Idaho Rules of Evidence

(a)  Title. These rules are titled and should be cited as the Idaho Rules of Evidence, or abbreviated I.R.E.

    

(b)  Scope. These rules govern all cases and proceedings in the courts of the State of Idaho and all cases and proceedings to which rules of evidence are applicable, except as otherwise provided in this rule.

    

(c)  Rules on Privilege. The rules on privileges apply to all stages of a case or proceeding.

    

(d)  Rules Inapplicable in Part. These rules apply in the following proceedings, subject to the enumerated exceptions:

    

(1)  preliminary hearings except as modified by Rule 5.l{b) of the Idaho Criminal Rules;

    

(2)  proceedings under the Juvenile Corrections Act except as modified by the Idaho Juvenile Rules;

    

(3)  masters proceedings unless the appointing court directs otherwise in the order of appointment pursuant to Rule 53 of the Idaho Rules of Civil Procedure;

    

(4)  proceedings under the Uniform Post-Conviction Procedure Act except as modified by Idaho Code Section 19-4907;

    

(5)  proceedings for suspension of driver's license for failure to take an evidentiary test for alcohol concentration except as modified by Rule 9.2{a) of the Idaho Misdemeanor Criminal Rules;

    

(6)  proceedings conducted under the Idaho Rules of Family Law Procedure, except as modified by I.R.F.L.P. 102; 

 

(7) restitution hearings except as modified by I.C. § 19-5304(6).

    

(e)  Rules Inapplicable. These rules, except for those on privilege, do not apply to the following:

    

(1)  the court's determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

    

(2)  Special Inquiry Judge proceedings;

    

(3)  the following miscellaneous criminal proceedings: extradition or rendition; sentencing; granting or revoking probation; issuing an arrest warrant, criminal summons, or search warrant; considering whether to release on bail or otherwise;

    

(4)  contempt proceedings in which the court may act summarily;

    

(5)  in the small claims department of the district court;

    

(6)  hearings conducted under the Child Protective Act, I.C. Section 16-1601, et seq., except that these rules apply at adjudicatory hearings conducted under I.C. Section 16-1619 and in termination of parental rights cases under I.C. Section 16-1624;

 

(7)  informal hearings for emergency medical treatment under I.C. Section 16-1627;

 

(8) hearings conducted under I.C. Section 18-609A on a request for judicial authorization for performance of an abortion on a minor.

 

(f)  Definitions. In these rules:

    

(1)  "case" includes an action or proceeding;

    

(2)  "record" includes a memorandum, report, or data compilation;

 

(3)  a reference to any kind of written material or any other medium includes electronically stored information.

    

 

    

(Adopted January 8, 1985, effective July 1, 1985; amended June 7, 1993, effective July 1, 1993; amended March 1, 2000, effective July 1, 2000; amended December 26, 2002, effective February 1, 2003; amended March 21, 2007; effective July 1, 2007; amended April 4, 2008, effective July 1, 2008; amended February 9, 2012, effective July 1, 2012; amended and effective May 28, 2019.)

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

    

(1)  if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

               (B) states the specific ground, unless it was apparent from the context; or   

(2)  if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

    

(b)  Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

    

(c)  Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling.  The court may direct that an offer of proof be made in question-and-answer form.  If requested in an action tried without a jury, an offer of proof in the form of a full presentation of the evidence must be allowed and reported unless the evidence plainly is not admissible on any ground or the evidence is privileged.

    

(d)  Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

 

(e)  Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible.  In so deciding, the court is not bound by evidence rules, except those on privilege.

    

(b)  Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.  The court may admit the proposed evidence on the condition that the proof be introduced later.

    

(c)  Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

    

(d)  Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

    

(e)  Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Idaho Rules of Evidence Rule 201. Judicial Notice of Adjudicative Facts.

(a)  Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

    

(b)  Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court's territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

    

(c)  Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

 

When a court takes judicial notice of records, exhibits, or transcripts from the court file in the same or a separate case, the court must identify the specific documents or items so noticed.  When a party requests judicial notice of records, exhibits, or transcripts from the court file in the same or a separate case, the party must identify the specific items for which judicial notice is requested or offer to the court and serve on all parties copies of those items. 

    

(d)  Timing. The court may take judicial notice at any stage of the proceeding.

    

(e)  Opportunity To Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed.  If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

    

(f)  Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive.  In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

    

   

(Adopted March 26, 2018, effective July 1, 2018; amended January 13, 2021, effective January 13, 2021.)

 

Idaho Rules of Evidence Rule 301. Presumptions in Civil Cases Generally.

(a) Effect. In a civil case, unless a statute, Idaho appellate decision, or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption.  But this rule does not shift the burden of persuasion, which remains on the party who had it originally.  The burden of producing evidence is satisfied by evidence sufficient to permit reasonable minds to conclude that the presumed fact does not exist.  If the party against whom the presumption operates does not meet the burden of producing evidence, the presumed fact must be deemed proved.  If that party meets the burden of producing evidence, the jury must not be instructed on the presumption and the trier of fact may determine the existence or nonexistence of the presumed fact without regard to the presumption.

 

(b) Jury Instructions. When a presumption operates in a civil case, the court must instruct the jury that the fact has been proved without using the term “presumption.”

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

In a civil case, federal law governs the effect of a presumption regarding a claim or defense for which federal law supplies the rule of decision.

    

   (Adopted March 26, 2018, effective July 1, 2018.)

(a) Scope. Unless otherwise provided by statute, in criminal cases presumptions that operate against the defendant, recognized at common law or created by statute, are governed by this rule.  For purposes of this rule, statutory provisions that certain facts are prima facie evidence of other facts or of guilt are treated as presumptions.

    

(b)  Submission to Jury. The court may submit the question of guilt or of the existence of a presumed fact to the jury only if, on the evidence as a whole, a reasonable juror could find guilt or the presumed fact beyond a reasonable doubt.

    

(c)  Instructing the Jury. When the existence of a presumed fact operates against the defendant:

(1) the court must not instruct the jury to find a presumed fact against the defendant and must not instruct the jury in terms of a presumption;

(2) the court must instruct the jurors that they may draw reasonable inferences from facts proved beyond a reasonable doubt and may convict the defendant in reliance upon an inference of fact if they find that such inference is valid and if they find that the evidence as a whole, including the inference, convinces them beyond a reasonable doubt that the defendant is guilty.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Relevant evidence is admissible unless these rules, or other rules applicable in the courts of this state, provide otherwise. Irrelevant evidence is not admissible.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Character Evidence.

    

(1)  Prohibited Uses.  Evidence of a person's character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

    

(2)  Exceptions for a Defendant or Victim in a Criminal Case.  The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) a defendant may offer evidence of an alleged victim’s pertinent trait of character, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

    

(3)  Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608 and 609.

    

(b)  Crimes, Wrongs, or Other Acts.

