Cross References.

Judicial notice of newly incorporated cities,§ 50-104.

Public records, proving, Idaho Evid. R. 1005.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Common Knowledge.

It is a matter of common knowledge that American Surety Company of New York is commonly spoken of as American Surety Company. American Sur. Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1933).

It is a matter of common knowledge that the eye is most sensitive, and serious injury thereto causes intense pain. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

It is a matter of common knowledge that newspapers are widely circulated and read. O’Malley v. Statesman Printing Co., 60 Idaho 326, 91 P.2d 357 (1939).

Designation of Controlled Substance.

The question whether a substance is designated in the Uniform Controlled Substances Act as a controlled substance is a question of law for the court, and not the jury, to decide. State v. Hobbs, 101 Idaho 262, 611 P.2d 1047 (1980).

Facts Judicially Noticed.

Judicial notice has been taken of the following:

Abbreviations in common use describing legal subdivisions of land. Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499, writ denied, 27 Idaho 400, 149 P. 505 (1915).

Acts of congress, both public and private, and of executive branch of the United States government. Oregon Short Line R.R. v. Gooding, 6 Idaho 773, 59 P. 821 (1899).

Automobile factories, nonexistence in state. George B. Wallace, Inc. v. Pfost, 57 Idaho 279, 65 P.2d 725 (1937).

Boise City is in Ada County, state of Idaho. Shaw v. Martin, 20 Idaho 168, 117 P. 853 (1911).

Census, requirement for and taking of federal decennial census, and of the fact that no official state census had been taken for a particular year. Twin Falls ex rel. Cannon v. Koehler, 63 Idaho 562, 123 P.2d 715 (1942).

City of Lewiston, the size and location of. Chamberlain v. Lewiston, 23 Idaho 154, 129 P. 1069 (1912), appeal dismissed, 234 U.S. 751, 34 S. Ct. 775, 58 L. Ed. 1576 (1914).

Distance between Payette and Boise is about sixty-five miles, and that medical and hospital facilities at Boise are readily accessible at a moderate cost. Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707 (1941).

Doors opening outwardly over sidewalks, continued existence and general use after enactment in 1915 of statute defining a nuisance. Rief v. Mountain States Tel. & Tel. Co., 63 Idaho 418, 120 P.2d 823 (1942).

Expiration of term of office of district judge. Boise-Kuna Irrigation Dist. v. Hartson, 48 Idaho 572, 285 P. 456 (1929).

Federal court judgments and decrees that affect subject-matter of action before state court. Williams v. Sherman, 36 Idaho 494, 212 P. 971 (1922).

Federal departments, regulations of, promulgated pursuant to acts of congress. State ex rel. Taylor v. Taylor, 58 Idaho 656, 78 P.2d 125 (1956); A.C. Frost & Co. v. Coeur d’Alene Mines Corp., 61 Idaho 21, 98 P.2d 965 (1939), reversed on other grounds, 312 U.S. 38, 61 S. Ct. 414, 85 L. Ed. 500 (1941).

Federal taxes on electric light bills. City of Idaho Falls v. Pfost, 53 Idaho 247, 23 P.2d 245 (1933).

Fruit and vegetable production in Idaho comprises the major agricultural activity of Idaho. State ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649 (1938). Income as such has never been assessed or taxed as “property” in Idaho. Diefendorf v. Gallet, 51 Idaho 619, 10 P.2d 307 (1932).

Journals of the house of representatives and senate. Peavy v. McCombs, 26 Idaho 143, 140 P. 965 (1914); State ex rel. Hall v. Eagleson, 32 Idaho 280, 181 P. 935 (1919); Lloyd Corp. v. Bannock County, 53 Idaho 478, 25 P.2d 217 (1933).

Local elections, as to whether or not a statute dependent for its existence upon a successful local election is in force in any particular county. State v. Schmitz, 19 Idaho 566, 114 P. 1 (1911).

Motor vehicles, operation of during World War II was reduced to a minimum and private passenger automobiles were practically eliminated. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

National banks, existence of. First Nat’l Bank v. Walker, 27 Idaho 199, 148 P. 46 (1915).

Nez Perce County, that all townships in said county are situated north of the base line. Armstrong v. Jarron, 21 Idaho 747, 125 P. 170 (1912).

Notaries public of sister state, seals of. Dalstrom v. Walker, 33 Idaho 374, 194 P. 847 (1920).

Notary public’s official seal is judicially noticed and the regularity of an official act is presumed. Bruce v. Frame, 39 Idaho 29, 225 P. 1024 (1924). To same effect, see Dement v. City of Caldwell, 22 Idaho 62, 125 P. 200 (1912).

