence if, after the sentencing hearing, it concludes by clear and convincing evidence that:
(a) The defendant suffers from a severe and reliably diagnosable mental illness or defect resulting in the defendant’s inability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law;
(b) Without treatment, the immediate prognosis is for major distress resulting in serious mental or physical deterioration of the defendant;
(c) Treatment is available for such illness or defect;
(d) The relative risks and benefits of treatment or nontreatment are such that a reasonable person would consent to treatment. (of the offense charged.)
(3) In addition to the authorization of treatment, the court shall pronounce sentence as provided by law.
[19-2523, added 1982, ch. 368, sec. 10, p. 925.]
(1) After a defendant has pled guilty to or been found guilty of a felony, and at any time thereafter while the court exercises jurisdiction over the defendant, behavioral health needs determinations shall be conducted when and as provided by this section.
(a) As part of the presentence process, a screening to determine whether a defendant is in need of a substance use disorder assessment and/or a mental health examination shall be made in every felony case unless the court waives the requirement for a screening. The screening shall be performed within seven (7) days after the plea of guilty or finding of guilt.
(b) At any time after sentencing while the court exercises jurisdiction over the defendant, the court may order such a screening to be performed by individuals authorized or approved by the department of correction if the court determines that one is indicated. The screening shall be performed within seven (7) days after the order of the court requiring such screening.
(2) Substance use disorder provisions.
(a) Should a screening indicate the need for further assessment of a substance use disorder, the necessary assessment shall be timely performed so as to avoid any unnecessary delay in the criminal proceeding and not later than thirty-five (35) days after a plea of guilty or finding of guilt or other order of the court requiring such screening. The assessment may be performed by qualified employees of the department of correction or by private providers approved by the department of health and welfare. If the screening or assessment is not timely completed, the court may order that the screening be performed by another qualified provider.
(b) Following completion of the assessment, the results of the assessment, including a determination of whether the defendant meets diagnostic criteria for a substance use disorder and the recommended level of care, shall be submitted to the court as part of the presentence investigation report or other department of correction report to the court.
(c) Following the entry of a plea of guilty or a finding of guilt, the court may order, as a condition of the defendant’s continued release on bail or on the defendant’s own recognizance, that, if the assessment reflects that the defendant meets diagnostic criteria for a substance use disorder, the defendant shall promptly, and prior to sentencing, begin treatment at the recommended level of care.
(d) If the court concludes at sentencing, or at any time after sentencing while the court exercises jurisdiction over the defendant, that the defendant meets diagnostic criteria for a substance use disorder, and if the court places the defendant on probation, the court may order the defendant, as a condition of probation, to undergo treatment at the recommended level of care, subject to modification of the level of care by the court. If substance use disorder treatment is ordered, all treatment shall be performed by a qualified private provider approved by the department of health and welfare. The court may order that, if the level of care placement or the treatment plan is modified in any material term, the department of correction shall notify the court stating the reason for the modifications and informing the court as to the clinical alternatives available to the defendant. The level of care for substance use treatment shall be based on each probationer’s risk assessment with priority given to probationers with high or moderate risk levels.
(e) In no event shall the persons or facility doing the substance use assessment be the person or facility that provides the substance use treatment unless this requirement is waived by the court or where the assessment and treatment are provided by or through a federally recognized Indian tribe or federal military installation where diagnosis and treatment are appropriate and available.
(f) Defendants who have completed department of correction institutional programs may receive aftercare services from qualified employees of the department of correction.
(g) The expenses of all screenings and assessments for substance use disorder provided or ordered pursuant to this section shall be borne by the department of correction. The expenses for treatment provided or ordered pursuant to this section shall be borne by the department of correction unless the defendant is placed in a treatment program that is funded by an alternate source. The department of correction shall be entitled to any payment received by the defendant or to which he may be entitled from any public or private source available to the department of correction for the service provided to the defendant. The department of correction may promulgate rules for a schedule of fees to be charged to the defendant for the substance use disorder assessments and treatments provided to the defendant based on the actual costs of such services and the ability of the defendant to pay. The department of correction shall determine costs pursuant to section 39-3140, Idaho Code.
(3) Mental health provisions.
(a) Should the mental health screening indicate that a serious mental illness may be present, then the department of correction shall refer the defendant to the department of health and welfare for further examination. The examination shall be timely performed so as to avoid any unnecessary delay in the criminal proceeding and not later than thirty-five (35) days after a plea of guilty or finding of guilt or other order of the court requiring such screening.
(b) The examination may be performed by qualified department of health and welfare employees or by private providers under contract with the department of health and welfare, provided that such examination shall at a minimum include an in-depth evaluation of the following:
(i) Mental health concerns;
(ii) Psychosocial risk factors;
(iii) Medical, psychiatric, developmental and other relevant history;
(iv) Functional impairments;
(v) Mental status examination;
(vi) Multiaxial diagnoses; and
(vii) Any other examinations necessary to provide the court with the information set forth in paragraph (c) of this subsection.
(c) Upon completion of the mental health examination, the court shall be provided, as part of the presentence report or other department of health and welfare report to the court, a copy of the mental health assessment along with a summary report. The summary report shall include the following:
(i) Description and nature of the examination;
(ii) Multiaxial diagnoses;
(iii) Description of the defendant’s diagnosis and if the defendant suffers from a serious mental illness (SMI) as that term is now defined, or is hereafter amended, in IDAPA 16.07.33.011, to also include post-traumatic stress disorder;
(iv) An analysis of the degree of impairment due to the defendant’s diagnosis;
(v) Consideration of the risk of danger the defendant may create for the public; and
(vi) If the defendant suffers from a serious mental illness, the report shall also include a plan of treatment that addresses the following:
An analysis of the relative risks and benefits of treatment versus nontreatment;
Types of treatment appropriate for the defendant; and
Beneficial services to be provided.
(d) If the court, after receiving a mental health examination and plan of treatment, determines that additional information is needed regarding the mental condition of the defendant or the risk of danger such condition may create for the public, the court may order additional evaluations and/or recommendations for treatment to be furnished by a psychiatrist, licensed physician or licensed psychologist.
(e) If the court concludes that the defendant suffers from a serious mental illness as defined in paragraph (c)(iii) of this subsection and that treatment is available for such serious mental illness, then the court may order, as a condition of the defendant’s release on bail or on the defendant’s own recognizance or as a condition of probation, that the defendant undergo treatment consistent with the plan of treatment, subject to modification of the plan of treatment by the court. If the plan of treatment is modified in any material term, the department of health and welfare shall notify the court in a timely manner stating the reasons for the modification and informing the court as to the clinical alternatives available to the defendant.
(f) If treatment is ordered, all treatment shall be performed by a provider approved by the department of health and welfare.
(g) Mental health examinations and/or treatment provided or ordered pursuant to this section shall be secured by the department of health and welfare. The department of health and welfare shall exhaust efforts to assist the defendant in gaining access to health care benefits that will cover the defendant’s mental health treatment needs. To the extent that health care benefits are not available to the defendant for the treatment, the expenses for treatment shall be borne by the department of health and welfare. The expenses of all mental health examinations provided or ordered under this section shall be borne by the department of health and welfare. The department of health and welfare shall be entitled to any payment received by the defendant or to which he may be entitled from any public or private source available to the department of health and welfare for the service provided to the defendant. The department of health and welfare shall determine costs pursuant to section 39-3140, Idaho Code. The defendant shall pay the fee for the mental health examinations and treatments consistent with the rules of the department of health and welfare.
(4) Unless otherwise ordered by the court, if the defendant is in treatment for a substance use disorder or mental illness, any substance use disorder assessment required pursuant to subsection (2) of this section or mental health examination required pursuant to subsection (3) of this section need not be performed while the defendant is in such treatment. In such circumstances, the court may make such order as it finds appropriate to facilitate the completion of the sentencing process or other proceeding before the court, including providing for the assessment and treatment records to be included in the presentence investigation report or other report to the court.
(5) Any substance use disorder assessment including any recommended level of care or mental health examination including any plan of treatment shall be delivered to the court, the defendant and the prosecuting attorney prior to any sentencing hearing or probation revocation hearing.
(6) A substance use disorder assessment prepared pursuant to the provisions of this section shall satisfy the requirement of an alcohol evaluation prior to sentencing set forth in section 18-8005(11), Idaho Code, and shall also satisfy the requirement of a substance abuse evaluation prior to sentencing set forth in section 37-2738, Idaho Code.
(7) If the defendant is sentenced to the custody of the board of correction, then any substance use disorder assessment, mental health examination or plan of treatment shall be sent to the department of correction along with the presentence report.
[19-2524, added 2007, ch. 310, sec. 1, p. 875; am. 2012, ch. 225, sec. 2, p. 612; am. 2012, ch. 225, sec. 3, p. 614; am. 2014, ch. 150, sec. 3, p. 415; am. 2020, ch. 82, sec. 12, p. 185; am. 2025, ch. 110, sec. 7, p. 578.]
Whenever any person shall have been convicted, or enter a plea of guilty, in any district court of the state of Idaho, of or to any crime against the laws of the state, except those of treason or murder, the court in its discretion may:
Commute the sentence and confine the defendant in the county jail, or, if the defendant is of proper age, commit the defendant to the custody of the state department of juvenile corrections;
Suspend the execution of the judgment at the time of judgment or at any time during the term of a sentence in the county jail and may place the defendant on probation under such terms and conditions as it deems necessary and appropriate;
Withhold judgment on such terms and for such time as it may prescribe and may place the defendant on probation under such terms and conditions as it deems necessary and appropriate; or
Suspend the execution of the judgment at any time during the first three hundred sixty-five (365) days of a sentence to the custody of the state board of correction. The court may retain jurisdiction over the prisoner for a period of up to the first three hundred sixty-five (365) days. Except as provided for in section 19-2601A, Idaho Code, during the period of retained jurisdiction, the state board of correction shall be responsible for determining the placement of the prisoner and such education, programming and treatment as it determines to be appropriate. The prisoner will remain committed to the board of correction if not affirmatively placed on probation by the court. In extraordinary circumstances, where the court concludes that it is unable to obtain and evaluate the relevant information within the period of retained jurisdiction, or where the court concludes that a hearing is required and is unable to obtain the defendant’s presence for such a hearing within such period, the court may decide whether to place the defendant on probation or release jurisdiction within a reasonable time, not to exceed thirty (30) days, after the period of retained jurisdiction has expired. Placement on probation shall be under such terms and conditions as the court deems necessary and appropriate. The court in its discretion may sentence a defendant to more than one (1) period of retained jurisdiction after a defendant has been placed on probation in a case or following release from commitment to the department of juvenile corrections pursuant to section 19-2601A, Idaho Code. In no case shall the board of correction or its agent, the department of correction, be required to hold a hearing of any kind with respect to a recommendation to the court for the grant or denial of probation. Probation is a matter left to the sound discretion of the court. Any recommendation made by the state board of correction to the court regarding the prisoner shall be in the nature of an addendum to the presentence report. The board of correction and its agency, the department of correction, and their employees shall not be held financially responsible for damages, injunctive or declaratory relief for any recommendation made to the district court under this section.
If the crime involved is a felony and if judgment is withheld as provided in subsection 3. of this section or if judgment and a sentence of custody to the state board of correction is suspended at the time of judgment in accordance with subsection 2. of this section or as provided by subsection 4. of this section, the court may place the defendant on probation. If the court places the defendant on probation to the board of correction, the court shall include in the terms and conditions of probation a requirement that the defendant enter into and comply with an agreement of supervision with the board of correction. The agreement of supervision shall include provisions setting forth the potential sanctions for a violation of the terms or conditions imposed and potential rewards for compliance with the terms and conditions imposed, as such sanctions and rewards are set forth in rules of the board of correction.
If the crime involved is a misdemeanor, indictable or otherwise, or if the court should suspend any remaining portion of a jail sentence already commuted in accordance with subsection 1. of this section, the court, if it grants probation, may place the defendant on probation.
The period of probation ordered by a court under this section under a conviction or plea of guilty for a misdemeanor, indictable or otherwise, may be for a period of not more than two (2) years; provided that the court may extend the period of probation to include the period of time during which the defendant is a participant in a problem solving court program and for a period of up to one (1) year after a defendant’s graduation or termination from a problem solving court program. Under a conviction or plea of guilty for a felony the period of probation may be for a period of not more than the maximum period for which the defendant might have been imprisoned.
[19-2601, added 1972, ch. 336, sec. 9, p. 989; am. 1972, ch. 381, sec. 16, p. 1102; am. 1973, ch. 292, sec. 1, p. 615; am. 1974, ch. 68, sec. 1, p. 1149; am. 1980, ch. 176, sec. 1, p. 374; am. 1994, ch. 33, sec. 1, p. 50; am. 1995, ch. 247, sec. 1, p. 817; am. 1996, ch. 418, sec. 1, p. 1388; am. 1998, ch. 67, sec. 1, p. 260; am. 2000, ch. 246, sec. 1, p. 686; am. 2005, ch. 186, sec. 1, p. 572; am. 2010, ch. 350, sec. 1, p. 913; am. 2012, ch. 46, sec. 1, p. 140; am. 2014, ch. 150, sec. 4, p. 418; am. 2015, ch. 113, sec. 2, p. 281; am. 2018, ch. 125, sec. 1, p. 264.]
(1) If the convicted juvenile is a juvenile held for adult criminal proceedings, the court may suspend execution of judgment of a sentence, retain jurisdiction and issue an order committing the convicted juvenile to dual custody with the state board of correction and the department of juvenile corrections.
(2) During this period of dual custody and retained jurisdiction:
(a) The department of juvenile corrections shall assume physical custody of and financial responsibility for the convicted juvenile from the time of the court’s order until the court terminates the department’s custody, jurisdiction is relinquished or the juvenile reaches twenty-one (21) years of age, whichever occurs first;
(b) The department of juvenile corrections shall be responsible for determining the placement of the convicted juvenile and such education, programming and treatment as it determines to be appropriate. However, court approval is required by the sentencing court prior to the department placing a convicted juvenile in a community residential setting;
(c) The state board of correction shall be a member of the convicted juvenile’s treatment team. The state board of correction shall participate in staffings and shall provide supervision pursuant to section 20-219, Idaho Code, if the convicted juvenile is placed in a community residential setting by the department of juvenile corrections. During this period of supervision, the state board of correction shall not file a probation violation, but may petition the court to terminate the custody of the department pursuant to paragraph (d) of this subsection;
(d) While the convicted juvenile is in the physical custody of the department of juvenile corrections, if either the department or the state board of correction reasonably believes that the juvenile is failing to comply with all reasonable program requirements, the department or the state board of correction may petition the sentencing court to terminate custody of the department. If the juvenile has successfully completed the program or is sixty (60) days or less from turning twenty-one (21) years of age, the department of juvenile corrections shall return the convicted juvenile to the court for further disposition;
(e) Any recommendation made by the state board of correction or the department of juvenile corrections to the court regarding the convicted juvenile shall be in the nature of an addendum to the presentence report; and
(f) Upon the release of the juvenile by the department of juvenile corrections, its duties and obligations cease and custody of the convicted juvenile with the department is terminated.
(3) All time served under the custody of the department of juvenile corrections shall be credited toward the total sentence given the convicted juvenile. However, in no event may the total of the actual time spent by the convicted juvenile in the custody of the department, plus any adult sentence imposed by the court, exceed the maximum period of imprisonment that could be imposed on an adult convicted of the same crime.
(4) Upon the release of the convicted juvenile by the department of juvenile corrections or termination of department custody, the court may impose another period of retained jurisdiction pursuant to subsection 4. of section 19-2601, Idaho Code, relinquish jurisdiction and impose the remainder of the sentence with the state board of correction, or place the convicted juvenile on adult felony probation.
[19-2601A, added 2015, ch. 113, sec. 3, p. 283.]
(1) Any person ordered to felony probation pursuant to this chapter shall be given notice that he waives his constitutional rights under the fourth amendment to the constitution of the United States and section 17, article I of the constitution of the state of Idaho and consents to warrantless search and seizure of his person, place of residence, motor vehicle, or other real or personal property, including without limitation a cellular or electronic device under his control or possession, at any time, day or night, with or without cause, by a probation and parole officer, county probation officer, or peace officer as defined in section 19-5101(d), Idaho Code.
(2) The court shall provide such notice at the time of sentencing and shall condition probation on the terms as provided in this section and any other terms the court deems necessary.
(3) The defendant shall agree to the terms of probation as described in this section and any other terms deemed by the court and shall acknowledge acceptance in writing. If the defendant fails to agree and accept said terms, he shall be ineligible to be placed on probation.
(4) Probation and parole officers, county probation officers, and peace officers shall not conduct searches or seizures for the sole purpose of harassment.
[19-2601B, added 2025, ch. 140, sec. 1, p. 711.]
If it is proved to the satisfaction of the court that the terms and conditions upon which the defendant was placed on probation by the court or any of them have been violated or for any other cause satisfactory to the court, the court may, at any time within the longest period for which the defendant might have been originally sentenced by judgment of the court, issue a bench warrant for the rearrest of the defendant.
[(19-2602) 1915, ch. 104, part of sec. 1, p. 245; reen. C.L., sec. 8000; C.S., sec. 9044; I.C.A., sec. 19-2504.]
When the court finds that the defendant has violated the terms and conditions of probation, it may, if judgment has been withheld, pronounce any judgment which it could originally have pronounced, or, if judgment was originally pronounced but suspended, revoke probation. The time such person shall have been at large under such suspended sentence shall not be counted as a part of the term of his sentence. The defendant shall receive credit for time served from the date of service of a bench warrant issued by the court after a finding of probable cause to believe the defendant has violated a condition of probation, for any time served following an arrest of the defendant pursuant to section 20-227, Idaho Code, and for any time served as a condition of probation under the withheld judgment or suspended sentence.
[(19-2603) 1915, ch. 104, part of sec. 1, p. 245; reen. C.L., sec. 8001; C.S., sec. 9045; I.C.A., sec. 19-2505; am. 2015, ch. 99, sec. 2, p. 240.]
(1) (a) Application for relief under this subsection may be made by the following persons who have pled guilty to or been found guilty of a crime:
(i) A defendant whose sentence has been suspended or who has received a withheld judgment;
(ii) A defendant in a felony case whose sentence has been commuted under section 19-2601 1., Idaho Code;
(iii) A defendant in a felony case upon whom the court has not imposed a sentence to the custody of the board of correction;
(iv) A defendant who has not been sentenced but who has successfully completed a drug court or mental health court program;
(v) A defendant in a misdemeanor case who has not been sentenced to serve a term in the county jail or whose sentence or any portion thereof has been suspended.
(b) Upon application of the defendant and upon satisfactory showing that:
(i) The court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of any probation that may have been imposed; or
(ii) The defendant has successfully completed and graduated from an authorized drug court program or mental health court program and during any period of probation that may have been served following such graduation, the court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of probation;
the court, if convinced by the showing made that there is no longer cause for continuing the period of probation should the defendant be on probation at the time of the application, and that there is good cause for granting the requested relief, may terminate the sentence or set aside the plea of guilty or conviction of the defendant, and finally dismiss the case and discharge the defendant or may amend the judgment of conviction from a term in the custody of the state board of correction to "confinement in a penal facility" for the number of days served prior to sentencing, and the amended judgment may be deemed to be a misdemeanor conviction. This shall apply to the cases in which defendants have been convicted before this law goes into effect, as well as to cases which arise thereafter. The final dismissal of the case as herein provided shall have the effect of restoring the defendant to his civil rights.
(2) If sentence has been imposed but suspended for any period during the first three hundred sixty-five (365) days of a sentence to the custody of the state board of correction, and the defendant placed upon probation as provided in subsection 4. of section 19-2601 or 19-2601A, Idaho Code, upon application of the defendant, the prosecuting attorney, or upon the court’s own motion, and upon satisfactory showing that:
(a) The court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of probation; or
(b) The defendant has successfully completed and graduated from an authorized drug court program or mental health court program and during any period of probation that may have been served following such graduation, the court did not find, and the defendant did not admit, in any probation violation proceeding that the defendant violated any of the terms or conditions of probation;
the court may amend the judgment of conviction from a term in the custody of the state board of correction to "confinement in a penal facility" for the number of days served prior to suspension, and the amended judgment may be deemed to be a misdemeanor conviction.
(3) (a) In addition to the circumstances in which relief from a felony conviction may be granted under subsections (1) and (2) of this section, a defendant who has been convicted of a felony and who has been discharged from probation may apply to the sentencing court for a reduction of the conviction from a felony to a misdemeanor as provided in this subsection.
(b) If less than five (5) years have elapsed since the defendant’s discharge from probation, the application may be granted only if the prosecuting attorney stipulates to the reduction.
(c) If at least five (5) years have elapsed since the defendant’s discharge from probation, and if the defendant was convicted of any of the following offenses, the application may be granted only if the prosecuting attorney stipulates to the reduction:
(i) Assault with intent to commit a serious felony (18-909, 18-915, Idaho Code);
(ii) Battery with intent to commit a serious felony (18-911, 18-915, Idaho Code);
(iii) Enticing of children (18-1509, Idaho Code);
(iv) Murder in the first or second degree (18-4003, Idaho Code);
(v) Voluntary manslaughter (18-4006(1), Idaho Code);
(vi) Assault with intent to commit murder (18-4015, Idaho Code);
(vii) Administering poison with intent to kill (18-4014, Idaho Code);
(viii) Kidnapping in the first degree (18-4502, Idaho Code);
(ix) Robbery (18-6501, Idaho Code);
(x) Trafficking (37-2732B, Idaho Code);
(xi) Threats against state officials of the executive, legislative or judicial branch, felony (18-1353A, Idaho Code);
(xii) Unlawful discharge of a firearm at a dwelling house, occupied building, vehicle or mobile home (18-3317, Idaho Code);
(xiii) Cannibalism (18-5003, Idaho Code);
(xiv) Unlawful use of destructive device or bomb (18-3320, Idaho Code);
(xv) Attempt, conspiracy or solicitation to commit any of the crimes described in subparagraphs (i) through (xiv) of this paragraph.
(d) The decision as to whether to grant such an application shall be in the discretion of the district court, provided that the application may be granted only if the court finds that:
(i) The defendant has not been convicted of any felony committed after the conviction from which relief is sought;
(ii) The defendant is not currently charged with any crime;
(iii) There is good cause for granting the reduction in sentence; and
(iv) In those cases where the stipulation of the prosecuting attorney is required under paragraph (b) or (c) of this subsection, the prosecuting attorney has so stipulated.
(e) If the court grants the application, the court shall reduce the felony conviction to a misdemeanor and amend the judgment of conviction for a term in the custody of the state board of correction to "confinement in a penal facility" for the number of days served prior to the judgment of conviction.
(4) Subsections (2) and (3) of this section shall not apply to any judgment of conviction for a violation of any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code. A judgment of conviction for a violation of any offense requiring sex offender registration as set forth in section 18-8304, Idaho Code, shall not be subject to dismissal or reduction under this section. A conviction for the purposes of this chapter means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment or withheld judgment.
(5) A violation of the terms of an agreement of supervision with the board of correction by a person under the supervision of the board shall not preclude the granting of relief to that person under this section.
[19-2604, added 1915, ch. 104, part of sec. 1, p. 245; reen. C.L., sec. 8002; am. 1919, ch. 134, sec. 2, p. 429; C.S., sec. 9046; I.C.A., sec. 19-2506; am. 1951, ch. 99, sec. 1, p. 224; am. 1970, ch. 143, sec. 4, p. 425; am. 1971, ch. 97, sec. 2, p. 210; am. 1989, ch. 305, sec. 1, p. 759; am. 2006, ch. 104, sec. 1, p. 287; am. 2006, ch. 157, sec. 1, p. 473; am. 2010, ch. 350, sec. 2, p. 914; am. 2011, ch. 187, sec. 1, p. 537; am. 2013, ch. 256, sec. 1, p. 631; am. 2014, ch. 283, sec. 1, p. 717; am. 2015, ch. 113, sec. 4, p. 284; am. 2017, ch. 172, sec. 1, p. 398.]
The powers hereby conferred upon the district court may be exercised by the judge thereof at chambers.
[(19-2605) 1915, ch. 104, part of sec. 1, p. 245; reen. C.L., sec. 8003; C.S., sec. 9047; I.C.A., sec. 19-2507.]
As ordered by the court, it shall be the duty of each person whose sentence is suspended to appear or report during the continuance of such suspension and to furnish, at his own expense, proof to the satisfaction of the court that he has, since his sentence was suspended or since the last date at which proof has been furnished, complied with the terms and conditions upon which his sentence was suspended by the court. The court may modify the terms and conditions of suspension or vacate the order of suspension of sentence and order retained jurisdiction or execution of the judgment as though suspension had not been made.
[(19-2606) 1915, ch. 104, sec. 2, p. 245; reen. C.L., sec. 7999; C.S., sec. 9043; am. 1929, ch. 100, sec. 1, p. 163; I.C.A., sec. 19-2503; am. 2014, ch. 150, sec. 5, p. 419.]
If at any time after suspension of sentence it shall appear to the district judge that the order suspending sentence was obtained by fraud, perjury or by any sort of misrepresentation or suppression of facts, or that the accused has failed or neglected to have a fixed place of abode and a regular occupation, the district judge shall issue a warrant for his apprehension and shall remand him for sentence.
[(19-2607) 1915, ch. 104, sec. 3, p. 245; reen. C.L., sec. 7998; C.S., sec. 9042; I.C.A., sec. 19-2502.]
Whenever a court orders testing of breath or bodily fluids as a condition of probation, such costs for the tests shall be paid for by the probationer in addition to any supervision fee authorized under section 20-225 or 31-3201D, Idaho Code, to the clerk of the court if services are provided by the county or directly to the agency providing the testing, provided the court may waive this requirement upon a showing of cause.
[19-2608, added 1994, ch. 248, sec. 1, p. 792; am. 2012, ch. 109, sec. 1, p. 299; am. 2020, ch. 281, sec. 1, p. 818.]
When a judgment, other than of death, has been pronounced, a certified copy of the entry thereof upon the minutes must be forthwith furnished to the officer whose duty it is to execute the judgment, and no other warrant or authority is necessary to justify or require its execution.
[(19-2701) Cr. Prac. 1864, sec. 450, p. 268; R.S., R.C., & C.L., sec. 8005; C.S., sec. 9048; I.C.A., sec. 19-2601.]
If the judgment includes the payment of a fine, or costs, or fine and costs, or other monetary sums, execution may be issued thereon for such sums as on a judgment in a civil action.
[(19-2702) Cr. Prac. 1864, sec. 451, p. 268; R.S., sec. 8006; am. 1899, p. 379, sec. 3; reen. R.C. & C.L., sec. 8006; C.S., sec. 9049; I.C.A., sec. 19-2602; am. 1995, ch. 205, sec. 1, p. 700.]
If the judgment is for imprisonment, or a fine and imprisonment until it be paid, the defendant must forthwith be committed to the custody of the proper officer, and by him detained until the judgment is complied with.
[(19-2703) Cr. Prac. 1864, sec. 452, p. 268; R.S., R.C., & C.L., sec. 8007; C.S., sec. 9050; I.C.A., sec. 19-2603.]
If judgment is for imprisonment in the state prison, or for the infliction of the death penalty, the sheriff of the county must, upon receipt of the certified copy of judgment, hold the prisoner in his custody until demand for such prisoner is made upon him by the duly authorized guard of said prison, who may be sent to convey such prisoner to the state prison. When such demand is made upon the sheriff by said guard, the sheriff shall deliver the prisoner and said copy of the judgment to said guard, and take a receipt from said guard for the prisoner and said copy of the judgment.
[(19-2704) R.S., sec. 8008; am. 1899, p. 340, sec. 2; reen. R.C. & C.L., sec. 8008; C.S., sec. 9051; I.C.A., sec. 19-2604.]
(1) Whenever a person is sentenced to death, the judge passing sentence shall, in accordance with section 19-2719, Idaho Code, sign and file a death warrant fixing a date of execution not more than thirty (30) days thereafter.
(2) The warrant shall be directed to the director of the Idaho department of correction and shall be delivered to him forthwith.
(3) Whenever a person is under death warrant, execution of which has not been stayed, the warden of the prison in which the person is incarcerated shall keep the condemned person in solitary confinement until execution. No person shall be allowed access to the condemned person except law enforcement personnel investigating matters within the scope of their duties, the attorney of record, attending physicians, a spiritual adviser of the condemned’s choosing, and members of the immediate family of the condemned, and then only in accordance with prison rules. Persons under death warrant will be allowed contact visits with their attorneys of record and the agents of their attorneys of record. Such visits will take place subject to prison rules. No other contact visits shall be permitted. Prison officials have authority to suspend or deny visits when the safe, secure and orderly operation of the facility or public safety could be compromised.
(4) For purposes of this section a "contact visit" is defined as a meeting between a condemned person and another person during which the parties are not separated by a screen or other partition which prohibits physical contact. Contact visits with attorneys of record or agents of the attorneys of record will take place in a private, confidential setting where the prisoner and his attorney are in the same room.
(5) For the purposes of this section, "agents of the attorneys of record" means employees of the attorneys of record including investigators, paralegals, legal interns and mitigation specialists but does not include retained experts or other independent contractors of the attorneys of record.
(6) For the purposes of this section, "legal intern" means a qualified law student or recent law school graduate who, upon application and approval by the Idaho state bar association, is granted a limited license to engage in the practice of law.
(7) No person shall be allowed access to the condemned person under death warrant except law enforcement personnel investigating matters within the scope of their duties, the condemned person’s attorneys of record, the agents of the condemned person’s attorneys of record, attending physicians, spiritual advisers of the condemned person’s choosing and approved visitors.
(8) When a person has been sentenced to death, but the death warrant has been stayed, contact visits between the condemned person and persons other than his attorneys of record and the agents of the attorneys of record may be allowed at the discretion of prison officials.
(9) All visits, contact or noncontact, with a condemned person, whether such person is under sentence of death or death warrant, shall take place only in accordance with prison rules. Prison officials shall have the authority to suspend or deny such visits when public safety or the safe, secure and orderly operation of the prison could be compromised.
(10) In the seven (7) days immediately preceding the scheduled execution of a condemned person, the condemned person may have contact visits with spiritual advisers of the condemned person’s choosing and members of the condemned person’s family, in addition to the attorneys of record and the agents of the attorneys of record.
(11) When a person has been sentenced to death, but the death warrant has been stayed, the warden is not required to hold such person in solitary confinement or to restrict access to him until the stay of the death warrant is lifted or a new death warrant is issued by the sentencing court; provided however, no condemned person shall be housed in less than maximum security confinement, and provided further that nothing in this section shall be construed to limit the warden’s discretion to house such person under conditions more restrictive if necessary to ensure public safety or the safe, secure and orderly operation of the facility.
(12) Nothing in this section shall be construed to create a liberty interest in the condemned person or to expand the right of access to courts under state or federal law.
[(19-2705) (19-2706) 19-2705, added 1984, ch. 159, sec. 2, p. 387; am. and redesig. 1999, ch. 285, sec. 3, p. 710; am. & redesig. 2003, ch. 282, sec. 2, p. 766.]
No judge, court or officer, can suspend the execution of a judgment of death, except as provided in sections 19-2715 and 19-2719, Idaho Code.
[(19-2708) Cr. Prac. 1864, sec. 456, p. 268; R.S., R.C., & C.L., sec. 8012; C.S., sec. 9055; I.C.A., sec. 19-2608; am. 1984, ch. 159, sec. 4, p. 387.]
If there is good reason to suppose that a female against whom a judgment of death is rendered is pregnant, the sheriff of the county, with the concurrence of the judge of the court by which the judgment was rendered, may summon a jury of three (3) physicians to inquire into the supposed pregnancy. Immediate notice thereof must be given to the prosecuting attorney of the county, and the provisions of sections 19-2710, 19-2711 apply to the proceedings upon the inquisition.
[(19-2713) Cr. Prac. 1864, sec. 462, p. 269; R.S., R.C., & C.L., sec. 8017; C.S., sec. 9060; I.C.A., sec. 19-2613.]
If it is found by the report that the female is not pregnant, the warden must execute the judgment; if it is found that she is pregnant, the warden must suspend the execution of the judgment, and transmit the report to the district court that imposed the sentence. When the district court that imposed the sentence is satisfied that the female is no longer pregnant, he may issue his warrant appointing a day for the execution of the judgment.
[(19-2714) Cr. Prac. 1864, secs. 463, 464, p. 269; R.S., R.C., & C.L., sec. 8018; C.S., sec. 9061; I.C.A., sec. 19-2614; am. 1984, ch. 159, sec. 5, p. 388.]
(1) Hereafter, no further stays of execution shall be granted to persons sentenced to death except that a stay of execution shall be granted during an appeal taken pursuant to section 19-2719, Idaho Code, during the automatic review of judgments imposing the punishment of death provided by section 19-2827, Idaho Code, by order of a federal court or as part of a commutation proceeding pursuant to section 20-1016, Idaho Code.
(2) Upon remittitur or mandate after a sentence of death has been affirmed, the state shall apply for a warrant from the district court in which the conviction was had, authorizing execution of the judgment of death. Upon such application, the district court shall set a new execution date not more than thirty (30) days thereafter.
(3) If a stay of execution is granted pursuant to subsection (1) of this section and, as a result, no execution takes place on the date set by the district court, upon termination of the stay, the state shall apply for another warrant and, upon such application, the district court shall set a new execution date not more than thirty (30) days thereafter.
(4) If for any reason other than those set forth in subsection (1) of this section a judgment of death has not been executed, and it remains in force, the state shall apply for another warrant. Upon such application, the district court may inquire into the facts and, if no legal reason exists against the execution of the judgment, must make an order that the warden execute the judgment at a special specified time. The warden must execute the judgment accordingly.
(5) Action of the district court under this section is ministerial only. No hearing shall be required for setting a new execution date, and the court shall inquire only into the fact of an existing death sentence and the absence of a valid stay of execution.
(6) For purposes of this section, the phrase "stay of execution" shall refer to a temporary postponement of an execution as a result of a court order or an order of the governor postponing the execution while a petition for commutation is pending.
[(19-2715) Cr. Prac. 1864, secs. 465, 466, p. 269; R.S., sec. 8019; am. 1899, p. 340, sec. 4; reen. R.C. & C.L., sec. 8019; C.S., sec. 9062; I.C.A., sec. 19-2615; am. 1984, ch. 159, sec. 6, p. 388; am. 2012, ch. 84, sec. 1, p. 241; am. 2021, ch. 196, sec. 23, p. 540; am. 2024, ch. 164, sec. 2, p. 623.]
(1) The punishment of death shall be inflicted by the following methods:
(a) Firing squad; or
(b) Continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction until death is pronounced by a coroner or a deputy coroner.
(2) Not later than five (5) days after the issuance of a death warrant, the director of the Idaho department of correction must determine, and certify by affidavit to the court that issued the death warrant, whether execution by firing squad, as described in subsection (1)(a) of this section, is available.
(3) If the director certifies that firing squad is available, the method of execution shall be firing squad.
(4) If the director does not certify that firing squad is available or fails to file a certification as required pursuant to subsection (2) of this section, the method of execution shall be lethal injection, as described in subsection (1)(b) of this section.
(5) If a court holds that firing squad is unconstitutional, on its face or as applied, or otherwise determines that lethal injection is a constitutionally required method of execution, the method of execution shall be lethal injection.
(6) The director shall determine the procedures to be used in any execution. Such procedures shall not be subject to the provisions of chapter 52, title 67, Idaho Code.
(7) The provisions of this section shall apply to all executions carried out on and after the effective date of this enactment, irrespective of the date sentence was imposed.
[(19-2716) Cr. Prac. 1864, sec. 467, p. 269; R.S., R.C., & C.L., sec. 8020; C.S., sec. 9063; I.C.A., sec. 19-2616; am. 1978, ch. 70, sec. 1, p. 140; am. 1982, ch. 257, sec. 1, p. 668; am. 2009, ch. 81, sec. 1, p. 228; am. 2023, ch. 141, sec. 1, p. 390; am. 2025, ch. 36, sec. 1, p. 174; am. 2026, ch. 225, sec. 1, p. 1001; am. 2026, ch. 225, sec. 2, p. 1001.]
(1) Notwithstanding any other provision of law, infliction of the punishment of death in the manner required by section 19-2716, Idaho Code, shall not be construed as the practice of medicine. The director of the department of correction and all persons authorized by him to participate in an execution, as provided in section 19-2716, Idaho Code, shall be exempt from all laws, rules and regulations governing the practice of medicine.
(2) For the purposes of carrying out the provisions of section 19-2716, Idaho Code, any pharmacy, prescriber, manufacturer, wholesale distributor or other entity authorized by law to possess controlled substances may distribute controlled substances to the director or his designees and shall not be subject to criminal or civil liability for the death of the condemned person.
(3) For the purposes of carrying out the provisions of section 19-2716, Idaho Code, the director and his designees may obtain, possess, store and administer controlled substances and are exempt from all laws, rules and regulations governing pharmacies and controlled substances, notwithstanding any other provision of law. Any employee of the state of Idaho participating in an execution pursuant to section 19-2716, Idaho Code, shall be presumed to be acting within the course and scope of his employment and without malice or criminal intent for purposes of section 6-903, Idaho Code. Any employee, agent or contractor of the state of Idaho participating in an execution pursuant to section 19-2716, Idaho Code, shall not be subject to criminal or civil liability for the death of the condemned person.
(4) For purposes of carrying out the provisions of section 19-2716, Idaho Code, the identities of any of the following persons or entities involved in the planning, training, or performance of an execution shall be confidential, shall not be subject to disclosure, and shall not be admissible as evidence or discoverable in any proceeding before any court, tribunal, board, agency, or person:
(a) The on-site emergency medical personnel, any member of the escort team, medical team, or firing squad, and any person or entity that provides technical assistance during the execution process; and
(b) Any person or entity who compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process.
(5) If any person who participates or performs ancillary functions in an execution is licensed by a board, the licensing board shall not suspend or revoke the person’s license, or take disciplinary action against the person, because of the person’s participation in an execution.
[19-2716A, added 2012, ch. 85, sec. 1, p. 242; am. 2022, ch. 182, sec. 1, p. 590; am. 2026, ch. 225, sec. 3, p. 1002.]
After the execution, the executioner shall make a return upon the death warrant to the district court, showing the time, mode and manner in which it was executed.
[(19-2718) R.S., sec. 8022; am. 1899, p. 340, sec. 6; reen. R.C. & C.L., sec. 8022; C.S., sec. 9065; I.C.A., sec. 19-2618; am. 1941, ch. 150, sec. 3, p. 303; am. 2012, ch. 83, sec. 1, p. 240.]
The following special procedures shall be interpreted to accomplish the purpose of eliminating unnecessary delay in carrying out a valid death sentence.
(1) When the punishment of death is imposed the time for filing an appeal shall begin to run when the death warrant is filed.
(2) The death warrant shall not be filed until forty-two (42) days after the judgment imposing the death sentence has been filed, or, in the event a post-conviction challenge to the conviction or sentence is filed, until the order deciding such post-conviction challenge is filed.
(3) Within forty-two (42) days of the filing of the judgment imposing the punishment of death, and before the death warrant is filed, the defendant must file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known. The defendant must file any claims of ineffective assistance of appellate counsel within forty-two (42) days of the Idaho supreme court issuing the final remittitur in the unified appeal from which no further proceedings except issuance of a death warrant are ordered.
(4) Any remedy available by post-conviction procedure, habeas corpus or any other provision of state law must be pursued according to the procedures set forth in this section and within the time limitations of subsection (3) of this section. The special procedures for fingerprint or forensic DNA testing set forth in sections 19-4901(a)(6) and 19-4902(b) through (g), Idaho Code, are fully applicable in capital cases and are subject to the procedures set forth in this section, and must be pursued through a petition filed within the time limitations of subsection (3) of this section or by July 1, 2002, whichever is later.
(5) If the defendant fails to apply for relief as provided in this section and within the time limits specified, he shall be deemed to have waived such claims for relief as were known, or reasonably should have been known. The courts of Idaho shall have no power to consider any such claims for relief as have been so waived or grant any such relief.
(a) An allegation that a successive post-conviction petition may be heard because of the applicability of the exception herein for issues that were not known or could not reasonably have been known shall not be considered unless the applicant shows the existence of such issues by (i) a precise statement of the issue or issues asserted together with (ii) material facts stated under oath or affirmation by credible persons with first hand knowledge that would support the issue or issues asserted. A pleading that fails to make a showing of excepted issues supported by material facts, or which is not credible, must be summarily dismissed.
(b) A successive post-conviction pleading asserting the exception shall be deemed facially insufficient to the extent it alleges matters that are cumulative or impeaching or would not, even if the allegations were true, cast doubt on the reliability of the conviction or sentence.
(c) A successive post-conviction pleading asserting the exception shall be deemed facially insufficient to the extent it seeks retroactive application of new rules of law.
(6) In the event the defendant desires to appeal from any post-conviction order entered pursuant to this section, his appeal must be part of any appeal taken from the conviction or sentence. All issues relating to conviction, sentence and post-conviction challenge shall be considered in the same appellate proceeding.
(7) If post-conviction challenge is made under this section, questions raised thereby shall be heard and decided by the district court within ninety (90) days of the filing of any motion or petition for relief timely filed as provided by this section. The court shall give first priority to capital cases. In the event the district court fails to act within the time specified, the supreme court of Idaho shall, on its own motion or the motion of any party, order the court to proceed forthwith, or if appropriate, reassign the case to another judge. When the supreme court intervenes as provided, it shall set a reasonable time limit for disposition of the issues before the district court.
(8) The time limit provided in subsection (7) of this section for disposition of post-conviction claims may be extended only upon a showing of extraordinary circumstances which would make it impossible to fairly consider defendant’s claims in the time provided. Such showing must be made under oath and the district court’s finding that extraordinary circumstances exist for extending the time shall be in writing and shall be immediately reported to the supreme court, which shall at once independently consider the sufficiency of the circumstances shown and determine whether an extension of time is warranted.
(9) When a judgment imposing the penalty of death is filed, the clerk and the reporter shall begin preparation of the transcripts of the trial, and other proceedings, and the clerk’s transcript.
(10) When the procedures specified in this section and section 19-2827, Idaho Code, have been carried out and a remittitur issued, and an execution date set as provided by law, the defendant shall be deemed to have exhausted all state remedies.
(11) Any successive petition for post-conviction relief not within the exception of subsection (5) of this section shall be dismissed summarily. Notwithstanding any other statute or rule, the order of dismissal shall not be subject to any motion to alter, amend or reconsider. Such order shall not be subject to any requirement for the giving of notice of the court’s intent to dismiss. The order of dismissal shall not be appealable.
(12) A stay of execution while the special appellate procedures specified herein are followed and during the pendency of automatic review of death sentences shall be automatically entered by the clerk of the supreme court at the time the district court transmits to the supreme court the report required by section 19-2827, Idaho Code. If the sentence is upheld, the clerk shall dissolve such stay when the remittitur is filed. Thereafter the district court shall set a new execution date.
[19-2719, added 1984, ch. 159, sec. 7, p. 388; am. 1995, ch. 140, sec. 3, p. 596; am. 2001, ch. 317, sec. 1, p. 1127; am. 2010, ch. 135, sec. 1, p. 287; am. 2015, ch. 245, sec. 1, p. 1040.]
This act shall apply to all cases in which capital sentences where imposed on or prior to the effective date of this act but which have not been carried out, and to all capital cases arising after the effective date of this act.
[I.C., sec. 19-2719a, as added by 1984, ch. 159, sec. 8, p. 386.]
After the imposition of a sentence of death, the trial judge should advise the defendant that, upon a particularized showing that there is a reasonable basis to litigate a claim of ineffective assistance of trial counsel, new counsel may be appointed to represent the defendant to pursue such a claim in a post-conviction proceeding. If no such request is made, the trial judge shall certify of record that there are no facts that have come to the court’s attention upon which such a claim could reasonably be based or, alternatively, the court may appoint new counsel. No deficiency in the application of the procedure described herein shall be grounds for relief from a judgment of conviction or from a sentence.
[(19-2720) 19-2719A, added 1995, ch. 140, sec. 4, p. 598; am. and redesig. 2005, ch. 25, sec. 14, p. 91.]
An appeal may be taken to the supreme court from the district court in a criminal action by such parties from such judgments and orders of the district court, and within such times and in such manner as prescribed by rule of the supreme court.
[19-2801, added 1977, ch. 170, sec. 10, p. 438.]
An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases the judgment may be stayed by the district court or the supreme court as provided by rule of the supreme court. Custody of the defendant shall be specified by the district court or in any order staying execution of the judgment.
[19-2802, added 1977, ch. 170, sec. 11, p. 439.]
(a) The clerk’s record and the reporter’s transcript in an appeal of a criminal action to the supreme court shall contain such portions and documents of the proceedings of the district court, and be prepared, processed and transmitted to the supreme court as provided by rule of the supreme court. Argument of a criminal appeal shall be as prescribed by rule of the supreme court, but the defendant shall not have any right to appear at the time of oral argument unless otherwise ordered by the supreme court.