 

(1) Prohibited Uses.  Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case.  This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  In a criminal case, the prosecutor must:

(A) file and serve reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so reasonably in advance of trial – or during trial if the court, for good cause shown, excuses lack of pretrial notice.

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  By reputation or opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

    

(b)  By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.  The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

 

But the court may admit this evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or the feasibility of precautionary measures.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a) Prohibited Uses. Evidence of the following is not admissible – on behalf of any party – either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering – or accepting, promising to accept, or offering to accept – a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim.  Compromise negotiations encompass mediation.

(b) Exceptions.  The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, funeral, or similar expenses resulting from an injury or death, or damage to or loss of property of another, is not admissible to prove liability for the injury, death, damage or loss.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

    

(1)  a guilty plea that was later withdrawn;

    

(2)  a nolo contendere plea;

    

(3)  a statement made during a proceeding on either of those pleas under Idaho Criminal Rule 11 or a comparable federal or state procedure; or

    

(4)  a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

 

(b)  Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

    

(1)  in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in  fairness the statements ought to be considered together; or

    

(2)  in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present; or

    

(3)  under subsection (a)(3) above, in the same criminal action or proceeding for impeachment purposes.

    

(Adopted March 26, 2018, effective July 1, 2018; amended January 13, 2021, effective January 13, 2021.)

 

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Prohibited Uses.  Notwithstanding any other provision of law, in a criminal case in which a defendant is accused of  a sex crime, reputation or opinion evidence of the alleged victim’s past sexual behavior is not admissible.

    

(b)  Additional Prohibited Uses and Exceptions.  Notwithstanding any other provision of law, in a criminal case in which a defendant is accused of a sex crime, evidence of an alleged victim's past specific instances of sexual behavior is also not admissible, but the following such evidence may be admitted:  

    

(1)  an alleged victim’s past sexual behavior, if offered to prove that someone other than the defendant was the source of semen or injury or other physical evidence; or

    

(2)  an alleged victim’s past sexual behavior with respect to the person accused of the sex crime, if offered by the defendant to prove consent; or

 

(3) an alleged victim’s prior false allegations of sex crimes made at an earlier time; or

 

(4) an alleged victim’s sexual behavior with someone other than the defendant that occurred at the time of the event giving rise to the sex crime charged; or

 

(5) evidence whose exclusion would violate the defendant’s constitutional rights.

    

(c) Procedure to Determine Admissibility.

(1)  Motion.  If a defendant intends to offer evidence under Rule 412(b), the defendant must:

(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;

(B) do so at least five (5) days before trial unless the court, based on a determination either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case, allows the motion to be made at a later date; and

(C) serve the motion on all parties.

    

(2)  Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing at which the parties may call witnesses, including the alleged victim, and offer other relevant evidence.  Notwithstanding the provisions of Rule 104(b), if the relevance of the evidence which the defendant seeks to offer depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent in camera hearing scheduled for such purpose, must accept evidence on the issue of whether such condition of fact is fulfilled and determine the issue.

    

(3)  If the court determines on the basis of the hearing described in paragraph (2) that the evidence that the defendant intends to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, the evidence must be admitted to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the parties may examine or cross-examine the alleged victim.

    

(d)  For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which the sexual misconduct is alleged.

    

(e)  For purposes of this rule, the term "sex crime" means --

 

(1) rape,  the infamous crime against nature, forcible penetration with a foreign object;  sexual abuse of a child under age sixteen years, sexual exploitation of a child, lewd conduct with a minor child under sixteen, or sexual battery of a minor child sixteen or seventeen years of age;

 

(2) any other crime under the law of the state of Idaho that involved: contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; or contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

 

(3) assault with intent to commit any of the crimes included in subsections (1) and (2);

 

(4) battery with intent to commit any of the crimes included in subsections (1) and (2);

 

(5) kidnaping for the purpose of committing any of the crimes included in subsections (1) and (2); or

 

(6) any attempt or conspiracy to commit any of the crimes included in subsections (1) and (2).

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Evidence of the proceedings or of conduct or statements made in proceedings before a hearing panel for prelitigation consideration of medical malpractice claims, or the results of or any findings or determinations made in the proceedings is not admissible in a civil action or proceeding by, against or between the parties to or any witness in the hearing panel proceedings.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Prohibited Uses.  In any civil action brought by or on behalf of a patient who experiences an unanticipated outcome of  medical care, or in any arbitration proceeding related to, or in lieu of, such civil action, all statements and affirmations, whether in writing or oral, and all gestures or conduct expressing sympathy, commiseration, condolence, or compassion, made by a health care professional or an employee of a health care professional to a patient or family member or friend of a patient, which  relate to the care provided to the patient, or which relate to the discomfort, pain, suffering, injury, or  death of the patient as  the result of the unanticipated outcome of medical care is not admissible as evidence of an admission of liability or on the issue of damages.

 

(b)  Exceptions.  Notwithstanding subsection (1) of this rule, a statement of fault which is otherwise admissible and is part of or in addition to a statement identified in subsection (a) may be admissible.

 

(c)  Definitions.  For purposes of this rule:

 

(1)  "Health care professional" means any person licensed, certified, or registered  by  the  state of Idaho to deliver health care and any clinic, hospital, nursing home, ambulatory surgical center or other place in which health care is provided. The term also includes any professional corporation or other professional entity comprised of such health care professionals as permitted by the laws of Idaho.

 

(2)  "Unanticipated outcome" means the outcome of a medical treatment or procedure that differs from an expected, hoped for or desired result.   

                        

(Adopted March 26, 2018, effective July 1, 2018.)                

                              

Idaho Rules of Evidence Rule 501. Privileges Recognized only as Provided.

Except as otherwise provided by constitution, or by statute implementing a constitutional right, or by these or other rules promulgated by the Supreme Court of this State, no person has a privilege to: 

 

(a)  Refuse to be a witness; 

    

(b)  Refuse to disclose any matter; 

    

(c)  Refuse to produce any object or writing; or 

    

(d)  Prevent another from being a witness or disclosing any matter or producing any object or writing. 

 

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Definitions. As used in this rule: 

    

(1)  Client. A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

    

(2)  Representative of the client. A "representative of the client" is one having authority to obtain professional legal services, or an employee of the client who is authorized to communicate information obtained in the course of employment to the attorney of the client.

    

(3)  Lawyer. A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

    

(4)  Representative of the lawyer. A "representative of the lawyer" is one employed by the lawyer to assist the lawyer in the rendition of professional legal service.