Paved highways, existence along railroad line. In re Union Pac. R.R., 64 Idaho 597, 134 P.2d 1073 (1943).

Prosecuting officer of the county, official position of, and the person holding that office. State v. Burtenshaw, 25 Idaho 607, 138 P. 1105 (1914).

Secretary of agriculture, regulations adopted by, for government of national forests. McFall v. Orkoosh, 37 Idaho 243, 215 P. 978 (1923).

State auditor, succession in office of. Doolittle v. Eckert, 53 Idaho 384, 24 P.2d 36 (1933).

State officials and departments, reports of. Albrethsen v. State, 60 Idaho 715, 96 P.2d 437 (1939).

State treasurers’ reports showing receipts for certain years credited to the liquor control fund. Albrethsen v. State, 60 Idaho 715, 96 P.2d 437 (1939).

Journals of the legislative bodies to determine whether an act of the legislature was constitutionally passed and for the purpose of ascertaining what was done by the legislature. Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948); Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); State ex rel. Brassey v. Hanson, 81 Idaho 403, 342 P.2d 706 (1959).

Public and private Acts of the legislature. Keenan v. Price, 68 Idaho 423, 195 P.2d 662 (1948); Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959); State ex rel. Brassey v. Hanson, 81 Idaho 403, 342 P.2d 706 (1959).

Idaho motorist’s guide issued by department of law enforcement, since guide is an official pronouncement of an executive department of state of Idaho. Ineas v. Union P.R.R., 72 Idaho 390, 241 P.2d 1178 (1952).

The supreme court will take judicial notice of the contents of the journals of the Idaho legislature. State v. Witzel, 79 Idaho 211, 312 P.2d 1044 (1957).

The judicial notice taken by the courts of this state of the public and private official acts of the executive department of the state government includes the “Idaho Drivers Handbook” published under the authority of the department of law enforcement and the “Manual on Uniform Traffic Control Devices for Streets and Highways” prepared by the American Association of State Highways Officials, Institute of Traffic Engineers, and National Conference on Street and Highway Safety, adopted by the Idaho board of highway directors. Howard v. Missman, 81 Idaho 82, 337 P.2d 592 (1959). The district court will take judicial notice of its own records in a case before it. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959).

Minutes of the meetings of the board of examiners. Padgett v. Williams, 82 Idaho 114, 350 P.2d 353 (1960).

Order of board of highway directors fixing and designating 35 miles per hour as the reasonable, safe, prima facie speed limit on certain portion of U.S. Highway 30, and of the fact that the section of the highway to which it relates is a part of the state highway system. State v. Wendler, 83 Idaho 213, 360 P.2d 697 (1961).

In an action by a city to condemn land for use of an adjacent airport, reference in the court’s instructions to the jury to the duty of the city to protect the flying public by providing a clear space at the end of its runway in conformity with safety regulations was to facts of which the court took judicial notice. Caldwell v. Roark, 92 Idaho 99, 437 P.2d 615 (1968).

That the judge who heard the evidence presented in the trial below had since died. Walter v. Potlatch Forests, Inc., 94 Idaho 738, 497 P.2d 1039 (1972).

Where former wife was granted a judgment modifying a divorce decree by awarding custody of two children to her as a result of material change in conditions, including her remarriage, which warranted transfer of custody to her, the supreme court was not bound by principles of res judicata and thus appropriately granted the former husband’s motion to supplement the appeal record and took judicial notice of former wife’s divorce. England v. Phillips, 96 Idaho 830, 537 P.2d 1019 (1975).

Facts Not Judicially Noticed.

Courts have refused to take judicial notice of the following:

Carey Act company or corporation, existence of. Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29 (1924).

Chinese words and phrases, signification of. State v. Moon, 20 Idaho 202, 117 P. 757 (1911).

Decisions or statutes of other states. Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936).

District court adjournments, supreme court will not take judicial notice of adjournment before expiration of term. State v. Cotterel, 12 Idaho 572, 86 P. 527 (1906).

District court rules, supreme court does not take judicial notice of. Powell v. Springston Lumber Co., 12 Idaho 723, 88 P. 97 (1906); Peters v. Walker, 37 Idaho 195, 215 P. 845 (1923); Judy v. Reilly Atkinson Co., 59 Idaho 752, 87 P.2d 451 (1938).

Municipal ordinances. State v. Egli, 41 Idaho 422, 238 P. 514 (1925).

Public domain, when lands are part of unsurveyed public domain, or when they ceased to be part of such public domain. Williams v. Sherman, 35 Idaho 169, 205 P. 259 (1922).

State land board, rules of. Bothwell v. Bryant, 36 Idaho 337, 210 P. 1003 (1922).