(b) In any case where a presentence report is relevant to any issue on appeal, and is transmitted to the supreme court or the court of appeals for such use, the clerk of the district court shall serve a copy of the report on the attorney general and on appellate counsel for the defendant.
(c) In any case where a documentary exhibit is transmitted to the supreme court or the court of appeals for use in appellate proceedings to which the state or any of its officers is a party in an official capacity, the clerk of the district court shall serve a copy of the exhibit on the attorney general and on appellate counsel for the defendant.
[19-2803, added 1977, ch. 170, sec. 12, p. 439; am. 1986, ch. 124, sec. 1, p. 325; am. 2000, ch. 108, sec. 1, p. 238.]
In the event a sentence of death is returned by a federal court for further proceedings in the state courts, the Idaho supreme court shall consider whether any legal or factual error alleged by a federal court may be corrected without remanding the cause to the district court and shall: (a) make any specific fact findings required by a federal court when such findings are implicit in the judgment of the district court, though not expressly stated; (b) correct any formal error that may be corrected by reference to the record without remanding to the district court for resentencing; (c) make such findings as may be necessary to uphold a death sentence and can be made on the record without remanding the cause to the district court for further proceedings.
[19-2818, added 1995, ch. 140, sec. 5, p. 598.]
(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the supreme court of Idaho. The clerk of the trial court, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the supreme court of Idaho and to the attorney general together with a notice prepared by the clerk and, if a jury has been waived for sentencing, a report prepared by the trial judge setting forth the findings required by section 19-2515(8)(b), Idaho Code, and such other matters concerning the sentence imposed as may be required by the supreme court. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney(s), a narrative statement of the judgment, the offense, and punishment prescribed. The report may be in the form of a standard questionnaire prepared and supplied by the supreme court of Idaho.
(b) The supreme court of Idaho shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance from among those enumerated in section 19-2515, Idaho Code.
(d) Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
(e) In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by a jury or, if waived, the trial judge.
(f) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration.
(g) The supreme court shall collect and preserve the records of all cases in which the penalty of death was imposed from and including the year 1975.
[19-2827, added 1977, ch. 154, sec. 5, p. 393; am. 1994, ch. 127, sec. 1, p. 285; am. 2006, ch. 155, sec. 1, p. 470.]
This chapter shall be known and may be cited as the "Idaho Bail Act."
[19-2901, added 2009, ch. 90, sec. 2, p. 259.]
(1) The legislature finds and declares that:
(a) Bail, in criminal cases, is a constitutional right subject to certain limitations;
(b) It is necessary to establish a statewide process to uniformly implement this right and the limitations.
(2) The purpose of this chapter is to provide a uniform and comprehensive statewide process for the administration of bail in criminal cases in order to:
(a) Ensure the appearance of defendants before the courts;
(b) Protect the right of defendants to bail, as constitutionally provided; and
(c) Ensure the protection and safety of victims, witnesses and the public.
[19-2902, added 2009, ch. 90, sec. 2, p. 260.]
Any person charged with a crime who is not released on his own recognizance is entitled to bail, as a matter of right, before a plea or verdict of guilty, except when the offense charged is punishable by death and the proof is evident or the presumption is great. The setting of bail on a bench warrant following a failure by a defendant to appear before the court as ordered and without sufficient excuse shall be determined under the provisions of section 19-2915, Idaho Code. In the discretion of the court, bail may be allowed in the following cases:
(1) After the defendant is found guilty or pleads guilty and before sentencing;
(2) While an appeal is pending from a judgment of conviction, an order withholding judgment or an order imposing sentence, except that a court shall not allow bail when the defendant has been sentenced to death or life imprisonment;
(3) Upon a charge of a violation of the terms of probation; and
(4) Upon a finding of a violation of the conditions of release pursuant to section 19-2919, Idaho Code.
[19-2903, added 2009, ch. 90, sec. 2, p. 260; am. 2015, ch. 182, sec. 1, p. 586.]
The court may release a person on his own recognizance or set an amount of bail, and may impose any conditions of release. In making these determinations the court shall consider the following objectives:
(1) Ensuring the appearance of the defendant;
(2) Ensuring the integrity of the court process including the right of the defendant to bail as constitutionally provided;
(3) Ensuring the protection of victims and witnesses; and
(4) Ensuring public safety.
[19-2904, added 2009, ch. 90, sec. 2, p. 260.]
As used in this chapter, unless the context requires otherwise:
(1) "Bail" means a monetary amount required by the court to release the defendant from custody and to ensure his appearance in court as ordered.
(2) "Bail agent" means a producer licensed by the state of Idaho in the line of surety insurance who is authorized by an insurer to execute or countersign undertakings of bail in connection with judicial criminal proceedings.
(3) "Bail bond" means a financial guarantee, posted by a bail agent and underwritten by a surety insurance company, that the defendant will appear as ordered.
(4) "Bench warrant" means a warrant issued by the court because the defendant failed to appear as ordered, failed to comply with a condition of release or the sureties are no longer sufficient.
(5) "Cash deposit" means payment in the form of United States currency, money order, certified check, cashier’s check or such other form of payment as provided by the rules of the supreme court.
(6) "Certificate of surrender" means a certificate in a form approved by the supreme court that is completed by a surety insurance company or its bail agent, or a person who has posted a property bond or cash deposit, and provided to the sheriff of the county where the action is pending for signature.
(7) "Conditions of release" means any reasonable restrictions, conditions or prohibitions placed upon the defendant’s activities, movements, associations or residences by the court, excluding the court order requiring the defendant to appear in court.
(8) "Exoneration" means a court order directing the full or partial release and discharge from liability of the surety underwriting a bail bond or the person posting a cash deposit or a property bond.
(9) "Forfeiture" means an order of the court reciting that the defendant failed to appear as ordered and stating that bail is forfeited.
(10) "Order of recommitment" means an order of the court committing the defendant back to the custody of the sheriff.
(11) "Person" means a natural person, legal corporation, limited liability corporation, partnership, sole proprietorship or any other business entity recognized by the state of Idaho.
(12) "Property bond" means a financial guarantee approved by the court, secured by property, real or personal, that the defendant will appear in court as ordered.
(13) "Readmittance to bail" means an order of the court allowing the defendant to post new bail following an order of revocation.
(14) "Recommitment" means the return of the defendant to the custody of the sheriff following revocation or forfeiture of bail.
(15) "Reinstatement of bail" means an order of the court allowing the defendant to be released on the same bail previously posted that has been ordered forfeited.
(16) "Revocation of bail" means an order by the court revoking the defendant’s release on bail.
(17) "Surety insurance company" means an admitted insurer authorized in the line of surety pursuant to title 41, Idaho Code.
(18) "Surrender" means the voluntary surrender or delivery of the defendant into the custody of the sheriff of the county where the action is pending.
[19-2905, added 2009, ch. 90, sec. 2, p. 260.]
Admission to bail is the order of a competent court that the defendant shall be released from actual custody of the sheriff upon posting bail.
[19-2906, added 2009, ch. 90, sec. 2, p. 261.]
(1) The posting of bail consists of filing sufficient sureties with the court, as required by the court, to ensure the defendant’s appearance. Sufficient sureties shall consist of any one (1) of the following:
(a) A bail bond;
(b) A property bond; or
(c) A cash deposit.
(2) Although bail may be posted in the form of a cash deposit pursuant to the provisions of subsection (1) of this section, a defendant shall not be required to post bail in the form of a cash deposit.
[19-2907, added 2009, ch. 90, sec. 2, p. 261.]
When bail has been posted by cash deposit and remains on deposit at the time of the judgment or order withholding judgment, the clerk of the court shall, under the direction of the court, apply the money in satisfaction of fines, fees, costs and restitution imposed in the case and fines, fees, costs and restitution that have been imposed against the defendant in any other criminal or infraction action, and after satisfying the fines, fees, costs and restitution, shall refund the surplus, if any, to the person posting the cash deposit.
[19-2908, added 2009, ch. 90, sec. 2, p. 261; am. 2019, ch. 148, sec. 1, p. 498.]
A property bond may be posted by the defendant or third person on behalf of the defendant. For real property to qualify as sufficient surety, it must be located in the state of Idaho and must have an equity value, after deducting the outstanding balance of any existing liens and encumbrances, in the amount of the bail set by the court plus anticipated collection costs. Acceptance of a property bond is in the discretion of the court. A property bond posted with and accepted by the court pursuant to this section, and recorded, shall constitute a consensual lien on the property pursuant to section 55-1005(3), Idaho Code. All fees shall be paid by the person posting the property bond. An order of the court exonerating the property bond shall extinguish the lien and cancel the promissory note. The property bond and the promissory note shall be in a form approved by the supreme court.
[19-2909, added 2009, ch. 90, sec. 2, p. 262.]
At any time before an order of forfeiture, the court may allow the defendant to substitute any type of surety identified in section 19-2907, Idaho Code, for the previously posted surety. Upon substitution, the previously posted surety shall be exonerated.
[19-2910, added 2009, ch. 90, sec. 2, p. 262.]
Upon the posting of bail in the amount set by the court, the defendant shall be released from the actual custody of the sheriff.
[19-2911, added 2009, ch. 90, sec. 2, p. 262.]
After a defendant has been admitted to bail, the court in which the charge is pending may, upon good cause shown, increase or reduce the amount of bail. If the amount is increased, the court shall order the defendant to be committed to the actual custody of the sheriff until bail is posted in the increased amount. Any previous bail posted in the case shall be exonerated by the court. If the defendant applies for a reduction of the amount of bail, notice of the application shall be served upon the attorney for the state and the person posting bail within five (5) business days.
[19-2912, added 2009, ch. 90, sec. 2, p. 262.]
(1) At any time before forfeiture of bail, a surety insurance company or its bail agent or person posting a property bond or cash deposit may surrender the defendant to the sheriff of the county where the action is pending. Upon the surrender of the defendant, the sheriff shall accept and incarcerate the defendant in lieu of the bail originally set by the court.
(2) At the time of surrender of the defendant to the sheriff, the surety insurance company or its bail agent or person posting a property bond or cash deposit shall provide the sheriff with a certificate of surrender.
(3) The surety insurance company or its bail agent or person posting a property bond or cash deposit shall, within five (5) business days of the surrender of the defendant, file with the court in which the action or appeal is pending the certificate of surrender and shall deliver a copy of the same to the attorney for the state. The court shall thereupon order the bail exonerated.
(4) At any time before forfeiture of bail, a defendant may surrender himself to the sheriff of the county where the action is pending. Upon surrender by the defendant, the sheriff shall accept and incarcerate the defendant in lieu of the bail originally set by the court.
[19-2913, added 2009, ch. 90, sec. 2, p. 262.]
At any time before the exoneration of bail, the surety insurance company or its bail agent or the person posting a property bond or cash deposit may empower a bail enforcement agent to arrest the defendant at any place within the state by signing an affidavit extending such authority.
[19-2914, added 2009, ch. 90, sec. 2, p. 262; am. 2019, ch. 266, sec. 1, p. 778; am. 2020, ch. 126, sec. 1, p. 394.]
(1) As used in this section, "bail enforcement agent" or "agent" means a person who:
(a) Is empowered to arrest or surrender a defendant at any time before the exoneration of bail; and
(b) Meets the requirements of this section.
(2) Requirements. An agent must:
(a) Be eighteen (18) years of age or older;
(b) Be a citizen or legal resident of the United States;
(c) Not have been adjudicated as having suffered from any of the following conditions, based on substantial evidence:
(i) Lacking mental capacity as defined in section 18-210, Idaho Code;
(ii) Mentally ill as defined in section 66-317, Idaho Code;
(iii) Gravely disabled as defined in section 66-317, Idaho Code; or
(iv) An incapacitated person as defined in section 15-5-101, Idaho Code; and
(d) Not be a fugitive from justice.
(3) Required items and information. During an arrest pursuant to section 19-2914, Idaho Code, a bail enforcement agent must possess:
(a) An affidavit extending the authority to arrest the defendant;
(b) The name, last known address, and photograph of the defendant;
(c) The name and principal address of the surety insurance company, its bail agent, or the person posting a property bond or cash deposit that is empowering the bail enforcement agent to arrest the defendant; and
(d) A valid driver’s license or other photographic identifying document or information.
(4) Identification. A badge shall be worn by bail enforcement agents that is designed exclusively for bail enforcement agents. The badge must clearly delineate the title of "bail enforcement agent" directly on and below the badge.
(5) Notification to the sheriff. Prior to making a planned apprehension, an agent must first provide notice to the county sheriff of the county within which the planned apprehension is to occur.
(6) Prohibitions. Upon appointment, until either revocation of appointment or the exoneration of bail, an agent may not:
(a) Represent himself as a peace officer or an employee of any department of a federal, state, or local law enforcement agency;
(b) Wear any uniform that would represent the agent as a peace officer or an employee of any department of a federal, state, or local government;
(c) Use a fictitious name that would represent the agent as a peace officer or an employee of a department of a federal, state, or local government; or
(d) Carry a weapon, unless in compliance with all state and federal laws.
(7) Penalty. Any person who violates the provisions of subsection (2), (3), (4), or (5) of this section for the first offense shall be liable for a misdemeanor penalty of a fine not to exceed one thousand dollars ($1,000). For any second or subsequent offense, the person shall be subject to a misdemeanor penalty not to exceed six (6) months in jail and a fine not to exceed one thousand dollars ($1,000). Any person who fails to obtain authority from a surety insurance company or its bail agent, or the person posting a property bond or cash deposit in accordance with section 19-2914, Idaho Code, or a similar law of another state, or who attempts to arrest or surrender a defendant without meeting the requirements of subsection (2) of this section, or who violates the provisions of subsection (6) of this section, is guilty of a misdemeanor.
(8) Requirements for prosecution. Venue for prosecution for a violation under the provisions of this section shall be in the county where the violation occurred, and such prosecution will be handled by the prosecuting attorney of such county. A prosecution for a violation of this section must be commenced within the time limitations set forth in section 19-403, Idaho Code.
(9) A bail agent who appoints a bail enforcement agent is required to keep a copy of the bail enforcement agent’s appointment and may rely thereon that the bail enforcement agent has met the requirements of this section.
Bail enforcement agents. [effective January 1, 2027]
(1) As used in this section, "bail enforcement agent" or "agent" means a person who:
(a) Is empowered to arrest or surrender a defendant at any time before the exoneration of bail; and
(b) Meets the requirements of this section.
(2) Requirements. An agent must:
(a) Be eighteen (18) years of age or older;
(b) Be a citizen or legal resident of the United States;
(c) Not have been adjudicated as having suffered from any of the following conditions, based on substantial evidence:
(i) Lacking mental capacity as defined in section 18-210, Idaho Code;
(ii) Mentally ill as defined in section 66-317, Idaho Code;
(iii) Gravely disabled as defined in section 66-317, Idaho Code; or
(iv) An incapacitated person as defined in section 15-1-201, Idaho Code; and
(d) Not be a fugitive from justice.
(3) Required items and information. During an arrest pursuant to section 19-2914, Idaho Code, a bail enforcement agent must possess:
(a) An affidavit extending the authority to arrest the defendant;
(b) The name, last known address, and photograph of the defendant;
(c) The name and principal address of the surety insurance company, its bail agent, or the person posting a property bond or cash deposit that is empowering the bail enforcement agent to arrest the defendant; and
(d) A valid driver’s license or other photographic identifying document or information.
(4) Identification. A badge shall be worn by bail enforcement agents that is designed exclusively for bail enforcement agents. The badge must clearly delineate the title of "bail enforcement agent" directly on and below the badge.
(5) Notification to the sheriff. Prior to making a planned apprehension, an agent must first provide notice to the county sheriff of the county within which the planned apprehension is to occur.
(6) Prohibitions. Upon appointment, until either revocation of appointment or the exoneration of bail, an agent may not:
(a) Represent himself as a peace officer or an employee of any department of a federal, state, or local law enforcement agency;
(b) Wear any uniform that would represent the agent as a peace officer or an employee of any department of a federal, state, or local government;
(c) Use a fictitious name that would represent the agent as a peace officer or an employee of a department of a federal, state, or local government; or
(d) Carry a weapon, unless in compliance with all state and federal laws.
(7) Penalty. Any person who violates the provisions of subsection (2), (3), (4), or (5) of this section for the first offense shall be liable for a misdemeanor penalty of a fine not to exceed one thousand dollars ($1,000). For any second or subsequent offense, the person shall be subject to a misdemeanor penalty not to exceed six (6) months in jail and a fine not to exceed one thousand dollars ($1,000). Any person who fails to obtain authority from a surety insurance company or its bail agent, or the person posting a property bond or cash deposit in accordance with section 19-2914, Idaho Code, or a similar law of another state, or who attempts to arrest or surrender a defendant without meeting the requirements of subsection (2) of this section, or who violates the provisions of subsection (6) of this section, is guilty of a misdemeanor.
(8) Requirements for prosecution. Venue for prosecution for a violation under the provisions of this section shall be in the county where the violation occurred, and such prosecution will be handled by the prosecuting attorney of such county. A prosecution for a violation of this section must be commenced within the time limitations set forth in section 19-403, Idaho Code.
(9) A bail agent who appoints a bail enforcement agent is required to keep a copy of the bail enforcement agent’s appointment and may rely thereon that the bail enforcement agent has met the requirements of this section.
[19-2914A, added 2019, ch. 266, sec. 2, p. 779; am. 2020, ch. 126, sec. 2, p. 394; am. 2026, ch. 79, sec. 18, p. 411.]
(1) If without sufficient excuse the defendant fails to appear before the court as ordered, the court shall immediately:
(a) Enter the defendant’s failure to appear in the minutes;
(b) Order forfeiture of the bail; and
(c) Issue a bench warrant for the arrest of the defendant.
(2) The court, in its discretion, may:
(a) Set the amount of bail in the bench warrant;
(b) Set the amount of bail in the bench warrant but require that the defendant appear before the court where the charge or charges are pending before being released on bail; or
(c) Set no bail on the bench warrant and require that the defendant not be released until appearing before the court where the charges are pending, at which time the court shall set bail or release the defendant on the defendant’s own recognizance, and shall set any conditions of release.
(3) The clerk shall provide the person posting bail written notice of the order of forfeiture by mailing notice within five (5) business days of the order of forfeiture to the last known address of the person posting bail or that person’s designated agent.
(4) If the court quashes the bench warrant within one hundred eighty (180) days after the order of forfeiture, the forfeiture of bail shall be set aside and the court shall notify the person posting bail of the setting aside of the forfeiture within five (5) business days of the date of the order quashing the bench warrant and reinstating the bail.
[19-2915, added 2009, ch. 90, sec. 2, p. 263; am. 2015, ch. 182, sec. 2, p. 587.]
If the defendant appears in court after the entry of the defendant’s failure to appear and satisfactorily explains his failure to appear, the court may set aside the order of forfeiture and reinstate bail. Before reinstatement of bail, the court shall quash any bench warrant and set aside any order of forfeiture of the bail. The court shall provide written notice of reinstatement of bail to the person posting bail or to that person’s designated agent within five (5) business days of the order reinstating bail.
[19-2916, added 2009, ch. 90, sec. 2, p. 263.]
Pursuant to a motion filed within one hundred eighty (180) days after an order of forfeiture as provided in section 19-2915, Idaho Code, the court that ordered forfeiture may direct that the order of forfeiture be set aside, in whole or in part, upon such conditions as the court may impose, as provided by rules adopted by the supreme court, if it appears that justice so requires. If the court sets aside the order of forfeiture, then it may:
(1) Reinstate the bail;
(2) Exonerate the bail;
(3) Recommit the defendant to the custody of the sheriff and set new bail; or
(4) Release the defendant on his own recognizance.
[19-2917, added 2009, ch. 90, sec. 2, p. 263.]
(1) The person posting bail shall pay to the clerk of the court the amount of bail ordered within five (5) business days after the expiration of the one hundred eighty (180) day period following the order of forfeiture of bail unless:
(a) The order of forfeiture has been set aside by the court;
(b) The bail has been exonerated by the court; or
(c) A motion to set aside the order of forfeiture or a motion to exonerate bail has been timely filed, together with a request for hearing, and has not been decided by the court. If the motion is decided and denied by the court more than one hundred eighty (180) days after the order of forfeiture, then the person posting bail shall pay the amount of bail to the clerk of the court within five (5) business days after the entry of the court’s order denying the motion. A timely filed notice of appeal and motion to stay the forfeiture stays the obligation to remit payment until five (5) business days after the entry of the court’s order denying the motion to stay or, in the event such motion is granted, five (5) business days following the final determination of the appeal.
(2) If cash is deposited in lieu of bail, the clerk of the court shall pay the cash deposit to the county treasurer. If the person posting a bail bond or property bond that has been forfeited does not pay the amount of bail within the time provided in this section, then the order of forfeiture shall become a judgment against the person posting the bail bond or property bond.
(3) After the notice required by section 19-2915, Idaho Code, in the event that a surety insurance company fails to pay the amount of any bail forfeited within the time required by this section, the administrative district judge may order the sheriffs and clerks of all counties in the judicial district not to accept the posting of any new bail bonds from such company until the amount of bail forfeited has been paid. An administrative district judge in another district may also order the sheriffs and clerks of all counties in his district not to accept the posting of any new bail bonds from such company until the amount of bail forfeited has been paid.
(4) If the administrative district judge has reasonable cause to believe that a bail agent has committed any of the actions that could form the basis for a suspension of the bail agent’s license pursuant to section 41-1039(3), Idaho Code, the court shall immediately refer the matter to the director of the department of insurance for appropriate disciplinary action pursuant to sections 41-1016 and 41-1039, Idaho Code, and may enter an order that the sheriffs and clerks of all counties in the judicial district shall not accept bail bonds submitted by that bail agent until the director has rendered a decision as to whether to suspend the bail agent’s license pursuant to section 41-1039(3), Idaho Code. The director shall immediately notify all judicial district trial court administrators of such decision.
[19-2918, added 2009, ch. 90, sec. 2, p. 263; am. 2010, ch. 86, sec. 6, p. 167; am. 2013, ch. 36, sec. 2, p. 78.]
(1) Upon its own motion or upon a verified petition alleging that the defendant willfully violated a condition of release, the court may issue a bench warrant directing that the defendant be arrested and brought before the court for a bail revocation hearing, or the court may order the defendant to appear before the court at a time certain. At the bail revocation hearing, if the court finds that the defendant willfully violated a condition of release and the defendant is present before the court, the court may revoke the bail and remand the defendant to the custody of the sheriff. At any time thereafter, the court may reset bail in the same or a new amount and impose conditions of release. If the defendant fails to appear at the bail revocation hearing, the court shall issue a bench warrant for the defendant’s arrest.
(2) In its order revoking bail, the court shall recite generally the facts upon which revocation of bail is founded and order that the defendant be recommitted to the custody of the sheriff of the county where the action is pending to be detained until legally released. The court may reset bail in the same or a new amount and impose any appropriate conditions of release.
(3) The court may deny readmittance to bail if the court finds that the defendant has intimidated or harassed a victim, potential witness, juror or judicial officer or has committed one (1) or more violations of the conditions of release and such violation or violations constituted a threat to the integrity of the judicial system.
[19-2919, added 2009, ch. 90, sec. 2, p. 264.]
(1) Private surety. Upon the filing of a verified petition alleging that the bail posted by a cash deposit or property bond has become insufficient by reason of bankruptcy, death or any other reason, the court may order the defendant and the private surety to appear before the court at a time certain for a bail revocation hearing. At the bail revocation hearing, if the court finds that the private surety is insufficient, the court may revoke the bail and recommit the defendant to the custody of the sheriff. If the defendant fails to appear for the bail revocation hearing, the court shall immediately issue a bench warrant for the defendant’s arrest.
(2) Surety insurance company. Upon the filing of a verified petition alleging bail posted by a surety insurance company has become insufficient by reason of bankruptcy, receivership, suspension or revocation of authority to conduct business in the state of Idaho or any other reason, the court may order the defendant and the commercial surety or its agent to appear before the court at a time certain for a bail revocation hearing. At the bail revocation hearing, if the court finds that the commercial surety is insufficient, it may revoke the bail and recommit the defendant to the custody of the sheriff. If the defendant fails to appear for the bail revocation hearing, the court shall immediately issue a bench warrant for the defendant’s arrest.
(3) In its order revoking bail, the court shall recite generally the facts upon which revocation of bail is founded and order that the defendant be recommitted to the custody of the sheriff of the county where the action is pending to be detained until legally released. The court shall set bail in the same or a new amount and impose any appropriate conditions of release.
[19-2920, added 2009, ch. 90, sec. 2, p. 264.]
In its order revoking bail, the court shall recite generally the facts upon which revocation of bail is founded and order that the defendant be recommitted to the custody of the sheriff of the county where the action is pending to be detained until legally released. If the offense is bailable, the court shall fix bail in a new amount and impose any appropriate conditions of release.
[19-2921, added 2009, ch. 90, sec. 2, p. 264.]
The court shall order the bail exonerated in the following circumstances:
(1) The defendant has appeared for all court proceedings as ordered and all charges for which the bail has been posted have been resolved by acquittal, dismissal or sentencing;
(2) Written notice of the court’s order of forfeiture was not mailed to the person posting bail or his designated agent within five (5) business days of the order of forfeiture;
(3) Written notice of the court’s order to set aside the order of forfeiture and reinstating bail was not mailed to the person posting bail or his designated agent within five (5) business days of the order;
(4) Before any order of forfeiture, the defendant has been surrendered or has surrendered himself to the sheriff of the county where the action is pending and the certificate of surrender has been filed with the court as required in section 19-2913, Idaho Code;
(5) The defendant has appeared before the court within one hundred eighty (180) days of the court’s order of forfeiture, unless the court has set aside the order of forfeiture and has reinstated bail pursuant to section 19-2916, Idaho Code; provided, that in those cases where the defendant was not returned by the person posting bail to the sheriff of the county where the action is pending, the court may condition the exoneration of bail and the setting aside of the forfeiture on payment by the person posting bail of any costs incurred by state or local authorities arising from the transport of the defendant to the jail facility of the county where the charges are pending. Such costs shall not exceed the amount of the bail posted;
(6) The court has revoked bail and has ordered that the defendant be recommitted.
[19-2922, added 2009, ch. 90, sec. 2, p. 264.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.
[19-2923, added 2009, ch. 90, sec. 2, p. 265.]
The rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this code.
[(19-3001) R.S., R.C., & C.L., sec. 8141; C.S., sec. 9129; I.C.A., sec. 19-2901.]
Neither husband nor wife are competent witnesses for or against each other in a criminal action or proceeding to which one or both are parties, except:
With the consent of both, or
In cases of criminal violence upon one by the other; or acts of physical injury upon a child of either the husband or the wife where the injury has been caused as a result of physical abuse or neglect by one or both of the parents; or to acts or attempted acts of lewd conduct with a minor child; or
In cases of desertion or nonsupport of wife or child by the husband.
[(19-3002) R.S. & R.C., sec. 8142; compiled and reen. C.L., sec. 8142; C.S., sec. 9130; I.C.A., sec. 19-2902; am. 1979, ch. 152, sec. 1, p. 468.]
A defendant in a criminal action or proceeding to which he is a party, is not, without his consent, a competent witness for or against himself. His neglect or refusal to give such consent shall not in any manner prejudice him nor be used against him on the trial or proceeding.
[(19-3003) Cr. Prac. 1864, sec. 12, p. 214; R.S., R.C., & C.L., sec. 8143; C.S., sec. 9131; I.C.A., sec. 19-2903.]
The process by which the attendance of a witness before a court or magistrate is required is a subpoena. It may be signed and issued by:
A magistrate before whom an information is laid, for witnesses in the state, either on behalf of the people or of the defendant.
The prosecuting attorney, for witnesses in the state in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct.
The prosecuting attorney, for witnesses in the state in support of an indictment or information, to appear before the court in which it is to be tried.
The clerk of the court in which an indictment or information is to be tried; and he must, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses in the state or without the state as provided in section 19-3005, as the defendant may require.
[(19-3004) Cr. Prac. 1864, secs. 534, 538, p. 278; R.S., R.C., & C.L., sec. 8148; C.S., sec. 9132; I.C.A., sec. 19-2904; am. 1935, ch. 10, sec. 1, p. 24.]
(1) A provider of an electronic communication service or remote computing service that is transacting or has transacted any business in the state shall disclose the following to a prosecuting attorney or the attorney general pursuant to an administrative subpoena issued by the prosecuting attorney or attorney general:
(a) Records and information in its possession containing the name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including the start date; and
(b) Records and information in its possession containing the types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(c) Records and information in its possession relating to the means and source of payment for such service pertaining to a subscriber to or customer of such service.
The provider of an electronic communication service or remote computing service shall deliver the records to the prosecuting attorney or attorney general within fourteen (14) days of receipt of the subpoena.
(2) For the purpose of this section, the following definitions shall apply:
(a) "Electronic communication service" has the same meaning as provided in section 18-6701(13), Idaho Code.
(b) "Remote computing service" means the provision to the public of computer storage or processing service by means of an electronic communications system as defined in section 18-6701(12), Idaho Code.
(3) In order to obtain the records or information, the prosecuting attorney or attorney general shall certify on the face of the subpoena that there is reason to believe that the records or information being sought are relevant to a legitimate law enforcement investigation concerning a violation of section 18-1505B, 18-1506, 18-1506A, 18-1507, 18-1507C, 18-1508, 18-1508A, 18-1509, 18-1509A, 18-1515, 18-2202, or 18-6605, Idaho Code.
(4) No subpoena issued pursuant to this section shall demand records that disclose the content of electronic communications or subscriber account records disclosing internet locations which have been accessed including, but not limited to, websites, chat channels and news groups, but excluding servers used to initially access the internet. No recipient of a subpoena issued pursuant to this section shall provide any such content or records accessed, in response to the subpoena.
(5) On a motion made by the electronic communication service or remote computing service provider prior to the time for appearance or the production of documents under the subpoena issued pursuant to this section, a court of competent jurisdiction may quash or modify the administrative subpoena if the provider establishes that the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.
(6) No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents or other specified persons for providing information, facilities or assistance in accordance with the terms of an administrative subpoena issued under this section.
(7) A person who is subpoenaed under this section and who fails to appear or produce materials as required by the subpoena, or who refuses to be sworn or give testimony, may be found to be in contempt of court. Proceedings to hold a person in contempt under this subsection may be brought in the county where the subpoena was issued.
(8) Nothing in this section shall limit the right of a prosecuting attorney or the attorney general to otherwise obtain records or information from a provider of electronic communication service or remote computing service pursuant to a search warrant, a court order or a grand jury or trial subpoena.
[19-3004A, added 2009, ch. 61, sec. 1, p. 166; am. 2012, ch. 269, sec. 5, p. 755; am. 2022, ch. 124, sec. 22, p. 456; am. 2026, ch. 202, sec. 1, p. 877.]
(1) Subpoenaing a Witness in This State to Testify in Another State. If a judge of a court of record in any state, which by its laws has made provisions for commanding persons within that state to attend and testify in criminal hearings or prosecutions in this state, certifies under the seal of such court that there is a criminal prosecution pending in such court that a person being within this state is a material witness in such prosecution, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing and shall notify the witness of such time and place.
If at the hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution in the other state, and that the laws of the state in which the prosecution is pending and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him protection from arrest and the service of civil and criminal process he shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the hearing or prosecution is pending at a time and place specified in the subpoena.
If the witness, who is subpoenaed as above provided, after being tendered by some properly authorized person a prepaid, round trip airline ticket or, in the event that there is no regularly scheduled airline service available, a prepaid round trip ticket on any common carrier providing passenger transportation services to and from the court where the hearing or prosecution is pending and five dollars ($5.00) for each day that he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the subpoena, he may be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state.
(2) Witness From Another State Subpoenaed to Testify in This State. If a person in any state, which by its laws has made provisions for commanding persons within its borders to attend and testify in criminal hearings or prosecutions in this state, is a material witness in a hearing or prosecution pending in a court of record in this state, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required at such hearing or prosecution. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
If the witness is subpoenaed to attend and testify in the criminal hearing or prosecution in this state he shall be tendered the sum of fifteen cents (15¢) a mile for each mile by the ordinarily traveled route, one (1) way, to and from the court where the hearing or prosecution is pending and five dollars ($5.00) for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the subpoena shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless such extended period of time is obtained by the written consent of such witness.
(3) Have Exemption From Arrest and Service of Process. If a person comes into this state in obedience to a subpoena directing him to attend and testify in a criminal hearing or prosecution in this state, he will not while in this state, pursuant to such subpoena, be subjected to arrest or the service of process, civil or criminal, in connection with any matter which arose before his entrance into this state under such subpoena.
If a person passes through this state while going to another state in obedience to a subpoena to attend and testify in a criminal hearing or prosecution in that state or while returning therefrom, he shall not while so passing through this state be subjected to arrest or the service of process, civil or criminal, in connection with any matter which arose before his entrance into this state under such subpoena.
(4) Uniformity of Interpretation. This section shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of the states which enact it.
(5) Short Title. This section may be cited as "Uniform Act to Secure the Attendance of Witnesses in Criminal Cases."
[(19-3005) I.C.A., sec. 19-2904-A as added by 1935, ch. 10, sec. 2, p. 24; am. 1990, ch. 386, sec. 1, p. 1063.]
A subpoena authorized by section 19-3004, Idaho Code, must be substantially in the following form:
The state of Idaho to A.B.:
You are commanded to appear before C.D., a [district] [magistrate] judge, in…. county (or as the case may be), at (naming the place), on (stating the day and hour), as a witness in a criminal action prosecuted by the state of Idaho against E.F.
Given under my hand this…. day of….,…..
G.H., [District] [Magistrate] Judge, (or "J.K., Prosecuting Attorney," or
"By order of the court, L.M., Clerk," or as the case may be).
If books, papers or documents are required, a direction to the following effect must be contained in the subpoena: "And you are required, also, to bring with you the following" (describing intelligibly the books, papers or documents required).
[(19-3006) Cr. Prac. 1864, secs. 539, 540, p. 279; R.S., R.C., & C.L., sec. 8149; C.S., sec. 9133; I.C.A., sec. 19-2905; am. 2002, ch. 32, sec. 6, p. 49; am. 2012, ch. 20, sec. 9, p. 68.]
A subpoena may be served by any person, but a peace officer must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must, without delay, make a written return of the service, subscribed by him, stating the time and place of service. The service is made by showing the original to the witness personally and informing him of its contents.
[(19-3007) Cr. Prac. 1864, secs. 541, 542, p. 279; R.S., R.C., & C.L., sec. 8150; C.S., sec. 9134; I.C.A., sec. 19-2906.]
(1) Notwithstanding the provisions of section 19-3007, Idaho Code, a subpoena may be delivered by mail or messenger. Service shall be effected when the witness acknowledges receipt of the subpoena to the sender by telephone, by mail, or in person, and identifies himself or herself by reference to his date of birth and his driver’s license number or social security number. The sender shall make a written notation of the identifying information obtained during any acknowledgement by telephone or in person. A subpoena issued and acknowledged pursuant to this section shall have the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt, and the subpoena may so state; provided, that a warrant of arrest or a body attachment may not be issued based upon a failure to appear after being subpoenaed pursuant to this section.
(2) A party requesting a continuance based upon the failure of a witness to appear in court at the time and place required for his appearance or testimony pursuant to a subpoena shall prove to the court that the party has complied with the provisions of this section. Such a continuance shall only be granted for a period of time which would allow personal service of the subpoena and a reasonable time for the witness to appear before the court.
[19-3007A, added 1989, ch. 267, sec. 2, p. 653.]
When a person shall attend before a grand jury, or the district court, as a witness, upon a subpoena, or pursuant to an undertaking, such person shall receive the same rate per mile as the state of Idaho pays for state employees pursuant to section 67-2008, Idaho Code, but no person can receive more than one (1) mileage under this section per day of attendance in court; such person shall also receive eight dollars ($8.00) per day for each day’s actual attendance as such witness and reasonable lodging expenses when approved in advance by the judge before whom the witness appears. Such mileage and per diem must be paid out of the county treasury of the county where such district court is held, upon the certificate of the clerk of said court: provided, however, that when a defendant in a criminal proceeding requires the attendance of more than five (5) witnesses in his behalf, before such witnesses shall be subpoenaed at the county’s expense, or their fees and mileage be a charge against the county, such defendant must make affidavit setting forth that they are witnesses whose evidence is material to his defense, and that he can not safely go to trial without them. In such case the court, or the judge thereof, at any time application is made therefor, shall order a subpoena to issue to such of said witnesses as the court, or the judge thereof, may deem material for the defendant, and the costs incurred by the process and the fees and mileage of such witnesses shall be paid in the same manner that the costs and fees of other witnesses are paid.
[(19-3008) R.S., sec. 8151; am. 1893, p. 20, sec. 1; reen. 1899, p. 172, sec. 1; am. 1899, p. 367, sec. 1; reen. R.C., & C.L., sec. 8151; C.S., sec. 9135; I.C.A., sec. 19-2907; am. 1961, ch. 5, sec. 1, p. 7; am. 1982, ch. 213, sec. 3, p. 587; am. 1985, ch. 122, sec. 8, p. 303.]
Disobedience to a subpoena, or a refusal to be sworn or to testify as a witness, may be punished by the court or magistrate as a contempt. A witness disobeying a subpoena issued on the part of the defendant, unless he show good cause for his nonattendance, is liable to the defendant in the sum of $100, which may be recovered in a civil action.
[(19-3010) Cr. Prac. 1864, secs. 546, 548, pp. 279 and 280; R.S., R.C., & C.L., sec. 8153; C.S., sec. 9137; I.C.A., sec. 19-2909.]
When a witness has entered into an undertaking to appear, upon his failure to do so the undertaking is forfeited in the same manner as undertakings of bail.
[(19-3011) Cr. Prac. 1864, sec. 547, p. 280; R.S., R.C., & C.L., sec. 8154; C.S., sec. 9138; I.C.A., sec. 19-2910.]
When the testimony of a material witness for the people is required in a criminal action before a court of record of this state, and such witness is a prisoner in the state prison or in a county jail, an order for his temporary removal from such prison or jail, and for his production before such court, may be made by the court in which the action is pending, or by a judge thereof; but in case the prison or jail is out of the county in which the application is made, such order can only be made upon the affidavit of the prosecuting attorney or other person on behalf of the people showing that the testimony is material and necessary; and even then the granting of the order is in the discretion of the court or judge. The order must be executed by the sheriff of the county in which it is made, whose duty it is to bring the prisoner before the proper court, to safely keep him, and when he is no longer required as a witness, to return him to the prison or jail whence he was taken. The expense of executing such order must be paid by the county in which the order is made.
[(19-3012) R.S., R.C., & C.L., sec. 8155; C.S., sec. 9139; I.C.A., sec. 19-2911.]
As used in this act,
(a) "Witness" means a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or investigation by a grand jury or in any criminal action before a court.
(b) "Penal institutions" includes a jail, prison, penitentiary, house of correction, or other place of penal detention.
(c) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory of the United States.
[19-3013, added 1959, ch. 10, sec. 1, p. 25.]
A judge of a state court of record in another state, which by its laws has made provision for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify (1) that there is a criminal proceeding or investigation, by a grand jury or a criminal action pending in the court, (2) that a person who is confined in a penal institution in this state may be a material witness in the proceeding, investigation or action, and (3) that his presence will be required during a specified time. Upon presentation of the certificate to any judge having jurisdiction over the person confined, and upon notice to the attorney general, the judge in this state shall fix a time and place for a hearing and shall make an order directed to the person having custody of the prisoner requiring that the prisoner be produced before him at the hearing.
[19-3014, added 1959, ch. 10, sec. 2, p. 25.]
If at the hearing the judge determines (1) that the witness may be material and necessary, (2) that his attending and testifying are not adverse to the interests of this state or to the health or legal rights of the witness, (3) that the laws of the state in which he is requested to testify will give him protection from arrest and the service of civil and criminal process because of any act committed prior to his arrival in the state under the order, and (4) that as a practical matter the possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which he will be required to pass, the judge shall issue an order, with a copy of the certificate attached, (a) directing the witness to attend and testify, (b) directing the person having custody of the witness to produce him, in the court where the criminal action is pending, or where the grand jury investigation is pending, at a time and place specified in the order, and (c) prescribing such conditions as the judge shall determine.
[19-3015, added 1959, ch. 10, sec. 3, p. 25.]
The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of his testimony, proper safeguards on his custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. The order shall not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.
[19-3016, added 1959, ch. 10, sec. 4, p. 25.]
This act does not apply to any person in this state confined as insane or mentally ill.
[19-3017, added 1959, ch. 10, sec. 5, p. 25.]
If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this state, a judge of the court may certify (1) that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, (2) that a person who is confined in a penal institution in the other state may be a material witness in a proceeding, investigation, or action, and (3) that his presence will be required during a specified time. The certificate will be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the attorney general of the state in which the prisoner is confined.
[19-3018, added 1959, ch. 10, sec. 6, p. 25.]
The judge of the court in this state may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.
[19-3019, added 1959, ch. 10, sec. 7, p. 25.]
If a witness from another state comes into or passes through this state under an order directing him to attend and testify in this or another state, he shall not while in this state pursuant to the order be subject to arrest or the service of process, civil or criminal, because of any act committed prior to his arrival in this state under the order.
[19-3020, added 1959, ch. 10, sec. 8, p. 25.]
This act shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
[19-3021, added 1959, ch. 10, sec. 9, p. 25.]
This act may be cited as the "Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act."
[19-3022, added 1959, ch. 10, sec. 10, p. 25.]
(1) When a child is summoned as a witness in any hearing in any criminal matter, including any preliminary hearing, notwithstanding any other statutory provision, parents, a counselor, friend or other person having a supportive relationship with the child, or a facility dog, shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony unless in written findings made and entered, the court finds that the defendant’s constitutional right to a fair trial will be unduly prejudiced.
(2) When a child is summoned as a witness in any hearing in a noncriminal matter that involves the abuse, neglect or abandonment of the child, including any preliminary hearing, notwithstanding any other statutory provision, a facility dog shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony.
(3) For purposes of this section, "facility dog" means a dog that is a graduate of an assistance dog organization that is a member of assistance dogs international or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training and placement.
[19-3023, added 1983, ch. 206, sec. 1, p. 560; am. 1989, ch. 48, sec. 1, p. 60; am. 2017, ch. 176, sec. 1, p. 407.]
Statements made by a child under the age of ten (10) years describing any act of sexual abuse, physical abuse, or other criminal conduct committed with or upon the child, although not otherwise admissible by statute or court rule, are admissible in evidence after a proper foundation has been laid in accordance with the Idaho rules of evidence in any proceedings under the child protective act, chapter 16, title 16, Idaho Code, or in any criminal proceedings in the courts of the state of Idaho if:
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness. A child is unavailable as a witness when the child is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. Provided, that when the child is unavailable as a witness, such statements may be admitted only if there is corroborative evidence of the act.
Statements may not be admitted unless the proponent of the statements notifies the adverse party of his intention to offer the statements and the particulars of the statements sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statements.
[19-3024, added 1986, ch. 196, sec. 1, p. 494.]
Except upon the agreement of the parties, the court shall not order a witness in a prosecution for any offense or a victim of any offense to submit to a psychiatric or psychological examination for the purpose of assessing the witness’s or victim’s credibility.
[19-3025, added 1989, ch. 304, sec. 1, p. 758.]
When a defendant has been held to answer a charge for a public offense, he may, either before or after an indictment, have witnesses examined conditionally, on his behalf, as prescribed in this chapter, and not otherwise.
[(19-3101) Cr. Prac. 1864, sec. 549, p. 280; R.S., R.C., & C.L., sec. 8160; C.S., sec. 9140; I.C.A., sec. 19-3001.]
When a material witness for the defendant is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial, the defendant may apply for an order that the witness be examined conditionally.
[(19-3102) Cr. Prac. 1864, sec. 555, p. 281; R.S., R.C., & C.L., sec. 8161; C.S., sec. 9141; I.C.A., sec. 19-3002.]
The application must be made upon affidavit, stating:
The nature of the offense charged.
The state of the proceedings in the action.
The name and residence of the witness, and that his testimony is material to the defense of the action.
That the witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he will not be able to attend the trial.
[(19-3103) Cr. Prac. 1864, sec. 553, p. 280; R.S., R.C., & C.L., sec. 8162; C.S., sec. 9142; I.C.A., sec. 19-3003.]
The application may be made to the court during the term thereof, or to the judge in vacation, and must be upon three days’ notice to the prosecuting attorney.
[(19-3104) Cr. Prac. 1864, sec. 554, p. 281; R.S., R.C., & C.L., sec. 8163; C.S., sec. 9143; I.C.A., sec. 19-3004.]
If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and that a copy of the order be served on the prosecuting attorney, within a specified time before that fixed for the examination.