    

(5)  Confidential communication. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

    

(b)  General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client which were made (1) between the client or the client's representative and the client's lawyer or the lawyer's representative, (2) between the client's lawyer and the lawyer's representative, (3) among clients, their representatives, their lawyers,or their lawyers' representatives, in any combination, concerning a matter of common interest, but not including communications solely among clients or their representatives when no lawyer is a party to the communication*, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

* Comment: IRE 502(b)(3) is intended to provide that when clients who share a common interest in a legal matter are represented by different lawyers they can communicate with each other in an effort to develop a joint strategy or otherwise advance their interests, and their communications in that endeavor will be privileged; that each client involved has a privilege for all such communications; and that this privilege will survive a later falling-out among the parties. The privilege does not, however, extend to communications solely between the clients or their representatives when no lawyer is present. The rationale for this privilege was stated in In Re: Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990): "[P]ersons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims." The original IRE 502(b)(3) was amended to expand the scope of the privilege to include all communications among clients, their representatives, their lawyers, and their lawyers’ representatives when engaged in discussion of common legal concerns. 

    

(c)  Who may claim the privilege. The privilege may be claimed by the client or for the client through the client's lawyer, the guardian or conservator, or by the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication may claim the privilege but only on behalf of the client. The authority of the lawyer or lawyer's representative to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule: 

    

(1)  Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

    

(2)  Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; 

    

(3)  Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the lawyer's client or by the client to the client's lawyer;

    

(4)  Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; 

    

(5)  Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.

    

(6)  Shareholder actions. As to a communication between a corporation and its lawyer or a representative of the lawyer, which was not made for the purpose of facilitating the rendition of professional legal services to the corporation during the litigation and concerning the litigation in which the privilege is asserted:

(A) in an action by a shareholder against the corporation which is based on a breach of fiduciary duty; or 

 

(B) in a derivative action by a shareholder on behalf of the corporation, provided that disclosure of privileged communications under either subpart (A) or (B) of this exception shall be required only if the party asserting the right to disclosure shows good cause for the disclosure and provided further that the court may use in camera inspection or oral examination and may grant protective orders to prevent unnecessary or unwarranted disclosure.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Definitions. As used in this rule: 

    

(1)  Patient. A "patient" is the person who consults or is examined or interviewed by a physician or psychotherapist for the purpose of obtaining diagnosis or treatment of a physical, mental or emotional condition, including alcohol or drug addiction.

    

(2)  Physician. A "physician" is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.

    

(3)  Psychotherapist. A "psychotherapist" is (A) a physician while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or, (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.

    

(4)  Confidential communication. A communication is "confidential" if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

    

(b)  General rules of privilege. 

    

(1)  Civil action. A patient has a privilege in a civil action to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

    

(2)  Criminal action. A patient has a privilege in a criminal action to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcohol or drug addiction, among the patient, the patient's psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

    

(c)  Who may claim the privilege. The privilege may be claimed by the patient or for the patient through the patient's lawyer, guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication may claim the privilege but only on behalf of the patient. The authority of the physician or psychotherapist to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. 

    

(1)  Proceedings for guardianship, conservatorship or hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings for the appointment of a guardian or conservator for a patient for mental illness or to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.

    

(2)  Examination by order of court. If the court orders an examination of the physical, mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

    

(3)  Condition an element of claim or defense. There is no privilege under this rule as to a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense.

    

(4)  Child related communications. There is no privilege under this rule in a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Definition. A communication is "confidential" if it is made during marriage privately by any person to the person's spouse, and is not intended for disclosure to any other person.

    

(b) General rule of privilege. A person has a privilege to prevent testimony as to any confidential communication between the person and his or her spouse made during the marriage.

 

(c) Who may claim the privilege. The privilege may be claimed by the person or by the spouse on behalf of the person, or by the lawyer for the person on behalf of the person. The authority of the spouse or lawyer to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule:

    

(1)  Child related communications. In a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

    

(2)  Criminal action. In a criminal action or proceeding in which one spouse is charged with a crime against the person or property of (A) the other spouse, (B) a person residing in the household of either spouse, or (C) a third person committed in the course of committing a crime against the other spouse or a person residing in the household of either spouse.

    

(3)  Special proceeding. In proceedings (A) under the Reciprocal Enforcement of Support Act, or (B) concerning desertion or non-support of a spouse.

    

(4)  Civil action. In a civil action or proceeding by one spouse against the other involving the person or property of the other.

    

(5)  Proceedings for guardianship, conservatorship or hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings for the appointment of a guardian or conservator for a person for mental illness or to hospitalize the person for mental illness.

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Definitions. As used in this rule: 

    

(1)  Clergyman. A "Clergyman" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be a clergyman by the person consulting.

    

(2)  Confidential communication. A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

    

(b)  General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in the clergyman's professional character as spiritual adviser.

    

(c)  Who may claim the privilege. The privilege may be claimed by the person, or for the person by the person's lawyer, the guardian or conservator, or by the personal representative if that person is deceased. The clergyman at the time of the communication may claim the privilege but only on behalf of the person. The authority of the clergyman to do so is presumed in the absence of evidence to the contrary.
 

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  General rule of privilege. Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot.

 

(b)  Exceptions. This privilege does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the election laws of the State of Idaho.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(1) Definitions. In this Rule:

 

(a) 'Mediation' means a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.

 

(b) 'Mediation communication' means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.

 

(c) 'Mediator' means an individual who conducts a mediation.

 

(d) 'Nonparty participant' means a person, other than a party or mediator, that participates in a mediation.

 

(e) 'Mediation party' means a person that participates in a mediation and whose agreement is necessary to resolve the dispute.

 

(f) 'Person' means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.

 

(g) 'Proceeding' means any proceeding referenced in Idaho Rule of Evidence 101(c).

 

(h) 'Record' means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

 

(i) 'Sign' means:

 

(1) to execute or adopt a tangible symbol with the present intent to authenticate a record; or

 

(2) to attach or logically associate an electronic symbol, sound, or process to or with a record with the present intent to authenticate a record; or

 

(3) to assent on a record with the present intent to authenticate a record.

 

(2) Scope.

 

(a) Except as otherwise provided in subsection (b) or (c), this Rule applies to a mediation in which:

 

(1) the mediation parties are required to mediate by statute or court or administrative agency rule or referred to mediation by a court, administrative agency, or arbitrator;

 

(2) the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure; or

 

(3) the mediation parties use as a mediator an individual who holds himself or herself out as a mediator or the mediation is provided by a person that holds itself out as providing mediation.

 

(b) The Rule does not apply to a mediation:

 

(1) relating to the establishment, negotiation, administration, or termination of a collective bargaining relationship;

 

(2) relating to a dispute that is pending under or is part of the processes established by a collective bargaining agreement, except that the Rule applies to a mediation arising out of a dispute that has been filed with an administrative agency or court;

 

(3) conducted by a judge who might make a ruling on the case; or

 

(4) conducted under the auspices of:

 

(A) a primary or secondary school if all the parties are students or

 

(B) a correctional institution for youths if all the parties are residents of that institution.