War, until there has been some act or declaration creating or recognizing the existence of the war by the department of the government clothed with the war-making power. Rosenau v. Idaho Mut. Benefit Ass’n, 65 Idaho 408, 145 P.2d 227 (1944). A court may not take judicial notice of city ordinances or of the various codes adopted under them. Marcher v. Butler, 113 Idaho 867, 749 P.2d 486 (1988).

Facts Occurring After Trial and Pending Appeal.

It sometimes occurs that the doctrine of judicial notice works a reversal of a case where the judgment of the lower court was correct at the time it was rendered and such may be the case where a foreign government had no right to sue because it had not been recognized by the state department of the United States, but after an adverse decision and pending appeal by it, such government was recognized, then the judgment of the lower court will be reversed upon the reviewing court taking judicial notice of such recognition by the state department. Republic of China v. Merchants’ Fire Assurance Corp., 30 F.2d 278 (9th Cir. 1929).

In order to rely upon the laws of another jurisdiction, it is necessary that they be pleaded and proved as a fact. Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S. Ct. 44, 84 L. Ed. 85 (1939). See also, Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080 (1910); Douglas v. Douglas, 22 Idaho 336, 125 P. 796 (1912); Mechanics & Metals Nat’l Bank v. Pingree, 40 Idaho 118, 232 P. 5 (1924); State v. Martinez, 43 Idaho 180, 250 P. 239 (1926); Kleinschmidt v. Scribner, 54 Idaho 185, 30 P.2d 362 (1934); Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936).

The supreme court can not take judicial notice of the statutes of a sister state and can not judicially know whether a particular court of another state is or is not a court of competent jurisdiction. Cole v. Cole, 68 Idaho 561, 201 P.2d 98 (1948).

In a divorce proceeding by wife in Idaho filed subsequent to an interlocutory judgment of divorce in favor of the husband in California, the contention of the husband that because of the peculiar California statutory law and construction of the California courts an interlocutory judgment of divorce in California was final could not be sustained, where the husband neither pleaded nor proved the California law, hence Idaho law controlled. Newell v. Newell, 77 Idaho 355, 293 P.2d 663 (1955).

Laws of Nature.

Courts take judicial knowledge of the laws of nature, resorting for information to appropriate books and documents of reference. Petajaniemi v. Washington Water Power Co., 22 Idaho 20, 124 P. 783 (1912).

Courts take judicial notice of laws of nature and may consult appropriate reference works. In doing so, this court is unable to say that one plowing with both hands on the plow handles runs a greater risk from lightning stroke than one not so engaged. Wells v. Robinson Constr. Co., 52 Idaho 562, 16 P.2d 1059 (1932), overruled on other grounds, Mayo v. Safeway Store, Inc., 93 Idaho 161, 457 P.2d 400 (1969).

The courts will take judicial notice of the fact that water seeks its level; and if a witness should testify that it stood up in hillocks or piles, like stone or earth, a court would not be expected to believe it; or if a witness testified that a body, when turned loose, did not fall to the ground, but that it rather fell out into space, such evidence would not be entitled to any weight, or create a conflict of evidence. Larson v. Callahan Canning Co., 53 Idaho 746, 27 P.2d 967 (1933).

Local Ordinances.

The enumeration in this section of facts judicially noticed is not exclusive and the district court may take judicial notice of ordinances of cities and towns within its jurisdiction. Lewiston v. Frary, 91 Idaho 322, 420 P.2d 805 (1966). Idaho supreme court’s discussion in Marcher v. Butler , 113 Idaho 867, 749 P.2d 486 (1988), is dicta and should not be considered as having altered or overruled sub silentio the judicial notice rule relating to this section, as established by the court’s earlier decision in City of Lewiston v. Frary , 91 Idaho 322, 420 P.2d 805 (1966). Doe v. Doe, 146 Idaho 386, 195 P.3d 745 (Ct. App. 2008).

Receipt of Letter.

Presumption that a letter, properly addressed and mailed, was duly received by the addressee is not overcome by positive evidence of addressee to the contrary. American Sur. Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1933).

Whether a letter, properly addressed and mailed, was received by the addressee is a question for the jury. American Sur. Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1933).

Am. Jur. 2d.

C.J.S.

ALR.

Judicial notice as to location of street address within particular political subdivision. 86 A.L.R.3d 484.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho by order of the supreme court promulgated March 19, 1951 which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

Definiteness and Certainty.

If a statute as amended is sufficiently definite to enable a court to place thereon a reasonable construction and declare the legislative intent, then such a statute is not so ambiguous as to be unconstitutional for uncertainty. State ex rel. Wright v. Headrick, 65 Idaho 148, 139 P.2d 761 (1943).

Designation of Controlled Substance.