[(19-3105) Cr. Prac. 1864, sec. 555, p. 281; R.S., R.C., & C.L., sec. 8164; C.S., sec. 9144; I.C.A., sec. 19-3005.]
The order must direct that the examination be taken before a magistrate named therein, and on proof being furnished to such magistrate of service upon the prosecuting attorney of a copy of the order, if no counsel appear on the part of the people, the examination must proceed.
[(19-3106) R.S., R.C., & C.L., sec. 8165; C.S., sec. 9145; I.C.A., sec. 19-3006.]
If the prosecuting attorney or other counsel appear on behalf of the people, and it is shown to the satisfaction of the magistrate, by affidavit or other proof, or on the examination of the witness, that he is not about to leave the state, or is not sick and infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place; otherwise it must proceed.
[(19-3107) R.S., R.C., & C.L., sec. 8166; C.S., sec. 9146; I.C.A., sec. 19-3007.]
The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken.
[(19-3108) R.S., R.C., & C.L., sec. 8167; C.S., sec. 9147; I.C.A., sec. 19-3008.]
The testimony given by the witness must be reduced to writing and authenticated in the same manner as the testimony of a witness taken in support of an information.
[(19-3109) R.S., R.C., & C.L., sec. 8168; C.S., sec. 9148; I.C.A., sec. 19-3009.]
The deposition taken must, by the magistrate, be sealed up and transmitted to the clerk of the court in which the action is pending or may come for trial.
[(19-3110) R.S., R.C., & C.L., sec. 8169; C.S., sec. 9149; I.C.A., sec. 19-3010.]
The deposition, or a certified copy thereof, may be read in evidence by either party on the trial, upon its appearing that the witness is unable to attend, by reason of his death, insanity, sickness or infirmity, or of his continued absence from the state. Upon reading the depositions in evidence, the same objections may be taken to a question or answer contained therein, as if the witness had been examined orally in court.
[(19-3111) Cr. Prac. 1864, sec. 569, p. 282; R.S., R.C., & C.L., sec. 8170; C.S., sec. 9150; I.C.A., sec. 19-3011.]
When a material witness for a defendant, under a criminal charge, is a prisoner in the state prison, or in the county jail of a county other than that in which the defendant is to be tried, his deposition may be taken on behalf of the defendant, in the same manner provided in the case of a witness who is sick, and the provisions of this chapter, so far as applicable, govern in the application for, and in the taking and use of, such deposition. Such deposition may be taken before any magistrate or notary public of the county in which the jail or prison is situated. Every officer before whom testimony is taken by virtue hereof shall have authority to administer, and must administer, an oath to the witness that his testimony shall be the truth, the whole truth, and nothing but the truth.
[(19-3112) R.S., R.C., & C.L., sec. 8171; C.S., sec. 9151; I.C.A., sec. 19-3012.]
When an issue of fact is joined upon an indictment the defendant may have any material witness, residing out of the state, examined in his behalf, as prescribed in this chapter, and not otherwise.
[(19-3201) R.S., R.C., & C.L., sec. 8176; C.S., sec. 9152; I.C.A., sec. 19-3101.]
When a material witness for the defendant resides out of the state the defendant may apply for an order that the witness be examined on a commission.
[(19-3202) R.S., R.C., & C.L., sec. 8177; C.S., sec. 9153; I.C.A., sec. 19-3102.]
A commission is a process issued under the seal of the court and the signature of the clerk, directed to some person designated as commissioner, authorizing him to examine the witness upon oath or interrogatories annexed thereto, to take and certify the deposition of the witness, and to return it according to the directions given with the commission.
[(19-3203) Cr. Prac. 1864, sec. 551, p. 280; R.S., R.C., & C.L., sec. 8178; C.S., sec. 9154; I.C.A., sec. 19-3103.]
The application must be made upon affidavit, stating:
The nature of the offense charged.
The state of the proceedings in the action, and that an issue of fact has been joined therein.
The name of the witness, and that his testimony is material to the defense of the action.
That the witness resides out of the state.
[(19-3204) Cr. Prac. 1864, sec. 553, p. 280; R.S., R.C., & C.L., sec. 8179; C.S., sec. 9155; I.C.A., sec. 19-3104.]
The application may be made to the court during the term, or to the judge in vacation, and must be upon three (3) days’ notice to the prosecuting attorney.
[(19-3205) Cr. Prac. 1864, sec. 554, p. 281; R.S., R.C., & C.L., sec. 8180; C.S., sec. 9156; I.C.A., sec. 19-3105.]
If the court or judge to whom the application is made is satisfied of the truth of the facts stated, and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial of the indictment be stayed for a specified time, reasonably sufficient for the execution and return of the commission.
[(19-3206) Cr. Prac. 1864, secs. 555, 556, p. 281; R.S., R.C., & C.L., sec. 8181; C.S., sec. 9157; I.C.A., sec. 19-3106.]
When the commission is ordered, the defendant must serve upon the prosecuting attorney, without delay, a copy of the interrogatories to be annexed thereto, with two days’ notice of the time at which they will be presented to the court or judge. The prosecuting attorney may, in like manner serve upon the defendant or his counsel cross-interrogatories, to be annexed to the commission, with the like notice. In the interrogatories either party may insert any questions pertinent to the issue. When the interrogatories and cross-interrogatories are presented to the court or judge, according to the notice given, the court or judge must modify the questions so as to conform them to the rules of evidence, and must endorse upon them his allowance and annex them to the commission.
[(19-3207) Cr. Prac. 1864, secs. 557, 560, p. 281; R.S., R.C., & C.L., sec. 8182; C.S., sec. 9158; I.C.A., sec. 19-3107.]
Unless the parties otherwise consent, by an endorsement upon the commission, the court or judge must endorse thereon a direction as to the manner in which it must be returned, and may, in his discretion, direct that it be returned by mail or otherwise, addressed to the clerk of the court in which the action is pending, designating his name and the place where his office is kept.
[(19-3208) Cr. Prac. 1864, sec. 561, p. 281; R.S., R.C., & C.L., sec. 8183; C.S., sec. 9159; I.C.A., sec. 19-3108.]
The commissioner, unless otherwise specially directed, may execute the commission as follows:
He must publicly administer an oath to the witness, that his answers given to the interrogatories shall be the truth, the whole truth and nothing but the truth.
He must cause the examination of the witness to be reduced to writing, and subscribed by him.
He must write the answers of the witness as near as possible in the language in which he gives them, and read to him each answer as it is taken down, and correct or add to it until it conforms to what he declares is the truth.
If the witness decline answering a question, that fact, with the reason assigned by him for declining, must be stated.
If any papers or documents are produced before him and proved by the witness, they, or copies of them, must be annexed to the deposition subscribed by the witness and certified by the commissioner.
The commissioner must subscribe his name to each sheet of the deposition, and annex the deposition, with the papers and documents, proved by the witness, to the commission, and must close it up under seal, and address it as directed by the endorsement thereon.
If there is a direction on the commission to return it by mail, the commissioner must immediately deposit it in the nearest post-office. If any other direction is made by the written consent of the parties, or by the court or judge, on the commission, as to its return, he must comply with the direction. A copy of this section must be annexed to the commission.
[(19-3209) Cr. Prac. 1864, secs. 562, 563, pp. 281 and 282; R.S., R.C., & C.L., sec. 8184; C.S., sec. 9160; I.C.A., sec. 19-3109.]
If the commission and return is delivered by the commissioner to an agent he must deliver the same to the clerk to whom it is directed or to the judge of the court in which the indictment is pending, by whom it may be received and opened, upon the agent making affidavit that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it.
[(19-3210) Cr. Prac. 1864, sec. 564, p. 282; R.S., R.C., & C.L., sec. 8185; C.S., sec. 9161; I.C.A., sec. 19-3110.]
If the agent is dead, or from sickness or other casualty unable personally to deliver the commission and return, as prescribed in the last section, it may be received by the clerk or judge from any other person, upon his making an affidavit that he received it from the agent, that the agent is dead, or from sickness or other casualty unable to deliver it; that it has not been opened or altered since the person making the affidavit received it; and that he believes it has not been opened or altered since it came from the hands of the commissioner.
[(19-3211) Cr. Prac. 1864, sec. 565, p. 282; R.S., R.C., & C.L., sec. 8186; C.S., sec. 9162; I.C.A., sec. 19-3111.]
The clerk or judge receiving and opening the commission and return must immediately file it, with the affidavit mentioned in the last two sections, in the office of the clerk of the court in which the indictment is pending.
If the commission and return is transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office, where it must remain, unless otherwise directed by the court or judge.
[(19-3212) Cr. Prac. 1864, secs. 566, 567, p. 282; R.S., R.C., & C.L., sec. 8187; C.S., sec. 9163; I.C.A., sec. 19-3112.]
The commission and return must at all times be open to the inspection of the parties, who must be furnished by the clerk with copies of the same or of any part thereof, on payment of his fees.
[(19-3213) Cr. Prac. 1864, sec. 568, p. 282; R.S., R.C., & C.L., sec. 8188; C.S., sec. 9164; I.C.A., sec. 19-3113.]
The depositions taken under the commission may be read in evidence by either party on the trial, upon it being shown that the witness is unable to attend from any cause whatever; and the same objections may be taken to a question in the interrogatories or to an answer in the deposition, as if the witness had been examined orally in court.
[(19-3214) Cr. Prac. 1864, sec. 569, p. 282; R.S., R.C., & C.L., sec. 8189; C.S., sec. 9165; I.C.A., sec. 19-3114.]
When a defendant is held to answer on a charge of misdemeanor, for which the person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it is committed:
By or upon an officer of justice, while in the execution of the duties of his office.
Riotously.
With an intent to commit a felony.
As an act of domestic violence as defined in section 39-6303(1), Idaho Code.
[(19-3401) Cr. Prac. 1864, sec. 661, p. 295; R.S., R.C., & C.L., sec. 8205; C.S., sec. 9173; I.C.A., sec. 19-3301; am. 1998, ch. 209, sec. 1, p. 737.]
If the party injured appears before the court to which the depositions are required to be returned, at any time before trial, and acknowledges that he has received satisfaction for the injury, the court and the prosecutor may, in their discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the offense that was originally charged.
[(19-3402) Cr. Prac. 1864, secs. 662, 663, p. 295; R.S., R.C., & C.L., sec. 8206; C.S., sec. 9174; I.C.A., sec. 19-3302; am. 1998, ch. 209, sec. 2, p. 737.]
No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this chapter.
[(19-3403) Cr. Prac. 1864, sec. 664, p. 295; R.S., R.C., & C.L., sec. 8207; C.S., sec. 9175; I.C.A., sec. 19-3303.]
The court, unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
(1) When a person has been held to answer for a public offense, if an indictment or information is not found against him and filed with the court within six (6) months from the date of his arrest.
(2) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the information is filed with the court.
(3) If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant was arraigned before the court in which the indictment is found.
(4) If a defendant, charged with a misdemeanor offense, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant enters a plea of not guilty with the court.
(5) If a defendant, charged with both a felony or multiple felonies and a misdemeanor or multiple misdemeanors together in the same action or charging document, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the information is filed with the court.
(6) If a defendant, charged with both a felony or multiple felonies and a misdemeanor or multiple misdemeanors together in the same action or charging document, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant was arraigned before the court in which the indictment is found.
[(19-3501) Cr. Prac. 1864, secs. 580, 581, p. 284; R.S., R.C., & C.L., sec. 8212; C.S., sec. 9176; I.C.A., sec. 19-3401; am. 1980, ch. 102, sec. 1, p. 226; am. 1984, ch. 51, sec. 1, p. 92; am. 2001, ch. 23, sec. 1, p. 29; am. 2004, ch. 305, sec. 1, p. 855.]
If the defendant is not indicted or tried, as provided in the last section, and sufficient reason therefor is shown, the court may order the action to be continued to a date subsequent, and in the meantime may discharge the defendant from custody on his own undertaking of bail for his appearance to answer the charge at the time to which the action is continued.
[(19-3502) Cr. Prac. 1864, sec. 582, p. 285; R.S., R.C., & C.L., sec. 8213; C.S., sec. 9177; I.C.A., sec. 19-3402; am. 1994, ch. 270, sec. 1, p. 833.]
If the court directs the action to be dismissed, the defendant must, if in custody, be discharged therefrom; or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.
[(19-3503) Cr. Prac. 1864, sec. 583, p. 285; R.S., R.C., & C.L., sec. 8214; C.S., sec. 9178; I.C.A., sec. 19-3403.]
The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action or indictment to be dismissed. The reasons of the dismissal must be set forth in an order entered upon the minutes.
[(19-3504) Cr. Prac. 1864, sec. 584, p. 285; R.S., R.C., & C.L., sec. 8215; C.S., sec. 9179; I.C.A., sec. 19-3404.]
The entry of a nolle prosequi is abolished, and neither the attorney-general nor the prosecuting attorney can discontinue or abandon a prosecution for a public offense except as provided in the last section.
[(19-3505) Cr. Prac. 1864, sec. 585, p. 285; R.S., R.C., & C.L., sec. 8216; C.S., sec. 9180; I.C.A., sec. 19-3405.]
(1) An order for the dismissal of the action, as provided in this chapter, is a bar to any other prosecution for the same offense, if it is a misdemeanor, except as provided in subsection (2) of this section; but it is not a bar if the offense is a felony.
(2) A prosecuting attorney may move for dismissal of a misdemeanor action, and the court may order such dismissal, if the defendant agrees to participate in a diversion program pursuant to section 19-3509, Idaho Code. The action may be refiled for failure to complete the diversion program, and speedy trial shall be calculated from the date of refiling.
[(19-3506) Cr. Prac. 1864, sec. 586, p. 285; R.S., R.C., & C.L., sec. 8217; C.S., sec. 9181; I.C.A., sec. 19-3406; am. 2019, ch. 305, sec. 6, p. 912.]
(1) For purposes of this section and sections 19-3508 and 19-3509, Idaho Code, "diversion program" means the use of local community resources, churches, substance abuse counseling, informal probation, community service work, voluntary restitution, or other available services or programs as an alternative to adjudication of a criminal case in court.
(2) It is the intent of the legislature and the policy of the state of Idaho that a diversion program created pursuant to sections 19-3508 and 19-3509, Idaho Code, should:
(a) Provide an opportunity to incorporate statistics and empirical research into decision-making in the criminal justice system in a way that enhances public safety and reduces recidivism, while also saving taxpayer dollars;
(b) Provide individuals with the opportunity to rectify criminal conduct through early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by such individuals; and
(c) Provide an alternative to the imposition of criminal sanctions when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.
[19-3507, added 2019, ch. 305, sec. 7, p. 912.]
A person is eligible to participate in a diversion program if:
(1) The person has been charged with driving under the influence pursuant to section 18-8004 or 18-8004A, Idaho Code;
(2) At the time of the conduct underlying such charge, the person:
(a) Did not hold a commercial driver’s license or commercial learner’s permit; or
(b) Was not operating a commercial vehicle;
(3) No other person is alleged to have been physically injured as a result of the conduct underlying such charge; and
(4) The person charged has not been convicted of driving under the influence or a substantially conforming foreign criminal violation within the past ten (10) years and has not previously participated in a diversion program pursuant to section 19-3509, Idaho Code.
[19-3508, added 2019, ch. 305, sec. 8, p. 912; am. 2020, ch. 212, sec. 1, p. 620.]
(1) A prosecuting attorney may, at the prosecuting attorney’s discretion, establish a diversion program and may refer a defendant eligible to participate in a diversion program pursuant to section 19-3508, Idaho Code, to such program within thirty (30) calendar days of a citation being issued or charges being filed against the defendant. Before entering an agreement to participate in the diversion program, a defendant may obtain advice from a defense attorney on the requirements and consequences of participating in the diversion program and must undergo a drug or alcohol evaluation, or both, if requested by the prosecuting attorney. The terms and conditions of the diversion program shall be set forth in a written agreement signed by the prosecuting attorney and the defendant as well as the defendant’s attorney, if the defendant is represented by an attorney. If the defendant agrees to participate in the diversion program, then the prosecuting attorney shall move for dismissal of the action against the defendant pursuant to section 19-3506, Idaho Code.
(a) A diversion program may be administered by the prosecuting attorney or by the prosecuting attorney’s designee. The diversion agreement shall specify the person administering the program and shall set out the requirements for successful completion of the program and the duration of the diversion agreement. The duration of the period a person is required to participate in a diversion program under this section shall be no shorter than twelve (12) months. All persons participating in a diversion program shall be required to install and maintain, at the participant’s expense, an ignition interlock system in each vehicle such person operates for the duration of the program, as further provided in subsection (5) of this section. A person participating in a diversion program for a charge unrelated to alcohol shall, in addition to installing and maintaining an ignition interlock system, be required to undergo drug testing at the person’s expense for at least twelve (12) months. If the person is indigent, the prosecuting attorney may order the use of moneys from the court interlock device and electronic monitoring device fund created by section 18-8010, Idaho Code, to assist the person in procuring an ignition interlock device. The participant in a diversion program must also complete at least thirty-two (32) hours of sheriff inmate labor detail or approved community service and at least twenty-four (24) hours of drug and alcohol counseling, therapy, or education from an approved provider.
(b) At the end of the diversion period, the prosecuting attorney shall determine whether the participant complied with the requirements of the diversion agreement. If the prosecuting attorney finds that the participant failed to comply with the requirements of the diversion agreement, then the prosecuting attorney may refile the case pursuant to section 19-3506, Idaho Code.
(2) A prosecuting attorney may require, as a condition of entering a diversion program, that a person execute a sworn affidavit stating the facts that gave rise to the charge of driving under the influence. Such affidavit may be used as evidence of guilt during an adjudicative proceeding in a refiled case. No other statement made by the person in diversion activities or proceedings, such as in a counseling or therapy session, is admissible as evidence of guilt during an adjudicative proceeding in a refiled case.
(3) The requirements for successful completion of a diversion program may include, but are not limited to:
(a) Informal supervision with the probation department;
(b) Community service work;
(c) Inmate labor detail work;
(d) A community-based diversion program;
(e) Restitution to a victim;
(f) Alcohol monitoring and testing;
(g) Individual therapy and counseling;
(h) Group therapy and counseling; and
(i) Drug monitoring and testing.
(4) The administrator of a diversion program may require payment of restitution and fees to cover the costs of the diversion program. Any moneys collected shall be reasonably related to program costs. The administrator shall assess a diversion fee of one hundred fifty-seven dollars and fifty cents ($157.50) to each diversion participant. If the participant is indigent, the diversion fee may be waived. The diversion fee shall be paid to the clerk of the district court and distributed as follows:
(a) Seventeen dollars and fifty cents ($17.50) to be distributed as provided in section 31-3201A(2), Idaho Code;
(b) Ten dollars ($10.00) to be distributed as provided in section 31-3201(3), Idaho Code;
(c) Ten dollars ($10.00) to be distributed as provided in section 31-3201(5), Idaho Code;
(d) Fifteen dollars ($15.00) to be distributed as provided in section 31-3201B, Idaho Code;
(e) Fifty dollars ($50.00) to be distributed as provided in section 31-3201H, Idaho Code;
(f) Fifteen dollars ($15.00) to be distributed as provided in section 31-3204, Idaho Code;
(g) Thirty-seven dollars ($37.00) to be distributed as provided in section 72-1025, Idaho Code; and
(h) Three dollars ($3.00) to be distributed as provided in section 72-1105, Idaho Code.
(5) A participant in a diversion program whose driving privileges have been suspended may be granted driving privileges by the administrator of the diversion program, in which case the participant shall be issued a restricted driving permit by the Idaho transportation department. Prior to being granted restricted driving privileges, the participant must show to the administrator proof of financial responsibility as defined and in the amounts specified in section 49-117, Idaho Code. If a person is participating in a diversion program under this section, then the participant must have an ignition interlock system as defined in section 18-8008, Idaho Code, installed in each vehicle operated by the participant and must pay an ignition interlock fee of fifteen dollars ($15.00) to be deposited in the court interlock device and electronic monitoring device fund created by section 18-8010, Idaho Code. The ignition interlock system shall be removed once the participant successfully completes diversion, provided that such removal shall not occur, and the program shall not be considered successfully completed, until the administrator of the diversion program receives a declaration from the participant’s ignition interlock vendor, on a form provided or approved by the administrator, certifying that none of the following incidents occurred while the system was installed in the vehicle:
(a) An attempt to start the vehicle with an alcohol concentration of 0.04 or more;
(b) Failure to take any random test;
(c) Failure to pass any random retest with an alcohol concentration of 0.025 or lower; or
(d) Failure of the participant to appear at the ignition interlock system vendor’s place of business when required for maintenance, repair, calibration, monitoring, inspection, or replacement of the system.
[19-3509, added 2019, ch. 305, sec. 9, p. 913.]
Upon an information or presentment against a corporation, the magistrate must issue a summons signed by him, with his name of office, requiring the corporation to appear before him at a specified time and place, to answer the charge, the time to be not less than ten days after the issuing of the summons.
[(19-3601) 1874, p. 363, sec. 583; R.S., R.C., & C.L., sec. 8222; C.S., sec. 9182; I.C.A., sec. 19-3501.]
The summons must be substantially in the following form:
County of (as the case may be):
The state of Idaho to the (naming the corporation):
You are hereby summoned to appear before me at (naming the place), on (specifying the day and hour), to answer a charge made against you upon the information of A.B. (or the presentment of the grand jury of the county, as the case may be), for (designating the offense generally).
Dated at the city or precinct of…., this…. day of….,…..
[(19-3602) Cr. Prac. 1874, sec. 584; R.S., R.C., & C.L., sec. 8223; C.S., sec. 9183; I.C.A., sec. 19-3502; am. 2002, ch. 32, sec. 7, p. 49; am. 2012, ch. 20, sec. 11, p. 68.]
The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president or other head of the corporation, or to the secretary, cashier or managing agent thereof.
[(19-3603) 1874, p. 363, sec. 585; R.S., R.C., & C.L., sec. 8224; C.S., sec. 9184; I.C.A., sec. 19-3503.]
At the appointed time in the summons the magistrate must proceed to investigate the charge in the same manner as in the case of a natural person, so far as these proceedings are applicable.
[(19-3604) 1874, p. 363, sec. 586; R.S., R.C., & C.L., sec. 8225; C.S., sec. 9185; I.C.A., sec. 19-3504.]
After hearing the proofs, the magistrate must certify upon the deposition, either that there is or is not sufficient cause to believe the corporation guilty of the offense charged, and must return the deposition and certificate to the clerk of the district court of the county.
[(19-3605) 1874, p. 363, sec. 587; R.S., R.C., & C.L., sec. 8226; C.S., sec. 8196; I.C.A., sec. 19-3505.]
If the magistrate returns a certificate that there is sufficient cause to believe the corporation guilty of the offense charged, the grand jury may proceed thereon as in case of a natural person held to answer.
[(19-3606) 1874, p. 363, sec. 588; R.S., R.C., & C.L., sec. 8227; C.S., sec. 9187; I.C.A., sec. 19-3506.]
If an indictment is found, the corporation may appear by counsel to answer the same. If it does not thus appear, a plea of not guilty must be entered, and the same proceedings had thereon as in other cases.
[(19-3607) 1874, p. 363, sec. 589; R.S., R.C., & C.L., sec. 8228; C.S., sec. 9188; I.C.A., sec. 19-3507.]
When a fine is imposed upon a corporation on conviction, it may be collected by virtue of the order imposing it by the sheriff of the county, out of its real and personal property, in the same manner as upon an execution in a civil action.
[(19-3608) 1874, p. 363, sec. 590; R.S., R.C., & C.L., sec. 8229; C.S., sec. 9189; I.C.A., sec. 19-3508.]
It is not necessary to entitle an affidavit or deposition in the action, whether taken before or after indictment, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refer to the proceeding, indictment or appeal in which it is made.
[(19-3701) Cr. Prac. 1864, sec. 587, p. 285; R.S., R.C., & C.L., sec. 8234; C.S., sec. 9190; I.C.A., sec. 19-3601.]
Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.
[(19-3702) Cr. Prac. 1864, sec. 588, p. 285; R.S., R.C., & C.L., sec. 8236; C.S., sec. 9191; I.C.A., sec. 19-3602.]
When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it subject to the order of the magistrate authorized by the next section to direct the disposal thereof.
[(19-3801) Cr. Prac. 1864, sec. 589, p. 285; R.S., R.C., & C.L., sec. 8238; C.S., sec. 9192; I.C.A., sec. 19-3701.]
On satisfactory proof of the ownership of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling it, must order it to be delivered to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.
[(19-3802) Cr. Prac. 1864, sec. 590, p. 286; R.S., R.C., & C.L., sec. 8239; C.S., sec. 9193; I.C.A., sec. 19-3702.]
If property stolen or embezzled comes into custody of the magistrate, it must be delivered to the owner on satisfactory proof of his title, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate.
[(19-3803) Cr. Prac. 1864, sec. 591, p. 286; R.S., R.C., & C.L., sec. 8240; C.S., sec. 9194; I.C.A., sec. 19-3703.]
If the property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it may, on proof of his title, order it to be restored to the owner.
[(19-3804) Cr. Prac. 1864, sec. 592, p. 286; R.S., R.C., & C.L., sec. 8241; C.S., sec. 9195; I.C.A., sec. 19-3704.]
If the property stolen or embezzled is not claimed by the owner before the expiration of six (6) months from the conviction of a person for stealing or embezzling it, the magistrate or other officer having it in custody must, on the payment of the necessary expenses incurred in its preservation, deliver it to the county treasurer, by whom it must be sold and the proceeds paid into the county treasury.
[(19-3805) Cr. Prac. 1864, sec. 593, p. 286; R.S., R.C., & C.L., sec. 8242; C.S., sec. 9196; I.C.A., sec. 19-3705.]
When money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must, at the time, give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant, and the other of which he must forthwith file with the clerk of the court to which the depositions and statement are to be sent.
[(19-3806) Cr. Prac. 1864, sec. 594, p. 286; R.S., R.C., & C.L., sec. 8243; C.S., sec. 9197; I.C.A., sec. 19-3706.]
(1) At the time any person is convicted of a felony in any court of the state of Idaho, firearms, ammunition, bombs, nitroglycerin, or explosives of any nature, including illegal fireworks, or any other deadly weapons or contraband of any kind found in his possession or under his control at the time of his arrest may be confiscated and disposed of in accordance with the order of the court before which such person was tried. "Contraband" as used in this section shall mean any personal property, possession of which is illegal under the laws of the state of Idaho or the United States.
(2) Notice of confiscation proceedings shall be given to each owner or person who is believed to have an interest in the property in question by serving a copy of the state’s motion describing the property with a notice of hearing on the motion as follows:
(a) Upon each owner or interested party whose name and address is known, by mailing a copy of the state’s motion to confiscate and notice of hearing by certified mail to the owner or party’s last known address, or to his attorney;
(b) Upon all other owners or interested parties whose addresses are unknown, but who are believed to have an interest in the property, by publishing one (1) notice in a newspaper of general circulation in the county where the property was seized.
(3) Within twenty (20) days after the mailing or publication of the notice, the owner of the property in question and any other interested party may file with the court a claim to the property described in the motion to confiscate.
(4) If one (1) or more claims are filed, the confiscation proceeding shall be set for hearing at least thirty (30) days after the last timely claim is filed.
(5) At the confiscation hearing any person who has filed a timely claim may show by competent evidence that the property in question was not in the possession or control of the defendant at the time of his arrest or that the owner is innocent of any involvement in the acts which led to the defendant’s arrest, in which case the court may return the property to the owner or interested person or order any other disposition which is appropriate under the circumstances.
(6) If no claim has been filed within twenty (20) days after the state’s motion to confiscate and notice of hearing has been mailed or published, the court shall hear evidence concerning the defendant’s possession and control of the property in question at the time of arrest. If it finds that the property was in the defendant’s possession and control at the time of arrest or, if pursuant to subsection (5) of this section, the court rejects any claim which has been filed, the court may direct the delivery to the law enforcement agency which apprehended the defendant, for its use or for any other disposition in its discretion or, in the case of a firearm or ammunition, the court shall direct the delivery to the law enforcement agency which apprehended the defendant for disposition in accordance with section 55-403(4), Idaho Code.
[19-3807, added 1941, ch. 53, sec. 1, p. 112; am. 1984, ch. 177, sec. 1, p. 424; am. 2005, ch. 217, sec. 1, p. 690.]
All proceedings and actions before the magistrates division of the district court for a public offense of which such court has jurisdiction, must be commenced by complaint setting forth the offense charged, with such particulars of time, place, person and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint. A complaint for a misdemeanor must be sworn to before a magistrate or judge. A complaint for an infraction may be an unsworn complaint signed by a law enforcement officer. Provided, however, as to any misdemeanor or infraction triable by a magistrate, a law enforcement officer may, in lieu of making a written complaint, issue to the defendant a uniform citation containing a complaint and a summons to appear in a form and in the manner prescribed by rule of the supreme court. The complaint in the uniform citation shall contain a certification by the law enforcement officer to the effect that he certifies that he has reasonable grounds to believe, and does believe, that the person cited committed the offense contrary to law. The citation shall be served upon the defendant by obtaining his written promise to appear in court at a time certain or by physically delivering the citation to the defendant. The citation shall be processed in the courts as prescribed by rule of the supreme court. If the defendant fails to appear on a misdemeanor citation at the time indicated in the summons, the defendant may be prosecuted for the misdemeanor offense of failure to appear under section 19-3901A, Idaho Code.
[(19-3901) Cr. Prac. 1864, sec. 595, p. 287; R.S., R.C., & C.L., sec. 8280; C.S., sec. 9227; I.C.A., sec. 19-4001; am. 1967, ch. 152, sec. 1, p. 342; am. 1971, ch. 117, sec. 1, p. 400; am. 1979, ch. 165, sec. 1, p. 509; am. 1982, ch. 353, sec. 9, p. 874; am. 1983, ch. 25, sec. 1, p. 67.]
(a) It shall be unlawful for any person to fail to appear in court at the time promised on a misdemeanor citation or to fail to appear at the time indicated on a misdemeanor citation served upon the defendant, regardless of the disposition of the charge upon which such citation was originally issued.
(b) The duty to appear in court at the time indicated in a misdemeanor citation may be complied with by an appearance by counsel in the manner prescribed by rule of the supreme court.
(c) Violation of the provisions of this section shall be a misdemeanor.
[19-3901A, added 1983, ch. 25, sec. 3, p. 68.]
Whenever it shall appear to the prosecuting attorney of any county of this state that any criminal complaint filed in any justice or probate court is defective or void, the said prosecuting attorney shall have the right to substitute a new complaint, and the defendant or defendants shall not be considered to have been placed in jeopardy by any proceedings previous to the filing of the said new complaint: provided, that said prosecuting attorney shall file said complaint before the case for the prosecution has been closed.
[(19-3902) 1907, p. 110, sec. 1; reen. R.C. & C.L., sec. 8280a; C.S., sec. 9228; I.C.A., sec. 19-4002.]
If the magistrate judge is satisfied therefrom that the offense complained of has been committed, he must issue a warrant of arrest, which must be substantially in the following form:
County of…..
The state of Idaho to any sheriff, constable, marshal or policeman, in this state:
Complaint, upon oath, having been this day made before me…. (magistrate judge), by C.D., that the offense of…. (designating it generally), has been committed, and accusing E.F. thereof; you are therefore commanded forthwith to arrest the above named E.F. and bring him before me forthwith at…. (naming place).
Witness my hand at…., this…. day of….,….. A.B.
[(19-3903) Cr. Prac. 1864, sec. 597, p. 287; R.S., R.C., & C.L., sec. 8281; C.S., sec. 9229; I.C.A., sec. 19-4003; am. 2002, ch. 32, sec. 8, p. 49; am. 2012, ch. 20, sec. 12, p. 68.]
A docket must be kept by the magistrate judge, or by the clerk of the court, in which must be entered each action and the proceedings of the court therein.
[(19-3904) Cr. Prac. 1864, sec. 600, p. 288; R.S., R.C., & C.L., sec. 8282; C.S., sec. 9230; I.C.A., sec. 19-4004; am. 2012, ch. 20, sec. 13, p. 69.]
The defendant may make the same plea as upon an indictment. His plea must be oral, and entered in the minutes. If the defendant plead guilty, the court may, before entering such plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed; and if it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail, to answer any indictment which may be found against him by the grand jury.
[(19-3905) 1874, p. 363, sec. 602; R.S., R.C., & C.L., sec. 8283; C.S., sec. 9231; I.C.A., sec. 19-4005.]
Upon a plea other than a plea of guilty, if the parties waive a trial by jury, and an adjournment or change of venue is not granted, the court must proceed to try the case.
[(19-3906) R.S., R.C., & C.L., sec. 8284; C.S., sec. 9232; I.C.A., sec. 19-4006.]
Before the commencement of a trial in any of the courts mentioned in this chapter, either party may, upon good cause shown, have a reasonable postponement thereof.
[(19-3909) 1874, p. 363, sec. 602; R.S., R.C., & C.L., sec. 8287; C.S., sec. 9235; I.C.A., sec. 19-4009.]
The defendant must be personally present before the trial can proceed.
[(19-3910) Cr. Prac. 1864, sec. 599, p. 288; R.S., R.C., & C.L., sec. 8288; C.S., sec. 9236; I.C.A., sec. 19-4010.]
A trial by jury may be waived by the consent of both parties expressed in open court and entered in the docket. The formation of the jury is provided for in chapter 1, of title 2.
[(19-3911) R.S., R.C., & C.L., sec. 8289; C.S., sec. 9237; I.C.A., sec. 19-4011.]
The same challenges may be taken by either party to the panel of jurors, or to any individual juror, for cause, as on the trial of an indictment for a misdemeanor; but the challenges must in all cases be tried by the court; the defendant is entitled to four (4) peremptory challenges and the prosecution to four (4).
[(19-3912) 1874, p. 363, secs. 605, 607; R.S., R.C., & C.L., sec. 8290; C.S., sec. 9238; am. 1929, ch. 33, sec. 1, p. 36; I.C.A., sec. 19-4012.]
The court must administer to the jury the following oath:
You do swear that you will well and truly try this issue between the state of Idaho and A.B., the defendant, and a true verdict render according to the evidence.
[(19-3913) Cr. Prac. 1864, sec. 603, p. 288; R.S., R.C., & C.L., sec. 8291; C.S., sec. 9239; I.C.A., sec. 19-4013.]
After the jury are sworn they must sit together and hear the proofs and allegations of the parties, which must be delivered in public and in the presence of the defendant.
[(19-3914) Cr. Prac. 1864, sec. 604, p. 288; R.S., R.C., & C.L., sec. 8292; C.S., sec. 9240; I.C.A., sec. 19-4014.]
The court must decide all questions of law which may arise in the course of the trial.
[(19-3915) Cr. Prac. 1864, sec. 605, p. 288; R.S., R.C., & C.L., sec. 8293; C.S., sec. 9241; I.C.A., sec. 19-4015; am. 2014, ch. 22, sec. 1, p. 29.]
After hearing the proofs and allegations, the jury may decide in court, or may retire for consideration. If they do not immediately agree, an officer must be sworn to the following effect:
You do swear that you will keep this jury together in some quiet and convenient place; that you will not permit any person to speak to them, nor speak to them yourself unless by order of the court, or to ask them whether they have agreed upon a verdict, and that you will return them into court when they have so agreed or when ordered by the court.
[(19-3916) Cr. Prac. 1864, sec. 606, p. 288; R.S., R.C., & C.L., sec. 8294; C.S., sec. 9242; I.C.A., sec. 19-4016.]
The verdict of the jury must in all cases be general. When the jury have agreed on their verdict they must deliver it publicly to the court, who must enter it or cause it to be entered, in the minutes.
[(19-3917) Cr. Prac. 1864, secs. 607, 608, p. 288; R.S., R.C., & C.L., sec. 8295; C.S., sec. 9243; I.C.A., sec. 19-4017.]
When several defendants are tried together, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree on which a judgment must be entered accordingly, and the case as to the rest may be tried by another jury.
[(19-3918) Cr. Prac. 1864, sec. 609, p. 288; R.S., R.C., & C.L., sec. 8296; C.S., sec. 9244; I.C.A., sec. 19-4018.]
The jury cannot be discharged after the cause is submitted to them until they have agreed upon and rendered their verdict unless, for good cause the court sooner discharges them.
[(19-3919) Cr. Prac. 1864, sec. 610, p. 289; R.S., R.C., & C.L., sec. 8297; C.S., sec. 9245; I.C.A., sec. 19-4019.]
If the jury is discharged as provided in the last section, the court may proceed again to the trial in the same manner as upon the first trial, and so on until a verdict is rendered.
[(19-3920) Cr. Prac. 1864, sec. 611, p. 289; R.S., R.C. & C.L., sec. 8298; C.S., sec. 9246; I.C.A., sec. 19-4020.]
When the defendant pleads guilty, or is convicted either by the court or by a jury, the court must render judgment thereon of fine or imprisonment, or both, as the case may be: provided, however, it appearing to the court that it is a proper case, the court may, in its discretion, suspend the execution of judgment, and at such time, or any time during the period of sentence in a county jail, may put the defendant on probation on such terms and for such time as it may prescribe. The period of probation ordered by the court under this section under a conviction or plea of guilty for a misdemeanor, indictable or otherwise, may be for a period of not more than two (2) years; provided that the court may extend the period of probation to include the period of time during which the defendant is a participant in a problem solving court program and for a period of up to one (1) year after a defendant’s graduation or termination from a problem solving court program. The court may withhold judgment on such terms and conditions as it deems necessary or expedient.
[(19-3921) Cr. Prac. 1864, sec. 612, p. 289; R.S., R.C., & C.L., sec. 8299; C.S., sec. 9247; I.C.A., sec. 19-4021; am. 1937, ch. 60, sec. 1, p. 82; am. 1949, ch. 145, sec. 1, p. 300; am. 1973, ch. 292, sec. 2, p. 615; am. 2012, ch. 46, sec. 2, p. 141.]
Whenever a court orders testing of breath or bodily fluids as a condition of probation, such costs for the tests shall be paid for by the probationer in addition to any supervision fee authorized under section 31-3201D, Idaho Code, to the agency providing the testing, provided the court may waive this requirement upon a showing of cause.
[19-3922, added 2012, ch. 109, sec. 2, p. 299.]
When the defendant is acquitted, either by the court or by the jury, he must be immediately discharged; and if the court certify in the minutes that the prosecution was malicious or without probable cause, it may order the prosecutor to pay the costs of the action, or to give satisfactory security by a written undertaking, with one (1) or more sureties, to pay the same within thirty (30) days after the trial.
[(19-3923) Cr. Prac. 1864, sec. 614, p. 289; R.S., R.C., & C.L., sec. 8301; C.S., sec. 9249; I.C.A., sec. 19-4023.]
If the prosecutor does not pay the costs, or give security therefor, the court may enter judgment against him for the amount thereof, which may be enforced in all respects, in the same manner as a judgment rendered in a civil action.
[(19-3924) Cr. Prac. 1864, sec. 615, p. 289; R.S., R.C., & C.L., sec. 8302; C.S., sec. 9250; I.C.A., sec. 19-4024.]
After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, the court must appoint a time for rendering judgment, which must not be more than two (2) days nor less than six (6) hours after the verdict is rendered, and must hold the defendant to bail to appear for judgment, and in default of bail he must be committed.
[(19-3925) Cr. Prac. 1864, sec. 617, p. 289; R.S., R.C., & C.L., sec. 8303; C.S., sec. 9251; I.C.A., sec. 19-4025.]
At any time before judgment defendant may move for a new trial or in arrest of judgment.
[(19-3926) Cr. Prac. 1864, sec. 618, p. 289; R.S., R.C., & C.L., sec. 8304; C.S., sec. 9252; I.C.A., sec. 19-4026.]
A new trial may be granted in the following cases:
When the trial has been had in the absence of the defendant, unless he voluntarily absent himself, with full knowledge that a trial is being had.
When the jury has received any evidence out of court.
When the jury has separated without leave of the court, after having retired to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case.
When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors.
When there has been error in the decision of the court, given on any question of law arising during the course of the trial.
When the verdict is contrary to law or evidence.
When new evidence is discovered, material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial; but when a motion for a new trial is made upon this ground the defendant must produce at the hearing the affidavits of the witnesses by whom such newly-discovered evidence is expected to be given.
[(19-3927) Cr. Prac. 1864, sec. 619, p. 289; R.S., R.C., & C.L., sec. 8305; C.S., sec. 9253; I.C.A., sec. 19-4027.]
The motion in arrest of judgment may be founded on any substantial defect in the complaint, and the effect of an arrest of judgment is to place the defendant in the same situation in which he was before the trial was had.
[(19-3928) Cr. Prac. 1864, sec. 620, p. 289; R.S., R.C., & C.L., sec. 8306; C.S., sec. 9254; I.C.A., sec. 19-4028.]
If the judgment is not arrested, or a new trial granted judgment must be pronounced at the time appointed and entered in the minutes of the court.
[(19-3929) Cr. Prac. 1864, sec. 621, p. 290; R.S., R.C., & C.L., sec. 8307; C.S., sec. 9255; I.C.A., sec. 19-4029.]
If judgment of acquittal is given, or judgment imposing a fine only without imprisonment for nonpayment, and the defendant is not detained for any other legal cause, he must be discharged as soon as the judgment is given.
[(19-3930) Cr. Prac. 1864, sec. 622, p. 290; R.S., R.C., & C.L., sec. 8308; C.S., sec. 9256; am. 1929, ch. 7, sec. 1, p. 9; I.C.A., sec. 19-4030.]
When a judgment of imprisonment is entered a certified copy thereof must be delivered to the sheriff, marshal or other officer, which is a sufficient warrant for its execution.
[(19-3931) Cr. Prac. 1864, sec. 623, p. 290; R.S., R.C., & C.L., sec. 8309; C.S., sec. 9257; I.C.A., sec. 19-4031.]
When a judgment is entered imposing a fine, or costs, or both fine and costs, or ordering the defendant to be imprisoned until the fine, or costs, or fine and costs, be paid, he must be held in custody during the time specified in the judgment, unless the fine, or costs, or fine and costs, are sooner paid.
[(19-3932) Cr. Prac. 1864, sec. 624, p. 290; R.S., sec. 8310; am. 1899, p. 379, sec. 7; reen. R.C. & C.L., sec. 8310; C.S., sec. 9258; I.C.A., sec. 19-4032.]
Upon payment of the fine, or costs, or fine and costs, the officer must discharge the defendant if he is not detained for any other legal cause.
[(19-3933) Cr. Prac. 1864, sec. 625, p. 290; R.S., sec. 8311; am. 1899, p. 379, sec. 8; reen. R.C. & C.L., sec. 8311; C.S., sec. 9259; I.C.A., sec. 19-4033.]
The defendant, at any time after his arrest, and before conviction, may be admitted to bail.
[(19-3934) R.S., R.C., & C.L., sec. 8312; C.S., sec. 9260; I.C.A., sec. 19-4034; am. 2003, ch. 117, sec. 1, p. 361.]
The justice or judge of either of the courts mentioned in this chapter may issue subpoenas for witnesses and punish disobedience thereof, as provided in sections 19-3004, 19-3006—19-3012 inclusive.
[(19-3935) R.S., R.C., & C.L., sec. 8313; C.S., sec. 9261; I.C.A., sec. 19-4035.]
The provisions in respect to entitling affidavits are applicable to proceedings in the courts mentioned in this chapter.
[(19-3936) R.S., R.C., & C.L., sec. 8314; C.S., sec. 9262; I.C.A., sec. 19-4036.]
Witnesses before a special inquiry judge and in criminal cases in the magistrate division of district court, and witnesses in a coroner’s inquest, are entitled to the same fees and mileage as provided in section 19-3008, Idaho Code, for witnesses in criminal proceedings in the district court, which must be paid out of the county treasury; provided, however, that when the state or the defendant requires the attendance of more than three (3) witnesses in its or his behalf, before such witnesses shall be subpoenaed at the county expense, or their fees and mileages be a charge against the county, the county attorney or defendant must make affidavit setting forth that they are witnesses whose evidence is material for the state or the defense, and the facts showing such materiality, and that it or he cannot safely go to trial without them. In such case or cases, the court or judge thereof, at the time the application is made therefor, shall order a subpoena to issue to such of said witnesses as the court or judge thereof may deem material for the state or defendant, and the costs incurred by the process, and the fees and mileage of such witnesses, shall be paid in the same manner that the costs and fees of other witnesses are paid. Jurors in a coroner’s inquest are entitled to the mileage and per diem payments as provided for jurors in section 2-215, Idaho Code.
[(19-3945) 1905, p. 173, sec. 1; reen. R.C. & C.L., sec. 8338; C.S., sec. 9271; I.C.A., sec. 19-4045; am. 1939, ch. 20, sec. 1, p. 51; am. 1961, ch. 6, sec. 1, p. 8; am. 2012, ch. 18, sec. 1, p. 37.]