 

(c) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of a mediation is not privileged, the privileges under subparts 3 through 5 do not apply to the mediation or part agreed upon. However, subparts 3 through 5 apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made.

 

(3) Privilege against disclosure; admissibility; discovery.

 

(a) Except as otherwise provided in subpart 5, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by subpart 4.

 

(b) In a proceeding, the following privileges apply:

 

(1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

 

(2) A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.

 

(3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

 

(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

 

(4) Waiver and preclusion of privilege.

 

(a) A privilege under subpart 3 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

 

(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and

 

(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

 

(b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under subpart 3, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

 

(c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under subpart 3.

 

(5) Exceptions to privilege.

 

(a) There is no privilege under subpart 3 for a mediation communication that is:

 

(1) in an agreement evidenced by a record signed by all parties to the agreement;

 

(2) available to the public under the Idaho Open Records Act or made during a session of a mediation which is open, or is required by law to be open, to the public;

 

(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

             

(4) intentionally used to plan a crime, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

 

(5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

 

(6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

 

(7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party, unless the public agency participates in the mediation.

 

(b) There is no privilege under subpart 3 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

 

(1) a court proceeding involving a felony or misdemeanor; or

 

(2) except as otherwise provided in subsection (c), a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation. This exception to privilege does not apply to any statement made in the course of a criminal mediation under Rule 18.1 of the Idaho Rules of Criminal Procedure or Rule 12.1 of the Idaho Juvenile Rules. 

 

(c) A mediator may not be compelled to provide evidence of a mediation communication referred to in subsection (a)(6) or (b)(2).

 

(d) If a mediation communication is not privileged under subsection (a) or (b), only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection (a) or (b) does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.

 

(6) Application to existing agreements or referrals.

 

(a) The privileges created in this rule apply to communication made in the course of a mediation pursuant to a referral or an agreement to mediate made on or after the effective date of this Rule.

 

(b) On or after one year following the effective date, the privileges created in this rule apply to any mediation regardless of when the referral or agreement to mediate was made.

 

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Federal. If the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.

    

(b)  State. No other governmental privilege is recognized except as created by the Constitution or statutes of this State.

 

(c)  Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant, or dismissing the action.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

    

(b)  Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.

    

(c)  Exceptions: 

    

(1)  Voluntary disclosure. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action.

    

(2)  Informer as a Witness. If an informer appears as a witness for the public entity disclosure of the informer's identity shall be required unless the court finds, in its discretion, that the witness or others may be subjected to economic, physical or other harm or coercion by such disclosure. Any disclosure under this subsection shall be subject to any protective order deemed necessary by the court.

    

(3)  Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: (A) requiring the prosecuting attorney to comply, (B) granting the defendant additional time or a continuance. (C) relieving the defendant from making disclosures otherwise required of the defendant, (D) prohibiting the prosecuting attorney from introducing specified evidence, or (E) dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.

    

(Adopted March 26, 2018, effective July 1, 2018.)

Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Comment or inference not permitted. The claim of any privilege, created by these rules, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel and no inference may be drawn therefrom.

    

(b)  Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

    

(c)  Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

    

(Adopted March 26, 2018, effective July 1, 2018.)

Whenever a person has a right to claim a privilege on behalf of the person or for another, it may be exercised by the lawyer for such person. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Definition. A communication is "confidential" if it is made by a minor child to the child's parent or a minor ward to the ward's guardian or legal custodian, and is not intended for disclosure to any other person.

    

(b)  General rule of privilege. A child or ward has a privilege in a civil or criminal action or proceeding to which the child or ward is a party to refuse to disclose and to prevent the child's or ward's parent, guardian or legal custodian from disclosing any confidential communication made by the child or ward to the parent, guardian or legal custodian of the child or ward. 

    

(c)  Who may claim the privilege. The privilege may be claimed by the child or ward, the lawyer for the child or ward, or by the parent, guardian or legal custodian on behalf of the child or ward. The authority of the lawyer, parent, guardian or ward to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule:

    

(1)  Civil action. In a civil action or proceeding by one of the parties to the confidential communication against the other.

    

(2)  Criminal action. In a criminal action or proceeding for a crime committed by one of the parties to the confidential communication against the person or property of the other.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Definitions. As used in this rule: 

    

(1)  Client. A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional accounting services by an accountant, or who consults an accountant with a view to obtaining professional accounting services from the accountant.

    

(2)  Representative of the client. A "representative of the client" is one having authority to obtain professional accounting services, or an employee of the client who is authorized to communicate information obtained in the course of employment to the accountant of the client.

    

(3)  Accountant. An "accountant" is any licensed public accountant or certified public accountant authorized, or reasonably believed by the client to be authorized, to engage in the practice of accounting in any state or nation.

    

(4)  Representative of the accountant. A "representative of the accountant" is one employed by the accountant to assist the accountant in the rendition of professional accounting service.

    

(5)   Confidential communication. A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional accounting services to the client or those reasonably necessary for the transmission of the communication.

    

(b)  General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional accounting services to the client which were made (1) between the client or the client's representative and the accountant or the accountant's representative, (2) between the accountant and the accountant's representative, or (3) by the client or the client's representative or the client's accountant or a representative of the accountant to an accountant or a representative of an accountant representing another concerning a matter of common interest, (4) between representatives of the client or between the client and a representative of the client, or (5) among accountants and their representatives representing the same client.

    

(c)  Who may claim the privilege. The privilege may be claimed by the client or for the client through the client's lawyer, accountant, guardian or conservator, or by the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the accountant or the accountant's representative at the time of the communication may claim the privilege but only on behalf of the client. The authority of the accountant or the accountant's representative to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule: 

    

(1)  Furtherance of crime or fraud. If the services of the accountant were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; 

    

(2)  Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

    

(3)  Breach of duty by an accountant or client. As to a communication relevant to an issue of breach of duty by the accountant to the client or by the client to the accountant;

    

(4)  Document attested by an accountant. As to a communication relevant to an issue concerning an attested document to which the accountant is an attesting witness;

    

(5)  Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to an accountant retained or consulted in common, when offered in an action between or among any of the clients.

    

(6)  Shareholder actions. As to a communication between a corporation and its accountant or a representative of the accountant, which was not made for the purpose of facilitating the rendition of professional accounting services to the corporation during the litigation and concerning the litigation in which the privilege is asserted: (A) in an action by a shareholder against the corporation which is based on a breach of fiduciary duty; or (B) in a derivative action by a shareholder on behalf of the corporation, provided that disclosure of privileged communications under either subpart (A) or (B) of this exception shall be required only if the party asserting the right to disclosure shows good cause for the disclosure and provided further that the court may use in camera inspection or oral examination and may grant protective orders to prevent unnecessary or unwarranted disclosure.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Definitions. As used in this rule: 

    

(1)  Student. A "student" is a person regularly enrolled on a part-time or full-time basis in any public or private school located in the State of Idaho, who consults or is examined or interviewed by a school counselor.