Inclusio Unius Est Exclusio Alterius.

The question whether a substance is designated in the Uniform Controlled Substances Act as a controlled substance is a question of law for the court, and not the jury, to decide. State v. Hobbs, 101 Idaho 262, 611 P.2d 1047 (1980). Inclusio Unius Est Exclusio Alterius.

Where a statute specifies certain things, the designation of such things excludes all others. Peck v. State, 63 Idaho 375, 120 P.2d 820 (1941); Meader v. Unemployment Comp. Div. of Indus. Accident Bd., 64 Idaho 716, 136 P.2d 984 (1943).

Instruction on Foreign Statute.

An instruction advising the jury as to the existence of a foreign statute should include the entire statute, and not just part. Burklund v. Oregon Short Line R.R., 56 Idaho 703, 58 P.2d 773 (1936).

Legislative Intent.

It is the uniform rule in this state that where a constitutional or statutory provision was adopted from another state which had already construed the provision prior to our adoption of it, it will be assumed that it was the intention to adopt the construction previously placed upon it by the courts of the jurisdiction from which it was taken. Mundell v. Swedlund, 58 Idaho 209, 71 P.2d 434 (1937); Allan v. Oregon Short Line R.R., 60 Idaho 267, 90 P.2d 707 (1938); Girard v. Defenbach, 61 Idaho 702, 106 P.2d 1010 (1940); Bishop v. Morrison-Knudsen Co., 64 Idaho 806, 137 P.2d 963 (1943).

The supreme court will be guided by the rule that the legislative intent is the main lodestar of construction in the interpretation of a statute. Poston v. Hollar, 64 Idaho 322, 132 P.2d 142 (1942).

Where a statute is taken from another jurisdiction and there are changes or omissions, ordinarily, such changes or omissions are deemed to have been made purposely. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942).

Necessity for Protest in Payment of Taxes.

Where neither state income tax statute, which had been patterned very largely upon the federal statute authorizing recovery of taxes not paid under protest, nor any amendment, mentioned whether recovery of taxes depended upon their having been paid under protest, and the supreme court held, at the time the state tax law was passed, that other taxes could not be recovered unless there had been a protest at the time of their payment, the legislature intended that income taxes should not be refunded unless they had been paid under protest. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942).

Presumption as to Legislature’s Knowledge of Law.

The legislature, in passing a statute, presumptively has in mind extant law and its interpretation and legislates in relation thereto. Walker v. Wedgwood, 64 Idaho 285, 130 P.2d 856 (1942).

Purpose and Object of Statutory Construction.

Statute Susceptible of Two Constructions.

The lodestar of statutory construction is the legislative intent, and the cardinal principle of statutory construction is to save and not to destroy the statutory enactment; and to this end a court must give effect to a statute wherever it is possible to do so and keep within the terms of the language used; and in proceeding, the court should assume that the legislature intended to enact a valid law. State ex rel Wright v. Headrick, 65 Idaho 148, 139 P.2d 761 (1943). Statute Susceptible of Two Constructions.

A statute susceptible of two constructions, one of which would render it invalid should be so construed that the statute may be sustained. Independent Sch. Dist. No. 6 v. Common Sch. Dist. No. 38, 64 Idaho 303, 131 P.2d 786 (1942).

Undisputed Facts.

Ordinarily, issues of negligence present questions of fact to be resolved by a jury; however, where the facts are undisputed and where but one reasonable conclusion can be drawn therefrom, the issue of the existence of negligence becomes a question of law to be resolved by the court. Baker v. Barlow, 94 Idaho 712, 496 P.2d 949 (1972).

Words and Phrases.

In the construing of a statute, words and phrases therein used are assumed to have been so used in the popular sense if they have not acquired a technical meaning. Meader v. Unemployment Comp. Div. of Indus. Accident Bd., 64 Idaho 716, 136 P.2d 984 (1943).

ALR.

Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution. 41 A.L.R.4th 877.

Cross References.

Fees of witnesses,§ 9-1601.

Refusal to be sworn as witness a contempt,§ 7-601.

Rights and duties of witnesses,§ 9-1301 et seq.

Transcribed testimony of deceased or absent witness admissible,§ 9-206.

Binding Effect of Evidence.

A board, court, or jury must accept as true the positive uncontradicted testimony of a credible witness, unless inherently improbable or rendered improbable by facts and circumstances adduced in evidence. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Communications with Deceased.

The impropriety, if any, in the admission of testimony of communications with the deceased is not a reversible error where the fact involved was established by other competent evidence. Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616 (1932).

Conflict in Testimony.

Although the jury in a rape case believes that the prosecutrix made contradictory statements with respect to the acts complained of, it did not necessarily follow that it must reject all of her testimony as untrue. State v. Harp, 31 Idaho 597, 173 P. 1148 (1918).