Each juror and witness must state on oath to the judge, justice or coroner, the number of miles traveled for which he is entitled to pay; but no juror or witness shall receive mileage other than for the distance actually traveled, notwithstanding he may serve or testify in more than one case.
[(19-3946) 1905, p. 173, sec. 2; reen. R.C. & C.L., sec. 8339; C.S., sec. 9272; I.C.A., sec. 19-4046.]
Misdemeanor probation office services shall be as provided in section 31-878, Idaho Code.
[19-3947, added 2008, ch. 88, sec. 2, p. 243.]
Any state officer, created by state law, shall be liable to impeachment for any misdemeanor in office.
[(19-4001) Cr. Prac. 1864, sec. 49, p. 219; R.S., R.C., & C.L., sec. 7425; C.S., sec. 8654; I.C.A., sec. 19-4101.]
All impeachments must be by resolution adopted and originated in the house of representatives, and conducted by managers elected by the house, who must prepare articles of impeachment, present them at the bar of the senate, and prosecute the same. The trial must be had before the senate, sitting as a court of impeachment.
[(19-4002) Cr. Prac. 1864, sec. 50, p. 219; R.S., R.C., & C.L., sec. 7426; C.S., sec. 8655; I.C.A., sec. 19-4102.]
When an officer is impeached by the house of representatives for a misdemeanor in office, the articles of impeachment must be delivered to the president of the senate.
[(19-4003) Cr. Prac. 1864, sec. 51, p. 219; R.S., R.C., & C.L., sec. 7427; C.S., sec. 8656; I.C.A., sec. 19-4103.]
The senate must assign a day for the hearing of the impeachment and inform the house of representatives thereof. The president of the senate must cause a copy of the articles of impeachment, with a notice to appear and answer the same at the time and place appointed, to be served on the defendant not less than ten (10) days before the day fixed for the hearing.
[(19-4004) Cr. Prac. 1864, sec. 52, p. 219; R.S., R.C., & C.L., sec. 7428; C.S., sec. 8657; I.C.A., sec. 19-4104.]
The service must be made upon the defendant personally, or if he cannot, upon diligent inquiry, be found within the state, the senate, upon proof of that fact, may order publication to be made, in such manner as it may deem proper, of a notice requiring him to appear at a specified time and place, and answer the articles of impeachment.
[(19-4005) Cr. Prac. 1864, sec. 53, p. 219; R.S., R.C., & C.L., sec. 7429; C.S., sec. 8656; I.C.A., sec. 19-4105.]
If the defendant does not appear, the senate, upon proof of service or publication, as provided in the last two (2) sections, may, of its own motion or for cause shown, assign another day for hearing the impeachment, or may proceed in the absence of the defendant to trial and judgment.
[(19-4006) Cr. Prac. 1864, sec. 54, p. 220; R.S., R.C., & C.L., sec. 7430; C.S., sec. 8659; I.C.A., sec. 19-4106.]
When the defendant appears he may, in writing, object to the sufficiency of the articles of impeachment, or he may answer the same by an oral plea of not guilty, which plea must be entered upon the journal, and puts in issue every material allegation of the articles of impeachment.
[(19-4007) Cr. Prac. 1864, secs. 55, 56, p. 220; R.S., R.C., & C.L., sec. 7431; C.S., sec. 8660; I.C.A., sec. 19-4107.]
If the objection to the sufficiency of the articles of impeachment is not sustained by a majority of the members of the senate who heard the argument, the defendant must be ordered forthwith to answer the articles of impeachment. If he then pleads guilty, or refuses to plead, the senate must render judgment of conviction against him. If he pleads not guilty, the senate must at such time as it may appoint, proceed to try the impeachment.
[(19-4008) Cr. Prac. 1864, sec. 57, p. 220; R.S., R.C., & C.L., sec. 7432; C.S., sec. 8661; I.C.A., sec. 19-4108.]
At the time and place appointed and before the senate proceeds to act on the impeachment, the secretary must administer to the president of the senate, and the president of the senate to each of the members of the senate then present, an oath truly and impartially to hear, try, and determine the impeachment; and no member of the senate can act or vote upon the impeachment or upon any question arising thereon without having taken such oath.
[(19-4009) Cr. Prac. 1864, sec. 58, p. 220; R.S., R.C., & C.L., sec. 7433; C.S., sec. 8662; I.C.A., sec. 19-4109.]
The defendant cannot be convicted on an impeachment without the concurrence of two-thirds (2/3) of the members elected, voting by ayes and noes, and if two-thirds (2/3) of the members elected do not concur in a conviction, he must be acquitted.
[(19-4010) Cr. Prac. 1864, sec. 60, p. 220; R.S., sec. 7434; am. R.C., & C.L., sec. 7434; C.S., sec. 8663; I.C.A., sec. 19-4110.]
After conviction the senate must, at such time as it may appoint, pronounce judgment in the form of a resolution, entered upon the journals of the senate.
[(19-4011) Cr. Prac. 1864, sec. 61, p. 220; R.S., R.C., & C.L., sec. 7435; C.S., sec. 8664; I.C.A., sec. 19-4111.]
On the adoption of the resolution by a majority of the members present who voted on the question of acquittal or conviction, it becomes the judgment of the senate.
[(19-4012) Cr. Prac. 1864, sec. 62, p. 221; R.S., R.C., & C.L., sec. 7436; C.S., sec. 8665; I.C.A., sec. 19-4112.]
The judgment may be that the defendant be suspended and removed from office, or that he be removed from office and disqualified to hold and enjoy a particular office, or class of offices, or any office in this state.
[(19-4013) Cr. Prac. 1864, sec. 63, p. 221; R.S., R.C., & C.L., sec. 7437; C.S., sec. 8666; I.C.A., sec. 19-4113.]
If judgment of suspension is given, the defendant, during the continuance thereof, is disqualified from receiving the salary, fees, or emoluments of the office.
[(19-4014) Cr. Prac. 1864, sec. 64, p. 221; R.S., R.C., & C.L., sec. 7438; C.S., sec. 8667; I.C.A., sec. 19-4114.]
Whenever articles of impeachment against any officer subject to impeachment are presented to the senate, such officer is temporarily suspended from his office, and cannot act in his official capacity until he is acquitted. Upon such suspension of any state officer, his office must at once be temporarily filled by an appointment made by the governor, with the advice and consent of the senate, until the acquittal of the party impeached; or, in case of his removal, until the vacancy is filled as required by law.
[(19-4015) Cr. Prac. 1864, sec. 65, p. 221; R.S., R.C., & C.L., sec. 7439; C.S., sec. 8668; I.C.A., sec. 19-4115.]
If the offense for which the defendant is convicted on impeachment is also the subject of an indictment, the indictment is not barred thereby.
[(19-4016) Cr. Prac. 1864, sec. 66, p. 221; R.S., R.C., & C.L., sec. 7440; C.S., sec. 8669; I.C.A., sec. 19-4116.]
An accusation in writing against any district, county, precinct, or municipal officer, for wilful or corrupt misconduct in office, may be presented by the grand jury of the county for or in which the officer accused is elected or appointed.
[(19-4101) Cr. Prac. 1864, sec. 67, p. 221; R.S., R.C., & C.L., sec. 7445; C.S., sec. 8670; I.C.A., sec. 19-4201.]
The accusation must state the offense charged, in ordinary and concise language, and without repetition.
[(19-4102) Cr. Prac. 1864, sec. 68, p. 221; R.S., R.C., & C.L., sec. 7446; C.S., sec. 8671; I.C.A., sec. 19-4202.]
The accusation must be delivered by the foreman of the grand jury to the prosecuting attorney of the county (except when he is the officer accused), who must cause a copy thereof to be served upon the defendant, and require by notice in writing, of not less than ten (10) days, that he appear before the district court of the county, then sitting or at its next term, and answer the accusation. The original accusation must then be filed with the clerk of the district court.
[(19-4103) Cr. Prac. 1864, sec. 69, p. 221; R.S., R.C., & C.L., sec. 7447; C.S., sec. 8672; I.C.A., sec. 19-4203.]
The defendant must appear at the time appointed in the notice and answer the accusation, unless for some sufficient cause the court assign another day for that purpose. If he does not appear, the court may proceed to hear and determine the accusation in his absence.
[(19-4104) Cr. Prac. 1864, sec. 70, p. 221; R.S., R.C., & C.L., sec. 7448; C.S., sec. 8673; I.C.A., sec. 19-4204.]
The defendant may answer the accusation either by objecting to the sufficiency thereof, or of any article therein, or by denying the truth of the same.
[(19-4105) Cr. Prac. 1864, sec. 71, p. 221; R.S., R.C., & C.L., sec. 7449; C.S., sec. 8674; I.C.A., sec. 19-4205.]
If he objects to the legal sufficiency of the accusation, the objection must be in writing, but need not be in any specific form, it being sufficient if it presents intelligibly the grounds of the objection.
[(19-4106) Cr. Prac. 1864, sec. 72, p. 221; R.S., R.C., & C.L., sec. 7450; C.S., sec. 8675; I.C.A., sec. 19-4206.]
If he denies the truth of the accusation, the denial may be oral and without oath, and must be entered upon the minutes.
[(19-4107) Cr. Prac. 1864, sec. 73, p. 222; R.S., R.C., & C.L., sec. 7451; C.S., sec. 8676; I.C.A., sec. 19-4207.]
If an objection to the sufficiency of the accusation is not sustained, the defendant must answer thereto forthwith.
[(19-4108) Cr. Prac. 1864, sec. 74, p. 222; R.S., R.C., & C.L., sec. 7452; C.S., sec. 8677; I.C.A., sec. 19-4208.]
If the defendant pleads guilty, or refuses to answer the accusation, the court must render judgment of conviction against him. If he denies the matters charged, the court must immediately, or at such time as it may appoint, proceed to try the accusation.
[(19-4109) Cr. Prac. 1864, sec. 75, p. 222; R.S., R.C., & C.L., sec. 7453; C.S., sec. 8678; I.C.A., sec. 19-4209.]
The trial must be by a jury, and conducted in all respects in the same manner as the trial of an indictment for a misdemeanor.
[(19-4110) Cr. Prac. 1864, sec. 76, p. 222; R.S., R.C., & C.L., sec. 7454; C.S., sec. 8679; I.C.A., sec. 19-4210.]
The prosecuting attorney and the defendant are respectively entitled to such process as may be necessary to enforce the attendance of witnesses as upon a trial of an indictment.
[(19-4111) Cr. Prac. 1864, sec. 77, p. 222; R.S., R.C., & C.L., sec. 7455; C.S., sec. 8680; I.C.A., sec. 19-4211.]
Upon a conviction, the court must, at such time as it may appoint, pronounce a judgment that the defendant be removed from office; but, to warrant a removal, the judgment must be entered upon the minutes, and the causes of removal must be assigned therein.
[(19-4112) Cr. Prac. 1864, sec. 78, p. 222; R.S., R.C., & C.L., sec. 7456; C.S., sec. 8681; I.C.A., sec. 19-4212.]
From a judgment of removal an appeal may be taken to the supreme court, in the same manner as from a judgment in a civil action; but until such judgment is reversed the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy.
[(19-4113) Cr. Prac. 1864, sec. 79, p. 222; R.S., R.C., & C.L., sec. 7457; C.S., sec. 8682; I.C.A., sec. 19-4213.]
The same proceedings may be had on like grounds for the removal of a prosecuting attorney, except that the accusation must be delivered by the foreman of the grand jury to the clerk, and by him to the district judge of the district, who must thereupon appoint some one to act as prosecuting officer in the matter, or place the accusation in the hands of the prosecuting attorney of an adjoining county, and require him to conduct the proceedings.
[(19-4114) Cr. Prac. 1864, sec. 80, p. 222; R.S., R.C., & C.L., sec. 7458; C.S., sec. 8683; I.C.A., sec. 19-4214.]
Sections 19-4201 through 19-4226, Idaho Code, shall be known and may be cited as the "Idaho Habeas Corpus and Institutional Litigation Procedures Act."
[19-4201, added 1999, ch. 376, sec. 2, p. 1027.]
As used in this chapter:
(1) "Correctional facility" means a facility for the confinement of prisoners. Unless otherwise specifically provided, the term shall include a state, local or private correctional facility.
(2) "In-state prisoner" means a person who has been convicted of a crime in the state of Idaho and is either incarcerated in a correctional facility for that crime or is in custody for trial and sentencing.
(3) "Institution" or "state or county institution" means a place owned or operated by or under the control of the state or county in which a person other than a prisoner is restrained and with respect to which restraint the person may file a petition for a writ of habeas corpus under the provisions of this chapter.
(4) "Local correctional facility" means a facility for the confinement of prisoners operated by or under the control of a county or city. The term shall include any reference to "jail" or "county jail."
(5) "Out-of-state prisoner" means a person who has been convicted of and sentenced for a crime in a state other than the state of Idaho, or under the laws of the United States or other foreign jurisdiction, and who is being housed in any state, local or private correctional facility in the state of Idaho, or who is being transported in any manner within or through the state of Idaho.
(6) "Prisoner" includes an in-state or out-of-state prisoner, unless otherwise specifically provided or unless the context clearly indicates otherwise.
(7) "Private correctional facility" means a correctional facility owned or operated in the state of Idaho by a private prison contractor.
(8) "Private prison contractor" means any person, organization, partnership, joint venture, corporation or other business entity engaged in the site selection, design, design/building, acquisition, construction, construction/management, financing, maintenance, leasing, leasing/purchasing, management or operation of private correctional facilities or any combination of these services.
(9) "State correctional facility" means a correctional facility owned or operated by or under the control of the state of Idaho.
[19-4201A, added 2000, ch. 271, sec. 1, p. 778.]
The following courts of this state shall have original jurisdiction to consider a petition for writ of habeas corpus, grant the writ and/or order relief under this chapter:
(1) The supreme court; or
(2) The district court of the county in which the person is detained.
[19-4202, added 1999, ch. 376, sec. 2, p. 1027.]
(1) Any person, not a prisoner as defined in section 19-4201A, Idaho Code, who believes he is unlawfully restrained of his liberty in this state may file a petition for writ of habeas corpus to request that the court inquire into the cause and/or legality of the restraint.
(2) An in-state prisoner, as defined in section 19-4201A, Idaho Code, or a person who is restrained of his liberty while involved in parole revocation proceedings, or while held on an agent or commission warrant in this state, may file a petition for writ of habeas corpus to request that a court inquire into state or federal constitutional questions concerning:
(a) The conditions of his confinement;
(b) Revocation of parole;
(c) Miscalculation of his sentence;
(d) Loss of good time credits;
(e) A detainer lodged against him.
(3) An out-of-state prisoner, as defined in section 19-4201A, Idaho Code, may file a petition for writ of habeas corpus only to request that an Idaho court inquire into a state or federal constitutional question concerning the conditions of his confinement. Habeas corpus relief shall not be available for an out-of-state prisoner to challenge:
(a) Any issue concerning the legality of his out-of-state conviction or sentence;
(b) Any issue concerning the legality of the fact or duration of his confinement in this state;
(c) Any issue concerning the legality of the contract or agreement or any terms thereof pursuant to which he is housed in this state;
(d) Any issue concerning the grant, denial or revocation of parole for his out-of-state conviction and sentence;
(e) Miscalculation of his out-of-state sentence;
(f) Loss of out-of-state good time credits or lack of (failure to grant) good time credits under the laws of the state of Idaho;
(g) A detainer lodged against him.
(4) Habeas corpus shall not be used as a substitute for, or in addition to, a direct appeal of a criminal conviction or proceedings under Idaho criminal rule 35 or the uniform post-conviction procedures act, chapter 49, title 19, Idaho Code, and the statutes of limitations imposed therein.
(5) Habeas corpus shall not be used as a substitute for or in addition to proceedings available in child custody matters and proceedings under the Idaho domestic violence crime prevention act, chapter 63, title 39, Idaho Code.
(6) Habeas corpus is an individual remedy only.
(7) For purposes of this chapter and any other civil challenges to conditions of confinement, the term "conditions of confinement" shall be defined as any civil proceeding with respect to a condition in any state or county institution, or state, local or private correctional facility, as those terms are defined in section 19-4201A, Idaho Code, arising under state or federal law pertaining to the conditions of confinement or the effects of actions by government officials or employees of a private prison contractor while employed at a private correctional facility in the state of Idaho on the life of a person confined in a state or county institution, or a state, local or private correctional facility.
[19-4203, added 1999, ch. 376, sec. 2, p. 1027; am. 2000, ch. 271, sec. 2, p. 778.]
(1) Application for a writ of habeas corpus by a person not a prisoner shall be made by filing a petition for writ of habeas corpus in the district court of the county in which the person is restrained.
(2) The petition must be verified by the oath or affirmation of the party applying for the writ and shall specify:
(a) That the person is unlawfully restrained of his liberty;
(b) The identity and address of the person restraining the subject of the petition;
(c) The name and address of the place in which the person is restrained;
(d) A description of the facts which make the restraint illegal; and
(e) The theory of law upon which relief is sought, if known.
(3) Application under this section may be made by a guardian on behalf of a minor or by a guardian on behalf of an incapacitated person as defined in section 15-5-101, Idaho Code.
Application for writ of habeas corpus by a person not a prisoner. [effective January 1, 2027]
(1) Application for a writ of habeas corpus by a person not a prisoner shall be made by filing a petition for writ of habeas corpus in the district court of the county in which the person is restrained.
(2) The petition must be verified by the oath or affirmation of the party applying for the writ and shall specify:
(a) That the person is unlawfully restrained of his liberty;
(b) The identity and address of the person restraining the subject of the petition;
(c) The name and address of the place in which the person is restrained;
(d) A description of the facts which make the restraint illegal; and
(e) The theory of law upon which relief is sought, if known.
(3) Application under this section may be made by a guardian on behalf of a minor or by a guardian on behalf of an incapacitated person as defined in section 15-1-201, Idaho Code.
[19-4204, added 1999, ch. 376, sec. 2, p. 1028; am. 2026, ch. 79, sec. 19, p. 412.]
(1) Application for a writ of habeas corpus by a prisoner shall be made by filing a petition for a writ of habeas corpus in the district court of the county in which the prisoner claims his confinement or aspects of his confinement violate provisions of the state or federal constitutions.
(2) With respect to a petition filed by an in-state prisoner, the petition must be verified by the oath or affirmation of the prisoner applying and shall specify that the prisoner is alleging state or federal constitutional violations concerning:
(a) The conditions of his confinement;
(b) The revocation of his parole;
(c) Miscalculation of his sentence;
(d) Loss of good time credits; or
(e) A detainer lodged against him.
(3) With respect to a petition filed by an out-of-state prisoner, the petition must be verified by the oath or affirmation of the prisoner applying and shall specify that the prisoner is alleging state or federal constitutional violations concerning the conditions of his confinement, as provided in section 19-4203(3), Idaho Code.
(4) A petition filed by a prisoner under subsection (1), (2) or (3) of this section shall specify:
(a) The identity and address of the person or officer whom the prisoner believes is responsible for the alleged state or federal constitutional violations, and shall name the persons identified individually as respondents;
(b) The name, if any, and address of the place in which the prisoner is incarcerated;
(c) The name and address of the place in which the prisoner claims the constitutional violation occurred;
(d) A short and plain statement of the facts underlying the alleged state or federal constitutional violation; and
(e) Whether the petitioner is an out-of-state prisoner.
(5) Neither the state of Idaho, any of its political subdivisions, or any of its agencies, nor any private correctional facility shall be named as respondents in a prisoner petition for writ of habeas corpus.
[19-4205, added 1999, ch. 376, sec. 2, p. 1028; am. 2000, ch. 271, sec. 3, p. 779.]
(1) Unless a petitioner who is a prisoner establishes to the satisfaction of the court that he is in imminent danger of serious physical injury, no petition for writ of habeas corpus or any other civil action shall be brought by any person confined in a state or county institution, or in a state, local or private correctional facility, with respect to conditions of confinement until all available administrative remedies have been exhausted. If the institution, or state, local or private correctional facility does not have a system for administrative remedy, this requirement shall be waived.
(2) At the time of filing, the petitioner shall submit, together with the petition for writ of habeas corpus a true, correct and complete copy of any documentation which demonstrates that he has exhausted administrative remedies described in subsection (1) of this section.
(3) If at the time of filing the petition for writ of habeas corpus the petitioner fails to comply with this section, the court shall dismiss the petition with or without prejudice.
[19-4206, added 1999, ch. 376, sec. 2, p. 1029; am. 2000, ch. 271, sec. 4, p. 780.]
A petition for writ of habeas corpus may only be filed by a person described in section 19-4203, Idaho Code, or his attorney, except that a petition may be filed on behalf of an aggrieved person who is a minor, or on behalf of a person who is incapacitated as defined by section 15-5-101, Idaho Code, by the aggrieved person’s legal guardian.
Application for writ of habeas corpus on behalf of another. [effective January 1, 2027]
A petition for writ of habeas corpus may only be filed by a person described in section 19-4203, Idaho Code, or his attorney, except that a petition may be filed on behalf of an aggrieved person who is a minor, or on behalf of a person who is incapacitated as defined by section 15-1-201, Idaho Code, by the aggrieved person’s legal guardian.
[19-4207, added 1999, ch. 376, sec. 2, p. 1029; am. 2026, ch. 79, sec. 20, p. 413.]
A habeas corpus proceeding is a civil action and is governed by the provisions of this chapter and the Idaho court rules to the extent that such rules are not inconsistent with this act.
[19-4208, added 1999, ch. 376, sec. 2, p. 1029.]
(1) The court may dismiss with prejudice a petition for writ of habeas corpus under this section, in whole or in part, prior to service of the petition on the respondent, if the court finds:
(a) The petition is frivolous as defined in section 12-122, Idaho Code;
(b) The petition has been brought maliciously or solely to harass;
(c) The petition fails to state a claim of constitutional violation upon which relief can be granted;
(d) The alleged constitutional deprivation is de minimis in nature; or
(e) The relief sought is monetary damages or the return of property.
(2) If the court finds that the petition should not be dismissed, then:
(a) The court shall mail a copy of the petition and order of response to the respondent or the respondent’s counsel, if known;
(b) A response must be filed within thirty (30) days from the date the respondent or the respondent’s counsel is served with the petition and order for response. If the court finds that exigent circumstances exist which warrant an earlier response, the court shall set forth those circumstances and the allowed time for response; and
(c) If the court dismisses the petition in part, the court may specify which issues and/or allegations remain at issue for response.
(3) If the court orders a response to a petition for writ of habeas corpus under this section, the respondent may file any responsive motion or pleading allowed by Idaho rules of civil procedure.
(4) Upon the filing of a responsive motion or pleading, a prisoner may file a reply to the response or the court may order a reply to the response on its own motion. The court should consider any reply filed only to the extent it is relevant to the issues and allegations raised in the original petition for writ of habeas corpus.
(5) With respect to a petition filed by an in-state prisoner the court should not grant a writ of habeas corpus or order an evidentiary hearing under this section unless, after reviewing the petition for writ of habeas corpus, the response and the reply, if any, the court finds that the prisoner’s state or federal constitutional rights may have been violated relative to:
(a) Conditions of confinement;
(b) Revocation of parole;
(c) Miscalculation of his sentence;
(d) Loss of good time credits; or
(e) A detainer lodged against him.
If, after review under this subsection, the court finds that the allegations do not state a state or federal constitutional claim, the court may dismiss the petition without a hearing.
(6) With respect to a petition filed by an out-of-state prisoner, the court should not grant a writ of habeas corpus or order an evidentiary hearing under this section unless, after reviewing the petition for writ of habeas corpus, the response and the reply, if any, the court finds that the out-of-state prisoner’s state or federal constitutional rights may have been violated relative to the out-of-state prisoner’s conditions of confinement. If, after review under this subsection, the court finds that the allegations do not state a state or federal constitutional claim, the court may dismiss the petition without a hearing.
(7) If the court issues a writ of habeas corpus and sets the matter for evidentiary hearing, the following shall apply:
(a) The hearing shall be set as expeditiously as possible and may be at a place convenient for the court and the parties, including the institution or the state, local or private correctional facility where the prisoner is confined;
(b) The burden of proof during an evidentiary hearing pursuant to a petition for writ of habeas corpus lies with the prisoner; and
(c) As soon as possible after the conclusion of the hearing, the court shall enter its findings of fact and conclusions of law, and either dismiss the petition in part or in its entirety, or grant injunctive relief consistent with this act.
[19-4209, added 1999, ch. 376, sec. 2, p. 1029; am. 2000, ch. 271, sec. 5, p. 781.]
(1) Discovery shall not ordinarily be permitted in habeas corpus cases.
(2) No discovery shall be permitted if the issues raised by the petition, the response or reply are wholly legal in nature.
(3) If factual issues are raised by the pleadings, the court may, upon motion, grant leave for discovery in accordance with Idaho rules of civil procedure.
(a) The party must file a motion for leave to conduct discovery, attaching a copy of the discovery sought.
(b) If the court finds that discovery is necessary to protect or defend a substantive state or federal constitutional right at issue, it shall enter an order tailored to allow discovery for that limited purpose.
[19-4210, added 1999, ch. 376, sec. 2, p. 1031.]
(1) Any court authorized under section 19-4202, Idaho Code, may grant a writ of habeas corpus pursuant to a petition filed by, or, pursuant to section 19-4207, Idaho Code, on behalf of a person not a prisoner if it finds that the restraint of the person’s liberty is illegal.
(2) Any court authorized under section 19-4202, Idaho Code, may grant a writ of habeas corpus and order a hearing pursuant to a petition filed by a prisoner, or, pursuant to section 19-4207, Idaho Code, on behalf of a prisoner when:
(a) The court has considered the factual allegations contained in the petition together with any responsive pleading filed by the respondent, and a reply filed by the prisoner, if any;
(b) The court finds that the petitioner is likely to prevail on the merits of his state or federal constitutional challenge;
(c) The court finds that the petitioner will suffer irreparable injury if some relief is not granted;
(d) The court finds that the balance of potential harm to the petitioner substantially outweighs any legitimate governmental interest; and
(e) The court finds that equity favors granting relief to the petitioner.
(3) Any order granting the writ should issue without delay and a hearing should be scheduled. The court may provide a statement of the issues to be addressed, and whether evidence will be accepted.
(4) If a court issues an order granting the writ and setting the matter for hearing, the court may set the hearing at the state, local or private correctional facility or other appropriate place.
[19-4211, added 1999, ch. 376, sec. 2, p. 1031; am. 2000, ch. 271, sec. 6, p. 782.]
If a court finds that a person not a prisoner is being illegally restrained, the court may fashion appropriate injunctive relief to cure the illegality, including release.
[19-4212, added 1999, ch. 376, sec. 2, p. 1031.]
(1) If a court finds that an in-state prisoner’s constitutional rights have been violated during the course of revocation of his parole, the court may, upon specific findings of fact and conclusions of law, enter an order directing that the parole revocation proceedings be reconvened. The order shall identify the constitutional violation which occurred and direct that the violation be cured.
(2) The Idaho commission of pardons and parole has the exclusive authority to order release of an in-state prisoner on parole pursuant to chapter 10, title 20, Idaho Code.
[19-4213, added 1999, ch. 376, sec. 2, p. 1031; am. 2000, ch. 271, sec. 7, p. 783; am. 2021, ch. 196, sec. 24, p. 540.]
(1) If, upon findings of fact and conclusions of law, a court finds that an in-state prisoner’s sentence has been miscalculated, the court may order the sentence to be recalculated consistent with the court’s findings and conclusions.
(2) The court may order the prisoner released under this section only if the prisoner would be entitled to release due to expiration of his sentence correctly calculated.
[19-4214, added 1999, ch. 376, sec. 2, p. 1032; am. 2000, ch. 271, sec. 8, p. 783.]
(1) If the court finds that an in-state prisoner has lost good time credits without constitutionally sufficient due process, the court may order a rehearing by the correctional facility authority.
(2) Any court order requiring rehearing shall specify:
(a) How due process was constitutionally insufficient and direct that the insufficiency be cured; and
(b) Provide that the officials of the correctional facility shall have not less than thirty (30) days in which to convene the rehearing.
(3) The correctional facility authority shall have the responsibility for the recalculation and restoration of good time credits. If good time credits are restored to the petitioner as a result of the rehearing, and restoration of good time credits entitles the petitioner to release, he shall be so released.
[19-4215, added 1999, ch. 376, sec. 2, p. 1032; am. 2000, ch. 271, sec. 9, p. 783.]
(1) An in-state prisoner may petition for writ of habeas corpus to challenge the legality of a detainer which has been lodged against him by another state under the interstate agreement on detainers, chapter 50, title 19, Idaho Code.
(2) The court may set a hearing on a petition for writ of habeas corpus to inquire into factual issues involving the legality of the detainer or the legality of delivery of the prisoner to the prosecuting state under the detainer. However, if the petition involves legal issues only, the court shall decide the matter without hearing consistent with section 19-4209, Idaho Code.
[19-4216, added 1999, ch. 376, sec. 2, p. 1032; am. 2000, ch. 271, sec. 10, p. 784.]
(1) If the court finds that a prisoner’s or other institutionalized person’s constitutional rights have been violated involving conditions of confinement, the court may order injunctive relief consistent with and subject to the limitations set forth in this chapter.
(2) If the court concludes that injunctive relief is necessary to cure unconstitutional conditions of confinement, the court shall enter an order subject to the following limitations:
(a) Any order for injunctive relief shall be accompanied by specific findings of fact and conclusions of law;
(b) Injunctive relief shall be narrowly drawn and extend no further than necessary to correct the violation of the constitutional right;
(c) Injunctive relief must be the least intrusive means necessary to correct the constitutional violation;
(d) The court shall give substantial weight to any adverse impact on public safety;
(e) The court shall give substantial deference to the discretion of administrators of the institution or the state, local or private correctional facility;
(f) The administrator of the institution, or of the state, local or private correctional facility shall be given all reasonable opportunities to correct state or federal constitutional errors made in the internal operations of the institution and shall be charged with the task of devising constitutionally sound modifications to their operations.
[19-4217, added 1999, ch. 376, sec. 2, p. 1032; am. 2000, ch. 271, sec. 11, p. 784.]
In any civil action with respect to conditions of confinement in which prospective relief is ordered or obtained pursuant to consent decree, the relief order or decree shall be terminated upon the motion of any party or intervenor:
(1) Two (2) years after the date the court granted or approved the prospective relief;
(2) One (1) year after the date the court has entered an order or decree denying termination of prospective relief under this section; or
(3) In the case of an order issued on or before the date of enactment of this act, one (1) year after such date of enactment.
[19-4218, added 1999, ch. 376, sec. 2, p. 1033.]
(1) In any civil action with respect to conditions of confinement, the administrator of the institution, or of the state, local or private correctional facility, or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of an express finding by the court that the relief:
(a) Is narrowly drawn;
(b) Extends no further than necessary to correct the violation of the constitutional right; and
(c) Is the least intrusive means necessary to correct the violation of the constitutional right.
(2) Prospective relief shall not terminate if the court makes written findings based on the record that the prospective relief:
(a) Remains necessary to correct a current or ongoing violation of the constitutional right;
(b) Extends no further than necessary to correct the violation of the constitutional right;
(c) Is narrowly drawn; and
(d) Is the least intrusive means to correct the violation.
(3) Nothing in this section shall prevent the administrator of the institution, or of the state, local or private correctional facility, or intervenor from seeking modification or termination before the relief is terminable under subsection (1) or (2) of this section to the extent that modification or termination would otherwise be legally permissible.
[19-4219, added 1999, ch. 376, sec. 2, p. 1033; am. 2000, ch. 271, sec. 12, p. 784.]
(1) In any civil action with respect to conditions of confinement, the court shall not enter or approve a settlement or consent decree unless it complies with the limitations on relief set forth in section 19-4217, Idaho Code.
(2) This section, together with sections 19-4217, 19-4218 and 19-4219, Idaho Code, applies to all settlements or consent decrees in effect at the time of passage of this act. Any settlement or consent decree entered into before enactment of this act shall not be construed as a waiver of the application of this section by any party to the settlement or consent decree, and may be terminated consistent with sections 19-4218 and 19-4219, Idaho Code.
[19-4220, added 1999, ch. 376, sec. 2, p. 1034.]
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding if the prisoner has, on two (2) or more prior occasions, while incarcerated or detained in any state, local or private correctional facility, brought an action or appeal in a court of this state that was dismissed on any ground set forth in section 19-4209(1)(a) through (d), Idaho Code, unless:
(1) The prisoner first obtains leave from the district court having jurisdiction over the case; or
(2) The prisoner’s action or petition is submitted for filing by an attorney licensed to practice law in the state of Idaho.
[19-4221, added 1999, ch. 376, sec. 2, p. 1034; am. 2000, ch. 271, sec. 13, p. 785.]
No civil action may be brought by a prisoner confined in a state, local or private correctional facility for mental or emotional injury suffered while in custody without a prior showing of either:
(1) Physical injury; or
(2) Diagnosed severe and disabling mental illness.
[19-4222, added 1999, ch. 376, sec. 2, p. 1034; am. 2000, ch. 271, sec. 14, p. 785.]
Nothing in this chapter shall be construed to expand the right of access to courts for institutionalized persons under federal or state law.
[19-4223, added 1999, ch. 376, sec. 2, p. 1034.]
This chapter sets forth the exclusive procedures and remedies in habeas corpus actions.
[19-4224, added 1999, ch. 376, sec. 2, p. 1034.]
Nothing in this chapter shall be construed to create a liberty interest.
[19-4225, added 1999, ch. 376, sec. 2, p. 1034.]
The provisions of this act are declared to be severable and if any provision of this act or the application of a provision to any person or circumstance is declared invalid for any reason, the declaration shall not affect the validity of the remaining portions of this act.
[19-4226, added 1999, ch. 376, sec. 2, p. 1034.]
(1) When a county coroner is informed that a person has died, the county coroner shall investigate that death if:
(a) The death is a suspected homicide, suicide, or occurring under suspicious or unknown circumstances;
(b) The death appears to be accidental or following an injury;
(c) The death was a result of suspected unlawful use of controlled substances or the use or abuse of chemicals or toxic agents;
(d) The death occurred while the person was incarcerated in any jail or correctional facility or the person was a ward of the state;
(e) The death appears to be by disease, injury, or toxic agent during or arising from employment;
(f) The death was an unattended death that occurred outside of a physician’s current care or hospice care;
(g) The remains of the deceased are scientifically or visually unidentifiable due to the remains being skeletal or charred;
(h) The person was admitted to a hospital emergency room unconscious and unresponsive, with or without cardiopulmonary resuscitative measures being performed, and died within twenty-four (24) hours of admission without regaining consciousness or responsiveness, unless a physician was in attendance within thirty-six (36) hours preceding presentation to the hospital, or, in cases in which the decedent had a pre-diagnosed terminal or bedfast condition, a physician was in attendance within thirty (30) days preceding presentation to the hospital;
(i) The death may constitute a threat to public health; or
(j) The death is of a child if there is a reasonable articulable suspicion to believe that the death occurred without a known medical disease to account for the child’s death.
(2) If a death occurs that is not attended by a physician and the cause of death cannot be certified by a physician, the coroner shall perform a medicolegal death investigation working with the sheriff of the county or the chief of police of the city in which the incident causing the death occurred or, if such county or city is unknown, to the sheriff or chief of police of the county or city where the body was found. The criminal investigation shall be the responsibility of the appropriate law enforcement agency. The medicolegal death investigation shall be the responsibility of the coroner. Upon completion of the criminal investigation, a written report shall be provided to the coroner of the county in which the death occurred or, if such county is unknown, to the coroner of the county where the body was found, and the coroner’s medicolegal death investigation report shall be given to the law enforcement agency responsible.
(3) A coroner in the county where the incident causing the death occurred or, if such county is unknown, the coroner in the county where the body was found, may conduct an inquest if there are reasonable grounds to believe as a result of the investigation that the death occurred as provided in subsection (1) of this section.
(4) If an inquest is to be conducted, the coroner shall summon six (6) persons qualified by law to serve as jurors for the inquest.
(5) Nothing in this section shall be construed to affect the tenets of any church or religious belief.
[19-4301, added 2005, ch. 80, sec. 2, p. 291; am. 2025, ch. 96, sec. 1, p. 511.]
(1) Where any death occurs which would be subject to investigation by the coroner under section 19-4301(1), Idaho Code, the person who finds or has custody of the body shall promptly notify either the coroner, who shall notify the appropriate law enforcement agency, or a law enforcement officer or agency, which shall notify the coroner. Pending arrival of a law enforcement officer, the person finding or having custody of the body shall take reasonable precautions to preserve the body and body fluids and the scene of the event shall not be disturbed by anyone until authorization is given by the law enforcement officer conducting the investigation.
(2) Except as otherwise provided in subsection (3) of this section, any person who fails to notify the coroner or law enforcement pursuant to subsection (1) of this section shall be guilty of a misdemeanor and shall be punished by up to one (1) year in the county jail or by a fine not to exceed one thousand dollars ($1,000), or by both such imprisonment and fine.
(3) Any person who, with the intent to prevent discovery of the manner of death, fails to notify or delays notification to the coroner or law enforcement pursuant to subsection (1) of this section, shall be guilty of a felony and shall be punished by imprisonment in the state prison for a term not to exceed ten (10) years or by a fine not to exceed fifty thousand dollars ($50,000) or by both such fine and imprisonment.
[19-4301A, as added by 1961, ch. 262, sec. 3, p. 459; am. 2006, ch. 239, sec. 1, p. 724.]
(1) The coroner may, in the performance of his duties under this chapter, summon a forensic pathologist authorized to practice medicine and surgery in the state of Idaho to inspect the body and give a professional opinion as to the cause of death. The coroner or the prosecuting attorney may order a forensic autopsy performed if it is deemed necessary to determine accurately and scientifically the cause of death. Before an autopsy pursuant to this chapter may be performed on the body of any person who at the time of death was under eighteen (18) years of age, the coroner shall provide written notification to the parent or guardian of such minor person that an autopsy has been ordered, a general description of the autopsy to be performed, and a general description of the expected physical appearance of the body after the autopsy; provided that if the parent or guardian of such minor person is not reasonably identifiable or ascertainable, then no such notice is required. When a forensic autopsy has been performed, pursuant to an order of a coroner or a prosecuting attorney, no cause of action shall lie against any person, firm, or corporation for participating in or requesting such autopsy.
(2) As used in this section:
(a) "Cause of death" means a medical opinion of the disease or injury that resulted in a person’s death.
(b) "Forensic autopsy" means an internal postmortem examination to discover the cause and manner of death or the extent of disease, authorized by law, and typically performed under the legal jurisdiction of a coroner for criminal justice and public health purposes.
(c) "Forensic pathologist" means a physician who is board-certified in the practice of medicine in which the principles of pathology are applied to problems of potential legal, public health, or public safety significance, including the performance of autopsies to determine the cause of death and assist in determining the manner of death.
[19-4301B, added 1961, ch. 262, sec. 4, p. 459; am. 2025, ch. 96, sec. 2, p. 513.]
Where a body is held for investigation or autopsy under this act the coroner shall, if requested by next of kin, release the body for funeral preparation not later than 24 hours after death or discovery of the body, whichever is later. Any district judge may ex parte order the 24 hour period extended upon a showing of reasonable cause by the prosecuting attorney by petition supported by affidavit.
[I.C., sec. 19-4301C, as added by 1961, ch. 262, sec. 5, p. 459.]
When the cause and manner of death is established under the provisions of this chapter the coroner shall make and file a written report of the material facts concerning the cause and manner of death in the office of the clerk of the district court. The coroner shall promptly deliver to the prosecuting attorney of each county having criminal jurisdiction over the case copies of all records relating to every death as to which further investigation may be advisable. Any prosecuting attorney or other law enforcement official may upon request secure copies of the original of such records or other documents or pertinent objects or information deemed necessary by him to the performance of his official duties.
[I.C., sec. 19-4301D, as added by 1961, ch. 262, sec. 6, p. 459.]
When six (6) or more of the jurors attend, they must be sworn by the coroner to inquire who the person was, and when, where, and by what means he came to his death, and into the circumstances attending his death, and to render a true verdict thereon, according to the evidence offered them.
[(19-4302) 1863, p. 475, sec. 136; R.S., R.C., & C.L., sec. 8378; C.S., sec. 9310; I.C.A., sec. 19-4402; am. 1961, ch. 262, sec. 7, p. 459.]
Coroners may issue subpoenas for witnesses, returnable forthwith, or at such time and place as they may appoint, which may be served by any competent person. They must summon and examine as witnesses every person who, in their opinion, or that of any of the jury, or the prosecuting attorney, has any knowledge of the facts.
[(19-4303) 1863, p. 475, sec. 137; R.S., R.C., & C.L., sec. 8379; C.S., sec. 9311; I.C.A., sec. 19-4403; am. 1961, ch. 262, sec. 8, p. 459.]
A witness served with a subpoena may be compelled to attend and testify, or punished by the coroner for disobedience, in like manner as upon a subpoena issued by a magistrate judge.
[(19-4304) 1863, p. 475, sec. 138; R.S., R.C., & C.L., sec. 8380; C.S., sec. 9312; I.C.A., sec. 19-4404; am. 2012, ch. 20, sec. 14, p. 69.]
After hearing the testimony, the jury must render their verdict and certify the same by an inquisition in writing, signed by them, and setting forth who the person killed is, and when, where, and by what means he came to his death; and if he was killed, or his death occasioned by the act of another, by criminal means, who is guilty thereof.
[(19-4305) 1863, p. 475, sec. 139; R.S., R.C., & C.L., sec. 8381; C.S., sec. 9313; I.C.A., sec. 19-4405; am. 1961, ch. 262, sec. 9, p. 459.]
The testimony of the witnesses examined before the coroner’s jury must be reduced to writing by the coroner, or under his direction, and forthwith filed by him with the inquisition, in the office of the clerk of the district court of the county.
[(19-4306) 1863, p. 475, sec. 140; R.S., R.C., & C.L., sec. 8382; C.S., sec. 9314; I.C.A., sec. 19-4406.]
If, however, the person charged with the commission of the offense is arrested before the inquisition can be filed, the coroner must deliver the same, with the testimony taken, to the magistrate before whom such person may be brought, who must return the same, with the depositions and statement taken before him, to the office of the clerk of the district court of the county.
[(19-4307) 1863, p. 475, sec. 141; R.S., R.C., & C.L., sec. 8383; C.S., sec. 9315; I.C.A., sec. 19-4407.]
If the jury find that the person was killed by another, under circumstances not excusable or justifiable by law, or that his death was occasioned by the act of another by criminal means, and the party committing the act is ascertained by the inquisition, and is not in custody, the coroner must issue a warrant, signed by him, with his name of office, into one (1) or more counties, as may be necessary, for the arrest of the person charged.
[(19-4308) 1863, p. 475, sec. 142; R.S., R.C., & C.L., sec. 8384; C.S., sec. 9316; I.C.A., sec. 19-4408.]
The coroner’s warrant must be in substantially the following form:
County of …..
The state of Idaho, to any sheriff, constable, marshal, or policeman in this state:
An inquisition having been this day found by a coroner’s jury before me, stating that A.B. has come to his death by the act of C.D., by criminal means (or as the case may be, as found by the inquisition), you are therefore commanded forthwith to arrest the above named C.D., and take him before the nearest or most accessible magistrate in this county.
Given under my hand this …. day of …., …..
[(19-4309) 1863, p. 475, sec. 143; R.S., R.C., & C.L., sec. 8385; C.S., sec. 9317; I.C.A., sec. 19-4409; am. 2002, ch. 32, sec. 9, p. 50.]
The coroner’s warrant may be served in any county, and the officer serving it must proceed thereon, in all respects, as upon a warrant of arrest on an information before a magistrate; when served in another county it need not be indorsed by a magistrate of that county.
[(19-4310) 1863, p. 475, sec. 144; R.S., R.C., & C.L., sec. 8386; C.S., sec. 9318; I.C.A., sec. 19-4410.]
A search warrant is an order in writing, in the name of the state of Idaho, signed by a magistrate, judge or justice directed to an officer or officers named therein, or other officer authorized by law to execute search warrants directing the officer to search for and seize property or intangibles.
[(19-4401) Cr. Prac. 1864, sec. 629, p. 291; R.S., R.C., & C.L., sec. 8390; C.S., sec. 9319; I.C.A., sec. 19-4501; am. 1987, ch. 321, sec. 1, p. 676.]
(1) A search warrant may be issued to search for and seize:
Any property or intangible that constitutes evidence of a criminal offense.
Contraband, the fruits of crime, or things otherwise criminally possessed.
Weapons or other things by means of which a crime has been committed or reasonably appears about to be committed.
A person named in an arrest warrant.
[(19-4402) Cr. Prac. 1864, sec. 630, p. 291; R.S., R.C., & C.L., sec. 8391; C.S., sec. 9320; I.C.A., sec. 19-4502; am. 1987, ch. 321, sec. 2, p. 676.]