    

(2)  School counselor. A "school counselor" is any person duly appointed, regularly employed and designated for the purpose of counseling students by any public or private school located in the State of Idaho, or reasonably believed by the student so to be. 

    

(3)  Confidential communication. A communication is "confidential" if made to the school counselor while acting in the counselor's capacity as a school counselor or reasonably believed by the student to be so acting, and if not intended to be disclosed to third persons except persons present to further the interest of the student in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the rendition of counseling services to the student under the direction of the school counselor, including members of the student's family.

    

(b)  General rule of privilege. A student has a privilege in any civil or criminal action to which the student is a party to refuse to disclose and to prevent any other person from disclosing confidential communications made in the furtherance of the rendition of counseling services to the student, among the student, the student's school counselor, and persons who are participating in the counseling under the direction of the school counselor, including members of the student's family.

    

(c)  Who may claim the privilege. The privilege may be claimed by the student, or for the student through the student's counselor, lawyer, parent, guardian or conservator, or the personal representative of a deceased student. The authority of the counselor, lawyer, parent, guardian, or conservator or personal representative to do so is presumed in the absence of evidence to the contrary. 

    

(d)  Exceptions. There is no privilege under this rule: 

    

(1)  Civil action. In a civil action, case or proceeding by one of the parties to the confidential communication against the other.

    

(2)  Proceeding for guardianship, conservatorship or hospitalization. As to a communication relevant to an issue in proceedings for the appointment of a guardian or conservator for a student for mental illness or to hospitalize the student for mental illness.

    

(3)  Child related communications. In a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

    

(4)  Contemplation of crime or harmful act. If the communication reveals the contemplation of a crime or harmful act.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

 

(a)  Definitions. As used in this rule: 

    

(1)  Client. A "client" is a person who is rendered licensed counselor services.

    

(2)  Licensed counselor. A "licensed counselor" is any person licensed to be a licensed professional counselor or a licensed counselor in the State of Idaho pursuant to Title 54, Chapter 34, Idaho Code, or reasonably believed by the client so to be.

    

(3)  Confidential communication. A communication is "confidential" if not intended to be disclosed to third persons except persons present to further the interest of the client in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the rendition of counseling services to the client under the direction of the licensed counselor, including members of the client's family.

    

(b)  General rule of privilege. A client has a privilege in any civil or criminal action to which the client is a party to refuse to disclose and to prevent any other person from disclosing confidential communications made in the furtherance of the rendition of licensed counseling services to the client, among the client, the client's licensed counselor, and persons who are participating in the licensed counseling under the direction of the licensed counselor including members of the client's family.

    

(c)  Who may claim the privilege. The privilege may be claimed by the client, or for the client through the client's licensed counselor, lawyer, guardian or conservator, or the personal representative of a deceased client. The authority of the licensed counselor, lawyer, guardian, conservator or personal representative to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule: 

    

(1)  Civil action. In a civil action, case or proceeding by one of the parties to the confidential communication against the other.

    

(2)  Proceedings for guardianship, conservatorship or hospitalization. As to a communication relevant to an issue in proceedings for the appointment of a guardian or conservator for a client for mental illness or to hospitalize the client for mental illness.

    

(3)  Child related communications. In a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition, of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

    

(4)  Licensing board proceedings. In an action, case or proceeding under Idaho Code § 54-3404.

    

(5)  Contemplation of crime or harmful act. If the communication reveals the contemplation of a crime or harmful act.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

 

(a)  Definitions. As used in this rule: 

    

(1)  Client. A "client" is the person who is rendered licensed social worker services.

    

(2)  Licensed social worker. A "licensed social worker" is any person licensed to be a licensed certified social worker or a licensed social worker in the State of Idaho pursuant to Title 54, Chapter 32, Idaho Code.

    

(3)  Confidential communication. A communication is "confidential" if not intended to be disclosed to third persons except persons present to further the interest of the client in the consultation or interview, or persons reasonably necessary to the transmission of the communication, or persons who are participating in the rendition of social services to the client under the direction of the licensed social worker, including members of the client's family.

    

(b)  General rule of privilege. A client has a privilege in any civil or criminal action to which the client is a party to refuse to disclose and to prevent any other person from disclosing confidential communications made in the furtherance of the rendition of licensed social services to the client, among the client, the client's licensed social worker, and persons who are participating in the licensed social work under the direction of the licensed social worker, including members of the client's family.

    

(c)  Who may claim the privilege. The privilege may be claimed by the client, or for the client through the client's licensed social worker, lawyer, guardian or conservator, or the personal representative of a deceased client. The authority of the licensed social worker, lawyer, guardian, conservator or personal representative to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exceptions. There is no privilege under this rule: 

    

(1)  Contemplation or execution of crime or harmful act. If the communication reveals the contemplation or execution of a crime or harmful act.

    

(2)  Charges against licensee. When the client waives the privilege by bringing charges against the licensee.

    

(3)  Civil action. In a civil action, case or proceeding by one of the parties to the confidential communication against the other.

    

(4)  Proceedings for guardianship, conservatorship or hospitalization. As to a communication relevant to an issue in proceedings for the appointment of a guardian or conservator for a client for mental illness or to hospitalize the client for mental illness.

    

(5)  Child related communications. In a criminal or civil action or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Definitions. As used in this rule: 

    

(1)  Hospital. A "hospital" is a facility defined in Idaho Code Section 39-1301(a)(1) and either licensed under Idaho Code Sections 39-1301 through 39-1314 or similarly licensed in another jurisdiction. 

    

(2)  In-hospital medical staff committee. An "in-hospital medical committee" is any individual doctor who is a hospital staff member, or any hospital employee, or any group of such doctors or hospital employees, or any combination thereof, who are duly designated a committee by hospital staff by-laws, by action of an organized hospital staff, or by action of the board of directors of a hospital, and which committee is authorized by said by-laws, staff or board of directors, to conduct research or study of hospital patient cases, or of medical questions or problems using data and information from hospital patient cases.

    

(3)  Medical society. A "medical society" is any duly constituted, authorized and recognized professional society or entity made up of physicians licensed to practice medicine in Idaho, having as its purpose the maintenance of high quality in the standards of health care provided in Idaho or any region or segment of the state, operating with the approval of the Idaho State Board of Medicine, or any official committee appointed by the Idaho State Board of Medicine.

    

(4)  Confidential communication. A communication is a "confidential communication" under this Rule if it (A) is made in connection with a proceeding for research, discipline, or medical study conducted by an in-hospital medical staff committee or medical society for the purpose of reducing morbidity and mortality, or improving the standards of medical practice or health care in the State of Idaho; (B) is a statement of opinion or conclusion concerning the subject matter of the proceeding; and (C) is not intended for disclosure to third persons, except persons present to further the purposes of or participate in the proceeding, or necessary for the transmission of the communication.