The jury may believe or disbelieve the testimony of any witness, or any portion of such testimony, even though such witness may have in some respects testified falsely in respect to a material matter, or been contradicted. State v. Cacavas, 55 Idaho 538, 44 P.2d 1110 (1935).

Where a credible witness, with apparently adequate opportunity for observation, testifies to an occurrence, the mere testimony of other witnesses that they were not cognizant of the occurrence, where the opportunities of the latter witnesses for observation are not stated, or where it affirmatively appears that their situation was such that they probably would not have observed the event if it had occurred, or where their opportunities were not coextensive with those of a witness who testifies positively to the occurrence, is not sufficient to create a conflict in the testimony. Graham v. Leek, 65 Idaho 279, 144 P.2d 475 (1943).

Contention that the evidence failed to establish either the time for the performance of the contract or the amount of work to be performed thereunder was one for determination by the jury in view of testimony that fails to disclose a meeting of the minds, one party claiming there was no agreement as to the hauling of additional ore while the other maintained the contract provided for the hauling of 50,000 tons of ore. Curzon v. Wells Cargo, Inc., 86 Idaho 38, 382 P.2d 906 (1963).

The issues presented by conflicting witnesses and the credibility of the witnesses were for resolution by the jury. State v. Peterson, 87 Idaho 147, 391 P.2d 846 (1964).

The mere fact that the testimony of witnesses in a statutory rape case was sharply conflicting only raised questions as to the credibility of the witnesses and the weight to be given their testimony, and these were matters which were exclusively for the jury’s determination. State v. Gee, 93 Idaho 636, 470 P.2d 296 (1970).

Construction and Purpose.

This section adds nothing to the established rule of impeaching the credibility of witnesses; it does not authorize incompetent impeaching questions such as whether witness is truthful and whether he has repeatedly told falsehoods. People v. Barnes, 2 Idaho 161, 9 P. 532 (1886). Purpose of this section is to remove all common-law disqualifications except those set out in the two sections next following. Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928).

Sections 9-201 to 9-203 have been the law of Idaho since 1881 when they were enacted by the territorial legislature. They intended to, and did, remove all common-law disqualifications save as enumerated in the following sections. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

The rule applicable to all witnesses, whether parties or interested in the event of an action, is that either a board, court, or jury must accept as true the positive, uncontradicted testimony of a credible witness, unless his testimony is inherently improbable, or rendered so by facts and circumstances disclosed at the hearing or trial. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Criminal Cases.

The provisions of this statute are not made applicable exclusively to civil actions but apply to criminal prosecutions. State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933).

In prosecution of defendant for committing lewd and lascivious acts on daughter, the latter, though only 12 years of age at the time of trial, was competent to testify where, on voir dire, it was disclosed that she was capable of receiving just impressions and relating them truly to the jury. State v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953).

When an accused in a criminal action voluntarily takes the witness stand, he subjects himself to cross-examination and impeachment under the same rules and conditions as any other witness. State v. Storms, 84 Idaho 372, 372 P.2d 748 (1962).

The legislature intended that a witness might be impeached in a criminal action as in a civil action; the defendant in a criminal action, as a party to the action, need not testify at all and if he deems it prudent to remain silent, no presumption is to be indulged against him; however, when he voluntarily assumes the character of a witness, he exposes himself to the legitimate attacks which may be made upon any witness. State v. Storms, 84 Idaho 372, 372 P.2d 748 (1962).

It was not error to deny a defendant’s motion to dismiss, at the close of the state’s evidence, made on the ground that the prosecution’s chief witness’s testimony was “fantastic and incredible and could not be believed”; it being within the province of the jury to believe or disbelieve the testimony of any witness. State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966).

A burglary defendant who had testified that, due to intoxication and the taking of pathibamate pills for ulcers, he had no recollection of anything between a time several hours prior to being found in the store that was entered and a time several hours later was not competent to answer a question by his counsel as to his intent in entering the store. State v. Johnson, 92 Idaho 533, 447 P.2d 10 (1968).

Disbelief of Interested Witness.

The industrial accident board is not at liberty to disbelieve the claimant’s testimony solely on the ground that the claimant was interested in the result of the case, where there was no substantial conflict in the evidence. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Drug Addiction as Affecting Credibility.

Expert Testimony.

The habitual use of opium, morphine, cocaine, or other like narcotics, which inevitably tend to impair the mind, destroy the memory, and pervert the moral character of a witness, may be shown for the purpose of affecting his credibility or the weight that should be given to his testimony; this, however, is not ground for the exclusion of his testimony unless it satisfactorily appears that he was under its influence to such an extent that his intellect was impaired when examined as a witness. State v. Fong Loon, 29 Idaho 248, 158 P. 233 (1916). Expert Testimony.