A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.
[(19-4403) Cr. Prac. 1864, sec. 631, p. 291; R.S., R.C., & C.L., sec. 8392; C.S., sec. 9321; I.C.A., sec. 19-4503.]
In lieu of a written affidavit, the magistrate may take an oral statement under oath which shall be recorded and transcribed. The judge is authorized to administer an oath or affirmation by telephone, and to take testimony by telephone. All testimony given over the telephone that is intended to support an application for a search warrant must be given on oath or affirmation and must identify the person testifying. The affidavit or oral testimony as recorded must be filed with the clerk of the court.
[19-4404, added 1994, ch. 415, sec. 1, p. 1304.]
If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate.
If the affidavit for the warrant is related to the court telephonically, the magistrate may verbally authorize a peace officer to sign the magistrate’s name on a duplicate original warrant, which verbal authorization shall be recorded and transcribed. After service of the warrant, this duplicate original warrant must be returned to the magistrate who authorized the signing of his name on it. The magistrate shall then endorse his name and enter the date on the warrant when it is returned to him. Any failure of the magistrate to make such an endorsement does not in itself invalidate the warrant.
[(19-4406) Cr. Prac. 1864, sec. 634, p. 291; R.S., R.C. & C.L., sec. 8395; C.S., sec. 9324; I.C.A., sec. 19-4506; am. 1994, ch. 415, sec. 2, p. 1304.]
The warrant must be in substantially the following form:
County of…..
The state of Idaho to any sheriff, constable, marshal, or policeman in the county of….: Proof, by affidavit, having been this day made before me by (naming every person whose affidavit has been taken), that (stating the grounds of the application, or, if the affidavit be not positive, that there is probable cause for believing that — stating the ground of the application in the same manner), you are therefore commanded, in the daytime (or at any time of the day or night, as the case may be) to make immediate search of the person of C.D. (or in the house situated…., describing it or any other place to be searched, with reasonable particularity, as the case may be) for the…. following property: (describing it with reasonable particularity); and if you find the same or any part thereof, to bring it forthwith before me at…. (stating the place).
Given under my hand, and dated this…. day of….,…..
[(19-4407) Cr. Prac. 1864, p. 291, sec. 635; R.S., R.C., & C.L., sec. 8396; C.S., sec. 9325; I.C.A., sec. 19-4507; am. 2002, ch. 32, sec. 10, p. 50; am. 2012, ch. 20, sec. 15, p. 69.]
A search warrant may in all cases be served by any of the officers mentioned in its directions, but by no other person, except in aid of the officer on his requiring it. Service of a warrant may be made by the officers mentioned in its directions in person, by mail or facsimile transmission, or by electronic mail. Unless an investigation necessitates otherwise, the officer should attempt notification on the person whom it is served prior to electronic mail service.
[(19-4408) Cr. Prac. 1864, sec. 636, p. 292; R.S., R.C., & C.L., sec. 8397; C.S., sec. 9326; I.C.A., sec. 19-4508; am. 2007, ch. 105, sec. 1, p. 309.]
The officer may break open any outer or inner door or window of a house, or any part of a house, or any thing therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.
[(19-4409) Cr. Prac. 1864, sec. 637, p. 292; R.S., R.C., & C.L., sec. 8398; C.S., sec. 9327; I.C.A., sec. 19-4509.]
He may break open any outer or inner door or window of a house, for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.
[(19-4410) Cr. Prac. 1864, sec. 638, p. 292; R.S., R.C., & C.L., sec. 8399; C.S., sec. 9328; I.C.A., sec. 19-4510.]
The magistrate must insert a direction in the warrant that it be served in the day time unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night.
[(19-4411) Cr. Prac. 1864, sec. 639, p. 292; R.S., R.C., & C.L., sec. 8400; C.S., sec. 9329; I.C.A., sec. 19-4511.]
A search warrant must be executed and returned to the magistrate who issued it, within fourteen (14) days after its date; after the expiration of this time the warrant, unless executed, is void.
[(19-4412) Cr. Prac. 1864, sec. 640, p. 292; R.S., R.C., & C.L., sec. 8401; C.S., sec. 9330; I.C.A., sec. 19-4512; am. 2001, ch. 201, sec. 1, p. 681.]
When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property.
[(19-4413) Cr. Prac. 1864, sec. 641, p. 292; R.S., R.C., & C.L., sec. 8402; C.S., sec. 9331; I.C.A., sec. 19-4513.]
When the property is delivered to the magistrate, he must, if it was stolen or embezzled, dispose of it as provided in sections 19-3801—19-3806 inclusive. If it was taken on a warrant issued on the grounds stated in the second and third subdivisions of section 19-4402, he must retain it in his possession, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property taken is triable.
[(19-4414) Cr. Prac. 1864, sec. 642, p. 292; R.S., R.C., & C.L., sec. 8403; C.S., sec. 9332; I.C.A., sec. 19-4514.]
The officer must forthwith return the warrant to the magistrate, and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory, and taken before the magistrate at the time, to the following effect: "I, R.S., the officer by whom this warrant was executed do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant."
[(19-4415) Cr. Prac. 1864, sec. 643, p. 292; R.S., R.C., & C.L., sec. 8404; C.S., sec. 9333; I.C.A., sec. 19-4515.]
The magistrate must thereupon, if required, deliver a copy of the inventory to the person from whose possession the property was taken, and to the applicant for the warrant.
[(19-4416) Cr. Prac. 1864, sec. 644, p. 293; R.S., R.C., & C.L., sec. 8405; C.S., sec. 9334; I.C.A., sec. 19-4516.]
If the grounds on which the warrant was issued be controverted, he must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated by the magistrate.
[(19-4417) Cr. Prac. 1864, secs. 645, 646, p. 293; R.S., R.C., & C.L., sec. 8406; C.S., sec. 9335; I.C.A., sec. 19-4517.]
If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken.
[(19-4418) Cr. Prac. 1864, sec. 647, p. 293; R.S., R.C., & C.L., sec. 8407; C.S., sec. 9336; I.C.A., sec. 19-4518.]
The magistrate must annex together the depositions, the search warrant and return, and the inventory, and return them to the next term of the court having power to inquire into the offenses in respect to which the search warrant was issued, at or before its opening on the first day.
[(19-4419) Cr. Prac. 1864, sec. 648, p. 293; R.S., R.C., & C.L., sec. 8408; C.S., sec. 9337; I.C.A., sec. 19-4519.]
When a person charged with a felony is supposed by the magistrate before whom he is brought to have on his person a dangerous weapon, or any thing which may be used as evidence of the commission of the offense, the magistrate may direct him to be searched in his presence, and the weapon or other thing to be retained, subject to his order, or to the order of the court in which the defendant may be tried.
[(19-4420) Cr. Prac. 1864, sec. 651, p. 293; R.S., R.C., & C.L., sec. 8409; C.S., sec. 9338; I.C.A., sec. 19-4520.]
Where appearing in this chapter:
(1) The term "executive authority" includes the governor, and any person performing the functions of governor in a state other than this state;
(2) The term "governor" includes any person performing the functions of governor by authority of the law of this state; and
(3) The term "state" refers to a state other than this state, and includes any other state or territory, organized or unorganized, of the United States of America.
[(19-4501) 1927, ch. 29, sec. 1, p. 31; I.C.A., sec. 19-4601; am. 2008, ch. 136, sec. 1, p. 386.]
Subject to the provisions of this chapter, and the provisions of the Constitution of the United States controlling, and any and all acts of congress enacted in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state.
[(19-4502) 1927, ch. 29, sec. 2, p. 31; I.C.A., sec. 19-4602; am. 2008, ch. 136, sec. 2, p. 386.]
No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing, alleging, except in cases arising under section 19-4506, Idaho Code, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state. Such demand must be accompanied by a copy of an indictment or by information supported by affidavit of probable cause, judicial finding of probable cause, or plea of guilty, as reflected in any document from the court in the demanding state, or by affidavit made before a judge or magistrate, together with a copy of any warrant which was issued thereupon, or by a copy of a judgment of conviction or sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has fled the state after being charged with a crime, escaped from confinement, or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the judge or magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy of the indictment, information, affidavit, or judgment of conviction or sentence must be authenticated by the executive authority making the demand.
[(19-4503) 1927, ch. 29, sec. 3, p. 31; I.C.A., sec. 19-4603; am. 2008, ch. 136, sec. 3, p. 386.]
When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the governor may call upon the attorney-general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.
[(19-4504) 1927, ch. 29, sec. 4, p. 31; I.C.A., sec. 19-4604.]
The governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in section 19-4503, Idaho Code, with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
[(19-4506) 1927, ch. 29, sec. 6, p. 31; I.C.A., sec. 19-4606; am. 1983, ch. 130, sec. 2, p. 326; am. 2008, ch. 136, sec. 5, p. 387.]
If the governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
[(19-4507) S.L. 1927, ch. 29, sec. 7, p. 31; I.C.A., sec. 19-4607; am. 2008, ch. 136, sec. 6, p. 387.]
(1) Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of this chapter, to the duly authorized agent of the demanding state.
(2) A certified copy of the warrant, signed by the governor, may be sent via facsimile or in electronic format, to be executed pursuant to subsection (1) of this section.
[(19-4508) 1927, ch. 29, sec. 8, p. 31; I.C.A., sec. 19-4608; am. 2008, ch. 136, sec. 7, p. 387.]
Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
[(19-4509) 1927, ch. 29, sec. 9, p. 31; I.C.A., sec. 19-4609; am. 2008, ch. 136, sec. 8, p. 388.]
No person arrested upon such warrant shall be delivered over to the appointed agent for the executive authority demanding him unless he shall first be taken forthwith before a judge or magistrate of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge or magistrate of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
[(19-4510) 1927, ch. 29, sec. 10, p. 31; I.C.A., sec. 19-4610; am. 2008, ch. 136, sec. 9, p. 388.]
Any officer who shall deliver to the agent of the demanding state a person in his custody for extradition under the governor’s warrant, in willful disobedience to section 19-4510, Idaho Code, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars ($1,000), or be imprisoned not more than six (6) months, or both.
[(19-4511) 1927, ch. 29, sec. 11, p. 31; I.C.A., sec. 19-4611; am. 2008, ch. 136, sec. 10, p. 388.]
The officer or person executing the governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may when necessary, confine the prisoner in the jail of any county or city through which he may pass, and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping; provided however, that such officer or agent shall produce and show to the keeper of such jail, satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the executive authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.
[(19-4512) 1927, ch. 29, sec. 12, p. 31; I.C.A., sec. 19-4612; am. 2008, ch. 136, sec. 11, p. 388.]
(1) Except in cases arising under section 19-4506, Idaho Code, a judge or magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge or magistrate which may be available in or of convenient access to the place where the arrest may be made, to answer to the charge or complaint and affidavit:
(a) Whenever any person within this state is charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and has fled from justice, or has been convicted of a crime in that state and has escaped from confinement, or has broken the terms of his bail, probation or parole; or
(b) Whenever complaint is made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime and has fled from justice, or has been convicted of a crime in that state and has escaped from confinement, or has broken the terms of his bail, probation or parole and is believed to be in this state.
(2) A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
[19-4513, added 2008, ch. 136, sec. 13, p. 389.]
The arrest of a person may be lawfully made by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one (1) year. When so arrested the accused must be taken before a judge or magistrate with all practicable speed, and complaint must be made against him under oath setting forth the grounds for the arrest as provided in section 19-4513, Idaho Code, and thereafter his answer shall be heard as if he had been arrested on a warrant.
[19-4514, added 1979, ch. 228, sec. 3, p. 627; am. 2008, ch. 136, sec. 14, p. 389.]
If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under section 19-4506, Idaho Code, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty (30) days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail as provided in section 19-4516, Idaho Code, or until he shall be legally discharged.
[19-4515, added 2008, ch. 136, sec. 16, p. 390.]
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the governor of this state.
[(19-4516) 1927, ch. 29, sec. 16, p. 31; I.C.A., sec. 19-4616; am. 2002, ch. 130, sec. 1, p. 360; am. 2008, ch. 136, sec. 17, p. 390.]
If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, as provided in section 19-4515, Idaho Code, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty (60) days, or a judge or magistrate may again take bail for his appearance and surrender, as provided in section 19-4516, Idaho Code, but within a period not to exceed sixty (60) days after the date of such new bond.
[(19-4517) 1927, ch. 29, sec. 17, p. 31; I.C.A., sec. 19-4617; am. 2008, ch. 136, sec. 18, p. 390.]
If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge or magistrate, by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he is within the state. Recovery may be had on such bond in the name of this state, as in the case of other bonds given by the accused in criminal proceedings within this state.
[(19-4518) 1927, ch. 29, sec. 18, p. 31; I.C.A., sec. 19-4618; am. 2008, ch. 136, sec. 19, p. 391.]
If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor in his discretion, either may surrender such person on demand of the executive authority of another state or hold him until he has been tried and discharged, or convicted and punished in this state.
[(19-4519) 1927, ch. 29, sec. 19, p. 31; I.C.A., sec. 19-4619; am. 2008, ch. 136, sec. 20, p. 391.]
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition is presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.
[(19-4520) 1927, ch. 29, sec. 20, p. 31; I.C.A., sec. 19-4620; am. 2008, ch. 136, sec. 21, p. 391.]
The governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.
[(19-4521) 1927, ch. 29, sec. 21, p. 31; I.C.A., sec. 19-4621; am. 2008, ch. 136, sec. 22, p. 391.]
Whenever the governor of this state shall demand a person charged with crime, escaping from confinement, or breaking the terms of his bail, probation or parole in this state, from the executive authority of any other state, or from the chief justice or an associate justice of the supreme court of the District of Columbia, or other official authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this state, to some agent, commanding him to receive the person so charged and convey him to the proper officer of the county in this state in which the offense was committed.
[(19-4522) 1927, ch. 29, sec. 22, p. 31; I.C.A., sec. 19-4622; am. 1990, ch. 314, sec. 1, p. 859; am. 2008, ch. 136, sec. 23, p. 391.]
(1) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, and the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that, in the opinion of the said prosecuting attorney, the ends of justice require the arrest and return of the accused to this state for trial, and that the proceeding is not instituted to enforce a private claim.
(2) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his bail, probation or parole, the prosecuting attorney of the county in which the offense was committed, the director of the commission of pardons and parole, or the director of the department of correction or his designee, or head of any institution or facility operated by or under contract with the department of correction, or sheriff of the county from which escape was made, shall present to the governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, and the state in which he is believed to be, including the location of the person therein at the time application is made.
(3) The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two (2) certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or sentence. The prosecuting officer, director of the department of correction or his designee, or head of any institution or facility operated by or under contract with the department of correction, may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One (1) copy of the application, with the action of the governor indicated by endorsement thereon, and one (1) of the certified copies of the indictment, complaint, information and affidavits, or of the judgment of conviction or sentence shall be filed in the office of the secretary of state to remain of record in that office. The other copies of all papers shall be forwarded with the governor’s requisition.
[(19-4523) 1927, ch. 29, sec. 23, p. 31; I.C.A., sec. 19-4623; am. 1990, ch. 314, sec. 2, p. 859; am. 2002, ch. 28, sec. 1, p. 35; am. 2008, ch. 136, sec. 24, p. 392.]
A person brought into this state by or after waiver of extradition based on a criminal charge, shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceedings for which he is being or has been returned, until he has been convicted in the criminal proceeding, or if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
[(19-4524) 1927, ch. 29, sec. 24, p. 31; I.C.A., sec. 19-4624; am. 2008, ch. 136, sec. 25, p. 393.]
After a person has been brought back to this state by or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here, as well as that specified in the requisition for his extradition.
[(19-4525) 1927, ch. 29, sec. 25, p. 31; I.C.A., sec. 19-4625; am. 2008, ch. 136, sec. 26, p. 393.]
The provisions of this chapter shall be so interpreted and construed as to effectuate the general purposes to make uniform the law of those states which enact it.
[(19-4526) 1927, ch. 29, sec. 26, p. 31; I.C.A., sec. 19-4626; am. 2008, ch. 136, sec. 27, p. 393.]
When the governor of this state, in the exercise of the authority conferred by section 2 of article 4 of the Constitution of the United States, or by the laws of this state, demands from the executive authority of any state or territory of the United States, or of any foreign government, the surrender to the authorities of this state of a fugitive from justice, who has been found and arrested in such state, territory, or foreign government, the accounts of the person employed by him to bring back such fugitive must be audited by the board of examiners and paid out of the state treasury, provided that in any case where a person against whom criminal proceedings are pending in any court of this state is to be brought into this state for such proceedings, whether with or without any demand or proceedings by the governor of this state and there is no appropriation of state funds available for the purpose at the time, reasonable compensation for the services of any person employed to bring the defendant in such criminal proceedings to this state and his expenses and the expenses on the account of the said defendant may be allowed and paid at the discretion of the board of county commissioners of the county where such criminal proceedings are pending from the general fund of said county, but no compensation for services as distinguished from expenses other than the regular salary shall be allowed any sheriff or deputy sheriff from either state or county funds.
[(19-4528) R.S., sec. 8425; am. R.C. & C.L., sec. 8425; C.S., sec. 9348; am. 1927, ch. 44, sec. 1, p. 59; I.C.A., sec. 19-4631; am. 2008, ch. 136, sec. 29, p. 393.]
(1) When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
(2) The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in section 19-4523, Idaho Code, with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.
(3) Any written, stamped, photocopied or electronic signature of the governor on documents executed pursuant to subsections (1) and (2) of this section, applied at his direction and under his supervision, is deemed to be the authorized signature of the governor.
[19-4529, added 2008, ch. 136, sec. 31, p. 394.]
(1) Any person who is arrested in this state and who is charged with having committed a crime in another state or alleged to have escaped from confinement or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in sections 19-4507 and 19-4508, Idaho Code, and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of a judge or magistrate of a court of record within this state a writing which states that he consents to return to the demanding state, except that before the waiver is executed or subscribed to by the person it is the duty of the judge or magistrate to inform the person of his right to the issuance or service of a warrant of extradition and the right to contest extradition by habeas corpus as provided in section 19-4510, Idaho Code.
(2) If the consent is duly executed, the judge or magistrate shall direct the officer who has custody of the person to deliver the person promptly to the accredited agent or agents of the demanding state and to deliver or cause to be delivered to the agent or agents a copy of the consent.
(3) Notwithstanding the provisions of subsections (1) and (2) of this section, a law enforcement agency holding a person who is alleged to have broken the terms of his probation, parole, bail or other release shall immediately deliver the person to the duly authorized agent of the demanding state without the requirement of a governor’s warrant if all of the following apply:
(a) The person has signed a prior waiver of extradition as a term of his current probation, parole, bail or other release in the demanding state.
(b) The law enforcement agency holding the person has received both of the following:
(i) An authenticated copy of the prior waiver of extradition signed by the person.
(ii) A photograph and fingerprints properly identifying the person as the person who signed the waiver.
(4) The delivery of a fugitive to an agent of the demanding state does not constitute a waiver by this state of its right, power or privilege to regain custody of the person by extradition, detainer proceedings or other process for the purpose of trial, sentencing or punishment for any criminal offense charged against the person in this state.
(5) In any criminal proceeding wherein a court in this state has issued a warrant for the arrest of a person and that person was arrested in any other state, territory or possession of the United States, and that person waives extradition and consents to return to this state, the sheriff of the county where the warrant was issued may contract with an agent for the return of such person to this state, or the sheriff or his deputy may return such person to this state.
[19-4530, added 2008, ch. 136, sec. 32, p. 394.]
This chapter may be cited as the "Uniform Criminal Extradition Act."
[(19-4531) (19-4527) 1927, ch. 29, sec. 29, p. 31; I.C.A., sec. 19-4629; am. and redesig. 2008, ch. 136, sec. 28, p. 393.]
When it is necessary to have a person imprisoned in the state prison brought before any court, or a person imprisoned in a county jail brought before a court sitting in another county, an order for that purpose may be made by the court and executed by the sheriff of the county where it is made.
[(19-4601) Cr. Prac. 1864, sec. 669, p. 296; R.S., R.C., & C.L., sec. 8435; C.S., sec. 9350; I.C.A., sec. 19-4701.]
Whenever any money shall be or shall come into the possession of any clerk of court, or other public officer authorized to receive the same, and no fund is specified by law into which such money shall be paid, or purpose to which the same shall be applied, the officer in possession of, or who may come into the possession of any money in such cases, shall pay the same to the state treasurer, who shall add the same to the permanent school fund, and such money shall thereafter be and remain a part of said fund.
[(19-4702) 1913, ch. 70, sec. 1, p. 307; reen. C.L., sec. 8440a; C.S., sec. 9352; I.C.A., sec. 19-4802.]
(1) Except as otherwise provided in subsection (2) of this section:
(a) All fines and forfeitures collected pursuant to the judgment of any court of the state shall be remitted to the court in which the judgment was rendered. The judgment shall then be satisfied by entry in the docket of the court. The clerk of the court shall daily remit all fines and forfeitures to the county auditor, who shall at the end of each month apportion the proceeds according to the provisions of this chapter. Other existing laws regarding the disposition of fines and forfeitures are hereby repealed to the extent such laws are inconsistent with the provisions of this chapter, except as provided in section 49-1013(5), Idaho Code.
(b) Fines and forfeitures remitted for violations of fish and game laws shall be apportioned two and one-half percent (2 1/2%) to the state treasurer for deposit in the state general fund, ten percent (10%) to the search and rescue account, twenty-two and one-half percent (22 1/2%) to the district court fund, and sixty-five percent (65%) to the public shooting range fund as provided in section 36-418, Idaho Code.
(c) Fines and forfeitures remitted for violations of state motor vehicle laws, for violation of state driving privilege laws, and for violation of state laws prohibiting driving while under the influence of alcohol, drugs or any other intoxicating substances shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, forty-five percent (45%) to the state treasurer for deposit in the highway distribution account, twenty-two and one-half percent (22 1/2%) to the district court fund, and twenty-two and one-half percent (22 1/2%) to the state treasurer for deposit in the public school income fund; provided, however, that fines and forfeitures remitted for violation of state motor vehicle laws, for violation of state driving privilege laws, and for violation of state laws prohibiting driving while under the influence of alcohol, drugs or any other intoxicating substances, where an arrest is made or a citation is issued by a city law enforcement official or by a law enforcement official of a governmental agency under contract to provide law enforcement services for a city, shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the city whose officer made the arrest or issued the citation.
(d) Fines and forfeitures remitted for violation of any state law not involving fish and game laws, motor vehicle laws, state driving privilege laws, or state laws prohibiting driving while under the influence of alcohol, drugs or any other intoxicating substances shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the district court fund of the county in which the violation occurred.
(e) Fines and forfeitures remitted for violation of county ordinances shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the district court fund of the county whose ordinance was violated.
(f) Fines and forfeitures remitted for violation of city ordinances shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the city whose ordinance was violated.
(g) Fines and forfeitures remitted for violations not specified in this chapter shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the district court fund of the county in which the violation occurred, except in cases where a duly designated officer of any city police department or city law enforcement official made the arrest for any such violation, in which case ninety percent (90%) shall be apportioned to the city whose officer made the arrest.
(h) Fines and forfeitures remitted for violations involving any of the provisions of chapter 71, title 67, Idaho Code, shall be apportioned ten percent (10%) to the state treasurer, of which eighty-six percent (86%) shall be deposited to the state general fund and fourteen percent (14%) shall be deposited to the peace officers standards and training fund authorized in section 19-5116, Idaho Code, and ninety percent (90%) to the general fund of the county or city whose law enforcement official issued the citation.
(i) Fines and forfeitures remitted for violations of overweight laws as provided in section 49-1013(3), Idaho Code, shall be deposited one hundred percent (100%) into the highway distribution account.
(j) Fines remitted for violations of section 18-7008, Idaho Code, shall be apportioned ten percent (10%) to the district court fund, sixty-five percent (65%) to the county where the trespass occurred for appropriation to the sheriff’s office, and twenty-five percent (25%) to the Idaho rangeland resources commission for expanded education programs regarding private property rights and land user responsibility.
(k) Fines remitted for violations of section 18-9101, Idaho Code, shall be apportioned ninety percent (90%) to the county where the violation occurred for appropriation to the sheriff’s office and ten percent (10%) to the district court fund of the county where the violation occurred.
(2) Any fine or forfeiture remitted for any misdemeanor violation for which an increase in the maximum fine became effective on or after July 1, 2005, shall be apportioned as follows:
(a) Any funds remitted, up to the maximum amount that could have been imposed before July 1, 2005, as a fine for the misdemeanor violation shall be apportioned according to the applicable provisions of subsection (1) of this section; and
(b) Any other funds remitted, in excess of the maximum amount that could have been imposed before July 1, 2005, as a fine for the misdemeanor violation shall be remitted to the state treasurer and shall be deposited in the drug court, mental health court and family court services fund as set forth in section 1-1625, Idaho Code.
(3) As used in this section, the term "city law enforcement official" shall include an official of any governmental agency providing law enforcement services to a city in accordance with the terms of a contract or agreement, when such official makes the arrest or issues a citation within the geographical limits of the city and when the contract or agreement provides for payment to the city of fines and forfeitures resulting from such service.
[19-4705, added 1969, ch. 136, sec. 1, p. 420; am. 1971, ch. 65, sec. 1, p. 149; am. 1971, ch. 102, sec. 1, p. 221; am. 1972, ch. 6, sec. 1, p. 8; am. 1976, ch. 307, sec. 1, p. 1052; am. 1978, ch. 285, sec. 1, p. 692; am. 1981, ch. 84, sec. 1, p. 116; am. 1983, ch. 187, sec. 1, p. 506; am. 1984, ch. 161, sec. 1, p. 400; am. 1984, ch. 195, sec. 2, p. 446; am. 1986, ch. 333, sec. 1, p. 817; am. 1991, ch. 226, sec. 5, p. 545; am. 1993, ch. 311, sec. 1, p. 1146; am. 1998, ch. 426, sec. 1, p. 1343; am. 2001, ch. 179, sec. 1, p. 604; am. 2005, ch. 114, sec. 1, p. 365; am. 2005, ch. 360, sec. 2, p. 1144; am. 2006, ch. 71, sec. 20, p. 222; am. 2011, ch. 151, sec. 8, p. 420; am. 2018, ch. 350, sec. 8, p. 832; am. 2021, ch. 149, sec. 25, p. 415; am. 2021, ch. 249, sec. 1, p. 775; am. 2022, ch. 111, sec. 11, p. 374; am. 2025, ch. 252, sec. 2, p. 1117; am. 2026, ch. 251, sec. 6, p. 1056.]
The ten per cent (10%) apportionment of fines and forfeitures to be remitted to the state treasurer for deposit in the state general fund shall be remitted within five (5) days after the end of the month in which such fines and forfeitures were remitted to the county auditor.
[19-4706, added 1969, ch. 136, sec. 2, p. 420; am. 1970, ch. 64, sec. 1, p. 153.]
If it appears that there is a necessity that fines and forfeitures be initially collected by a person other than the clerk of the district court or a person appointed by the clerk for that purpose, the Supreme Court by rule or administrative order may provide for the designation of persons to receive such fines and forfeitures. Persons so designated shall account for such fines and forfeitures in the same manner required of the clerk of the district court and shall pay such fines and forfeitures to the clerk of the district court of the county in which such fines and forfeitures are collected.
[19-4707, added 1969, ch. 136, sec. 3, p. 420.]
(1) The supreme court, or the clerks of the district court with the approval of the administrative district judge, may enter into contracts in accordance with this section for collection services for debts owed to courts. The cost of collection shall be paid by the defendant or juvenile offender as an administrative surcharge when the defendant or juvenile offender fails to pay any amount ordered by the court and the court utilizes the services of a contracting agent pursuant to this section.
(2) As used in this section:
(a) "Contracting agent" means a person, firm or other entity who contracts to provide collection services.
(b) "Cost of collection" means the fee specified in contracts to be paid to or retained by a contracting agent for collection services.
(c) "Debts owed to courts" means any assessment of fines, court costs, surcharges, penalties, fees, restitution, moneys expended in providing counsel and other defense services to indigent defendants or juvenile offenders or other charges which a court judgment or disposition has ordered to be paid to the court in civil, criminal, or juvenile cases, and which remain unpaid in whole or in part, and includes any interest or penalties on such unpaid amounts as provided for in the judgment or by law.
(3) The supreme court may adopt rules as deemed appropriate for the administration of this section, including procedures to be used in the negotiation and execution of contracts pursuant to this section, procedures to be followed by courts which utilize collection services under such contracts, and procedures for the compromise of debts owed to courts in criminal or juvenile cases.
(4) Each contract entered into pursuant to this section shall specify the scope of work to be performed and provide for a fee to be paid to or retained by the contracting agent for collection services. Such fee shall be designated as the cost of collection and shall not exceed thirty-three percent (33%) of the amount collected. The cost of collection shall be deducted from the amount collected but shall not be deducted from the debts owed to courts.
(5) Contracts entered into shall provide for the payment of any amounts collected to the clerk of the district court for the court in which the debt being collected originated after first deducting the collection fee. In accounting for amounts collected from any person pursuant to this section, the district court clerk shall credit the person’s amount owed in the amount of the net proceeds collected and shall not reduce the amount owed by any person by that portion of any payment which constitutes the cost of collection pursuant to this section.
(6) With the appropriate cost of collection paid to the contracting agent as agreed upon in the contract, the clerk shall then distribute the amounts collected in accordance with the law.
[19-4708, added 2000, ch. 330, sec. 1, p. 1109; am. 2009, ch. 102, sec. 1, p. 312; am. 2011, ch. 14, sec. 1, p. 42; am. 2019, ch. 219, sec. 1, p. 662.]
This chapter shall be known and may be cited as the "Criminal Justice Integrated Data System Act."
[19-4801, added 2020, ch. 239, sec. 1, p. 697.]
The local governments and state agencies and departments that comprise and interact with the criminal justice system in Idaho possess a wealth of data. A centralized data repository to manage and link data across separate entities will aid in evaluating the effectiveness of the criminal justice system and enable data-driven, cost-saving decision-making on issues facing the criminal justice system in Idaho. The Criminal Justice Integrated Data System establishes the legal framework by which the various contributing entities may share, integrate, merge, observe, examine, and research siloed data in a way that protects sensitive or legally protected personal information.
[19-4802, added 2020, ch. 239, sec. 1, p. 697.]
(1) There is hereby created in the office of the state controller the criminal justice integrated data system to receive, store, secure, and maintain data and information from local governments, state agencies and departments, or volunteer nongovernmental entities.
(2) The office of the state controller, as the managing agency of the criminal justice integrated data system, may:
(a) Require contributing local governments, state agencies and departments, or volunteer nongovernmental entities to deliver data and information in a certain format and on schedules established for the criminal justice integrated data system; and
(b) Enter into or adopt a memorandum of understanding with each contributing local government, state agency and department, or volunteer nongovernmental entity, and such memorandum must identify the confidentiality of the information and any conditions or restrictions on the use of the data or information.
(3) No memorandum of understanding with a contributing volunteer nongovernmental entity shall:
(a) Give said volunteer nongovernmental entity priority in determining the use of the data system or compel the criminal justice integrated data system to produce any project, report, or data analysis for or on behalf of any contributing volunteer nongovernmental entity; or
(b) Waive or otherwise inhibit a contributing volunteer nongovernmental entity’s option to discontinue further contribution of data or information to the criminal justice integrated data system at any time.
(4) The records and data collected and stored by the criminal justice integrated data system shall be exempt from disclosure as set forth in section 74-105(19), Idaho Code. The confidentiality of all records and data collected by the criminal justice integrated data system shall comply with applicable state and federal laws governing the privacy of records, data, and personal identifiable information.
[19-4803, added 2020, ch. 239, sec. 1, p. 697.]
(1) There is hereby created in the office of the state controller the data oversight council. All requests for projects, reports, and data analyses generated from the criminal justice integrated data system must be approved by the data oversight council.
(2) The data oversight council shall be comprised of:
(a) The governor or his designee;
(b) The chief justice of the Idaho supreme court or his designee;
(c) The attorney general or his designee;
(d) The state controller or his designee;
(e) The director of the department of correction or his designee;
(f) The executive director of the commission of pardons and parole or his designee;
(g) The director of the department of juvenile corrections or his designee;
(h) The director of the department of health and welfare or his designee;
(i) The director of the Idaho state police or his designee;
(j) The administrator of the office of information technology services or his designee; and
(k) A designee from the state board of education or the state department of education selected by the governor.
(3) Any designee under subsection (2) of this section must be an employee in the office, agency, or department of his respective designating authority. Members of the data oversight council shall serve without any additional compensation or honorarium.
(4) The data oversight council, by majority vote, shall elect a chairman and vice chairman among its members who shall serve a term of two (2) years while serving on the council.
(5) All meetings of the data oversight council shall be held in compliance with the open meetings law as provided in chapter 2, title 74, Idaho Code.
(6) The state controller shall work in collaboration with the data oversight council to manage the criminal justice integrated data system. It shall be the duty of the state controller, in conjunction with the data oversight council, to assure confidentiality of all records and data collected by the criminal justice integrated data system and to assure compliance with applicable state and federal laws and rules governing the privacy of records, data, and personal identifiable information.
(7) Any projects, reports, or data analyses in final form produced by persons authorized to conduct research and analyses under this chapter shall belong to the requesting local government or state agency or department and not the office of the state controller.
(8) The Idaho legislature, as well as the contributing state agencies and departments and local governments, shall have priority in requesting any projects, reports, or data analyses to be produced by persons authorized by the data oversight council. The data oversight council may, in its discretion, deny any requested project, report, or data analysis where it determines the request is unduly burdensome, voluminous, or cost-prohibitive.
(9) The office of the state controller, members of the data oversight council, and all contributing local governments, state agencies and departments, or volunteer nongovernmental entities shall be immune from liability to any person or entity for any invasion of the right to privacy or use of records or data generated by the criminal justice integrated data system.
(10) In collaboration with contributing local governments, state agencies and departments, or volunteer nongovernmental entities and the data oversight council, the state controller may establish policies addressing the creation of reports generated through the query of records and data possessed by the criminal justice integrated data system. Provided, however, contributing volunteer nongovernmental entities may collaborate only with respect to the data or information contributed by that volunteer nongovernmental entity.
[19-4804, added 2020, ch. 239, sec. 1, p. 697; am. 2021, ch. 84, sec. 1, p. 283; am. 2021, ch. 321, sec. 1, p. 945.]
(a) Any person who has been convicted of, or sentenced for, a crime and who claims:
(1) That the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of this state;
(2) That the court was without jurisdiction to impose sentence;
(3) That the sentence exceeds the maximum authorized by law;
(4) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(5) That his sentence has expired, his probation, or conditional release was unlawfully revoked by the court in which he was convicted, or that he is otherwise unlawfully held in custody or other restraint;
(6) Subject to the provisions of section 19-4902(b) through (g), Idaho Code, that the petitioner is innocent of the offense; or
(7) That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy: may institute, without paying a filing fee, a proceeding under this act to secure relief.
(b) This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of an appeal from the sentence or conviction. Any issue which could have been raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction proceedings, unless it appears to the court, on the basis of a substantial factual showing by affidavit, deposition or otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the finding of guilt and could not, in the exercise of due diligence, have been presented earlier. Except as otherwise provided in this act, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence. It shall be used exclusively in place of them.
[19-4901, added 1967, ch. 25, sec. 1, p. 42; am. 1975, ch. 8, sec. 1, p. 13; am. 1986, ch. 126, sec. 1, p. 326; am. 2001, ch. 317, sec. 2, p. 1129; am. 2010, ch. 135, sec. 2, p. 288.]
(a) A proceeding is commenced by filing an application verified by the applicant with the clerk of the district court in which the conviction took place. An application may be filed at any time within one (1) year from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later. Facts within the personal knowledge of the applicant and the authenticity of all documents and exhibits included in or attached to the application must be sworn to affirmatively as true and correct. The supreme court may prescribe the form of the application and verification. The clerk shall docket the application upon its receipt and promptly bring it to the attention of the court and deliver a copy to the prosecuting attorney.
(b) A petitioner may, at any time, file a petition before the trial court that entered the judgment of conviction in his or her case for the performance of fingerprint or forensic deoxyribonucleic acid (DNA) testing on evidence that was secured in relation to the trial which resulted in his or her conviction but which was not subject to the testing that is now requested because the technology for the testing was not available at the time of trial. The clerk shall docket the application upon its receipt and promptly bring it to the attention of the court and deliver a copy to the prosecuting attorney.
(c) The petitioner must present a prima facie case that:
(1) Identity was an issue in the trial which resulted in his or her conviction; and
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish that such evidence has not been substituted, tampered with, replaced or altered in any material aspect.
(d) A petitioner who pleaded guilty in the underlying case may file a petition under subsection (b) of this section.
(e) The trial court shall allow the testing under reasonable conditions designed to protect the state’s interests in the integrity of the evidence and the testing process upon a determination that:
(1) The result of the testing has the scientific potential to produce new, noncumulative evidence that would show that it is more probable than not that the petitioner is innocent; and
(2) The testing method requested would likely produce admissible results under the Idaho rules of evidence.
(f) In the event the fingerprint or forensic DNA test results demonstrate, in light of all admissible evidence, that the petitioner is not the person who committed the offense, the court shall order the appropriate relief.
(g) The cost of the forensic DNA test shall be at the petitioner’s expense, except to the extent the petitioner qualifies for the test at public expense pursuant to chapter 8, title 19, Idaho Code, in which case the fingerprint or forensic DNA test shall be performed by, and paid for by funds allocated for, Idaho state police forensic services, provided the requested method of testing or specific technology is validated by the lab, within the laboratory accreditation scope, and laboratory staff are qualified and satisfactorily performing proficiency testing in the testing method. If the laboratory does not offer the specific type of testing required, the Idaho state police shall not be required to outsource the testing or in any way pay for or reimburse any entity for the testing to be performed. For the purposes of this subsection, "validated" means the accumulation of test data within the laboratory to demonstrate that established methods and procedures perform as expected in the laboratory. The petitioner may choose an ISO/IEC 17025 or an American society of crime laboratory directors/laboratory accreditation board accredited DNA testing laboratory to perform the DNA testing. Such testing shall be at the petitioner’s expense.
[19-4902, added 1967, ch. 25, sec. 2, p. 42; am. 1979, ch. 133, sec. 1, p. 428; am. 1988, ch. 76, sec. 1, p. 131; am. 1993, ch. 265, sec. 1, p. 898; am. 1996, ch. 420, sec. 2, p. 1399; am. 2001, ch. 317, sec. 3, p. 1129; am. 2010, ch. 135, sec. 3, p. 289; am. 2012, ch. 180, sec. 1, p. 471.]
The application shall identify the proceedings in which the applicant was convicted, give the date of the entry of the judgment and sentence complained of, specifically set forth the grounds upon which the application is based, and clearly state the relief desired. Facts within the personal knowledge of the applicant shall be set forth separately from other allegations of facts and shall be verified as provided in section 19-4902. Affidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached. The application shall identify all previous proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from his conviction or sentence. Argument, citations, and discussion of authorities are unnecessary.
[19-4903, added 1967, ch. 25, sec. 3, p. 42.]
If the applicant is unable to pay court costs and expenses of representation, including stenographic, printing, witness fees and expenses, and legal services, these costs and expenses, and a court-appointed attorney may be made available to the applicant in the preparation of the application, in the trial court, and on appeal, and paid, on order of the district court, by the county in which the application is filed.
[19-4904, added 1967, ch. 25, sec. 4, p. 42; am. 1993, ch. 265, sec. 2, p. 898.]
All costs and expenses necessarily incurred by the state in the proceedings shall be paid by the county in which the application is filed.
[19-4905, added 1967, ch. 25, sec. 5, p. 42.]
(a) Within 30 days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits. At any time prior to entry of judgment the court may grant leave to withdraw the application. The court may make appropriate orders for amendment of the application or any pleading or motion, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering the application the court shall take account of substance regardless of defects of form. If the application is not accompanied by the record of the proceedings challenged therein, the respondent shall file with its answer the record or portions thereof that are material to the questions raised in the application.
(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. The applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or, direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.
(c) The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
[19-4906, added 1967, ch. 25, sec. 6, p. 42.]
(a) The application shall be heard in, and before any judge of, the court in which the conviction took place. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pre-trial, discovery and appellate procedures are available to the parties. The court may receive proof by affidavits, depositions, oral testimony, or other evidence and may order the applicant brought before it for the hearing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. This order is a final judgment.
(b) The applicant should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to evidence in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the applicant to be present.
[19-4907, added 1967, ch. 25, sec. 7, p. 42.]
All grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
[19-4908, added 1967, ch. 25, sec. 8, p. 42.]
A final judgment entered under this act may be reviewed by the Supreme Court of this state on appeal brought either by the applicant or by the state within forty-two (42) days from the entry of the judgment. On appeal the state shall be represented by the attorney general.
[19-4909, added 1967, ch. 25, sec. 9, p. 42; am. 1985, ch. 75, sec. 1, p. 150.]
This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
[19-4910, added 1967, ch. 25, sec. 10, p. 42.]
This act may be cited as the Uniform Post-Conviction Procedure Act.
[19-4911, added 1967, ch. 25, sec. 11, p. 42.]
The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:
(a) The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
(b) As used in this agreement:
(1) "State" shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
(2) "Sending state" shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to subsection (c) of this section or at the time that a request for custody or availability is initiated pursuant to subsection (d) of this section.
(3) "Receiving state" shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to subsections (c) and (d) of this section.
(c) (1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
(2) The written notice and request for final disposition referred to in paragraph (1) of this subsection shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(3) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
(4) Any request for final disposition made by a prisoner pursuant to paragraph (1) of this subsection shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
(5) Any request for final disposition made by a prisoner pursuant to paragraph (1) of this subsection shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (4) of this subsection, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
(d) (1) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with subsection (e)(1) of this section upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further that there shall be a period of thirty (30) days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
(2) Upon receipt of the officer’s written request as provided in paragraph (1) of this subsection, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
(3) In respect of any proceeding made possible by this paragraph, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(4) Nothing contained in this act shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (1) of this subsection, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
(5) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to subsection (e)(5) of this section, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
(e) (1) In response to a request made under subsections (c) or (d) of this section, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in subsection (c) of this section. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner’s presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
(2) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
(A) Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given.
(B) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
(3) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in subsections (c) or (d) of this section, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
(4) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
(5) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
(6) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
(7) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
(8) From the time that a party state receiving custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one (1) or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payments of costs, or responsibilities therefor.
(f) (1) In determining the duration and expiration dates of the time periods provided in subsections (c) and (d) of this section, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
(2) No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.
(g) Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.
(h) This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.
(i) This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the state affected as to all severable matters.
[19-5001, added 1971, ch. 167, sec. 1, p. 790.]
The phrase "appropriate court" as used in the agreement on detainers shall, with reference to the courts of this state, mean the state district courts.
[19-5002, added 1971, ch. 167, sec. 2, p. 790.]
All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.
[19-5003, added 1971, ch. 167, sec. 3, p. 790.]
Nothing in this act or in the agreement on detainers shall be construed to require the application of section 19-2514, Idaho Code, to any person on account of any conviction had in a proceeding brought to final disposition by reason of the use of said agreement.
[19-5004, added 1971, ch. 167, sec. 4, p. 790.]
Escape from custody while in another state pursuant to the agreement on detainers and escape from custody in this state by any prisoner subsequent to his execution of a request for final disposition of an untried indictment, information or complaint voids the request.
[19-5005, added 1971, ch. 167, sec. 5, p. 790.]
It shall be lawful and mandatory upon the director of correction in charge of the Idaho state prison to give over the person of any inmate thereof whenever so required by the operation of the agreement on detainers.
[19-5006, added 1971, ch. 167, sec. 6, p. 790.]
The attorney general, or his designee, shall serve as the administrator of the agreement on detainers.
[19-5007, added 1971, ch. 167, sec. 7, p. 790; am. 2019, ch. 164, sec. 1, p. 551.]
Copies of this act shall, upon its approval, be transmitted to the governor of each state, the attorney general and the administrator of general services of the United States, and the council of state governments.
[19-5008, added 1971, ch. 167, sec. 8, p. 790.]
As used in this act:
(a) "Council" means the Idaho peace officer standards and training council.
(b) "County detention officer" means an employee in a county jail who is responsible for the safety, care, protection, and monitoring of county jail inmates.
(c) "Law enforcement" means any and all activities pertaining to crime prevention or reduction and law enforcement, including police, courts, prosecution, corrections, probation, rehabilitation, and juvenile delinquency.
(d) "Peace officer" means any employee of a police or law enforcement agency which is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic or highway laws of this state or any political subdivision. "Peace officer" also means an employee of a police or law enforcement agency of a federally recognized Indian tribe who has satisfactorily completed the peace officer standards and training academy and has been deputized by a sheriff of a county or a chief of police of a city of the state of Idaho.