 

(b)  General rule of privilege. A hospital, in-hospital medical staff committee, medical society, and maker of a confidential communication has a privilege to refuse to disclose and to prevent any other person from disclosing the confidential communication.

    

(c)  Who may claim the privilege. The privilege may be claimed by the maker of the confidential communication, by a representative of the hospital, in-hospital medical staff committee or medical society, or for the holder of the privilege by its lawyer. The authority of the representative or lawyer to do so is presumed in the absence of evidence to the contrary.

    

(d)  Exception. There is no privilege under this rule as to a communication made in connection with the on-going provision of medical care to a patient.

    

(e)  Waiver of privilege by testimony. The privilege as to a confidential communication under this rule is waived if the maker of the confidential communication gives evidence of his opinion or conclusion concerning the subject matter of the confidential communication.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Confidential communication. A communication is a "confidential communication" under this rule if it is made in a proceeding conducted or maintained under the authority of Idaho Code Sections 6-1001 to 6-1011 and is not intended for disclosure to third persons, except persons present to further the purposes of or participate in the proceeding, or necessary for the transmission of the communication.

    

(b)  General rule of privilege. In any civil action or proceeding, a medical malpractice screening panel or any member thereof, any party to the medical malpractice screening panel proceeding, and any witness or other person who participated in the medical malpractice screening panel proceedings has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication under this rule.

    

(c)  Who may claim the privilege. The privilege may be claimed by any holder of the privilege or for such person through the person's lawyer. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary. 

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Idaho Rules of Evidence Rule 601. Competency to Testify in General.

Every person is competent to be a witness except: 

    

(a)  Incompetency Determined by Court.  Persons whom the court finds are incapable of receiving just impressions of the facts about which they are examined, or of relating them accurately.

    

(b)  Claim Against Estate.

(1) Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against a personal representative,

(2) upon a claim or demand against the estate of a deceased person,

(3) as to any communication or agreement, not in writing, with the deceased person.

    

(c)  Other Exceptions.  If these rules provide otherwise.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may consist of the witness’s own testimony.  This rule does not apply to a witness’s expert testimony under Rule 703.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Before testifying, a witness must give an oath or affirmation to testify truthfully.  It must be in a form designed to impress that duty on the witness’s conscience.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

 

    

 

 

The presiding judge may not testify as a witness in the trial.  A party need not object to preserve the issue.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  At the Trial.  A juror may not testify as a witness before the other jurors at the trial.  If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.

    

(b)  During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence.  During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.

The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

 

(2) Exceptions.  A juror may testify about whether:

 

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) the jury determined any issue by resort to chance; or

(D) a mistake was made in entering the verdict on the verdict form.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Any party, including the party that called the witness, may attack the witness’s credibility.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Reputation or Opinion Evidence.  A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.

But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

    

(b)  Specific Instances of Conduct.  Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.  But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

    

(c)  Effect of Giving Testimony.  By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  In General.  For the purpose of attacking a witness’s character for truthfulness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony must be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the witness’s character for truthfulness and that the probative value of this evidence outweighs its prejudicial effect to the party offering the witness.  If the evidence of the fact of a prior felony conviction, but not the nature of the conviction, is admitted for impeachment of a party to the action or proceeding, the party has the option to present evidence of the nature of the conviction, but evidence of the circumstances of the conviction is not admissible.

    

(b)  Limit on Using the Evidence after 10 years.  This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later.  Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

    

(c)  Effect of a Withheld or Vacated Judgment; Pardon for Innocence.  Evidence of a withheld judgment or a vacated judgment must not be admitted as a conviction.  A conviction that has been the subject of a pardon, annulment or other equivalent procedure based on a finding of innocence is not admissible under this rule.

    

(d)  Effect of a Pardon, Annulment or Certificate of Rehabilitation Not Based on Innocence; Pendency of an Appeal.  If the conviction has been the subject of a pardon, annulment or certificate of rehabilitation or other equivalent procedure not based on a finding of innocence, or is the subject of a pending appeal, the evidence of a conviction is not rendered inadmissible, but such information must be considered by the court in determining admissibility.  Evidence of the pardon, annulment, certificate of rehabilitation or other equivalent procedure, or pendency of an appeal is admissible if evidence of the conviction is admitted.

 

 

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Control by the Court; Purposes.  The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1)  make those procedures effective for determining the truth;

(2)  avoid wasting time; and

(3)  protect witnesses from harassment or undue embarrassment.

    

(b)  Scope of Cross-Examination.  Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.  The court may allow inquiry into additional matters as if on direct examination.

    

(c)  Leading Questions.  Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.

Ordinarily, the court should allow leading questions:

(1)  on cross-examination; and

(2)  when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Scope. This rule gives an adverse party certain options when a witnesses uses a writing or object to refresh memory for the purpose of testifying:

(1) while testifying; or

(2) before testifying, if:

(A) the court decides that justice requires the party to have those options and it is practicable to have the writing or object produced, and

(B) the writing or object is not privileged under these rules and not protected from disclosure by Idaho Rule of Civil Procedure 26 or Idaho Criminal Rule 16.

    

(b)  Adverse Party’s Options; Deleting Unrelated Matter.  An adverse party is entitled to have the writing or object produced at the hearing or deposition in which the witness is testifying, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

If production of the writing or object at the hearing or deposition is impracticable, the court may order it made available for inspection.

 

If the producing party claims that the writing or object includes unrelated matter, the court must examine the writing or object in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party.  Any portion deleted over objection must be preserved for the record.

    

(c)  Failure to Produce or Deliver the Writing or Object. If a writing or object is not produced, made available for inspection, or delivered as ordered, the court may issue any appropriate order.  But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or – if justice so requires – declare a mistrial.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

 

(a)  Showing or Disclosing the Statement During Examination.  When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness.  But the party must, on request, show it or disclose its contents to an adverse party's attorney.

    

(b)  Extrinsic Evidence of a Prior Inconsistent Statement.  Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

 

(a)  Calling.  When the court is the trier of fact, it may call a witness on its own or at a party's request.  Each party is entitled to cross-examine the witness.

    

(b)  Examining.  The court may examine a witness regardless of who calls the witness.

    

(c)  Objections.  A party may object to the court’s examining a witness either at that time or at the next opportunity when the jury is not present.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  At a party's request, the court may order witnesses excluded so that they cannot hear other witnesses' testimony.  Or the court may do so on its own.  But this rule does not authorize excluding:

(1)  a party who is a natural person;

(2)  an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;

(3)  a person whose presence a party shows to be essential to presenting the party's claim or defense; or

(4)  a crime victim whose exclusion is prohibited under Article 1, Section 22 of the Idaho Constitution.