The credibility and weight of expert testimony, once an expert has been qualified, is exclusively a matter for determination by the jury. Harmston v. Agro-West, Inc., 111 Idaho 814, 727 P.2d 1242 (Ct. App. 1986).

Felony Conviction.

Where a witness admitted on cross-examination that he had been convicted of felony, redirect examination to show the circumstances under which the witness was convicted was properly denied, since inquiry into collateral matter which had been judicially disposed of would not be permitted. Lebak v. Nelson, 62 Idaho 96, 107 P.2d 1054 (1940).

Improper Admission of Testimony.

In prosecution for second-degree murder and aggravated burglary, trial court erred in admitting the testimony of a witness who expressed uncertainty as to whether his testimony was based on actual memories or on “dreams” after the shootings, even though the court admonished the jury that the witness’ testimony was to be disregarded except as it was specifically corroborated. State v. Hall, 111 Idaho 827, 727 P.2d 1255 (Ct. App. 1986).

Instruction Singling Out Defendant.

An instruction which read as follows, “Jurors are not bound by the uncontradicted testimony of an interested party when such testimony upon being carefully weighed, does not commend itself as worthy of belief. If, by reason of improbable and inconsistent statements, the testimony of an interested party appears to be lacking in the element of truthfulness, juries may in their discretion reject the same,” was not erroneous. State v. Orr, 53 Idaho 452, 24 P.2d 679 (1933).

Interest in Event of Suit.

The common-law rule excluding parties and persons interested in the outcome of the suit as witnesses was abrogated by this section; the purpose of the statute was to remove all common-law disqualifications except those expressly retained. Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928); Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Interpreters.

Where a witness has offered to testify to the statements of another person, spoken in a language not understood by him but translated for him by an interpreter, he is not qualified to testify as to the statement since he does not speak from personal knowledge; the interpreter or some other person who heard and understood the language in which the testimony was given, is the only competent witness to such statement. State v. Fong Loon, 29 Idaho 248, 158 P. 233 (1916).

Jury Exclusive Judges.

The jury is entitled to believe or disbelieve the testimony or any portion of the testimony of a witness. State v. Bedwell, 77 Idaho 57, 286 P.2d 641 (1955); State v. Johnson, 77 Idaho 1, 287 P.2d 425 (1955); State v. Anderson, 82 Idaho 293, 352 P.2d 972 (1960); State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964).

Jury Question.

Supreme court may not inquire as to credibility of witnesses since this is exclusive province of jury. Gordon v. Sunshine Mining Co., 43 Idaho 439, 252 P. 870 (1927); Webster v. McCullough, 45 Idaho 604, 264 P. 384 (1928); Anderson v. Ruberg, 66 Idaho 417, 160 P.2d 456 (1945).

In suit on note, the question as to whether there had been a renunciation and delivery of note to maker is one of fact for jury to determine. Anderson v. Ruberg, 66 Idaho 417, 160 P.2d 456 (1945).

The determination of credibility of witnesses and weight to be given their testimony is for the jury. Curzon v. Wells Cargo, Inc., 86 Idaho 38, 382 P.2d 906 (1963).

The credibility of the witnesses, and the weight to be given to their testimony, as well as the facts, were for determination by the jury. State v. Blacksten, 86 Idaho 401, 387 P.2d 467 (1963).

The determination of the credibility of the witnesses and the weight to be given their testimony is for the jury. Big Butte Ranch, Inc. v. Grasmick, 91 Idaho 6, 415 P.2d 48 (1966).

Perjured Testimony.

Where two of state’s witnesses in case in chief admitted having perjured themselves in preliminary proceedings, defendant was not entitled to mistrial since the testimony was admissible into evidence under§§ 9-201 to 9-203, although the admission of perjury is relevant to a determination of the credibility to be afforded that witness’s testimony by the finder of fact. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1979), overruled on other grounds, State v. Pierce, 107 Idaho 96, 685 P.2d 837 (Ct. App. 1984).

Religious Belief.

Dying declaration was admissible without preliminary proof that declarant believed in future state of rewards and punishments. State v. Williams, 36 Idaho 214, 209 P. 1068 (1922).

Am. Jur. 2d.

C.J.S.

ALR.

Limiting number of non-character witnesses in criminal case. 5 A.L.R.3d 238. Admissibility, in civil case, of expert or opinion evidence as to proposed witness’ inability to testify. 11 A.L.R.3d 1360.

Competency of interested witness to testify to signature or handwriting of deceased. 13 A.L.R.3d 404.