(e) "Political subdivision" means any city or county.
(f) "Emergency communications officer" means any emergency call taker or dispatcher whose primary responsibility is to receive or dispatch calls for emergency services in the state of Idaho.
[19-5101, added 1981, ch. 307, sec. 2, p. 629; am. 1992, ch. 248, sec. 1, p. 730; am. 1997, ch. 84, sec. 1, p. 200; am. 2008, ch. 88, sec. 3, p. 244; am. 2017, ch. 181, sec. 1, p. 412.]
(1) There is hereby established in the Idaho state police the Idaho peace officer standards and training council. The chairman of the council shall be appointed by the governor and shall be a voting member of the council. The council shall be composed of the following members, which shall reflect a reasonable geographic balance throughout the state:
(a) Three (3) city chiefs of police or their designees;
(b) Three (3) county sheriffs or their designees;
(c) The director of the Idaho state police or his designee;
(d) A county prosecuting attorney or his designee;
(e) The attorney general or his designee;
(f) The special agent in charge of the Idaho division of the federal bureau of investigation or his designee;
(g) The director of the department of correction or his designee;
(h) The director of the fish and game department or his designee;
(i) The director of the department of juvenile corrections or his designee; and
(j) A representative from the Idaho association of counties juvenile justice administrators or the Idaho association of counties adult misdemeanor probation administrators association.
(2) In addition, there shall be advisory to the council, as ex officio nonvoting members of the council, the executive directors of the Idaho association of counties and association of Idaho cities.
[19-5102, added 1981, ch. 307, sec. 2, p. 629; am. 1990, ch. 308, sec. 1, p. 848; am. 1999, ch. 154, sec. 1, p. 428; am. 2000, ch. 469, sec. 36, p. 1492; am. 2026, ch. 157, sec. 1, p. 711.]
Council members not serving by virtue of their office shall be appointed for four (4) year terms initially staggered as specified by the governor.
[19-5103, added 1981, ch. 307, sec. 2, p. 629.]
No member shall serve beyond the time when he holds the office or employment by reason of which he was initially eligible for appointment and any member chosen to fill a vacancy created otherwise than by expiration of term shall be appointed for the unexpired portion of the term of the member whom he succeeds. Any member may be appointed for additional terms.
[19-5104, added 1981, ch. 307, sec. 2, p. 630.]
The governor shall appoint a chairman, and the council annually shall elect a vice-chairman from among the membership.
[19-5105, added 1981, ch. 307, sec. 2, p. 630.]
Notwithstanding any provision of any statute, ordinance, local law or charter provision to the contrary, membership on the commission shall not disqualify any member from holding any other public office or cause the forfeiture thereof.
[19-5106, added 1981, ch. 307, sec. 2, p. 630.]
The council shall promulgate, amend and rescind such rules and regulations in accordance with the provisions of chapter 52, title 67, Idaho Code, it deems necessary to carry out the provisions of this chapter.
[19-5107, added 1981, ch. 307, sec. 2, p. 630.]
The council shall meet a minimum of once each calendar year and more often at the call of the chairman. The presence of a majority of the voting members of the council shall constitute a quorum for doing business. Advisory and ex officio members shall be entitled to participate in the business and deliberation of the council, but shall not be entitled to vote. The council shall establish its own procedures and requirements with respect to place and conduct of its meetings.
[19-5108, added 1981, ch. 307, sec. 2, p. 630.]
(1) It shall be the duty of and the council shall have the power:
(a) To establish the requirements of minimum basic training that peace officers shall complete in order to be eligible for permanent employment as peace officers and the time within which such basic training must be completed. One (1) component of minimum basic training shall be a course in the investigation and collection of evidence in cases involving an allegation of sexual assault or battery;
(b) To establish the requirements of minimum education and training standards for employment as a peace officer in probationary, temporary, part-time, and/or emergency positions;
(c) To establish the length of time a peace officer may serve in a probationary, temporary, and/or emergency position;
(d) To approve, deny approval or revoke the approval of any institution or school established by the state or any political subdivision or any other party for the training of peace officers;
(e) To establish the minimum requirements of courses of study, attendance, equipment, and facilities of all approved schools and the scholastic requirement, experience, and training of instructors at all approved schools;
(f) To establish such other requirements for employment, retention and promotion of peace officers, including minimum age, physical and mental standards, citizenship, moral character, experience and such other matters as relate to the competence and reliability of peace officers;
(g) To certify peace officers as having completed all requirements established by the council in order to be eligible for permanent employment as peace officers in this state;
(h) To receive and file for record copies of merit regulations or local ordinances passed by any political subdivision;
(i) To maintain permanent files and transcripts for all peace officers certified by the council to include any additional courses or advanced courses of instruction successfully completed by such peace officers while employed in this state and to include the law enforcement employment history by agency and dates of service of the officer. Such information shall be made available to any law enforcement agency upon request when a person applies for employment at the requesting law enforcement agency; and
(j) To allow a peace officer of a federally recognized Indian tribe within the boundaries of this state to attend the peace officer standards and training academy if said peace officer meets minimum physical and educational requirements of the academy. The Indian tribal law enforcement agency shall reimburse the peace officer standards and training academy for the officer’s training. Upon satisfactory completion of the peace officer standards and training academy, the tribal peace officer shall receive a certificate of satisfactorily completing the academy.
(2) After January 1, 1974, any peace officer as defined in section 19-5101(d), Idaho Code, employed after January 1, 1974, except any elected official or deputy serving civil process, the deputy director of the Idaho state police, or any person serving under a temporary commission with any law enforcement agency in times of natural or man-caused disaster declared to be an emergency by the board of county commissioners or by the governor of the state of Idaho, or those peace officers whose primary duties involve motor vehicle parking and animal control pursuant to city or county ordinance, or any peace officer acting under a special deputy commission from the Idaho state police, shall be certified by the council within one (1) year of employment; provided, however, that the council may establish criteria different than that required of other peace officers for certification of city police chiefs or administrators within state agencies having law enforcement powers who, because of the number of full-time peace officers they supervise, have duties that are primarily administrative. Any such chief of police or state agency administrator employed in such capacity prior to July 1, 1987, shall be exempt from certification.
(3) The council is designated as a criminal justice agency as defined in section 67-3012(7)(A)(ii), Idaho Code, for the purposes of obtaining and retaining confidential criminal justice information by means of criminal justice services as defined in section 67-3012(8), Idaho Code. Such information shall be used to provide for the certification, suspension or revocation of certification of peace officers and public safety personnel subject to certification by the council. The council may not record or retain any confidential criminal justice information without complying with the provisions of chapter 30, title 67, Idaho Code.
(4) No peace officer shall have or exercise any power granted by any statute of this state to peace officers unless such person shall have been certified by the council within one (1) year of the date on which such person commenced employment as a peace officer, except in cases where the council, for good cause and in writing, has granted additional time to complete such training. The council shall decertify any officer who is convicted of any felony or offense that would be a felony if committed in this state. The council may decertify any officer who:
(a) Is convicted of any misdemeanor;
(b) Willfully or otherwise falsifies or omits any information to obtain any certified status; or
(c) Violates any of the standards of conduct as established by the council’s code of ethics, as adopted and amended by the council.
All proceedings taken by the council shall be conducted in accordance with chapter 52, title 67, Idaho Code.
(5) Any law enforcement agency as defined in section 19-5101(c), Idaho Code, in which any peace officer shall resign as a result of any disciplinary action or in which a peace officer’s employment is terminated as a result of any disciplinary action shall, within fifteen (15) days of such action, make a report to the council.
(6) The council shall, pursuant to the requirements of this section, establish minimum basic training and certification standards for county detention officers that can be completed within one (1) year of employment as a county detention officer.
(7) The council may, upon recommendation of the juvenile training council and pursuant to the requirements of this section, implement minimum basic training and certification standards for juvenile detention officers, juvenile probation officers, and employees of the Idaho department of juvenile corrections who are engaged in the direct care and management of juveniles.
(8) The council may, upon recommendation of the correction standards and training council and pursuant to the requirements of this section, establish minimum basic training and certification standards for state correction officers and for adult probation and parole officers.
(9) The council may, upon recommendation from the misdemeanor probation training council and pursuant to the requirements of this section, establish minimum basic training, continuing education, and certification standards for misdemeanor probation officers, whether those officers are employees of, or by private sector contract with, a county.
(10) The council may reject any applicant for certification who has been convicted of a misdemeanor. The council shall reject an applicant for certification who has been convicted of any felony the punishment for which could have been imprisonment in a federal or state penal institution and that is either enumerated in section 18-310(2), Idaho Code, or is a substantially equivalent offense from a jurisdiction other than the state of Idaho. The council may reject any applicant for certification who has been convicted of a felony that has been set aside, expunged, or pardoned or reduced to a misdemeanor or dismissed pursuant to the terms of section 19-2604, Idaho Code, or that is subject to the terms of a withheld judgment.
(11) As used in this section, "convicted" means a plea or finding of guilt, notwithstanding the form of judgment or withheld judgment, regardless of whether the sentence is imposed, suspended, deferred or withheld, and regardless of whether the plea or conviction is set aside or withdrawn or the case is dismissed or reduced under section 19-2604, Idaho Code, or any other comparable statute or procedure where the setting aside of the plea or conviction, or dismissal or reduction of the case or charge, is based upon lenity or the furtherance of rehabilitation rather than upon any defect in the legality or factual basis of the plea, finding of guilt or conviction.
[19-5109, added 1981, ch. 307, sec. 2, p. 630; am. 1987, ch. 180, sec. 1, p. 357; am. 1992, ch. 248, sec. 2, p. 731; am. 1997, ch. 84, sec. 2, p. 200; am. 1997, ch. 234, sec. 1, p. 683; am. 1999, ch. 154, sec. 2, p. 429; am. 2000, ch. 113, sec. 1, p. 250; am. 2000, ch. 469, sec. 37, p. 1493; am. 2001, ch. 143, sec. 1, p. 510; am. 2002, ch. 84, sec. 1, p. 187; am. 2005, ch. 131, sec. 2, p. 418; am. 2006, ch. 47, sec. 1, p. 136; am. 2006, ch. 246, sec. 1, p. 753; am. 2008, ch. 88, sec. 4, p. 244; am. 2009, ch. 115, sec. 1, p. 370; am. 2011, ch. 128, sec. 3, p. 355; am. 2017, ch. 284, sec. 1, p. 747; am. 2022, ch. 82, sec. 1, p. 234; am. 2025, ch. 182, sec. 1, p. 854.]
Any political subdivision or state agency which desires to receive aid pursuant to this chapter shall make application upon a form supplied by the council. Applications submitted pursuant to section 19-5109, Idaho Code, shall be accompanied by a certified copy of an ordinance adopted by its governing body providing that, while receiving any aid pursuant to this act, such political subdivision will adhere to the standards for recruitment and training established by the council or a certified copy of the agency’s or political subdivision’s merit rules, regulations or requirements.
[19-5110, added 1981, ch. 307, sec. 2, p. 631.]
The council shall be the exclusive body for the approval of applications to attend the schools and programs supported under the provisions of section 19-5109, Idaho Code.
[19-5111, added 1981, ch. 307, sec. 2, p. 631.]
(1) Any peace officer attending such schools or programs shall execute an agreement whereby said officer promises to remain within the law enforcement profession in the state of Idaho in a position approved by rules and regulations of the council for two (2) years following graduation, subject only to such disqualifications as established by the council and included within the agreement.
(2) Violation of the provisions of this section or the terms of any contract or agreement entered into pursuant to such section shall give rise to a civil action which may be commenced by the council for and on behalf of the state of Idaho for restitution of any and all sums paid by the council plus costs and reasonable attorney’s fees.
[19-5112, added 1981, ch. 307, sec. 2, p. 631; am. 2006, ch. 47, sec. 2, p. 138.]
To determine whether the standards, training, qualifications of instructors or schools, the obligations of applicants for aid, or recipients of aid, are being complied with and for such other purposes as the council deems necessary and not inconsistent with the intent of this act, the director of the Idaho state police or his authorized representative may administer oaths, take depositions and/or issue subpoenas to compel the attendance of witnesses and the production of books, papers, records, memoranda or other information. If any person fails to comply with any subpoena issued under this section or refuses to testify on any matter on which he lawfully may be interrogated, compliance with such subpoena shall be sought in the district court wherein such subpoena was served.
[19-5113, added 1981, ch. 307, sec. 2, p. 632; am. 2000, ch. 469, sec. 38, p. 1495.]
The council shall report annually to the governor and legislature through the director of the Idaho state police on its activities and may make such other reports and recommendations as it deems desirable.
[19-5114, added 1981, ch. 307, sec. 2, p. 632; am. 2000, ch. 469, sec. 39, p. 1495.]
Members of the council shall be compensated as provided in section 59-509(b), Idaho Code, to be paid from the funds authorized and appropriated to the council pursuant to the provisions of section 23-404, Idaho Code.
[19-5115, added 1981, ch. 307, sec. 2, p. 632.]
(a) There is hereby established in the state treasury the peace officers standards and training fund. All moneys deposited to the fund shall be expended by the peace officer standards and training council for the following purposes:
(1) Training peace officers, county detention officers, and self-sponsored students within the state of Idaho, including, but not limited to, sheriffs and their deputies, officers of the Idaho state police, conservation officers of the Idaho department of fish and game, emergency communications officers, and city and county prosecutors and their deputies;
(2) Salaries, costs and expenses relating to such training as provided in paragraph (1) of this subsection;
(3) Such capital expenditures as the peace officer standards and training council may provide for the acquisition, construction and/or improvement of a peace officer standards and training academy; and
(4) Such expenditures as may be necessary to aid approved peace officers training programs or county detention officer programs certified as having met the standards established by the peace officer standards and training council.
(b) The peace officers standards and training fund shall be funded as provided in sections 31-3201A, 31-3201B, and 23-404, Idaho Code.
(c) All contributions and other moneys and appropriations designated for peace officers standards and training shall be deposited in the peace officers standards and training fund.
(d) Moneys received into the fund as provided in subsection (c) of this section shall be accounted for separately.
(e) If the fiscal year-end balance in the fund pursuant to sections 31-3201A, 31-3201B, and 23-404, Idaho Code, exceeds one million dollars ($1,000,000), the excess shall revert to the general fund.
(f) Moneys received into the fund pursuant to the provisions of section 31-3201D, Idaho Code, shall be used for the purposes of providing basic training, continuing education and certification of misdemeanor probation officers, whether those officers are employees of or by private sector contract with a county.
[19-5116, added 1983, ch. 117, sec. 1, p. 258; am. 1994, ch. 191, sec. 1, p. 620; am. 1997, ch. 84, sec. 3, p. 202; am. 1998, ch. 150, sec. 1, p. 521; am. 2000, ch. 469, sec. 40, p. 1495; am. 2003, ch. 237, sec. 2, p. 609; am. 2011, ch. 128, sec. 4, p. 357; am. 2017, ch. 181, sec. 2, p. 412; am. 2022, ch. 50, sec. 1, p. 151.]
(1) It shall be the duty of and the council shall have the power:
(a) To establish the requirements of minimum basic training which county detention officers shall complete in order to be eligible for permanent employment as a county detention officer;
(b) To establish such basic training and certification so that it can be completed within one (1) year of employment as a county detention officer;
(c) To establish the requirements of minimum training standards for employment as a county detention officer in probationary, temporary, part-time and/or emergency situations;
(d) To certify county detention officers as having completed all requirements established by the council in order to be eligible for permanent employment as a county detention officer;
(e) To receive applications for financial assistance from counties and disburse available state funds to the counties for salaries and allowable living expenses or any part thereof, incurred while in attendance at approved training programs and schools, as authorized by the council. The annual reimbursement authorized by this section shall not exceed the funds available for such purpose and authorized by section 31-3201B, Idaho Code;
(f) To maintain permanent files and transcripts for all county detention officers certified by the council to include any additional courses or advance courses of instruction successfully completed by such county detention officers while employed in this state and to include the law enforcement employment history by agency and dates of service of the officer. Such information shall be made available to any law enforcement agency upon request when a person applies for employment at the requesting law enforcement agency.
(2) Any county detention officer employed after July 1, 1997, shall be trained and certified within one (1) year of employment. Current county detention officers, who were employed prior to July 1, 1997, shall comply with the training and certification provisions of this section by July 1, 1999.
[19-5117, added 1997, ch. 84, sec. 4, p. 203; am. 2009, ch. 115, sec. 2, p. 372.]
(1) The council may establish and assess fees for:
(a) The use of its facilities and equipment by private entities and non-law enforcement institutions;
(b) The use of its facilities and equipment by law enforcement agencies for purposes other than basic training; and
(c) Facilitating, arranging, providing or assisting with the training, certification or continuing education requirements of private entities, non-law enforcement institutions and law enforcement agencies.
(2) The council shall deposit assessed fees into the peace officer standards and training fund established in section 19-5116, Idaho Code. The council may expend moneys as deemed necessary to cover the costs for the uses identified in this section.
[19-5118, added 2012, ch. 166, sec. 1, p. 447.]
(1) The council shall have the duty and the power to:
(a) Establish the requirements of minimum basic training for all emergency communications officers, in order to be eligible for permanent employment as an emergency communications officer, that can be completed within eighteen (18) months of employment as an emergency communications officer;
(b) Establish such basic training and certification, to include alternative authorized council training, so that certification can be attained within eighteen (18) months of employment as an emergency communications officer;
(c) Establish the requirements of minimum training standards for employment as an emergency communications officer in probationary, temporary, part-time and emergency situations;
(d) Certify emergency communications officers as having completed all requirements established by the council to be eligible for permanent employment as an emergency communications officer; and
(e) Maintain permanent files and transcripts for all emergency communications officers certified by the council, to include only courses or advanced courses of instruction successfully completed by such emergency communications officers and specifically required to obtain and maintain emergency communications officer certification while employed in this state. Such information shall be made available by the council to any employer upon the receipt of a signed waiver from the emergency communications officer to release such files and transcripts.
(2) The council shall, upon recommendation of the Idaho public safety communications commission and pursuant to the requirements of this section, establish minimum basic training and certification standards for all emergency communications officers whose primary responsibility is to receive and dispatch calls for emergency services in the state of Idaho, and that can be completed within eighteen (18) months of employment.
(3) The council shall decertify any emergency communications officer convicted of any felony or offense that would be a felony if committed in this state. The council may decertify any emergency communications officer who:
(a) Is convicted of a misdemeanor;
(b) Willfully or otherwise falsifies or omits any information to obtain any certified status; or
(c) Violates any of the standards of conduct as established by the council’s code of ethics, as adopted and amended by the council.
All decertification proceedings taken by the council shall be conducted in accordance with chapter 52, title 67, Idaho Code.
(4) Any emergency communications officers who begin employment after July 1, 2017, shall be trained and certified within eighteen (18) months of employment. Current emergency communications officers who began employment between July 1, 2012, and June 30, 2017, shall comply with the training and certification provisions of this section by January 1, 2019. Current emergency communications officers who began employment prior to July 1, 2012, may comply with the training and certification provisions of this section at the discretion of their employers.
[19-5119, added 2017, ch. 181, sec. 3, p. 413.]
The maintenance of law and order is, and always has been, a primary function of government and is so recognized in both federal and state constitutions. The state has an unmistakable responsibility to give full support to all public agencies of the criminal justice system. This responsibility includes the provision of an efficient law enforcement information system available to all state and local agencies. It is the intent of the legislature that such a system be established and maintained in a condition adequate to the needs of public safety and security. It is the purpose of this chapter to establish a public safety and security information system, known as "ILETS," for the state of Idaho.
[19-5201, added 1971, ch. 195, sec. 1, p. 884; am. 2005, ch. 115, sec. 3, p. 373.]
(1) Establishment of information system. The director of the Idaho state police shall establish a public safety and security information system, known as "ILETS," which will interconnect the criminal justice agencies of this state and its political subdivisions and all agencies engaged in the promotion of highway safety into a unified information system. The director is authorized to lease such transmitting and receiving facilities and equipment as may be necessary to establish and maintain such a system.
(2) Use of information system. The public safety and security information system, known as "ILETS," shall be used exclusively for the law enforcement and criminal justice business of the state of Idaho and all the political subdivisions thereof, including all agencies engaged in the promotion of traffic safety.
(3) Judiciary and traffic safety. Nothing in this chapter shall prohibit the use of or participation in the information system herein provided by the judicial branch of the state government or by any other department, agency or branch of state or local government engaged in traffic safety.
(4) Access. The quarterly access fee to be charged each department or agency participating in the information system shall be set by the public safety and security information board, known as the "ILETS board," and in setting such fee the board shall take into consideration the usage of said system by each participant. There is hereby created the public safety and security information fund, to be known as the ILETS fund. All access fees collected under the provisions of this chapter shall be paid into the fund.
(5) Interstate connection. The public safety and security information system provided for herein is hereby authorized to connect and participate with information systems of other states and provinces of Canada.
[19-5202, added 1971, ch. 195, sec. 2, p. 884; am. 1974, ch. 27, sec. 10, p. 811; am. 1983, ch. 181, sec. 1, p. 492; am. 2000, ch. 469, sec. 41, p. 1496; am. 2005, ch. 115, sec. 4, p. 373.]
(1) There is hereby created within the Idaho state police a public safety and security information system board, to be known as the ILETS board, which shall be composed of five (5) members appointed by the governor.
The members of the information system board shall be composed of the following:
(a) Two (2) incumbent county sheriffs;
(b) Two (2) incumbent city chiefs of police;
(c) One (1) member of the Idaho state police.
(2) The term of office of the first board shall be staggered with the one (1) appointment expiring January 1, 1972; one (1) appointment expiring January 1, 1973; one (1) appointment expiring January 1, 1974; one (1) appointment expiring January 1, 1975; and one (1) appointment expiring January 1, 1976.
Thereafter, the term of office of each chief of police, sheriff and member of the Idaho state police shall be for a term of five (5) years.
The director of the Idaho state police shall be a permanent member of the board.
In the event any chief of police, sheriff or member of the Idaho state police ceases to be such chief of police, sheriff, or member of the Idaho state police his appointment to said board shall terminate and cease immediately and the governor shall appoint a qualified person in such category to fill the unexpired term of such member.
(3) The board shall, upon their appointment, adopt such rules, procedures and methods of operation as may be necessary to establish and put into use the most efficient and economical statewide public safety and security information system and shall publish and distribute said rules and procedures to each participating department, agency or office.
(4) The public safety and security information system board shall have exclusive management control over the entire Idaho public safety and security information system, which includes all hardware, software, electronic switches, peripheral gear, microwave links, and circuitry which make up the system and any access thereto. The term public safety and security information system shall mean the information system established by the director of the Idaho state police pursuant to subsection (1) of section 19-5202, Idaho Code, and shall not apply to any type of voice-oriented transmission whether it be by mobile radio, microwave or telephone.
(5) Salaries and expenses. Members of said board shall be compensated as provided by section 59-509(b), Idaho Code, which expenses shall be paid from moneys appropriated for the funding of this chapter.
The performance of duties under this chapter by a member of the board shall be deemed to be in performance of his duties as an employee of his particular branch of government.
(6) Federal funding, gifts, donations. The director is authorized to apply for and accept federal funds granted by the congress of the United States, or by executive order, all of which must be deposited in the ILETS fund, and which may be expended only after a legislative appropriation. The director may accept gifts and donations from individuals and private organizations or foundations for all or any of the purposes of chapter 52, title 19, Idaho Code.
[19-5203, added 1971, ch. 195, sec. 3, p. 884; am. 1974, ch. 27, sec. 11, p. 811; am. 1980, ch. 247, sec. 4, p. 585; am. 1983, ch. 181, sec. 2, p. 492; am. 1989, ch. 131, sec. 1, p. 285; am. 2000, ch. 469, sec. 42, p. 1496; am. 2005, ch. 115, sec. 5, p. 374.]
The director of the Idaho state police shall be the executive officer of the ILETS board and shall be responsible for the carrying out of the policies and rules of the board and with the management and expenditures of such funds as may be appropriated to implement this chapter.
[19-5204, added 1971, ch. 195, sec. 4, p. 884; am. 1974, ch. 27, sec. 12, p. 811; am. 2000, ch. 469, sec. 43, p. 1498; am. 2005, ch. 115, sec. 6, p. 375.]
(1) Every person, firm, corporation, partnership, association or other legal entity contracting with any person or the representative or assignee of any person, accused of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio or television presentation, live entertainment of any kind, or from the expression of such person’s thoughts, feelings, opinions or emotions regarding such crime, shall pay over to the state treasurer any moneys which would otherwise, by terms of such contract, be owing to the person so convicted or his representatives. The state treasurer shall deposit such moneys in an escrow account for the benefit of and payable to any victim of crimes committed by such person, provided that such person is eventually convicted of the crime or is acquitted on the ground of mental disease or defect excluding responsibility and provided further that such victim, or his personal representative, within five (5) years of the date the escrow account has been established, brings a civil action in a court of competent jurisdiction and recovers a money judgment against such person or his representatives.
(2) The state treasurer, at least once every six (6) months for five (5) years from the date it receives such moneys, shall cause to have published a legal notice in newspapers of general circulation in the county of the state where the crime was committed advising such victims that such escrow moneys are available to satisfy money judgments pursuant to this section.
(3) Upon disposition of charges favorable to any person accused of committing a crime, or upon a showing by such person that five (5) years have elapsed from the establishment of such escrow account and further that no actions are pending against such person, pursuant to this section the board shall immediately pay over any moneys in the escrow account to such person.
(4) Notwithstanding the foregoing provisions of this section the state treasurer shall make payments from an escrow account to any person accused of crime upon the order of a court of competent jurisdiction after a showing by such person that such moneys shall be used for the exclusive purpose of retaining legal representation at any stage of the proceedings against such person, including the appeals process.
(5) Any action taken by any person convicted of a crime, whether by way of execution of a power of attorney, creation of corporate entities or otherwise, to defeat the purpose of this section shall be null and void as against the public policy of this state.
(6) The state treasurer may invest the moneys in any escrow account hereunder in any United States government notes or securities.
(7) The attorney general or any other person may bring an action in a court of competent jurisdiction to require the deposit of moneys in an escrow account as provided in this section.
[19-5301, added 1978, ch. 259, sec. 1, p. 564.]
If a district court or a magistrate division orders the defendant to pay restitution, the court shall order the defendant to pay such restitution to the victim or victims injured by the defendant’s action.
[19-5302, added 1984, ch. 86, sec. 1, p. 169; am. 1985, ch. 122, sec. 4, p. 300; am. 1986, ch. 197, sec. 1, p. 495; am. 2004, ch. 21, sec. 1, p. 23; am. 2018, ch. 189, sec. 2, p. 415.]
When the victim of any crime is directed or authorized by a law enforcement agency to obtain a medical examination for the purpose of procuring evidence for use by a law enforcement agency in the investigation or prosecution of the crime, the expense incurred shall be paid by the law enforcement agency. Provided however, the cost of forensic and/or medical examinations of alleged victims of sexual assault shall be paid for from the crime victims compensation account, as established by section 72-1009, Idaho Code. The provisions of this section shall not be construed to require a law enforcement agency to bear the expense of any medical treatment of the victim.
[(19-5303) 1984, ch. 191, sec. 1, p. 440; 1985, redesignated from 19-5302, ch. 122, sec. 7, p. 303; am. 2001, ch. 144, sec. 1, p. 512.]
(1) As used in this chapter:
(a) "Economic loss" includes, but is not limited to, the value of property taken, destroyed, broken, or otherwise harmed, lost wages, and direct out-of-pocket losses or expenses, such as medical expenses resulting from the criminal conduct, but does not include less tangible damage such as pain and suffering, wrongful death or emotional distress.
(b) "Found guilty of any crime" shall mean a finding by a court that a defendant has committed a criminal act and shall include an entry of a plea of guilty, an order withholding judgment, suspending sentence, or entry of judgment of conviction for a misdemeanor or felony.
(c) "Value" shall be as defined in section 18-2402(11), Idaho Code.
(d) "Property" shall be as defined in section 18-2402(8), Idaho Code.
(e) "Victim" shall mean:
(i) The directly injured victim which means a person or entity, who suffers economic loss or injury as the result of the defendant’s criminal conduct and shall also include the immediate family of a minor and the immediate family of the actual victim in homicide cases;
(ii) Any health care provider who has provided medical treatment to a directly injured victim if such treatment is for an injury resulting from the defendant’s criminal conduct, and who has not been otherwise compensated for such treatment by the directly injured victim or the immediate family of the directly injured victim;
(iii) The account established pursuant to the crime victims compensation act, chapter 10, title 72, Idaho Code, from which payment was made to or on behalf of a directly injured victim pursuant to the requirements of Idaho law as a result of the defendant’s criminal conduct;
(iv) A person or entity who suffers economic loss because such person or entity has made payments to or on behalf of a directly injured victim pursuant to a contract including, but not limited to, an insurance contract, or payments to or on behalf of a directly injured victim to pay or settle a claim or claims against such person or entity in tort or pursuant to statute and arising from the crime.
(2) Unless the court determines that an order of restitution would be inappropriate or undesirable, it shall order a defendant found guilty of any crime which results in an economic loss to the victim to make restitution to the victim. An order of restitution shall be a separate written order in addition to any other sentence the court may impose, including incarceration, and may be complete, partial, or nominal. The court may also include restitution as a term and condition of judgment of conviction; however, if a court orders restitution in the judgment of conviction and in a separate written order, a defendant shall not be required to make restitution in an amount beyond that authorized by this chapter. Restitution shall be ordered for any economic loss which the victim actually suffers. The existence of a policy of insurance covering the victim’s loss shall not absolve the defendant of the obligation to pay restitution.
(3) If the court determines that restitution is inappropriate or undesirable or if only partial or nominal restitution is ordered, it shall enter an order articulating the reasons therefor on the record.
(4) If a separate written order of restitution is issued, an order of restitution shall be for an amount certain and shall be due and owing at the time of sentencing or at the date the amount of restitution is determined, whichever is later. An order of restitution may provide for interest from the date of the economic loss or injury.
(5) The court may order the defendant to pay restitution to the victim in any case, regardless of whether the defendant is incarcerated or placed on probation. The court may order the defendant to pay all or a part of the restitution ordered to the court to be distributed by the court to the victims in a manner the court deems just.
(6) Restitution orders shall be entered by the court at the time of sentencing or such later date as deemed necessary by the court. Economic loss shall be based upon the preponderance of evidence submitted to the court by the prosecutor, defendant, victim or presentence investigator. Each party shall have the right to present such evidence as may be relevant to the issue of restitution, and the court may consider such hearsay as may be contained in the presentence report, victim impact statement or otherwise provided to the court.
(7) The court, in determining whether to order restitution and the amount of such restitution, shall consider the amount of economic loss sustained by the victim as a result of the offense, the financial resources, needs and earning ability of the defendant, and such other factors as the court deems appropriate. The immediate inability to pay restitution by a defendant shall not be, in and of itself, a reason to not order restitution.
(8) In determining restitution, where it appears that more than one (1) person is responsible for a crime that results in economic loss to a victim, and one (1) or more of the suspects or defendants are not found, apprehended, charged, convicted or ordered to pay restitution, the court may require the remaining defendant or defendants, who are convicted of or plead guilty to the crime, to be jointly and severally responsible for the entire economic loss to the victim.
(9) The court may, with the consent of the parties, order restitution to victims, and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.
(10) A defendant, against whom a restitution order has been entered, may, within forty-two (42) days of the entry of the order of restitution, request relief from the restitution order in accordance with the Idaho rules of civil procedure relating to relief from final orders.
(11) An order of restitution shall not preclude the victim from seeking any other legal remedy.
(12) Every presentence report shall include a full statement of economic loss suffered by the victim or victims of the defendant’s crime or crimes.
(13) If there is more than one (1) victim, the restitution order shall provide that the directly injured victim(s) be fully compensated for so much of the loss caused by the defendant’s criminal conduct which has not been paid by a third party, including persons referred to in subsection (1)(e)(ii), (iii) and (iv) of this section.
(14) When a person is found guilty of violating section 18-8007, Idaho Code, the court, in addition to any other sentence imposed, may order the person to pay to any victim an amount of money equal to the amount of that victim’s economic loss caused by the person as a result of the incident that created the duties as provided in section 18-8007, Idaho Code.
[19-5304, added 1985, ch. 122, sec. 1, p. 297; am. 1986, ch. 197, sec. 2, p. 495; am. 1991, ch. 324, sec. 1, p. 841; am. 1997, ch. 112, sec. 1, p. 272; am. 1999, ch. 338, sec. 1, p. 916; am. 2007, ch. 62, sec. 1, p. 152; am. 2008, ch. 140, sec. 2, p. 402; am. 2008, ch. 152, sec. 1, p. 440.]
(1) After forty-two (42) days from the entry of the order of restitution or at the conclusion of a hearing to reconsider an order of restitution, whichever occurs later, an order of restitution may be recorded as a judgment and the victim may execute as provided by law for civil judgments.
(2) The clerk of the district court may take action to collect on the order of restitution on behalf of the victim and, with the approval of the administrative district judge, may use the procedures set forth in section 19-4708, Idaho Code, for the collection of the restitution.
[19-5305, added 1985, ch. 122, sec. 2, p. 299; am. 2009, ch. 102, sec. 2, p. 313.]
(1) Each victim of a criminal or juvenile offense shall be:
(a) Treated with fairness, respect, dignity and privacy throughout the criminal justice process;
(b) Permitted to be present at all criminal justice proceedings or juvenile proceedings including probation proceedings;
(c) Entitled to a timely disposition of the case;
(d) Given prior notification of trial court, appellate, probation and parole proceedings and, upon request, to information about the sentence, incarceration, placing on probation or release of the defendant;
(e) Heard, upon request, at all criminal justice proceedings considering a plea of guilty, sentencing, incarceration, placing on probation or release of the defendant unless manifest injustice would result;
(f) Afforded the opportunity to communicate with the prosecution in criminal or juvenile offenses, and be advised of any proposed plea agreement by the prosecuting attorney prior to entering into a plea agreement in criminal or juvenile offenses involving crimes of violence, sex crimes or crimes against children;
(g) Allowed to refuse an interview, ex parte contact or other request by the defendant or any other person acting on behalf of the defendant, unless such request is authorized by law;
(h) Consulted by the presentence investigator during the preparation of the presentence report and have included in that report a statement of the impact which the defendant’s criminal conduct had upon the victim and shall be allowed to read, prior to the sentencing hearing, the presentence report relating to the crime. The victim shall maintain the confidentiality of the presentence report, and shall not disclose its contents to any person except statements made by the victim to the prosecuting attorney or the court;
(i) Assured the expeditious return of any stolen or other personal property by law enforcement agencies when no longer needed as evidence;
(j) Notified whenever the defendant or suspect is released or escapes from custody. When release is ordered prior to final conviction, notice to the victim shall be given by the law enforcement authority from whose custody the defendant was released. When the release is granted subsequent to a final conviction, notice shall be given to the victim by the law enforcement authority from whose custody the defendant was released unless release is granted by the commission of pardons and parole, in which case the commission shall notify the victim. When a release on probation is being considered following a period of retained jurisdiction, notice of the hearing shall be given to the victim by the prosecuting attorney.
(2) Upon the filing of a criminal complaint or juvenile petition, the prosecuting attorney shall inform the victim of the various opportunities provided by this section. The victim may exercise any of the rights provided by this section by completing a written request on a form provided by the prosecuting attorney to the clerk of the district court. The clerk thereafter shall notify the appropriate authorities of the victim’s requests. Notice thereafter shall be given to the victim at the address provided unless the victim subsequently provides a different address. The victim’s address shall be kept confidential by the court except for carrying out the provisions of this chapter.
(3) The provisions of this section shall apply equally to the immediate families of homicide victims or immediate families of victims of such youthful age or incapacity as precludes them from exercising these rights personally. The court may designate a representative from the immediate family to exercise these rights on behalf of a deceased, incapacitated, or minor victim.
(4) Nothing in this section shall be construed to authorize a court to dismiss a case, to set aside or void a finding of guilt or an acceptance of a plea of guilty, or to obtain appellate, habeas corpus, or other relief from any criminal judgment, for a violation of the provisions of this section; nor be construed as creating a cause of action for money damages, costs or attorney’s fees against the state, a county, a municipality, any agency, instrumentality or person; nor be construed as limiting any rights for victims previously conferred by statute; nor be construed to require the court appointment of legal counsel or the payment of transportation costs.
(5) As used in this section:
(a) "Victim" is an individual who suffers direct or threatened physical, financial or emotional harm as the result of the commission of a crime or juvenile offense;
(b) "Criminal offense" is any charged felony or a misdemeanor involving physical injury, or the threat of physical injury, or a sexual offense;
(c) "Juvenile offense" is charged conduct that is a violation of law that brings a juvenile within the purview of chapter 5, title 20, Idaho Code, and which conduct committed by a juvenile would be a felony if committed by an adult.
[19-5306, added 1985, ch. 122, sec. 3, p. 299; am. 1989, ch. 306, sec. 1, p. 760; am. 1995, ch. 142, sec. 1, p. 604; am. 1998, ch. 356, sec. 1, p. 1114.]
(1) Irrespective of any penalties set forth under state law, and in addition thereto, the court, at the time of sentencing or such later date as deemed necessary by the court, may impose a fine not to exceed five thousand dollars ($5,000) against any defendant found guilty of any felony listed in subsections (2) and (3) of this section.
The fine shall operate as a civil judgment against the defendant and shall be entered on behalf of the victim named in the indictment or information, or the family of the victim in cases of homicide or crimes against children, and shall not be subject to any distribution otherwise required in section 19-4705, Idaho Code. The clerk of the district court may collect the fine in the same manner as other fines imposed in criminal cases are collected and shall remit any money collected in payment of the fine to the victim named in the indictment or information or to the family of the victim in a case of homicide or crimes against minor children, provided that none of the provisions of this section shall be construed as modifying the provisions of chapter 6, title 11, Idaho Code, chapter 10, title 55, Idaho Code, or section 72-802, Idaho Code. A fine created under this section shall be a separate written order in addition to any other sentence the court may impose.
The fine contemplated in this section shall be ordered solely as a punitive measure against the defendant and shall not be based upon any requirement of showing of need by the victim. The fine shall not be used as a substitute for an order of restitution as contemplated in section 19-5304, Idaho Code, nor shall such an order of restitution or order of compensation entered in accordance with section 72-1018, Idaho Code, be offset by the entry of such fine.
A defendant may appeal a fine created under this section in the same manner as any other aspect of a sentence imposed by the court. The imposition of a fine created under this section shall not preclude the victim from seeking any other legal remedy; provided that in any civil action brought by or on behalf of the victim, the defendant shall be entitled to offset the amount of any fine imposed pursuant to this section against any award of punitive damages.
(2) The felonies for which a fine created under this section may be imposed are those described in:
Section 18-805, Idaho Code (Aggravated arson);
Section 18-905, Idaho Code (Aggravated assault);
Section 18-907, Idaho Code (Aggravated battery);
Section 18-909, Idaho Code (Assault with intent to commit a serious felony);
Section 18-911, Idaho Code (Battery with intent to commit a serious felony);
Section 18-913, Idaho Code (Felonious administration of drugs);
Section 18-918, Idaho Code (Felony domestic violence);
Section 18-923, Idaho Code (Attempted strangulation);
Section 18-1501, Idaho Code (Felony injury to children);
Section 18-1506, Idaho Code (Sexual abuse of a child under the age of sixteen);
Section 18-1506A, Idaho Code (Ritualized abuse of a child);
Section 18-1506B, Idaho Code (Female genital mutilation of a child);
Section 18-1506C, Idaho Code (Vulnerable child protection);
Section 18-1507, Idaho Code (Sexual exploitation of a child);
Section 18-1508, Idaho Code (Lewd conduct with a child under the age of sixteen);
Section 18-1508A, Idaho Code (Sexual battery of a minor child sixteen or seventeen years of age);
Section 18-4001, Idaho Code (Murder);
Section 18-4006, Idaho Code (Felony manslaughter);
Section 18-4014, Idaho Code (Administering poison with intent to kill);
Section 18-4015, Idaho Code (Assault with intent to murder);
Section 18-4502, Idaho Code (First degree kidnapping);
Section 18-5001, Idaho Code (Mayhem);
Section 18-5501, Idaho Code (Poisoning food, medicine or wells);
Section 18-6101, Idaho Code (Rape);
Section 18-6501, Idaho Code (Robbery).
(3) Notwithstanding the provisions of section 18-306(4) and (5), Idaho Code, the fine created under this section may also be imposed up to five thousand dollars ($5,000) for attempts of the felonies described in:
Section 18-4001, Idaho Code (Murder);
Section 18-6101, Idaho Code (Rape).
[19-5307, added 1992, ch. 285, sec. 1, p. 876; am. 1993, ch. 236, sec. 1, p. 818; am. 2009, ch. 56, sec. 1, p. 159; am. 2009, ch. 101, sec. 1, p. 310; am. 2016, ch. 296, sec. 12, p. 841; am. 2019, ch. 131, sec. 1, p. 466; am. 2020, ch. 101, sec. 2, p. 272; am. 2023, ch. 292, sec. 2, p. 885.]
The legislature finds that DNA (deoxyribonucleic acid) identification analysis is a useful law enforcement tool for identifying and prosecuting offenders who have committed serious crimes, as defined in this chapter. The legislature further finds that it is in the best interest of justice and the protection of the public that the collection of DNA samples and thumbprint impressions from qualifying offenders takes place as expeditiously as possible following a conviction or guilty plea and that the duties of those responsible for collection be clearly defined. The purpose of this act is to assist federal, state, and local criminal justice and law enforcement agencies within and outside the state in the detection and prosecution of individuals responsible for such serious crimes, as well as in the exclusion of suspects who are being investigated for such crimes.
[19-5501, added 1997, ch. 120, sec. 1, p. 342; am. 2011, ch. 211, sec. 1, p. 593; am. 2026, ch. 40, sec. 2, p. 169.]
(1) "CODIS" means the federal bureau of investigation’s combined DNA index system that allows the storage and exchange of DNA records submitted by state and local forensic laboratories.
(2) "Director" means the director of the Idaho state police.
(3) "DNA" means deoxyribonucleic acid.
(4) "DNA analysis" means the scientific test of a DNA sample for the purpose of obtaining a DNA profile.
(5) "DNA profile" means the list of one (1) or more genetic types determined for an individual based on variations in DNA sequence.
(6) "DNA record" means DNA information stored in the statewide DNA database system of the bureau of forensic services or CODIS and includes information commonly referred to as a DNA profile.
(7) "DNA sample" means a body fluid or tissue sample provided by any person convicted of a felony crime or any body fluid or tissue sample submitted to the statewide DNA database system for analysis pursuant to a criminal investigation or missing person investigation.
(8) "Forensic laboratory" means the bureau of forensic services of the Idaho state police.
(9) "Law enforcement purpose" means to assist federal, state, or local criminal justice and law enforcement agencies within and outside the state of Idaho in identification or prosecution of felony crimes or other crimes and the identification and location of missing and unidentified persons.
(10) "Serious crime" means, for purposes of this chapter, any felony crime; the attempt to commit any felony crime; any crime that requires sex offender registration pursuant to sections 18-8304 and 18-8410, Idaho Code; misdemeanor domestic violence (18-918, Idaho Code); or sexual battery (18-924, Idaho Code).
(11) "Statewide DNA databank" or "databank" means the state repository of DNA samples collected under this chapter and administered by the Idaho bureau of forensic services.
(12) "Statewide DNA database system" or "database" means the DNA record system administered by the Idaho bureau of forensic services.
[19-5502, added 1997, ch. 120, sec. 1, p. 342; am. 2000, ch. 469, sec. 45, p. 1498; am. 2004, ch. 157, sec. 1, p. 505; am. 2011, ch. 211, sec. 2, p. 593; am. 2026, ch. 40, sec. 3, p. 169.]
The Idaho state police through the bureau of forensic services shall be responsible for the policy management and administration of the state’s database and databank identification program. The bureau of forensic services shall be responsible for liaison with the FBI regarding the state’s participation in the CODIS program.
[19-5503, added 1997, ch. 120, sec. 1, p. 342; am. 2000, ch. 469, sec. 46, p. 1499.]
The Idaho state police, in consultation with the Idaho attorney general’s office, the Idaho department of correction, the Idaho chiefs of police association, the Idaho state sheriff’s association, and the Idaho prosecuting attorney’s association, shall adopt policies, procedures and rules for implementation of this chapter, and ensure that DNA samples are collected from qualifying offenders in a timely manner. The director may designate additional persons and organizations to provide consultation in implementing the provisions of this chapter.
[19-5504, added 1997, ch. 120, sec. 1, p. 343; am. 2000, ch. 469, sec. 47, p. 1499.]
(1) The bureau of forensic services shall perform or contract for DNA analysis for law enforcement purposes.