    

(b)  Preliminary Hearings.  Notwithstanding subsections (a)(1), (2), and (3) of this rule, in a preliminary hearing if either party requests it, the magistrate must exclude all non-party witnesses who have not been examined.

 

(c)  Child Witnesses.  Notwithstanding subsections (a) and (b) of this rule or any statutory provision, when a child is summoned as a witness in any hearing in any criminal matter, including any preliminary hearing, the court may allow parents, a counselor, friend or other person having a supportive relationship with the child to remain in the courtroom during the child's testimony.

    

(Adopted March 26, 2018, effective July 1, 2018.)

If a witness is not testifying as an expert, testimony in the form of an opinion or inference is limited to one that is:

(a)  rationally based on the witness's perception;

(b)  helpful to clearly understanding the witness's testimony or to determining a fact in issue; and

(c)  not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion or inference on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

An opinion or inference is not objectionable just because it embraces an ultimate issue.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Unless the court orders otherwise, an expert may state an opinion--and give the reasons for it--without prior disclosure of the underlying facts or data, provided that, if requested pursuant to the rules of discovery, the underlying facts or data were disclosed. But the expert may be required to disclose those facts or data on cross-examination.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a)  Appointment Process. On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

    

(b)  Expert's Role.  The court must inform the expert of the expert's duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert:

(1)  must advise the parties of any findings the expert makes;

(2)  may be deposed by any party;

(3)  may be called to testify by the court, pursuant to Rule 614(a);

(4)  may be called to testify by any party; and

(5)  may be cross-examined by any party, including the party that called the expert.

    

(c)  Compensation.  The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:

(1)  in a criminal case or in a civil case involving just compensation for the taking of property, from any funds that are provided by law; and

(2)  in any other civil case, by the parties in the proportion and at the time that the court directs – the compensation is then charged like other costs.

(d)  Parties' Choice of Their Own Experts. This rule does not limit a party in calling its own experts.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

   

(a)  Statement. “Statement” means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

    

(b)  Declarant. “Declarant” means the person who made the statement.

    

(c)  Hearsay. "Hearsay" means a statement that:

(1)  the declarant does not make while testifying at the current trial or hearing; and

(2)  a party offers in evidence to prove the truth of the matter asserted in the statement.

    

(d)  Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

    

(1)  A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A)  is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B)  is consistent with the declarant's testimony and is offered:

(i)  to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii)  to rehabilitate the declarant's credibility as a witness when attacked on another ground; or

(C)  identifies a person as someone the declarant perceived earlier.

(2)  Statement by Party-Opponent. The statement is offered against an opposing party and:

(A)  was made by the party in an individual or representative capacity;

(B)  is one the party manifested that it adopted or believed to be true;

(C)  was made by a person whom the party authorized to make a statement on the subject;

(D)  was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

(E)  was made by the party's coconspirator during and in furtherance of the conspiracy.

    

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Hearsay is not admissible except as provided by these rules or other rules promulgated by the Supreme Court of Idaho.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    

(1)  Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

    

(2)  Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

    

(3)  Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

    

(4)  Statement Made for Medical Diagnosis or Treatment. A statement that:

(A)  is made for – and is reasonably pertinent to – medical diagnosis or treatment; and 

(B)  describes medical history; past or present symptoms or sensations; or their source.

    

(5)  Recorded Recollection. A record that:

(A)  is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B)  was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

    

(6)  Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A)  the record was made at or near the time by – or from information transmitted by – someone with knowledge;

(B)  the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C)  making the record was a regular practice of that activity;

(D)  all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12); and

(E)  the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

    

(7)  Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A)  the evidence is admitted to prove that the matter did not occur or exist;

(B)  a record was regularly kept for a matter of that kind; and

(C)  the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

    

(8)  Public Records. A record or statement of a public office if:

(A)  it sets out:

i  the office's regularly recorded and regularly conducted activities; or

ii  a matter observed while under a legal duty to report, or factual findings resulting from an investigation conducted under legal authority, but not including:

(a)  a statement or factual finding offered by the public office in a case in which it is a party; or

(b)  an investigative report by law enforcement personnel or a public office’s factual finding resulting from a special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case; and

(B)  the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

    

(9)  Public Records of Vital Statistics.  A record of a birth, death, fetal death, or marriage, if reported to a public office in accordance with a legal duty.

    

(10)  Absence of a Public Record. Testimony – or certification under Rule 902 – that a diligent search failed to disclose a public record or statement if:

(A)  the testimony or certification is admitted to prove that

i  the record or statement does not exist; or

ii  a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B)  in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or the objection.

    

(11)  Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

    

(12)  Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A)  made by a person who is authorized by a religious organization or by law to perform the act certified;

(B)  attesting that the person performed a marriage or similar ceremony or administered a sacrament; and

(C)  purporting to have been issued at the time of the act or within a reasonable time after it.

 

(13)  Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

    

(14)  Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A)  the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;

(B)  the record is kept in a public office; and

(C)  a statute authorizes recording documents of that kind in that office.

    

(15)  Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose – unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

    

(16)  Statements in Ancient Documents. A statement in a document that is at least 30 years old and whose authenticity is established.

    

(17)  Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

    

(18)  Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A)  the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B)  the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit, except upon motion and for good cause shown.

    

(19)  Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage – or among a person's associates or in the community – concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

    

(20)  Reputation Concerning Boundaries or General History. A reputation in a community – arising before the controversy – concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

 

(21)  Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

    

(22)  Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A)  the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B)  the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C)  the evidence is admitted to prove any fact essential to the judgment; and

(D)  when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect admissibility.

    

(23)  Medical or Dental Tests and Test Results for Diagnostic or Treatment Purposes.  A written, graphic, numerical, symbolic or pictorial representation of the results of a medical or dental test performed for purposes of diagnosis or treatment for which foundation has been established pursuant to Rule 904, unless the opponent shows that the sources of information or other circumstances indicate a lack of trustworthiness.  This exception shall not apply to:

 

(a) psychological tests;

(b) reports generated pursuant to I.R.C.P. 35(a);

(c) medical or dental tests performed in anticipation of or for purposes of litigation; or

(d) public records specifically excluded from the Rule 803(8) exception to the hearsay rule.

    

(24)  Other Exceptions.

(A)  In General.  A statement not specifically covered by any of the foregoing exceptions if:

i  the statement has equivalent circumstantial guarantees of trustworthiness.

ii  it is offered as evidence of a material fact;

iii  it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

iv  admitting it will best serve the purposes of these rules and the interests of justice.

(B)  Notice.  The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

    

(Adopted March 26, 2018, effective July 1, 2018.)