Effect of witness’ violation of order of exclusion. 14 A.L.R.3d 16.

Accused’s right to interview witness held in public custody. 14 A.L.R.3d 652.

Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege. 16 A.L.R.3d 1047.

Propriety and prejudicial effect of trial court’s limiting number of character or reputation witnesses. 17 A.L.R.3d 327.

Identity of witnesses whom adverse party plans to call to testify at civil trial, as subject of pretrial discovery. 19 A.L.R.3d 1114.

Necessity and admissibility of expert testimony as to credibility of witness. 20 A.L.R.3d 684.

Allowance of mileage or witness fees with respect to witnesses who are not called to testify or not permitted to do so when called. 22 A.L.R.3d 675.

Taking deposition or serving interrogatories in civil case as waiver of incompetency of witness. 23 A.L.R.3d 389.

Actionability of conspiracy to give or to procure false testimony or other evidence. 31 A.L.R.3d 1423.

Competency of non-expert’s testimony based on sound alone as to speed of motor vehicle involved in accident. 33 A.L.R.3d 1405.

Competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 A.L.R.3d 420.

Validity of indictment where grand jury heard incompetent witness. 39 A.L.R.3d 1064.

Cross-examination of witness as to his mental state or condition, to impeach competency or credibility. 44 A.L.R.3d 1203.

Defense attorney as witness for his client in criminal case. 52 A.L.R.3d 887.

Prosecuting attorney as a witness in criminal case. 54 A.L.R.3d 100.

Applicability of attorney-client privilege to communications relating to drafting of documents. 55 A.L.R.3d 1322.

Tort or statutory liability for failure or refusal of witness to give testimony. 61 A.L.R.3d 1297.

Use of drugs as affecting competency or credibility of witness. 65 A.L.R.3d 705.

Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing. 84 A.L.R.3d 811.

Physician-patient privilege as applied to physician’s testimony concerning wound required to be reported to public authority. 85 A.L.R.3d 1196.

Judge as witness in cause not on trial before him. 86 A.L.R.3d 633.

Trial jurors as witnesses in same state court or related case. 86 A.L.R.3d 781.

Court’s witnesses (other than expert) in criminal prosecution. 16 A.L.R.4th 352.

Presence of unauthorized persons during state grand jury proceedings as affecting indictment. 23 A.L.R.4th 397.

Propriety and prejudicial effect of comments by counsel vouching for credibility of witness — state cases. 45 A.L.R.4th 602.

Witnesses: Child competency statutes. 60 A.L.R.4th 784. Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction. 74 A.L.R.4th 277.

Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state’s witnesses in criminal case. 74 A.L.R.4th 705.

Adverse presumption or inference based on failure to produce or examine codefendant or accomplice who is not on trial — Modern criminal cases. 76 A.L.R.4th 812.

Adverse presumption or inference based on party’s failure to produce or question examining doctor — Modern cases. 77 A.L.R.4th 463.

Calling and interrogation of witnesses by court under rule 614 of the federal rules of evidence, 53 A.L.R. Fed. 498.

Presence of persons not authorized by rule 6(d) of Federal Rules of Criminal Procedure during session of grand jury as warranting dismissal of indictment. 68 A.L.R. Fed. 798.

Propriety and prejudicial effect of comments by council vouching for credibility of witness — federal cases. 78 A.L.R. Fed. 23.

Compiler’s Notes.

The 1927, 1947 and 1965 acts amended subdivision 3. Prior to the 1927 amendment subdivision 3 read, “Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted against an executor or administrator, upon a claim or demand against the estate of a deceased person as to any matter of fact occurring before the death of such deceased person.”

The 1927 act struck out the words “as to any matter of fact” and inserted in lieu thereof the words “as to any communication, or agreement, not in writing.” The 1947 act restored the section to its original form.

The 1965 amendment struck out the words “matter of fact” and substituted “communication or agreement not in writing.”

Section 2 of S.L. 1965, ch. 113, read: “The amendment incorporated herein shall be applicable only to those claims or demands against the estate of a deceased person arising subsequent to the effective date of this act.”

Effective Dates.

Section 3 of S.L. 1965, ch. 113 declared an emergency. Approved March 11, 1965.

CASE NOTES

Actions to Which Inapplicable.

Where respondent, the owner of property stored on decedent’s land, sued appellants, decedent’s son and his wife, for conversion after they sold respondent’s property, subsection (3) of this section did not apply because there was no claim against decedent’s estate; decedent’s son was not acting as a personal representative of the estate when he sold the portable buildings, and the estate was not a party in the conversion action. Carpenter v. Turrell, 148 Idaho 645, 227 P.3d 575 (2010).

Binding Effect of Evidence.