(2) The bureau of forensic services shall serve as a repository for DNA samples collected and shall analyze samples, or contract for analysis, and shall store, compile, correlate, maintain and use DNA profiles and records related to:
(a) Forensic casework;
(b) Offenders required to provide samples under this chapter;
(c) The identification and location of missing persons; and
(d) Anonymous DNA records used for research or quality control.
(3) A match between evidence DNA samples from a criminal investigation and DNA samples from a state or federal database may be used to sustain probable cause for the arrest of a suspect upon application for a warrant.
(4) The DNA profile may also be used at trial as evidence, provided that the evidence is otherwise admissible at trial. The DNA profile may also be used in developing statistical calculations of populations frequencies.
[19-5505, added 1997, ch. 120, sec. 1, p. 343; am. 1998, ch. 123, sec. 2, p. 456.]
(1) Any person, including any juvenile tried as an adult, who is convicted of, or pleads guilty to, any serious crime, as defined in section 19-5502(10), Idaho Code, shall be required to provide to the Idaho state police a DNA sample and a right thumbprint impression, as set forth in this chapter.
(2) Absent consent or a warrant authorizing DNA collection based on probable cause, no person shall be required to provide a DNA sample unless the person has been convicted of, or pleads guilty to, a serious crime, as defined in section 19-5502(10), Idaho Code.
(3)(a) This chapter’s requirements for submission to tests and procedures for obtaining a DNA sample and thumbprint impression from the persons who are convicted of, or who plead guilty to, any felony crime, the attempt to commit any felony crime or any crime that requires sex offender registration pursuant to sections 18-8304 and 18-8410, Idaho Code, regardless of the form of judgment or withheld judgment, and regardless of the sentence imposed or disposition rendered, are mandatory and apply to those persons convicted of, or who plead guilty to, such felony crimes, prior to the effective date of this chapter, and who, as a result of the conviction or plea, are incarcerated in a county jail facility or a penal facility, are under probation or parole supervision or are required to register as a sex offender pursuant to sections 18-8304 and 18-8410, Idaho Code, after the effective date of this chapter.
(b) This chapter’s requirements for submission to tests and procedures for obtaining a DNA sample and thumbprint impression from the persons who are convicted of, or who plead guilty to, any misdemeanor crime that qualifies as a serious crime, regardless of the form of judgment or withheld judgement, and regardless of the sentence imposed or disposition rendered, are mandatory and shall apply to those persons convicted of, or who plead guilty to, such qualifying misdemeanor serious crimes on or after July 1, 2026.
(4) The collection of samples and impressions specified in this chapter are required, regardless of whether the person previously has supplied a DNA sample to law enforcement agencies in any other jurisdiction. The collection facility is not required to collect a DNA sample if it can be verified that a sample already exists for such person in the Idaho DNA database.
(5) The requirements of this chapter are mandatory and apply, regardless of whether a court advises a person that samples and impressions must be provided to the databank and database as a condition of probation or parole.
(6) Unless the court determines that an order of restitution would be inappropriate or undesirable, it shall order any person subject to the provisions of this section to pay restitution to help offset costs incurred by law enforcement agencies for the expense of DNA analysis.
(7) The court may order such person to pay restitution for DNA analysis in an amount not to exceed five hundred dollars ($500) per DNA sample analysis, or in the aggregate not more than two thousand dollars ($2,000), regardless of whether:
(a) The source of the sample is the person, the victim, or other persons of interest in the case;
(b) Results of the analysis are entered into evidence in the person’s criminal case;
(c) The DNA sample was previously analyzed for another criminal case; or
(d) Restitution for that DNA sample analysis was ordered in any other criminal case.
(8) Law enforcement agencies entitled to restitution under this section include the Idaho state police, county and city law enforcement agencies, the office of the attorney general, county prosecuting attorneys, and city attorneys.
(9) In the case of reimbursement for DNA analysis performed by the Idaho state police, those moneys shall be paid to the Idaho state police and deposited in the law enforcement fund. In the case of reimbursement to the office of the attorney general, those moneys shall be paid to the general fund.
(10) Persons who have been sentenced to death, or life without the possibility of parole, or to any life or indeterminate term are not exempt from the requirements of this chapter.
[19-5506, added 1997, ch. 120, sec. 1, p. 343; am. 2000, ch. 469, sec. 48, p. 1499; am. 2004, ch. 157, sec. 2, p. 506; am. 2005, ch. 327, sec. 1, p. 1018; am. 2011, ch. 211, sec. 3, p. 594; am. 2012, ch. 82, sec. 3, p. 235; am. 2012, ch. 269, sec. 6, p. 757; am. 2014, ch. 263, sec. 1, p. 658; am. 2017, ch. 213, sec. 1, p. 516; am. 2026, ch. 40, sec. 4, p. 170.]
(1) Process for collection. The process for collection of DNA samples and thumbprint impressions from persons subject to the provisions of this chapter shall be as provided in this section.
(2) Order for collection prior to sentencing. Where a person subject to the provisions of this chapter has been convicted of or pleaded guilty to a serious crime but has not yet been sentenced, the prosecuting attorney, attorney general, or Idaho state police may, at the time of conviction or guilty plea or thereafter, apply to the court for an order requiring the person to submit a DNA sample and thumbprint impression prior to sentencing. The court shall order a sample and impression to be taken prior to sentencing upon a showing that early collection is in the best interest of justice. The DNA sample and thumbprint impression shall be collected in accordance with procedures established by the bureau of forensic services. The director may designate a state correctional facility or county jail for such collection.
(3) Order for collection at sentencing. Except as otherwise provided in this section, in every case in which any person, including any juvenile tried as an adult, who has been convicted of or pleaded guilty to a serious crime, the court shall, at the time of sentencing, order the person to submit a DNA sample and thumbprint impression to the bureau of forensic services, and order the collection of such sample and impression as set forth in this section.
(a) Persons to be released following sentencing.
(i) The court shall order any person subject to the provisions of this chapter who is incarcerated at the time of sentencing and who has not previously provided a DNA sample and thumbprint impression to provide such sample and impression at an Idaho state police-designated sample collection location prior to physical release from custody.
(ii) At the time of sentencing, the court shall order any person subject to the provisions of this chapter who is not incarcerated, who has not previously provided a DNA sample and thumbprint impression, and who is granted probation or other supervised or conditional release following sentencing to report before the end of the following business day to provide a DNA sample and thumbprint impression at an Idaho state police-designated sample collection location.
(b) Persons committed to county jails or other local detention facilities at sentencing. At the time of sentencing, the court shall order any person subject to the provisions of this chapter who has not previously submitted a DNA sample and thumbprint impression and who is sentenced to a period of incarceration in a county jail or other local detention facility to provide a DNA sample and thumbprint impression, and the court shall order the chief administrative officer of such jail or facility to cause a DNA sample and thumbprint impression to be collected from the person as soon as possible during the intake process at the facility, or immediately thereafter at another facility designated for such collections, but in all cases, no later than ten (10) days after the person’s arrival at the jail or facility.
(c) Persons committed to the department of correction or department of juvenile corrections at sentencing. At the time of sentencing, the court shall order any person subject to the provisions of this chapter who has not previously submitted a DNA sample and thumbprint impression and who is committed to the custody of the department of correction or department of juvenile corrections to submit a DNA sample and thumbprint impression as directed by the director of the department of correction or department of juvenile corrections, and the court shall order the chief administrative officer at the designated reception center to cause a DNA sample and thumbprint impression to be collected from the person during the intake process at the reception center designated by the director of the department of correction or department of juvenile corrections as soon as possible, but no later than ten (10) days after the person’s arrival at the facility.
(4) Incarcerated persons who have not submitted a DNA sample or thumbprint impression. Any person subject to the provisions of this chapter who is serving a term of imprisonment or confinement in a local, county, or state jail, prison, or other correctional facility and who did not, for any reason, including oversight or error, provide a DNA sample and thumbprint impression to the bureau of forensic services shall provide such sample and impression, and the administrator of the jail, prison, or other correctional facility in which such person is confined shall cause the sample and impression to be collected as soon as practicable, but in any event no later than ten (10) days following notice from the bureau of forensic services that the person has not previously submitted the sample and impression, or prior to final discharge, probation, parole, or release from imprisonment or confinement, whichever is earlier. A person who was convicted of any felony crime, the attempt to commit any felony crime, or any crime that requires sex offender registration pursuant to sections 18-8304 and 18-8410, Idaho Code, prior to the effective date of this chapter is not exempt from these requirements.
(5) Persons on parole following incarceration. Prior to release on parole, any person subject to the provisions of this chapter must have submitted a DNA sample and thumbprint impression to the bureau of forensic services. It shall be a condition of parole that any person subject to the provisions of this chapter who has not, for any reason, including oversight or error, previously provided a DNA sample and thumbprint impression and who is released on parole shall, upon notice by the bureau of forensic services, a law enforcement agency, or an agent of the department of correction, be required to provide a DNA sample and thumbprint impression if such sample and thumbprint impression are not in the possession of the bureau of forensic services. Such person shall be required to have the sample and impression taken within ten (10) working days of such notice at an Idaho state police-designated sample collection location.
(6) Persons returned to state or local correctional facilities, jails, or other detention facilities following supervised or conditional release. Any person subject to the provisions of this chapter who was released on parole, probation, furlough, or other supervised or conditional release, who is returned to a state or local juvenile or adult correctional facility for any reason, and who has not previously provided a DNA sample and thumbprint impression shall provide a sample and impression upon returning to the state or local correctional facility. The chief administrative officer of such facility shall cause the sample and impression to be taken as soon as possible, but no later than ten (10) days following notice from the bureau of forensic services or discovery that the person has not yet provided a sample and impression, or prior to final discharge, parole, or release from imprisonment or confinement, whichever is earlier.
(7)(a) Persons in Idaho pursuant to interstate agreement. When the state accepts an offender from another state under any interstate compact or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceptance is conditional on the offender providing a DNA sample and thumbprint impression if the offender was convicted of or pleaded guilty to an offense that would qualify as a serious crime, as defined in section 19-5502(10), Idaho Code, or if the offender was convicted of an equivalent offense in any other jurisdiction, regardless of the form of judgement or withheld judgement, and regardless of the sentence imposed or disposition rendered.
(b) If the offender from another state is not confined, the offender must provide the sample and impression required by this chapter within ten (10) days after the offender reports to the supervising agent or within ten (10) days of notice to the offender from the bureau of forensic services, any law enforcement agency, or the offender’s supervising agency, whichever occurs first. The offender shall report to an Idaho state police-designated sample collection facility or facilities to have the sample and impression taken.
(c) If the offender from another state is confined in a state, county, or local correctional facility, jail, or other detention facility, the offender shall provide, and the administrative officer of such facility shall cause to be collected, the DNA sample and thumbprint impression as soon as practicable but no later than ten (10) days after the offender is received into such jail or facility, or ten (10) days following notice from the bureau of forensic services that the person has not yet provided a sample and impression, whichever is earlier, and in all cases, before completion of the offender’s term of imprisonment or discharge from that facility, whichever is earlier.
(8) Persons previously convicted of or pleading guilty to a serious crime. Any person, including any juvenile tried as an adult, who was previously convicted of or pleaded guilty to a serious crime, as defined in section 19-5502(10), Idaho Code, whether or not that person is incarcerated, who has not provided a DNA sample and thumbprint impression for any reason, including the person’s release prior to the enactment of this chapter, an oversight or error, or because of the person’s transfer from another jurisdiction, shall provide a DNA sample and thumbprint impression for inclusion in the state’s DNA database and databank within ten (10) working days of such person being notified of this requirement by the Idaho state police, the department of correction, any law enforcement officer, or an officer of the court. The samples and impressions shall be collected in a facility designated by the Idaho state police.
(9) Verification. The collection facility and sex offender registration location shall verify that the individual’s DNA sample has been collected in Idaho. The collection facility shall not be required to collect a DNA sample if it can be verified that a sample already exists for the individual in the Idaho DNA database.
[19-5507, added 2026, ch. 40, sec. 6, p. 171.]
Whenever the bureau of forensic services notifies the department of correction or other responsible agency that a DNA sample or thumbprint impression is not adequate for any reason, the department of correction or other custodial agency shall draw or take additional samples and impressions as necessary to satisfy the requirements of this chapter, and transmit such samples and impressions to the bureau of forensic services.
[19-5508, added 1997, ch. 120, sec. 1, p. 346.]
If a person has been convicted of a crime as provided by this chapter and has given a DNA sample or samples to law enforcement for any purpose, the bureau of forensic services is authorized to analyze such samples for DNA, and include the DNA profiles from such samples in the state’s convicted felon DNA databank and databases. This provision applies whether the DNA sample originally collected was from a sexual or violent offender pursuant to the databank and database program, and whether the crime committed predated the effective date of this chapter, or any amendments thereto. This provision does not relieve a person subject to the terms of this chapter from giving a DNA sample and thumbprint impression for the DNA databank and database.
[19-5509, added 1997, ch. 120, sec. 1, p. 346; am. 1998, ch. 123, sec. 4, p. 458.]
Any person subject to the terms of this chapter who has not provided a DNA sample and thumbprint impression for any reason, including the person’s release prior to the enactment of this chapter, an oversight or error, or because of the person’s transfer from another jurisdiction shall give a DNA sample and thumbprint impression for inclusion in the state’s DNA database and databank within ten (10) working days of such person being notified of this requirement by the Idaho state police, the department of correction or an officer of the court. The samples and impressions shall be collected in a facility designated by the Idaho state police.
[19-5510, added 1997, ch. 120, sec. 1, p. 347; am. 2000, ch. 469, sec. 50, p. 1503.]
(1) The director of the department of correction or the chief administrative officer of the detention facility, jail, other facility at which the DNA sample and thumbprint impression were collected shall forward the samples and impressions to the bureau of forensic services according to requirements set forth in the bureau of forensic services rules.
(2) The bureau of forensic services shall provide all specimen collection materials, thumbprint cards, mailing tubes, envelopes, labels and instructions for the collection of the samples and thumbprint impressions. The DNA samples and thumbprint impressions shall thereafter be forwarded to the bureau of forensic services for analysis of DNA.
(3) The bureau of forensic services shall adopt rules specifying how DNA samples are to be taken. The right thumbprint impression shall be taken on a form prescribed by the Idaho state police.
(4) No person or governmental agency shall be subject to civil or criminal liability for obtaining DNA samples or obtaining thumbprint impressions absent a showing of reckless disregard for medically accepted practices or a showing of malice.
(5) Duly authorized law enforcement and correction personnel shall employ reasonable force in cases where an individual who is incarcerated refuses or resists submission to procedures for collecting a DNA sample or thumbprint impression authorized by this chapter, and no employee shall be subject to criminal or civil liability for the reasonable use of force absent a showing of malice.
[19-5511, added 1997, ch. 120, sec. 1, p. 347; am. 1998, ch. 123, sec. 5, p. 459; am. 2000, ch. 469, sec. 51, p. 1503.]
Any person subject to the terms of this chapter who fails to give a DNA sample or thumbprint impression, after a request by the bureau of forensic services, the department of correction, any law enforcement personnel, or any officer of the court, is guilty of a felony. The samples and impressions required by this chapter may be taken by the use of reasonable force once a person is imprisoned for failure to give the required sample.
[19-5512, added 1997, ch. 120, sec. 1, p. 347.]
(1) A person whose DNA profile has been included in the database and databank pursuant to this chapter may make a written request for expungement of materials from the database and databank on the grounds that the conviction upon which the authority for including the DNA profile was based has been reversed and the case dismissed.
(2) The person requesting expungement must send a copy of his request, with proof of service on all parties to the following: the trial court which entered the conviction or rendered disposition in the case; the bureau of forensic services; and the prosecuting attorney of the county in which he was convicted. The court has the discretion to grant or deny the request for expungement. A trial court’s denial of a request for expungement is an order not subject to appeal.
(3) Except as provided below, the Idaho state police shall expunge the DNA sample and all identifiable information in the database and databank relating to the subject of the conviction upon receipt of a court order which verifies that the applicant has made the necessary showing at a noticed hearing, and which includes the following documents:
(a) Written request for expungement pursuant to this section;
(b) A certified copy of the court order reversing and dismissing the conviction;
(c) Proof of written notice to the prosecuting attorney and the bureau of forensic services that such expungement is being sought; and
(d) A court order finding that no retrial or appeal of the case is pending and verifying that at least sixty (60) days have passed since the defendant has notified the prosecuting attorney and the bureau of forensic services of the expungement request and that the court finds no reason, based on the interests of justice, to deny expungement.
(4) Upon order of the court, the Idaho state police shall destroy the DNA sample relating to the subject of conviction, unless the state police determines that the person has otherwise become obligated to submit to DNA sample and thumbprint impression as a result of a separate conviction subject to the terms of this chapter.
(5) The bureau of forensic services is not required to destroy an item of physical evidence obtained from the DNA sample if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed. Notwithstanding this subsection, no sample, physical evidence or identifiable information is affected by an order to set aside a conviction.
[19-5513, added 1997, ch. 120, sec. 1, p. 348; am. 2000, ch. 469, sec. 52, p. 1503.]
(1) All DNA profiles retained by the bureau of forensic services pursuant to this chapter shall be treated as confidential as provided by chapter 1, title 74, Idaho Code.
(2) The DNA information shall be filed with the offender’s file maintained by the Idaho state police.
(3) The DNA information shall not be included in the state summary criminal history information.
(4) The DNA information, and thumbprint impressions, shall be released only to law enforcement agencies, including, but not limited to, parole officers of the department of correction, hearing officers of the parole authority, and prosecuting attorneys’ offices, at the request of the agency, except as specified in this chapter. Dissemination of this information to law enforcement agencies and prosecuting attorneys’ offices outside the state shall be done in conformity with the provisions of this chapter.
(5) Any person who, by virtue of employment or official position, or any person contracting to carry out any function under this chapter, including any officers, employees and agents of such contractor who has possession of or access to individual identifiable DNA information contained in the state DNA database or databank and who willfully discloses such information in any manner to any person or agency not entitled to receive it is guilty of a misdemeanor.
(6) Furnishing DNA information or thumbprint comparison results to defense counsel for criminal defense purposes in compliance with discovery is not a violation of this section.
(7) It is not a violation of this section to disseminate statistical or research information obtained from the offender’s file, the computerized databank system, or any of the bureau of forensic services’ databases provided that the subject of the file is not identified and cannot be identified from the information disclosed. It is also not a violation of this section to include information obtained from a file in a transcript or record of a judicial proceeding or in any other public record when the inclusion of the information in the public record is authorized by a court, statute or case law.
[19-5514, added 1997, ch. 120, sec. 1, p. 348; am. 1998, ch. 123, sec. 6, p. 459; am. 2000, ch. 469, sec. 53, p. 1504; am. 2015, ch. 141, sec. 20, p. 402.]
(1) Nothing in this chapter shall prohibit the sharing or disseminating of population database information with the following:
(a) Federal, state or local law enforcement agencies;
(b) Forensic laboratories that serve federal, state and local law enforcement agencies approved by the bureau of forensic services;
(c) A state’s attorney general’s office;
(d) A prosecuting attorney’s office; or
(e) Any third party that the chief of the bureau of forensic services deems necessary to assist the bureau of forensic services with statistical analyses of the population database or to assist in the recovery or identification of missing persons.
(2) Nothing in this chapter shall prohibit the sharing or dissemination of protocol and forensic DNA methods and quality control procedures with any of the parties identified in subsection (1) of this section.
(3) The state’s DNA population database and databank may be made available to and searched by the FBI and any agency participating in CODIS.
(4) The bureau of forensic services may provide samples from the DNA samples collected pursuant to this chapter to public DNA laboratories for law enforcement purposes provided that the privacy provisions of this section are followed and each of the following conditions are met:
(a) The methodologies and procedures used by the public DNA laboratory for analysis are approved by the bureau of forensic services;
(b) Only tests of value to law enforcement for identification purposes are performed and a copy of the results of the analysis are sent to the bureau of forensic services;
(c) All provisions concerning privacy and security enumerated in this section are followed.
[19-5515, added 1997, ch. 120, sec. 1, p. 349.]
The bureau of forensic services is authorized to have unused portions of samples or expired samples disposed of in the normal course of business and in an environmentally approved manner as long as such disposal method is designed to protect the identity and origin of samples from disclosure to third persons who are not part of law enforcement.
[19-5516, added 1997, ch. 120, sec. 1, p. 350.]
Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store and use DNA information or thumbprint impressions for law enforcement purposes.
[19-5517, added 1997, ch. 120, sec. 1, p. 350; am. 1998, ch. 123, sec. 7, p. 460.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.
[19-5518, added 1997, ch. 120, sec. 1, p. 350.]
This chapter shall be known and may be cited as the "Idaho Drug Court and Mental Health Court Act."
[19-5601, added 2001, ch. 337, sec. 1, p. 1197; am. 2005, ch. 358, sec. 2, p. 1130.]
The legislature finds that:
(1) Substance abuse is a contributing cause for much of the crime in Idaho, costs millions of dollars in productivity, contributes to the ever increasing jail and prison populations and adversely impacts Idaho children;
(2) Drug courts which closely supervise, monitor, test and treat substance abusers have proven effective in certain judicial districts in Idaho and in other states in reducing the incidence of drug use, drug addiction, and crimes committed as a result of drug use and drug addiction. Successful drug courts are based on partnerships among the courts, law enforcement, corrections and social welfare agencies;
(3) Mental illness is a substantial contributing cause to crime in Idaho. Crimes committed by persons suffering from mental illness cause substantial losses to persons and business throughout the state and endanger public safety. In addition, millions of dollars are spent each year on the incarceration, supervision and treatment of mentally ill offenders;
(4) Mental health courts in Idaho and other jurisdictions that closely supervise and monitor mentally ill adult and juvenile offenders and oversee their treatment are an innovative alternative to incarceration for certain offenders. Such courts, which can be operated in conjunction with drug courts, have provided a cost-effective approach to addressing the mental health needs of offenders, reducing recidivism, providing community protection, easing the caseload of the courts, and alleviating the problem of increasing prison, jail and detention populations; and
(5) It is in the best interests of the citizens of this state to expand the use of drug courts and mental health courts in Idaho.
The goals of the drug courts and mental health courts created by this chapter are to reduce the overcrowding of jails and prisons, to reduce alcohol and drug abuse and dependency among criminal and juvenile offenders, to hold offenders accountable, to reduce recidivism, and to promote effective interaction and use of resources among the courts, justice system personnel and community agencies.
[19-5602, added 2001, ch. 337, sec. 1, p. 1197; am. 2005, ch. 358, sec. 3, p. 1130.]
The district court in each county may establish a drug court which shall include a regimen of graduated sanctions and rewards, substance abuse treatment, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as may be established by the district court, in accordance with standards developed by the Idaho supreme court drug court and mental health court coordinating committee.
[19-5603, added 2001, ch. 337, sec. 1, p. 1197; am. 2005, ch. 358, sec. 4, p. 1131.]
(1) No person has a right to be admitted into drug court. The drug court in each county shall determine the eligibility of persons who may be admitted into drug court except that each candidate, prior to being admitted, must undergo: (a) a substance abuse assessment; and (b) a criminogenic risk assessment.
(2) No person shall be eligible to participate in drug court if any of the following apply:
(a) The person is currently charged with, has pled or has been adjudicated or found guilty of, a felony crime of violence or a felony crime in which the person used either a firearm or a deadly weapon or instrument.
(b) The person is currently charged with, or has pled or been found guilty of, a felony in which the person committed, attempted to commit, conspired to commit, or intended to commit a sex offense.
(3) A drug court may, after consultation with the drug court team and with the consent of the prosecuting attorney, allow a person to participate in drug court who would otherwise be ineligible only because of the provisions of subsection (2)(a) of this section.
[19-5604, added 2001, ch. 337, sec. 1, p. 1197; am. 2011, ch. 186, sec. 1, p. 536.]
The district court of each county which has implemented a drug court program shall annually evaluate the program’s effectiveness and provide a report to the supreme court as requested. A report evaluating the effectiveness of drug courts in the state shall be submitted to the governor and to the legislature by the first day of the legislative session each year.
[19-5605, added 2001, ch. 337, sec. 1, p. 1197.]
The supreme court shall establish a drug court and mental health court coordinating committee consisting of judges, court administrators, drug court coordinators, mental health court coordinators, prosecuting attorneys, public defenders, state and county probation officers, treatment providers, representatives of the department of correction, the department of education, the commission of pardons and parole, the department of health and welfare, the department of juvenile corrections, the Idaho state police, the Idaho transportation department, legislators, a representative of the governor’s office, law enforcement officers, mental health professionals, and others, which shall establish a drug court and mental health court implementation plan and oversee ongoing drug court and mental health court programs. The implementation plan shall include a strategy to forge partnerships among drug courts, mental health courts, public agencies, and community-based organizations to enhance drug court and mental health court effectiveness. The committee shall also develop guidelines for drug courts and mental health courts addressing eligibility, identification and screening, assessment, treatment and treatment providers, case management and supervision, and evaluation. The coordinating committee shall also solicit specific drug court and mental health court plans, and recommend funding priorities and decisions per judicial district; pursue all available alternate funding; provide technical assistance, develop procedural manuals, and schedule training opportunities for the drug court and mental health court teams; design an evaluation strategy, including participation in the statewide substance abuse evaluation plan; and design an automated drug court and mental health court management information system, which promotes information sharing with other entities.
[19-5606, added 2001, ch. 337, sec. 1, p. 1198; am. 2005, ch. 358, sec. 5, p. 1131.]
Subject to the appropriation power of the legislature, the supreme court shall be responsible for administering, allocating and apportioning all appropriations from the legislature for drug courts and mental health courts.
[19-5607, added 2001, ch. 337, sec. 1, p. 1198; am. 2005, ch. 358, sec. 6, p. 1132.]
Each person admitted into a drug court or mental health court shall pay the drug court and mental health court fee as established in section 31-3201E, Idaho Code.
[19-5608, added 2004, ch. 249, sec. 2, p. 715; am. 2005, ch. 358, sec. 7, p. 1132.]
(1) The district court in each county may establish a mental health court which shall include a regimen of graduated sanctions and rewards, mental health and other appropriate treatment, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, eligibility standards and other requirements as may be established by the district court, in accordance with standards developed by the Idaho supreme court drug court and mental health court coordinating committee. No person has a right to be admitted into a mental health court. A mental health court may be operated in conjunction with a drug court.
(2) The district court of each county that has implemented a mental health court shall annually evaluate the mental health court’s effectiveness and provide a report to the supreme court as requested. If the mental health court is operated in conjunction with a drug court, a single report may be submitted for the drug court and mental health court. A report evaluating the effectiveness of mental health courts in the state shall be submitted to the governor and to the legislature by the first day of the legislative session each year.
[19-5609, added 2005, ch. 358, sec. 8, p. 1132.]
Any licensee licensed under chapter 34, title 54, Idaho Code, who is in good standing with the Idaho state licensing board of professional counselors and marriage and family therapists shall be eligible to provide professional counseling services to an adult receiving service through a drug court or mental health court established pursuant to this chapter. No licensee shall be automatically disqualified from providing professional counseling services because of a prior criminal conviction. For purposes of this section, the relevancy of a licensee’s prior criminal conviction shall be evaluated pursuant to section 67-9411, Idaho Code.
[19-5610, added 2023, ch. 48, sec. 1, p. 195.]
The legislature finds that persons attempting to escape from actual or threatened domestic violence, sexual assault, stalking, human trafficking or malicious harassment frequently establish new addresses in order to prevent their assailants or probable assailants from finding them. The purpose of this chapter is to enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic violence, sexual assault, malicious harassment, human trafficking or stalking, to enable interagency cooperation with the secretary of state in providing address confidentiality for victims of domestic violence, sexual assault, malicious harassment, human trafficking or stalking, and to enable state and local agencies to accept a program participant’s use of an address designated by the secretary of state as a substitute mailing address.
[19-5701, added 2008, ch. 232, sec. 1, p. 703; am. 2018, ch. 112, sec. 1, p. 227.]
Unless the context clearly requires otherwise, for purposes of this chapter, the following terms have the following meanings:
(1) "Address" means a residential street address of an individual as specified on the individual’s application to be a program participant under this chapter.
(2) "Domestic violence" means an act pursuant to section 18-918, Idaho Code.
(3) "Human trafficking" means an act pursuant to chapter 86, title 18, Idaho Code.
(4) "Malicious harassment" means an act pursuant to section 18-7902, Idaho Code.
(5) "Program participant" means a person certified as a program participant pursuant to section 19-5703, Idaho Code.
(6) "Sexual assault" means an act pursuant to section 18-1506, 18-1508, 18-1508A or 18-6101, Idaho Code.
(7) "Stalking" means an act pursuant to section 18-7905 or 18-7906, Idaho Code.
[19-5702, added 2008, ch. 232, sec. 1, p. 704; am. 2018, ch. 112, sec. 2, p. 227; am. 2024, ch. 147, sec. 49, p. 585.]
(1) An adult person, a parent or a guardian acting on behalf of a minor, or a guardian appointed pursuant to section 15-5-304, Idaho Code, acting on behalf of an incapacitated person, may apply to the secretary of state to have an address designated by the secretary of state serve as the person’s address or the address of the minor or incapacitated person. The secretary of state shall approve an application if it is filed in the manner and on the form prescribed by the secretary of state and if it contains:
(a) A sworn statement by the applicant that the applicant has good reason to believe:
(i) That the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, stalking, rape or malicious harassment, or any other crime listed in section 19-5701, Idaho Code; and
(ii) That the applicant fears for his or her safety or his or her children’s safety, or the safety of the minor or incapacitated person on whose behalf the application is made;
(b) A designation of the secretary of state as agent for purposes of service of process and for the purpose of receipt of mail;
(c) The mailing address where the applicant can be contacted by the secretary of state, and the telephone number or numbers where the applicant can be called by the secretary of state; and
(d) The address or addresses that the applicant requests not be disclosed.
(2) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, sexual assault or human trafficking, the application must be accompanied by evidence including, but not limited to, any of the following:
(a) Police, court, or other government agency records or files;
(b) Documentation from a domestic violence or sexual assault program or facility if the person is alleged to be a victim of domestic violence, sexual assault or human trafficking;
(c) Documentation from a legal, clerical, medical or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged domestic violence, sexual assault or human trafficking; and
(d) A certified copy of a no contact order or a temporary or permanent civil protection order.
(3) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of stalking or malicious harassment, the application must be accompanied by evidence including, but not limited to, any of the following:
(a) Police, court or other government agency records or files;
(b) Documentation from a legal, clerical, medical or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged stalking or malicious harassment; and
(c) A certified copy of a no contact order or a temporary or permanent civil protection order.
(4) Applications shall be filed with the office of the secretary of state.
(5) Upon filing a properly completed application, the secretary of state shall certify the applicant as a program participant. Applicants shall be certified for four (4) years following the date of filing unless the certification is withdrawn or invalidated before that date. The application may be renewed at the end of four (4) years.
(6) A person who falsely attests in an application that disclosure of the applicant’s address would endanger the applicant’s safety or the safety of the applicant’s children, or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application, shall be punishable under section 18-5414, Idaho Code, or other applicable statutes.
Address confidentiality program — Application — Certification. [effective January 1, 2027]
(1) An adult person, a parent or a guardian acting on behalf of a minor, or a guardian appointed pursuant to section 15-5-309, Idaho Code, acting on behalf of an incapacitated person, may apply to the secretary of state to have an address designated by the secretary of state serve as the person’s address or the address of the minor or incapacitated person. The secretary of state shall approve an application if it is filed in the manner and on the form prescribed by the secretary of state and if it contains:
(a) A sworn statement by the applicant that the applicant has good reason to believe:
(i) That the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, stalking, rape or malicious harassment, or any other crime listed in section 19-5701, Idaho Code; and
(ii) That the applicant fears for his or her safety or his or her children’s safety, or the safety of the minor or incapacitated person on whose behalf the application is made;
(b) A designation of the secretary of state as agent for purposes of service of process and for the purpose of receipt of mail;
(c) The mailing address where the applicant can be contacted by the secretary of state, and the telephone number or numbers where the applicant can be called by the secretary of state; and
(d) The address or addresses that the applicant requests not be disclosed.
(2) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, sexual assault or human trafficking, the application must be accompanied by evidence including, but not limited to, any of the following:
(a) Police, court, or other government agency records or files;
(b) Documentation from a domestic violence or sexual assault program or facility if the person is alleged to be a victim of domestic violence, sexual assault or human trafficking;
(c) Documentation from a legal, clerical, medical or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged domestic violence, sexual assault or human trafficking; and
(d) A certified copy of a no contact order or a temporary or permanent civil protection order.
(3) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of stalking or malicious harassment, the application must be accompanied by evidence including, but not limited to, any of the following:
(a) Police, court or other government agency records or files;
(b) Documentation from a legal, clerical, medical or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged stalking or malicious harassment; and
(c) A certified copy of a no contact order or a temporary or permanent civil protection order.
(4) Applications shall be filed with the office of the secretary of state.
(5) Upon filing a properly completed application, the secretary of state shall certify the applicant as a program participant. Applicants shall be certified for four (4) years following the date of filing unless the certification is withdrawn or invalidated before that date. The application may be renewed at the end of four (4) years.
(6) A person who falsely attests in an application that disclosure of the applicant’s address would endanger the applicant’s safety or the safety of the applicant’s children, or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application, shall be punishable under section 18-5414, Idaho Code, or other applicable statutes.
[19-5703, added 2008, ch. 232, sec. 1, p. 704; am. 2018, ch. 112, sec. 3, p. 228; am. 2026, ch. 79, sec. 21, p. 413.]
(1) The secretary of state may cancel a program participant’s certification if there is a change in the name or residential address from that listed on the application, unless the program participant provides the secretary of state with seven (7) days’ prior notice of the change of name or address.
(2) The secretary of state may cancel certification of a program participant if mail forwarded by the secretary to the program participant’s address is returned as nondeliverable.
(3) The secretary of state may cancel certification of a program participant who applies using false information.
[19-5704, added 2008, ch. 232, sec. 1, p. 705.]
(1) A program participant may request that state and local agencies use the address designated by the secretary of state as his or her address. When creating a new public record, state and local agencies shall accept the address designated by the secretary of state as a program participant’s substitute address, unless the agency shows that:
(a) The agency has a bona fide statutory or administrative requirement for the use of a program participant’s address which would otherwise be confidential under this chapter;
(b) The program participant’s address will be used only for those statutory and administrative purposes; and
(c) The agency takes reasonable precautions to protect the confidentiality of the program participant.
(2) A program participant may use the address designated by the secretary of state as his or her work address.
(3) The office of the secretary of state shall forward all first class priority and other mail as deemed necessary by the secretary of state to the appropriate program participant.
[19-5705, added 2008, ch. 232, sec. 1, p. 705; am. 2018, ch. 112, sec. 4, p. 229.]
Notwithstanding any other provision of state law, the secretary of state shall not make any records in a program participant’s file available for inspection or copying, other than the address designated by the secretary of state, except under the following circumstances:
(1) If requested by a law enforcement agency, to the law enforcement agency; or
(2) If directed by a court order, to a person identified in the order.
[19-5706, added 2008, ch. 232, sec. 1, p. 705.]
Neither a governmental entity nor its employees, while acting within the course and scope of their employment and without malice or criminal intent, shall be liable under the Idaho tort claims act, chapter 9, title 6, Idaho Code, for any injury resulting from the release of confidential information under this act.
[19-5707, added 2008, ch. 232, sec. 1, p. 705.]
The secretary of state may adopt rules to facilitate the administration of this chapter by state and local agencies.
[19-5708, added 2008, ch. 232, sec. 1, p. 705.]
As used in this chapter:
(1) "Alternative Idaho mailing address" means the address of a law enforcement officer’s employing entity.
(2) "Application" means a written form prescribed and made available by the Idaho peace officer standards and training council. Such application shall contain, at minimum, all of the following:
(a) A sworn statement by the law enforcement officer’s employing entity that the applicant is in fact a law enforcement officer as defined in subsection (6) of this section;
(b) A sworn statement by the law enforcement officer that names such officer’s residing household member(s), if any, as defined in subsection (11) of this section;
(c) The alternative Idaho mailing address as defined in subsection (1) of this section, and the telephone number or numbers where the law enforcement officer and such officer’s residing household member(s) can be contacted by the public agency; and
(d) A sworn statement by the law enforcement officer that such officer knowingly and voluntarily designates his or her employing entity as agent for purposes of service of process and receipt of first class, certified or registered mail.
(3) "County detention officer" means an employee in a county jail who is responsible for the safety, care, protection and monitoring of county jail inmates.
(4) "Custodian" as defined in section 74-101, Idaho Code.
(5) "Federal officer" means a special agent or law enforcement officer who is a resident of this state employed by a federal agency and who is empowered to effect an arrest with or without a warrant for violations of the United States Code and who is authorized to carry firearms in the performance of duty.
(6) "Law enforcement officer" means any current federal officer, peace officer, parole officer, probation officer, correctional officer, county detention officer and any person who prosecutes criminal cases. The term "law enforcement officer" shall not include a person who holds an elected office.
(7) "Parole officer" means an employee of the Idaho department of correction who is charged with or whose duties include supervision of parolees.
(8) "Peace officer" means any employee of a police or law enforcement agency which is a part of or administered by the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic or highway laws of this state or any political subdivision. "Peace officer" also means an employee of a police or law enforcement agency of a federally recognized Indian tribe who has satisfactorily completed the peace officer standards and training academy and has been deputized by a sheriff of a county or a chief of police of a city of the state of Idaho.
(9) "Probation officer" means an employee of the Idaho department of correction or of the Idaho department of juvenile corrections who is charged with or whose duties include supervision of probationers.
(10) "Public agency" as is defined in section 74-101, Idaho Code.
(11) "Residing household member(s)" means a law enforcement officer’s spouse and any child or children who currently reside at the same residential street address as such officer.
[19-5801, added 2010, ch. 225, sec. 2, p. 504; am. 2015, ch. 141, sec. 21, p. 402; am. 2017, ch. 192, sec. 11, p. 456.]
Notwithstanding any other provision of state law, a public agency shall not disclose to any person or entity the Idaho residential street address and telephone number of a law enforcement officer and such officer’s residing household member(s) upon submission of an application and fee consistent with the provisions of section 19-5803, Idaho Code, except under any of the following circumstances:
(1) If directed by a court order, to a person identified in the court order;
(2) If requested by a law enforcement agency, to the law enforcement agency;
(3) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or
(4) If the law enforcement officer provides written permission for disclosure of such information.
[19-5802, added 2010, ch. 225, sec. 2, p. 505.]
(1) Law enforcement officers desiring that their Idaho residential street address and telephone number, and the Idaho residential street address and telephone number of their residing household member(s) be exempt from disclosure pursuant to this chapter and section 74-106(30), Idaho Code, may submit an application and a fee, if any, to the custodian of the public record that contains such information. Upon receipt of an application and fee, the public agency shall comply with the provisions of this chapter for a period of four (4) years. Thereafter, law enforcement officers may renew the exemption by submitting a new application and fee, if any. The public agency may establish a fee schedule not to exceed the actual cost to the agency of complying with the provisions of this chapter.
(2) Law enforcement officers may submit an application to a public agency requesting that the public agency use an alternative Idaho mailing address rather than the Idaho residential street address of any such officer and of any such officer’s residing household member(s) on all applications and on all identification cards, licenses, certificates, permits, tags and other similar documents that are issued to the officer or to such officer’s residing household member(s) by the public agency. A public agency receiving such application shall comply with the request.
(3) A person shall cease to be eligible for an exemption under this chapter if such person ceases to be a law enforcement officer or a residing household member(s). Within thirty (30) days of such cessation, the person shall notify, in writing, every public agency to which the person has made an application stating that he or she is no longer eligible for such exemption. If a law enforcement officer changes employment but is still eligible for an exemption under this chapter, such law enforcement officer shall, within thirty (30) days of changing employment, submit a new application to every public agency to which such officer has made an application.
(4) Nothing in this chapter shall prevent a public agency from obtaining the residential street address and telephone number of a law enforcement officer and of any residing household member(s). A law enforcement officer who has submitted an application pursuant to the provisions of this chapter shall provide his or her current Idaho residential street address to his or her employing entity.
[19-5803, added 2010, ch. 225, sec. 2, p. 506; am. 2011, ch. 151, sec. 9, p. 422; am. 2015, ch. 141, sec. 22, p. 403.]
Neither a public agency nor its employees, while acting within the course and scope of their employment and without malice or criminal intent, shall be liable under the Idaho tort claims act, chapter 9, title 6, Idaho Code, for any injury resulting from the release of confidential information under this chapter.
[19-5804, added 2010, ch. 225, sec. 2, p. 506.]
This chapter shall be known and may be cited as the "State Appellate Public Defender Act."
[19-5901, added 2021, ch. 164, sec. 2, p. 466.]
The legislature recognizes that the cost of legal representation of indigent defendants upon the appeal of their criminal convictions, particularly convictions for first-degree murder, is an extraordinary burden on the counties of this state. In order to reduce this burden and provide competent counsel, but avoid paying high hourly rates to independent counsel to represent indigent defendants in appellate proceedings, the legislature finds it necessary to create the office of the state appellate public defender.
[19-5902, added 2021, ch. 164, sec. 2, p. 466.]
The office of the state appellate public defender is hereby created in the department of self-governing agencies.
[19-5903, added 2021, ch. 164, sec. 2, p. 466; am. 2023, ch. 220, sec. 18, p. 675.]
(1) The state appellate public defender shall be appointed by the governor, with the advice and consent of the senate, to serve a four (4) year term and may be reappointed to subsequent terms in the same manner.
(2) The state appellate public defender must meet the following qualifications on the effective date of his appointment:
(a) Be at least thirty (30) years of age;
(b) Be a citizen of the United States;
(c) Have held a license to practice law or a judicial office in one (1) or more jurisdictions of the United States for at least five (5) continuous years immediately preceding such appointment;
(d) Be or become an active member of the Idaho state bar within one (1) year of appointment and remain an active member in good standing thereafter; and
(e) Have at least five (5) years of criminal defense or appellate experience, or a combination thereof.
(3) The state appellate public defender shall not:
(a) Engage in the practice of law outside his role in the office of the state appellate public defender, except for the practice of law that is permitted for a judge by the Idaho code of judicial conduct;
(b) Hold or be a candidate for any federal, state, county, municipal, judicial, district, or other elective office; provided, however, this section shall not be interpreted to prohibit the state appellate public defender from seeking appointment to another office, including state or federal judicial office;
(c) Serve as the agent, representative, officer, political treasurer, or employee, for profit or otherwise, of any political party, political committee, or candidate, as such terms are defined in chapter 66, title 67, Idaho Code; or
(d) Hold any other public or private sector position, for profit or otherwise, except for volunteer positions that are not inconsistent with the duties of the state appellate public defender.
(4) The state appellate public defender may be removed from office by the governor for failing to retain the qualifications of his office established in subsection (2) of this section, for engaging in prohibited conduct set forth in subsection (3) of this section, or for good cause shown. If the state appellate public defender is removed from office, the governor shall provide the house of representatives and the senate written notice of the removal, the effective date of removal, and the reason or reasons therefor.
(5) If the state appellate public defender resigns, dies, or is removed from office as provided by law, the governor shall appoint a person who meets the qualifications established in this section, subject to the advice and consent of the senate, to fill the remainder of the unexpired term.
(6) The state appellate public defender shall be compensated in an amount determined by the governor.
[19-5904, added 2023, ch. 220, sec. 20, p. 675.]
(1) Consistent with the state of Idaho’s obligation to provide indigent public defense pursuant to the sixth amendment to the constitution of the United States, section 13, article I of the constitution of the state of Idaho, and the provisions of this chapter, the state appellate public defender, upon appointment by the court, shall provide representation for indigent defendants in the following cases:
(a) Appeals from convictions or post-judgment orders in district court;
(b) Interlocutory criminal appeals from district court;
(c) Appeals from the district court of misdemeanor cases;
(d) Appeals from the district court of orders or final judgments affecting a juvenile offender under the juvenile corrections act, chapter 5, title 20, Idaho Code;
(e) Appeals from the district court in post-conviction relief proceedings brought pursuant to the uniform post-conviction procedure act, chapter 49, title 19, Idaho Code;
(f) Appeals from the district court in habeas corpus proceedings brought pursuant to chapter 42, title 19, Idaho Code; and
(g) Post-conviction relief proceedings in district court in capital cases.
(2) The state appellate public defender may employ deputy state appellate public defenders and other employees necessary to carry out the responsibilities of the office. A deputy state appellate public defender must be licensed to practice law in the state of Idaho and possess any other qualifications required by the state appellate public defender. The state appellate public defender shall fix the compensation of all employees of the office and they shall serve at his pleasure.
(3) The state appellate public defender, deputy state appellate public defenders, and all employees of the office of the state appellate public defender shall be nonclassified employees pursuant to section 67-5303, Idaho Code.
(4) The state appellate public defender, in his discretion, may contract with private attorneys to provide representation on a case-by-case basis when such contracts would conserve budgetary resources.