(a)  Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

    

(1)  is exempted from testifying about the subject matter of the declarant's     statement because the court rules that a privilege applies;

    

(2)  refuses to testify about the subject matter despite a court order to do so;

    

(3)  testifies to not remembering the subject matter;

    

(4)  cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

    

(5)  is absent from the trial or hearing and the statement's proponent has not been     able, by process or other reasonable means, to procure:

(A)  the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B)  the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

    

But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

    

(b)  The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

 

(1)  Former Testimony. Testimony that:

(A)  was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B)  is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

    

(2)  Statement Under the Belief of Imminent Death. In a prosecution for     homicide or in  a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

    

(3)  Statement Against Interest. A statement that:

(A)  a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B)  is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

    

(4)  Statement of Personal or Family History. A statement about:

(A)  the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B)  another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

 

(5) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the declarant's unavailability as a witness, and did so intending that result.

    

(6)  Other exceptions.

(A)  In General.  A statement not specifically covered by any of the foregoing exceptions if:

(i)  the statement has equivalent circumstantial guarantees of trustworthiness;

(ii)  it is offered as evidence of a material fact;

(iii)  it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(iv)  admitting it will best serve the purposes of these rules and the interests of justice.

(B)  Notice.  The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

 

(Adopted March 26, 2018, effective July 1, 2018; amended effective May 28, 2019.)

 

When a hearsay statement – or a statement described in Rule 801(d)(2)(C), (D), or (E) – has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Idaho Rules of Evidence Rule 901. Authenticating or Identifying Evidence.

(a)  In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

    

(b)  Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement:

    

(1)  Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

    

(2)  Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

    

(3)  Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

 

(4)  Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

    

(5)  Opinion About a Voice. An opinion identifying a person's voice--whether heard firsthand or through mechanical or electronic transmission or recording--based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

 

(6)  Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A)  a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B)  a purported public record or statement is from the office where items of this kind are kept.

    

(7)  Evidence About Public Records. Evidence that:

(A)  a document was recorded or filed in a public office as authorized by law; or

(B)  a purported public record or statement is from the office where items of this kind are kept.

    

(8)  Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A)  is in a condition that creates no suspicion about its authenticity;

(B)  was in a place where, if authentic, it would likely be; and

(C)  is at least 30 years old when offered.

 

(9)  Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

    

(10)  Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a Supreme Court rule, by an Idaho statute, or by the Idaho Constitution. 

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

    

(1)  Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A)  a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B)  a signature purporting to be an execution or attestation.

    

(2)  Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

(A)  it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B)  another public officer who has a seal and official duties within that same entity certifies under seal – or its equivalent – that the signer has the official capacity and that the signature is genuine.

    

(3)  Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester--or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the court may, for good cause, either:

(A)  order that it be treated as presumptively authentic without final certification; or

(B)  allow it to be evidenced by an attested summary with or without final certification.

    

(4)  Certified Copies of Public Records. A copy of an official record--or a copy of a document that was recorded or filed in a public office as authorized by law--if the copy is certified as correct by:

(A)  the custodian or another person authorized to make the certification; or

(B)  a certificate that complies with Rule 902(1), (2), or (3), an Idaho statute, or a rule prescribed by the Supreme Court.

    

(5)  Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

    

(6)  Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

    

(7)  Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

    

(8)  Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

    

(9)  Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

    

(10)  Presumptions Created by Law.  A signature, document, or anything else that a federal or Idaho statute or Supreme Court rule declares to be presumptively or prima facie genuine or authentic.

    

(11)  Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person.  As used in this subsection, “certification” means a written declaration signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the jurisdiction where the certification is signed.  Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record – and must make the record and certification available for inspection – so that the party has a fair opportunity to challenge them.

 

(12)  Certified Foreign Records of a Regularly Conducted Activity. The original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows:  as used in this subsection, “certification” means a written declaration signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

A subscribing witness's testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a) Authentication of Items Described in Rule 803(23).

An item described in Rule 803(23) is self-authenticating, and no extrinsic evidence of authenticity is required for its admission, if:

(1)  the proposed exhibit identifies the person or entity who conducted or interpreted the test, the name of the patient, and the date the test was performed; and

(2)  notice was given as provided in subsection (b) of this rule.

   

(b) Notice. No less than 45 days before trial, any party intending to offer an item under this rule must serve on all parties a notice, stating that the item is being offered under this rule and shall be deemed authentic and admissible without testimony or further identification, unless objection is filed and served within 14 days of the date of notice, pursuant to subsection (c) of this rule. The notice served on the parties shall include a brief description of the item along with the name, address and telephone number of the item's author or maker, and the notice shall be accompanied by a copy of the item if it is practicable to provide a copy. The notice, but not the accompanying item, shall be filed with the court.

   

(c) Objection to Authenticity or Admissibility. Within 14 days of notice, any other party may object by filing and serving on all parties a written objection to any item offered under this rule, identifying each item to which objection is made. The grounds for the objection shall be specifically set forth, except objection on the grounds of relevancy need not be made until trial. If the court in a civil case finds that an objection was made without reasonable basis and the item is admitted at trial, the court may award the offering party any expenses incurred and reasonable attorney fees.

   

(d) Effect of Rule. This rule does not restrict argument or proof relating to the weight to be accorded the evidence submitted, nor does it restrict the trier of fact's authority to determine the weight of the evidence after hearing all of the evidence and the arguments of opposing parties. Nothing contained in this rule shall prohibit the admissibility of a written, graphic, numerical, symbolic or pictorial representation in evidence where otherwise admissible.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Idaho Rules of Definition Rule 1001. Definitions That Apply to This Article.

In this article: 

 

(a)  A "writing" consists of letters, words, numbers, or their equivalent set down in any form.

    

(b)  A "recording" consists of letters, words, sounds, numbers, or their equivalent recorded in any manner.

    

(c)  A "photograph" means a photographic image or its equivalent stored in any form.

    

(d)  An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout – or other output readable by sight – if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it.

 

(e)  A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

An original writing, recording, or photograph is required in order to prove its content unless these rules or a statute provides otherwise.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity, or the circumstances make it unfair to admit the duplicate.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

    

(a)  all the originals are lost or destroyed, and not by the proponent acting in bad faith;

    

(b)  an original cannot be obtained by any reasonably practicable, available judicial process;

    

(c)  the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

    

(d)  the writing, recording, or photograph is not closely related to a controlling issue.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

(a) Proof of public record.  The proponent may use a copy to prove the content of an official record – or of a document that was recorded or filed in a public office as authorized by law – if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

 

(b) Use of official transcripts of district court proceedings.  In all cases where a party desires to place in evidence a transcript or partial transcript of a district court proceeding, or disclose the contents of a transcript during the examination of a witness, the transcript must be an official transcript as provided in , Idaho Court Administrative Rule 27(d).

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

    

(Adopted March 26, 2018, effective July 1, 2018.)

 

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines – in accordance with Rule 104(b) – any issue about whether:

(a)  an asserted writing, recording, or photograph ever existed;

(b)  another one produced at the trial or hearing is the original; or

(c)  other evidence of content accurately reflects the content.

    

(Adopted March 26, 2018, effective July 1, 2018.)