(5) The state appellate public defender shall have any and all other powers and duties necessary to carry out the purposes of this chapter.
[19-5905, added 2021, ch. 164, sec. 2, p. 466; am. 2023, ch. 220, sec. 21, p. 676; am. 2024, ch. 270, sec. 2, p. 937.]
Should the state appellate public defender be unable to carry out the duties required in this chapter because of a conflict of interest or any other reason, the state appellate public defender shall arrange for counsel for indigent defendants to be compensated out of the budget of the state appellate public defender.
[19-5906, added 2021, ch. 164, sec. 2, p. 467.]
The state appellate public defender shall make an annual report to the state board of examiners, the supreme court, the legislature, and all counties for which the office has provided services concerning the cases handled by the office during the preceding year.
[19-5907, added 2021, ch. 164, sec. 2, p. 467.]
(1) The establishment of a capital crimes defense fund by the counties of the state for purposes of funding the costs of criminal defense in cases where the penalty of death is a legal possibility is hereby authorized. The fund shall be organized and operated in accordance with a joint powers agreement, as authorized by chapter 23, title 67, Idaho Code, executed by the participating counties. Membership in the fund shall be voluntary, as determined by resolution of the board of county commissioners of the respective counties of the state.
(2) The fund may be comprised of contributions from participating counties and any court fees or other funds designated or appropriated for deposit in the fund by the legislature.
(3) The fund shall be operated and administered by a board of representatives to be selected as provided in the joint powers agreement. If moneys are appropriated to the fund by the legislature, the governor shall appoint a representative of the executive branch of state government to serve as a voting member of the governing board, and if court fees are designated for deposit in the fund, the Idaho supreme court shall appoint a representative of the judicial branch of state government to serve as a voting member of the board.
(4) The governing board of the fund shall have full authority to employ personnel and contract for personal and professional services as necessary and may take all other steps necessary or proper to determine the manner in which the fund shall be utilized to assist participating counties in meeting defense costs associated with representation of indigent defendants charged with crimes for which the penalty of death is a legal possibility.
(5) Beginning October 1, 2022, the state appellate public defender assumes all responsibility for providing representation for indigent defendants in the cases described in section 19-5905, Idaho Code; provided, however, that all counties participating in the capital crimes defense fund on January 1, 2022, shall be required to continue participation until October 1, 2024. At an appropriate time after October 1, 2024, participating counties are authorized to dissolve the fund.
[(19-5908) 19-863A, added 1998, ch. 389, sec. 1, p. 1190; am. 2021, ch. 164, sec. 3, p. 467; am. 2022, ch. 318, sec. 57, p. 1030; am. and redesig. 2023, ch. 220, sec. 22, p. 677.]
This chapter shall be known and may be cited as the "State Public Defender Act."
[19-6001, added 2023, ch. 220, sec. 1, p. 661.]
As used in this chapter:
(1) "Defending attorney" means any attorney employed by an indigent defense provider or otherwise under contract to represent adults or juveniles at public expense, consistent with the provisions of this chapter.
(2) "Detain" means to have in custody or otherwise deprive of freedom of action.
(3) "Expenses," when used with reference to representation pursuant to this chapter, includes the expenses of investigation, experts, testing, and other pretrial preparation, trials, post-verdict motions, and post-conviction relief proceedings brought pursuant to the uniform post-conviction procedure act, chapter 49, title 19, Idaho Code.
(4) "Indigent defense provider" means the office of the state public defender or any agency, entity, organization, or person selected by the office for the direct provision of indigent defense services as a means to provide for the representation of indigent persons and other individuals who are entitled to be represented by an attorney at public expense.
(5) "Indigent person" means a person who, at the time his need is determined pursuant to section 19-6009, Idaho Code, is unable to provide for the full payment of an attorney and all other necessary expenses of representation.
(6) "Serious crime" means any offense for which the penalty includes the possibility of confinement, incarceration, imprisonment, or detention in a correctional facility, regardless of whether actually imposed.
[19-6002, added 2023, ch. 220, sec. 1, p. 661.]
The office of the state public defender is hereby created in the department of self-governing agencies.
[19-6003, added 2023, ch. 220, sec. 1, p. 662.]
(1) The state public defender shall reside in the office of the state public defender and shall be appointed by the governor, in a manner consistent with subsection (6) of this section, to serve a four (4) year term.
(2) The state public defender must meet the following qualifications on the effective date of appointment:
(a) Be at least thirty (30) years of age;
(b) Be a citizen of the United States;
(c) Have held a license to practice law or a judicial office in one (1) or more jurisdictions of the United States for at least five (5) continuous years immediately preceding the appointment;
(d) Be or become an active member of the Idaho state bar within one (1) year of appointment and remain an active member in good standing thereafter; and
(e) Have at least five (5) years of criminal defense experience.
(3) The state public defender shall not:
(a) Engage in the practice of law outside his role in the office of the state public defender, except for the practice of law that is permitted for a judge by the Idaho code of judicial conduct;
(b) Hold or be a candidate for any federal, state, county, municipal, judicial, district, or other elective office; provided, however, this paragraph does not prohibit the state public defender from seeking appointment to another office, including state or federal judicial office;
(c) Serve as the agent, representative, officer, political treasurer, or employee, whether for profit or otherwise, of any political party, political committee, or candidate, as such terms are defined in chapter 1, title 34, Idaho Code, and chapter 66, title 67, Idaho Code; or
(d) Hold any other public or private sector position, for profit or otherwise, except for volunteer positions that are not inconsistent with the duties of the state public defender.
(4) The state public defender may be removed from office by the governor for failing to retain the qualifications of his office provided in subsection (2) of this section, for engaging in prohibited conduct set forth in subsection (3) of this section, or for good cause shown. If the state public defender is removed from office, the governor shall provide the house of representatives and the senate written notice of the removal, the effective date of removal, and the reason or reasons therefor.
(5) If the state public defender resigns, dies, or is removed from office as provided by law, the governor shall appoint a person who meets the qualifications established in this section, in a manner consistent with subsection (6) of this section, to fill the unexpired term.
(6) The governor shall appoint a state public defender in the following manner:
(a) Whenever a vacancy arises in the position of state public defender, the governor shall appoint a panel with seven (7) members, with one (1) panel member appointed from the membership of each of the seven (7) district magistrates commissions. Not less than two (2) but not more than (3) panel members shall be attorneys, not more than two (2) but not less than one (1) panel member shall be a county commissioner, and one (1) member shall be a mayor. The governor shall not appoint to the panel any member of a district magistrates commission who is a judge, who is employed as a criminal prosecutor, or who otherwise prosecutes or aids in the prosecution of criminal cases, or any person employed in a law enforcement agency. The governor shall select a member of the panel to serve as chairman. The provisions of section 1-2203B(4), Idaho Code, regarding current or former law partners shall apply to any attorney serving on the panel. Members of the panel shall be compensated by the office of the state public defender as provided in section 59-509(b), Idaho Code.
(b) It shall be the duty of the panel to recruit applicants, review candidates, and submit to the governor a list of not less than three (3), but not more than five (5), attorneys who meet the qualifications established in this chapter, and the governor shall appoint the state public defender from the list, with the advice and consent of the senate. If three (3) qualified candidates or fewer apply, the panel shall submit all applicants to the governor and may communicate to the governor or the governor’s representative, in executive session pursuant to section 74-206(1)(a), Idaho Code, a ranking of the applicants, and the governor shall appoint the state public defender from the list, with the advice and consent of the senate. The governor and the office of the state public defender may assist the panel in drawing the largest pool of qualified applicants.
(c) Once the governor appoints the state public defender, the panel shall disband until reconstituted by the governor consistent with this section.
(7) When the state public defender’s term expires under the law, the governor may reappoint the state public defender to subsequent four (4) year terms, with the advice and consent of the senate, or the governor may constitute a panel consistent with subsection (6) of this section to nominate candidates and appoint a state public defender from the list produced by the panel, with the advice and consent of the senate.
(8) The state public defender shall be compensated in an amount determined by the governor.
[19-6004, added 2023, ch. 220, sec. 1, p. 662.]
Consistent with the state of Idaho’s obligation to provide indigent public defense pursuant to the sixth amendment to the United States constitution; section 13, article I of the constitution of the state of Idaho; and this chapter, the state public defender shall have the power to:
(1) Ensure that qualified defending attorneys, experts, investigators, mitigation specialists, stenographers, paralegals, or other support staff and assistants are employed or contracted as necessary to carry out the purposes of this chapter, that the same deliver indigent defense services in compliance with applicable indigent defense standards, and that any persons hired or contracted to provide indigent individuals charged with an offense or offenses punishable by a sentence of death be qualified to provide team representation. Provided, however, the terms of any contract with a defending attorney shall not include any pricing structure that charges or pays a single fixed fee for the services of the defending attorney and client-related expenses;
(2) Provide appropriate facilities, including office space, furniture, equipment, books and other legal research tools, postage, supplies, and secure information and communication technology equipment that is reasonably necessary for the proper performance of the state public defender;
(3) Implement procedures for the oversight, implementation, enforcement, and improvement of indigent defense standards so that the right to counsel of indigent persons is constitutionally delivered to all indigent persons in this state;
(4) Collaborate with district public defenders to establish Idaho standards for defending attorneys that, to the extent reasonably practical and considering factors such as case complexity, support services, and travel, utilize the following principles:
(a) The delivery of indigent defense services should be independent of political and judicial influence, though the judiciary is encouraged to contribute information and advice concerning the delivery of indigent defense services;
(b) Defending attorneys should have sufficient time and private physical space so that attorney-client confidentiality is safeguarded during meetings with clients;
(c) Defending attorneys’ workloads should permit effective representation;
(d) Economic disincentives or incentives that impair defending attorneys’ ability to provide effective representation should be avoided;
(e) Defending attorneys’ abilities, training, and experience should match the nature and complexity of the cases in which they provide services, including but not limited to cases involving complex felonies, juveniles, and child protection;
(f) The defending attorney assigned to a particular case should, to the extent reasonably practicable, continuously oversee the representation of that case and appear at every substantive court hearing;
(g) There should be reasonable parity between defending attorneys and prosecuting attorneys with respect to resources, staff, and facilities;
(h) Defending attorneys shall be regularly reviewed and supervised for compliance with indigent defense standards and, if applicable, compliance with indigent defense standards as set forth in contractual provisions; and
(i) Defending attorneys shall identify and resolve conflicts of interest in conformance with the Idaho rules of professional conduct and other applicable constitutional standards;
(5) Collaborate with district public defenders to establish and implement Idaho-based workload standards for defending attorneys taking into consideration the following factors:
(a) The education, training, abilities, and experience of the defending attorney;
(b) The number of cases assigned to the defending attorney; and
(c) Case complexity;
(6) Provide training and continuing legal education approved by the Idaho state bar for defending attorneys and employees that promotes competency and consistency in case types defended by the state public defender;
(7) Require defending attorneys, contractors, and employees to keep appropriate records, consistent with uniform data-reporting requirements, respecting each person to whom the state public defender is responsible for providing defense, including but not limited to caseload, workload, and expenditures;
(8) Establish contracts both for contract defending attorneys, where utilized throughout the state or when caseload volumes require their use, and for conflict defending attorneys, when carrying out the purposes of this chapter. Contract pay rates shall be informed by the prevailing statewide market rate, local market conditions, and case complexity;
(9) Establish a uniform system for contracting with qualified attorneys to carry out the purposes of this chapter, including a system for application, payment for services, and reimbursement;
(10) Collaborate with district public defenders on the policies of the office and in the formation of a budget request sufficient to meet the state’s constitutional obligation to provide indigent services, which the state public defender shall submit to the division of financial management as required by law; and
(11) Seek reimbursement from any applicable federal funds at the department of health and welfare for any allowable costs of representation or administrative costs for any representation authorized by this chapter, whether provided by employees of the office of the state public defender or by contract.
[19-6005, added 2023, ch. 220, sec. 1, p. 663; am. 2024, ch. 270, sec. 3, p. 938; am. 2025, ch. 211, sec. 12, p. 978; am. 2025, ch. 329, sec. 4, p. 1356.]
(1) In each judicial district described in chapter 8, title 1, Idaho Code, the state public defender shall employ a district public defender. The district public defender must be an employee of the office of the state public defender, meet and maintain the qualifications set forth in section 19-6004(2), Idaho Code, and not engage in any conduct prohibited by section 19-6004(3), Idaho Code, while employed as district public defender. The district public defender may be removed by the state public defender for failing to maintain the qualifications of the position established in this section, for engaging in conduct prohibited by this section, or for good cause shown. The duty station of each district public defender must be within the judicial district that the district public defender oversees.
(2) Under the direction and supervision of the state public defender, each district public defender shall carry out the purposes of this chapter in the judicial district, including supervising the defending attorneys, investigators, administrative staff, and other personnel in that judicial district, whether hired or contracted, coordinating litigation within that judicial district, assuring compliance with the provisions of section 19-6005, Idaho Code, as well as other duties assigned by the state public defender.
(3) The district public defender shall be the principal liaison with the administrative district judge, the trial court administrator, the boards of county commissioners, county clerks, and county prosecutors on administrative matters concerning the provision of public defense in the judicial district. Upon invitation, but not less than annually, the district public defender shall report to each board of county commissioners within the judicial district concerning public defense in the respective county.
[19-6006, added 2023, ch. 220, sec. 1, p. 664; am. 2025, ch. 329, sec. 5, p. 1357.]
(1) Whenever a vacancy arises in the position of district public defender, it shall be the duty of the district magistrates commission to recruit applicants, review candidates, and hire a district public defender who meets the qualifications established in this chapter. The office of the state public defender may assist the district magistrates commission in drawing the largest pool of qualified applicants.
(2) In addition to the provisions of sections 1-2203, 1-2203A, 1-2203B, 1-2204, and 1-2205, Idaho Code, when a district magistrates commission is carrying out the purposes of this section:
(a) The administrative district judge or district judge designated by the administrative district judge shall not participate in any proceedings of the district magistrates commission pursuant to the provisions of this section. The county commissioner on the district magistrates commission from the county that operated an office of public defender by January 1, 2023, shall chair the district magistrates commission. If there is more than one (1) county in the judicial district that operated an office of public defender or that was part of a joint office of public defender by January 1, 2023, the county commissioner on the district magistrates commission from such a county with the longest continuous service as county commissioner shall chair the district magistrates commission. If no county in the judicial district operated an office of public defender or was part of a joint office of public defender by January 1, 2023, the county commissioner on the district magistrates commission with the longest continuous service as county commissioner shall chair the district magistrates commission.
(b) The state public defender shall appoint two (2) attorneys who practice in the judicial district and whose practice as certified by each attorney at the time of his appointment is predominantly criminal defense, one (1) of whom must be a defending attorney employed or contracted by an indigent defense provider, to temporarily serve on the district magistrates commission; provided, however, the provision of section 1-2203B(4), Idaho Code, regarding current or former law partners shall apply to any attorney appointed by the state public defender.
(c) No person employed as a criminal prosecutor or who otherwise prosecutes or aids in the prosecution of criminal cases may participate on the district magistrates commission, nor shall any person employed in a law enforcement agency participate on the district magistrates commission. A temporary vacancy, pursuant to section 1-2203B, Idaho Code, shall occur for any commission member prohibited from participating by this paragraph.
[19-6007, added 2023, ch. 220, sec. 1, p. 664.]
(1) All counties are released from any further financial or legal obligation to provide indigent public defense. On and after such date, the state assumes the full financial and legal obligation to provide indigent public defense required by the sixth amendment to the United States constitution and section 13, article I of the constitution of the state of Idaho.
(2) This release of financial and legal obligation to provide indigent public defense includes the release of any requirement for counties: to employ or contract with defending attorneys, investigators, social workers, legal assistants, or other personnel necessary to provide indigent public defense; to provide office furnishings, equipment, office materials, or office supplies; to provide information technology equipment, information technology software, communication equipment, communication software, equipment, or software licenses or subscriptions; to provide general office technology or equipment; or to assume any other expense necessary for indigent defense services on and after October 1, 2024.
(3) Notwithstanding the provisions of this section, any county providing office space to a county office of public defense or a joint county office of public defense as of January 1, 2023, shall continue to make available the same or substantially similar office space for the use of the office of the state public defender until July 1, 2029, provided that:
(a) Not later than January 1, 2027, the state public defender must provide to the board of county commissioners of any county providing office space to the office of the state public defender a facility transition plan outlining the state public defender’s intent to either procure other office space to house defending attorneys or enter into a contract with the board of county commissioners to lease office space from the board of county commissioners necessary to house defending attorneys;
(b) Nothing in this section shall be construed to obligate a board of county commissioners to provide office space to the office of the state public defender on and after July 1, 2029;
(c) Nothing in this section shall prohibit the state public defender from notifying a board of county commissioners that provides office space to the office of the state public defender that the state public defender no longer needs part or all of the space obligated by this section prior to July 1, 2029. Such notice shall relieve the county board of commissioners of the obligation to provide office space to the office of the state public defender; and
(d) Notwithstanding the provisions of this section, each county must continue providing interviewing facilities in the county jail necessary for carrying out the state public defender’s responsibilities in law.
(4) The state public defender shall reimburse a board of county commissioners for any expenses incurred in providing such office space, including but not limited to office furnishings, equipment, office materials, or office supplies; information technology equipment, information technology software, communication equipment, communication software, equipment, or software licenses or subscriptions; or general office technology or equipment or related expenses. Provided however, that counties providing such office space shall be responsible for costs related to office utilities, office cleaning, building maintenance, snow removal, and repair and replacement costs due to reasonable use of the office space. The board of county commissioners and the state public defender shall annually enter into a memorandum of understanding regarding the use of such office space.
[19-6008, added 2023, ch. 220, sec. 1, p. 665; am. 2025, ch. 329, sec. 6, p. 1358.]
(1) An indigent person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings pursuant to section 18-212, 66-322, 66-326, 66-329, 66-404 or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime is entitled:
(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(b) To be provided with the necessary services and facilities of representation, including investigation and other preparation. The attorney, services and facilities, and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines indigency pursuant to section 19-6011, Idaho Code, unable to provide for their payment.
(2) An indigent person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:
(a) To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation;
(b) To be represented in any appeal; and
(c) To be represented in any other post-conviction or post-commitment proceeding that the attorney or the indigent person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
(3) Upon a finding of indigency, representation by an attorney under subsection (1) of this section shall include the following cases, excluding those cases where the state appellate public defender has jurisdiction pursuant to section 19-5905, Idaho Code, and excluding those cases of guardian ad litem representation pursuant to section 16-1614(4), Idaho Code:
(a) Felony and misdemeanor cases;
(b) Actions arising under the Idaho juvenile corrections act, chapter 5, title 20, Idaho Code;
(c) Proceedings under the uniform post-conviction procedure act, chapter 49, title 19, Idaho Code;
(d) Civil contempt proceedings where incarceration is sought;
(e) Actions arising under the child protective act, chapter 16, title 16, Idaho Code, but excluding actions brought exclusively under chapter 20, title 16, Idaho Code; and
(f) Appeals from adjudicatory decrees or orders under section 16-1625, Idaho Code.
(4) The office of the state public defender shall be required to provide indigent defense services only in cases listed in subsection (3) of this section, provided that such limitations shall not obligate a county to finance or oversee indigent defense service for any action not provided for in this chapter.
(5) An indigent person’s right to a benefit under subsection (1) or (2) of this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.
Right to counsel of indigent person — Representation at all stages of criminal and commitment proceedings — Payment. [effective January 1, 2027]
(1) An indigent person who is being detained by a law enforcement officer, who is confined or is the subject of hospitalization proceedings pursuant to section 18-212, 66-322, 66-326, 66-329, or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime is entitled:
(a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(b) To be provided with the necessary services and facilities of representation, including investigation and other preparation. The attorney, services and facilities, and the court costs shall be provided at public expense to the extent that the person is, at the time the court determines indigency pursuant to section 19-6011, Idaho Code, unable to provide for their payment.
(2) An indigent person who is entitled to be represented by an attorney under subsection (1) of this section is entitled:
(a) To be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented by an attorney and including revocation of probation;
(b) To be represented in any appeal; and
(c) To be represented in any other post-conviction or post-commitment proceeding that the attorney or the indigent person considers appropriate, unless the court in which the proceeding is brought determines that it is not a proceeding that a reasonable person with adequate means would be willing to bring at his own expense and is therefore a frivolous proceeding.
(3) Upon a finding of indigency, representation by an attorney under subsection (1) of this section shall include the following cases, excluding those cases where the state appellate public defender has jurisdiction pursuant to section 19-5905, Idaho Code, and excluding those cases of guardian ad litem representation pursuant to section 16-1614(4), Idaho Code:
(a) Felony and misdemeanor cases;
(b) Actions arising under the Idaho juvenile corrections act, chapter 5, title 20, Idaho Code;
(c) Proceedings under the uniform post-conviction procedure act, chapter 49, title 19, Idaho Code;
(d) Civil contempt proceedings where incarceration is sought;
(e) Actions arising under the child protective act, chapter 16, title 16, Idaho Code, but excluding actions brought exclusively under chapter 20, title 16, Idaho Code; and
(f) Appeals from adjudicatory decrees or orders under section 16-1625, Idaho Code.
(4) The office of the state public defender shall be required to provide indigent defense services only in cases listed in subsection (3) of this section, provided that such limitations shall not obligate a county to finance or oversee indigent defense service for any action not provided for in this chapter.
(5) An indigent person’s right to a benefit under subsection (1) or (2) of this section is unaffected by his having provided a similar benefit at his own expense, or by his having waived it, at an earlier stage.
[(19-6009) 19-852, added 1967, ch. 181, sec. 2, p. 599; am. 1969 (2nd E.S.), ch. 10, sec. 2, p. 20; am. 1981, ch. 114, sec. 3, p. 171; am. 1982, ch. 59, sec. 3, p. 92; am. 2013, ch. 220, sec. 2, p. 516; am. and redesig. 2023, ch. 220, sec. 5, p. 670; am. 2024, ch. 270, sec. 4, p. 939; am. 2025, ch. 211, sec. 13, p. 979; am. 2025, ch. 329, sec. 7, p. 1360; am. 2026, ch. 79, sec. 22, p. 414.]
(1) If a person who is being detained by a law enforcement officer, or who is confined or who is the subject of hospitalization proceedings pursuant to section 66-322, 66-326, 66-329, 66-404 or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officers concerned, upon commencement of detention, or the court, upon formal charge or hearing, as the case may be, shall:
(a) Clearly inform him of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense; and
(b) If the person detained or charged does not have an attorney, notify the indigent defense provider or trial court concerned, as the case may be, that he is not so represented. As used in this subsection, the term "commencement of detention" includes the taking into custody of a probationer.
(2) Upon commencement of any later judicial proceeding relating to the same matter including, but not limited to, preliminary hearing, arraignment, trial, any post-conviction proceeding or post-commitment proceeding, the presiding officer shall clearly inform the person so detained or charged of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense. Provided, the appointment of an attorney at public expense in uniform post-conviction procedure act proceedings shall be in accordance with section 19-4904, Idaho Code.
(3) If a court determines that the person is entitled to be represented by an attorney at public expense, it shall promptly notify the state public defender.
(4) Upon notification by the court, the state public defender shall represent the person with respect to whom the notification is made.
Duty to notify accused or detained of right to counsel. [effective January 1, 2027]
(1) If a person who is being detained by a law enforcement officer, or who is confined or who is the subject of hospitalization proceedings pursuant to section 66-322, 66-326, 66-329, or 66-406, Idaho Code, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officers concerned, upon commencement of detention, or the court, upon formal charge or hearing, as the case may be, shall:
(a) Clearly inform him of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense; and
(b) If the person detained or charged does not have an attorney, notify the indigent defense provider or trial court concerned, as the case may be, that he is not so represented. As used in this subsection, the term "commencement of detention" includes the taking into custody of a probationer.
(2) Upon commencement of any later judicial proceeding relating to the same matter including, but not limited to, preliminary hearing, arraignment, trial, any post-conviction proceeding or post-commitment proceeding, the presiding officer shall clearly inform the person so detained or charged of his right to counsel and of the right of an indigent person to be represented by an attorney at public expense. Provided, the appointment of an attorney at public expense in uniform post-conviction procedure act proceedings shall be in accordance with section 19-4904, Idaho Code.
(3) If a court determines that the person is entitled to be represented by an attorney at public expense, it shall promptly notify the state public defender.
(4) Upon notification by the court, the state public defender shall represent the person with respect to whom the notification is made.
[(19-6010) 19-853, added 1967, ch. 181, sec. 3, p. 599; 1968 (2nd E.S.), ch. 10, sec. 3, p. 20; am. 1981, ch. 114, sec. 4, p. 172; am. 1982, ch. 59, sec. 4, p. 93; am. 1984, ch. 229, sec. 1, p. 548; am. 2001, ch. 160, sec. 1, p. 568; am. 2013, ch. 220, sec. 3, p. 516; am. 2014, ch. 247, sec. 4, p. 619; am. 2015, ch. 244, sec. 2, p. 1009; am. 2016, ch. 47, sec. 1, p. 98; am. 2016, ch. 195, sec. 3, p. 547; am. and redesig. 2023, ch. 220, sec. 6, p. 670; am. 2026, ch. 79, sec. 23, p. 415.]
(1) The determination of whether a person covered under section 19-6009, Idaho Code, is an indigent person shall be deferred until his first appearance in court or in a suit for payment or reimbursement under section 19-6015, Idaho Code, whichever occurs earlier. Thereafter, the court concerned shall determine, with respect to each proceeding, whether he is an indigent person.
(2) The court concerned shall presume that the following persons are indigent persons unless such a determination is contrary to the interests of justice:
(a) Persons whose current monthly income does not exceed one hundred eighty-seven percent (187%) of the federal poverty guidelines issued annually by the federal department of health and human services;
(b) Persons who receive, or whose dependents receive, public assistance pursuant to title 56, Idaho Code, in the form of food assistance, health coverage, cash assistance or child care assistance; or
(c) Persons who are currently serving a sentence in a correctional facility or are being housed in a mental health facility.
(3) The court concerned may determine that persons other than those described in subsection (2) of this section are indigent persons. In determining whether a person is an indigent person and in determining the extent of his inability to pay, the court concerned may consider such factors as income, property owned, outstanding obligations, the number and ages of his dependents and the cost of bail. Participation in the Idaho health insurance exchange shall not result in the presumption of indigency.
(4) Release on bail does not necessarily prevent a person from being an indigent person.
(5) In each case, the person shall, subject to the penalties for perjury, certify in writing or by other record such material factors relating to his ability to pay as the court prescribes by rule. No information provided by a person pursuant to this subsection may be used as substantive evidence in any criminal or civil proceeding against the person except:
(a) For impeachment purposes;
(b) In a prosecution for perjury or contempt committed in providing the information; or
(c) In an attempt to enforce an obligation to reimburse the state for the cost of counsel.
(6) To the extent that a person covered under section 19-6009, Idaho Code, is able to provide for an attorney, the other necessary services and facilities of representation, and court costs, the court may order him to provide for their payment.
(7) Upon conviction, notwithstanding the form of judgment or withheld judgment, plea of guilty or finding of guilt for any crime regardless of the original crime or number of counts, an indigent person who receives the services of a defending attorney may be required by the court to reimburse the state public defense fund for all or a portion of the cost of those services related to the conviction, plea of guilty or finding of guilt, unless the requirement would impose a manifest hardship on the indigent person. Any funds received due to an existing or future order for reimbursement for the services of a defending attorney shall be deposited into the state public defense fund. The current inability of the indigent person to pay the reimbursement shall not, in and of itself, restrict the court from ordering reimbursement.
[(19-6011) 19-854, added 1967, ch. 181, sec. 4, p. 599; am. 2001, ch. 287, sec. 1, p. 1023; am. 2013, ch. 220, sec. 4, p. 517; am. 2014, ch. 243, sec. 1, p. 612; am. and redesig. 2023, ch. 220, sec. 7, p. 671.]
No person may be given the primary responsibility of representing an indigent person unless he is licensed to practice law in this state and is otherwise competent to counsel and defend a person charged with a crime.
[(19-6012) 19-855, added 1967, ch. 181, sec. 5, p. 599; am. 2013, ch. 220, sec. 5, p. 518; am. and redesig. 2023, ch. 220, sec. 8, p. 672.]
A person who has been appropriately informed of his right to counsel may waive any right provided by this chapter if the court concerned, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law. The court shall consider such factors as the person’s age, education and familiarity with the English language and the complexity of the crime involved.
[(19-6013) 19-857, added 1967, ch. 181, sec. 7, p. 599; am. 2013, ch. 220, sec. 7, p. 518; am. and redesig. 2023, ch. 220, sec. 9, p. 672.]
A defending attorney is entitled to use the same state facilities for the evaluation of evidence as are available to the county prosecutor. If the defending attorney considers the use of the state facilities impractical, the court concerned may authorize the use of private facilities, to be paid for by the state public defender.
[(19-6014) 19-861, added 1967, ch. 181, sec. 11, p. 599; am. 2014, ch. 247, sec. 7, p. 620; am. and redesig. 2023, ch. 220, sec. 10, p. 672.]
(1) The attorney general or the appropriate county prosecutor may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit under this chapter:
(a) To which he was not entitled;
(b) With respect to which he was not an indigent person when he received it; or
(c) With respect to which he has failed to make the certification required under section 19-6011, Idaho Code, and for which he refuses to pay or reimburse. Suit must be brought within five (5) years after the date on which the aid was received.
(2) The attorney general or the appropriate county prosecutor may, on behalf of the state, recover payment or reimbursement, as the case may be, from each person other than a person covered under subsection (1) of this section who has received legal assistance under this chapter and who, on the date on which suit is brought, is financially able to pay or reimburse for legal assistance without manifest hardship according to the standards of ability to pay applicable under sections 19-6009 and 19-6011, Idaho Code, but refuses to do so. Suit must be brought within three (3) years after the date on which the benefit was received.
(3) Amounts recovered under this section shall be paid into the state public defense fund pursuant to section 57-827, Idaho Code.
[(19-6015) 19-858, added 1967, ch. 181, sec. 8, p. 599; am. 2013, ch. 220, sec. 8, p. 518; am. 2022, ch. 318, sec. 56, p. 1029; am. and redesig. 2023, ch. 220, sec. 11, p. 673.]
Indigent defense providers and defending attorneys shall keep appropriate records respecting each person whom they represent under this chapter.
[(19-6016) 19-864, added 1967, ch. 181, sec. 14, p. 599; am. 2013, ch. 220, sec. 12, p. 520; am. 2016, ch. 195, sec. 6, p. 551; am. and redesig. 2023, ch. 220, sec. 12, p. 673.]
This chapter applies only to representation in the courts of this state, except that it does not prohibit a defending attorney from representing an indigent person in a federal court of the United States, if:
(1) The matter arises out of or is related to an action pending or recently pending in a court of criminal jurisdiction of the state; or
(2) Representation is under a plan of the United States district court as required by the criminal justice act of 1964, 18 U.S.C. 3006A, and is approved by the state public defender.
[(19-6017) 19-865, added 1967, ch. 181, sec. 15, p. 599; am. 2013, ch. 220, sec. 13, p. 520; am. 2014, ch. 97, sec. 4, p. 269; am. and redesig. 2023, ch. 220, sec. 13, p. 673.]
The protections provided by this chapter do not exclude any protection or sanction that the law otherwise provides.
[(19-6018) 19-866, added 1967, ch. 181, sec. 17, p. 599; am. and redesig. 2023, ch. 220, sec. 14, p. 673.]
(1) When contracting with defending attorneys to provide primary or conflict indigent defense services, to the greatest extent that is practicable, the office of the state public defender shall contract with local defending attorneys who practice in the county. If no qualified attorneys who practice in the county are available, the office of the state public defender shall contract with local defending attorneys who practice within the judicial district.
(2) In counties that did not operate an office of public defender or joint office of public defender by January 1, 2023, the office of the state public defender shall continue to provide primary indigent defense services by contract through July 1, 2029, unless the board of county commissioners, at the request of the office of the state public defender, votes to allow the office to transition from primary contract indigent defense providers. Notice of no less than six (6) months is required in advance of any change in delivery of public defense from primary contract indigent defense providers in a county pursuant to this subsection.
(3) Nothing in this section:
(a) Prohibits the office of the state public defender from continuing to contract with defending attorneys to provide indigent defense services in any county after July 1, 2029;
(b) Requires the office of the state public defender to contract with defending attorneys who do not meet the requirements and standards for defending attorneys; or
(c) Restricts the office of the state public defender from using defending attorneys employed by the office of the state public defender to represent indigent defendants in any capital case.
[19-6019, added 2023, ch. 220, sec. 15, p. 674.]
(1) Should the office of the state public defender be unable to carry out the duties required in this chapter because of a conflict of interest, or any other reason, the state public defender or his designee shall arrange for counsel for indigent defendants to be compensated out of the budget of the office of the state public defender. The state public defender, in his discretion, may also contract with private attorneys to provide representation pursuant to this chapter on a case-by-case basis when such contracts would conserve budgetary resources.
(2) The state public defender is authorized to facilitate and develop with the judicial branch, the Idaho state bar, law schools, and private attorneys and law offices pro bono opportunities to take cases pursuant to this chapter; however, nothing in this subsection requires the office of the state public defender to assign pro bono cases to attorneys who do not meet the requirements and standards for defending attorneys.
[19-6020, added 2024, ch. 270, sec. 5, p. 940.]
As used in this chapter:
(1) "Peace officer" means any employee of a police or law enforcement agency that is a part of, or administered by, the state or any political subdivision thereof and whose duties include and primarily consist of the prevention and detection of crime and the enforcement of penal, traffic, or highway laws of this state or any political subdivision. Peace officer also means an employee of a police or law enforcement agency of a federally recognized Indian tribe who has satisfactorily completed the peace officer standards and training academy and has been deputized by a sheriff of a county or a chief of police of a city of the state of Idaho.
(2) "Policy" means a formal, written rule, order, ordinance, or policy and an informal, unwritten policy.
(3) "Political subdivision" means any county, city, municipal corporation, health district, school district, irrigation district, operating agent of any irrigation district whose board consists of directors of its member districts, special improvement or taxing district, or any other political subdivision or public corporation. As used in this chapter, "county" and "city" also mean state-licensed hospitals and attached nursing homes established by counties pursuant to chapter 36, title 31, Idaho Code, or jointly by cities and counties pursuant to chapter 37, title 31, Idaho Code.
(4) "State" means the state of Idaho or any office, department, agency, authority, commission, board, institution, hospital, college, university, or other instrumentality thereof.
[(19-6101) 19-6001, added 2023, ch. 263, sec. 1, p. 788; am. and redesig. 2024, ch. 16, sec. 4, p. 136.]
(1) A governmental entity shall not adopt, enforce, or endorse a policy under which the entity prohibits or discourages the enforcement of immigration laws.
(2) In compliance with subsection (1) of this section, a governmental entity shall not prohibit or discourage a person who is a commissioned peace officer, a corrections officer, a booking clerk, a magistrate, or a prosecuting attorney, and who is employed by or otherwise under the direction or control of the entity, from doing any of the following:
(a) Inquiring into the immigration status of a person under a lawful detention or under arrest;
(b) With respect to information relating to the immigration status, lawful or unlawful, of any person under a lawful detention or under arrest:
(i) Sending the information to, or requesting or receiving the information from, United States citizenship and immigration services or United States immigration and customs enforcement, including information regarding a person’s place of birth;
(ii) Maintaining the information; or
(iii) Exchanging the information with another governmental entity, including a federal or state governmental entity;
(c) Assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance; or
(d) Permitting a federal immigration officer to enter and conduct enforcement activities at a municipal or county jail to enforce federal immigration laws.
[(19-6102) 19-6002, added 2023, ch. 263, sec. 1, p. 788; am. and redesig. 2024, ch. 16, sec. 4, p. 137.]
(1) Any person, including the federal government, may file a complaint with the attorney general if the person offers evidence to support an allegation that a governmental entity has adopted, enforced, or endorsed a policy under which the entity prohibits or discourages the enforcement of immigration laws or that the entity, by consistent actions, prohibits or discourages the enforcement of those laws. The person must include with the complaint the evidence the person has that supports the complaint.
(2) If the attorney general determines that a complaint filed under subsection (1) of this section against a governmental entity is valid, the attorney general may file a petition for a writ of mandamus or apply for other appropriate equitable relief in a district court in Ada county, or in a county in which the principal office of the entity is located, to compel the entity that adopts, enforces, or endorses a policy under which the governmental entity prohibits or discourages the enforcement of immigration laws or that, by consistent actions, prohibits or discourages the enforcement of those laws to comply with section 19-6102, Idaho Code. The attorney general may recover reasonable expenses incurred in obtaining relief under this subsection, including court costs, reasonable attorney’s fees, investigative costs, witness fees, and deposition costs.
[(19-6103) 19-6003, added 2023, ch. 263, sec. 1, p. 789; am. and redesig. 2024, ch. 16, sec. 4, p. 137.]
As used in this chapter:
(1) "Alternative Idaho mailing address" means the address of a judicial officer’s chambers.
(2) "Application" means a written form prescribed and made available by the Idaho supreme court. Such application shall contain, at a minimum, all of the following:
(a) A sworn statement by the judicial officer’s employing entity that the applicant is in fact a judicial officer as defined in subsection (4) of this section;
(b) A sworn statement by the judicial officer that names such officer’s residing household members, if any, as defined in subsection (6) of this section;
(c) The alternative Idaho mailing address as defined in subsection (1) of this section and the telephone number or numbers where the judicial officer and such officer’s residing household members can be contacted by the public agency; and
(d) A sworn statement by the judicial officer that such officer knowingly and voluntarily designates his employing entity as agent for purposes of service of process and receipt of first class, certified, or registered mail.
(3) "Custodian" is as defined in section 74-101, Idaho Code.
(4) "Judicial officer" means a justice, judge, or magistrate judge with chambers in the state of Idaho.
(5) "Public agency" is as defined in section 74-101, Idaho Code.
(6) "Residing household member" means a judicial officer’s spouse and any child or children who currently reside at the same residential street address as such officer.
(7) "Idaho residential street address" means the street address of the judicial officer’s residence and includes a legal description of real estate that contains the location of such address.
[(19-6201) 19-6001, added 2023, ch. 179, sec. 1, p. 482; am. and redesig. 2024, ch. 16, sec. 5, p. 138; am. and redesig. 2024, ch. 250, sec. 1, p. 885.]
Notwithstanding any other provision of state law, a public agency shall not disclose to any person or entity the Idaho residential street address and telephone number of a judicial officer and such officer’s residing household members upon submission of an application and fee consistent with the provisions of section 19-6203, Idaho Code, except under any of the following circumstances:
(1) If directed by a court order, to a person identified in the court order;
(2) If requested by a law enforcement agency, to the law enforcement agency;
(3) If requested by a financial institution or title company for business purposes, to the requesting financial institution or title company; or
(4) If the judicial officer provides written permission for disclosure of such information.
[(19-6202) 19-6002, added 2023, ch. 179, sec. 1, p. 483; am. and redesig. 2024, ch. 16, sec. 5, p. 138.]
(1) Judicial officers desiring that their Idaho residential street address and telephone number and the Idaho residential street address and telephone number of their residing household members be exempt from disclosure pursuant to this chapter and sections 34-704(6) and 74-106(30), Idaho Code, may submit an application and a fee, if any, to the custodian of the public record that contains such information. Upon receipt of such application and fee, the public agency shall comply with the provisions of this chapter for a period of four (4) years. Thereafter, judicial officers may renew the exemption by submitting a new application and fee, if any. The public agency may establish a fee schedule not to exceed the actual cost to the agency of complying with the provisions of this chapter.
(2) Judicial officers may submit an application to a public agency requesting that the public agency use an alternative Idaho mailing address rather than the Idaho residential street address of any such officer and of any such officer’s residing household members on all applications and on all identification cards, licenses, certificates, permits, tags, and other similar documents that are issued to the officer or to such officer’s residing household members by the public agency. A public agency receiving such application shall comply with the request.
(3) A person shall cease to be eligible for an exemption under this chapter if such person ceases to be a judicial officer or a residing household member. Within thirty (30) days of such cessation, the person shall notify, in writing, every public agency to which the person has made an application stating that he is no longer eligible for such exemption. If a judicial officer changes employment but is still eligible for an exemption under this chapter, such judicial officer shall, within thirty (30) days of changing employment, submit a new application to every public agency to which such officer has made an application.
(4) Nothing in this chapter shall prevent a public agency from obtaining the Idaho residential street address and telephone number of a judicial officer and of any residing household member. A judicial officer who has submitted an application pursuant to the provisions of this chapter shall provide his current Idaho residential street address to his employing entity. The judicial officer’s employing entity, or any public agency that has obtained the Idaho residential street address of a judicial officer, shall upon request identify the county in which the judicial officer’s Idaho residential street address is situated.
[(19-6203) 19-6003, added 2023, ch. 179, sec. 1, p. 483; am. and redesig. 2024, ch. 16, sec. 5, p. 139; am. 2025, ch. 113, sec. 28, p. 614.]
Neither a public agency nor its employees, while acting within the course and scope of their employment and without malice or criminal intent, shall be liable under the Idaho tort claims act, chapter 9, title 6, Idaho Code, for any injury resulting from the release of confidential information under this chapter.
[(19-6204) 19-6004, added 2023, ch. 179, sec. 1, p. 484; am. and redesig. 2024, ch. 16, sec. 5, p. 139.]
This chapter shall be known and may be cited as the "Idaho Son of Sam Law."
[19-6301, added 2026, ch. 39, sec. 2, p. 167.]
The purpose of this chapter is to ensure that victims of crime may recover restitution or damages from money or property that offenders earn because of the publicity of their crimes. This chapter regulates only the money made, not speech itself, in order to protect constitutional free expression. This chapter shall apply to proceeds derived from criminal notoriety without regard to the expressive content or medium through which such proceeds are generated and shall not be construed to regulate speech or expression.
[19-6302, added 2026, ch. 39, sec. 2, p. 167.]
As used in this chapter:
(1) "Crime" means any felony or misdemeanor committed in this state that results in a conviction.
(2) "Exploit" or "exploitation" means knowingly and commercially deriving financial gain where the criminal notoriety of a crime is a substantial contributing factor to the value of the proceeds. Incidental, educational, journalistic, or expressive references to a crime that are not undertaken for the purpose of deriving commercial gain from criminal notoriety shall not constitute exploitation under the provisions of this chapter.
(3) "Notoriety of a crime" means the public attention from a crime when directly connected to the offender’s part in the crime.
(4) "Offender" means a person convicted of a criminal offense in this state.
(5) "Proceeds" means any money, royalties, or other thing of value received by an offender that is derived from the criminal notoriety of a crime, regardless of the medium or form in which the proceeds are generated.
(6) "Victim" is as defined in section 19-5304, Idaho Code.
[19-6303, added 2026, ch. 39, sec. 2, p. 167.]
Any person or company who pays an offender for work that exploits the notoriety of a crime shall send such payment to the Idaho state treasurer, who shall place the payment in an interest-bearing escrow account for five (5) years unless extended by court order upon a showing of good cause. The state treasurer, in consultation with the attorney general and subject to legislative approval, shall adopt rules for such escrow administration.
[19-6304, added 2026, ch. 39, sec. 2, p. 168.]
The attorney general shall notify all known victims within thirty (30) days after money is deposited in escrow. Victims may file lawsuits or use restitution orders to claim funds during the escrow period.
[19-6305, added 2026, ch. 39, sec. 2, p. 168.]
(1) If a victim wins a judgment, the court shall order payment to the victim from the escrow account.
(2) If more than one (1) victim has a valid claim, funds shall be divided fairly unless the court orders otherwise.
(3) Any money remaining after five (5) years and after all valid claims are paid shall be returned to the offender.
[19-6306, added 2026, ch. 39, sec. 2, p. 168.]
The provisions of this chapter shall not apply to:
(1) Payments for legal services;
(2) Works of art or fiction that only briefly mention the crime;
(3) Regular wages or income not related to the crime;
(4) Money earned before the crime was committed; or
(5) News or documentary works created mainly to inform or educate and where the offender is paid only normal interview fees.
[19-6307, added 2026, ch. 39, sec. 2, p. 168.]
(1) Nothing in this chapter shall be interpreted as restricting or censoring freedom of speech. The provisions of this chapter shall apply only to money made from the publicity of a crime, not to the content of expression itself.
(2) The provisions of this chapter shall be construed narrowly to comply with the first amendment to the constitution of the United States and section 9, article I of the constitution of the state of Idaho.
[19-6308, added 2026, ch. 39, sec. 2, p. 168.]
Any person or company that knowingly fails to submit proceeds as required by this chapter shall be subject to a civil penalty of up to three (3) times the amount withheld, plus attorney’s fees. The attorney general may bring a civil action to recover such penalties.
[19-6309, added 2026, ch. 39, sec. 2, p. 168.]
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