A board, court, or jury must accept as true the positive uncontradicted testimony of a credible witness, unless inherently improbable or rendered improbable by facts and circumstances adduced in evidence. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Children.

In prosecution of defendant for the committing of lewd and lascivious acts on daughter, the latter, though only 12 years of age at the time of trial, was competent to testify where, on voir dire, it was disclosed that she was capable of receiving just impressions and relating them truly to the jury. State v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953).

Boys thirteen and sixteen years of age were competent witnesses in an arson trial. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

There was no error in admitting the testimony of children aged five and six years who were confused and inconsistent in answering test questions on quantitative analyses, but who gave clear and consistent answers to questions concerning the offense with which the defendant was charged. State v. Ross, 92 Idaho 709, 449 P.2d 369 (1968), overruled on other grounds, Sharp v. Idaho Inv. Corp., 95 Idaho 113, 504 P.2d 383 (1972), and overruled on other grounds, State v. McNeely, 162 Idaho 413, 398 P.3d 146 (2017). Although the testimony of a nine year old child revealed a fair measure of embarrassment and lack of poise, and although with respect to the sequence of events her testimony was at times vague, she was unwavering in her testimony that the defendant took the alleged liberties with her and her friend, and, thus, the decision of the trial judge that the nine year old’s indecisiveness went to weight as opposed to admissibility was not in error. State v. McKenney, 101 Idaho 149, 609 P.2d 1140 (1980).

Out-of-court statements by child who was an alleged victim of sexual abuse were not per se unreliable, or presumptively unreliable, on the ground that the trial court found the child incompetent to testify at trial. Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).

This section, which provides that children under ten cannot be witnesses if they appear incapable of receiving just impressions of the facts or of relating them truly, is invalid to the extent that it attempts to prescribe admissibility of hearsay and is in conflict with Idaho Evid. R. 1102. State v. Poole, 124 Idaho 346, 859 P.2d 944 (1993).

Claims Against Decedents’ Estates.

See Compiler’s Notes regarding amendments of subdivision 3.

This section is drastic in its provision that claimants against estate can not be witnesses as to any matter of fact occurring before death of deceased. Goldensmith v. Worstell, 35 Idaho 679, 208 P. 836 (1922).

A presumption is indulged that a verdict obtained for the claimant for services to the deceased was not based on evidence of communications with the deceased, where there was other competent evidence sufficient to sustain the verdict. Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616 (1932).

Under this section, a claimant who sought to recover for services rendered in caring for the testator during his lifetime is a competent witness to testify as to the services performed and the value thereof. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Where contractors, required to furnish two surety bonds on their contract with the government, appointed deceased to represent them in procuring the required bonds but made it a condition of that appointment that the plaintiff share equally in the commissions on all bonds, and deceased wrote a memorandum agreement acknowledging plaintiff’s right to share equally in commissions on all bonds, the memorandum was admissible in plaintiff’s action against the deceased’s executrix to recover a balance due on broker’s commission, notwithstanding that it was signed only by the contractors and the deceased, since it was a written contract imposing duties and conferring benefits on and for the benefit of three parties. Clay v. Rossi, 62 Idaho 140, 108 P.2d 506 (1940).

This statute was evidently changed by the 1927 amendment for a purpose and that purpose must have been to relax instead of restrict the rule. By the amendment, there is no prohibition against a claimant testifying to occurrences in relation to or in connection with a contract or agreement in writing; such as delivery of the agreement, possession thereof, and payment or nonpayment, or rendition of services, or furnishing goods or material thereunder, and similar facts or circumstances. The prohibition, however extends to and comprehends contracts and agreements not in writing. Dowd v. Dowd, 62 Idaho 157, 108 P.2d 287 (1940).

Where the husband’s contract to repay loans made by the wife was evidenced by writing, other facts involved in the transaction, including a release of a mortgage and return of the mortgage and note to the husband, and redelivery of the agreement to the wife, were collateral to the writing and did not in effect establish a new and independent contract; hence testimony concerning such facts was not inadmissible under the 1927 amendment, in the wife’s action against the husband’s estate as involving “communication or agreement not in writing.” Dowd v. Dowd, 62 Idaho 157, 108 P.2d 287 (1940). Plaintiffs, who brought action against executor of deceased executor to impress a trust, were not competent witnesses to testify as to what deceased executor told them concerning their interest in the estate. Burns v. Skogstad, 69 Idaho 227, 206 P.2d 765 (1949).

Where plaintiffs filed an action against estate of a deceased to set aside a deed, and court allowed plaintiffs to testify as to what occurred prior to death of deceased, over objection of the defendant, and trial court by its finding of fact decided that such evidence was incompetent, but further found that there was sufficient evidence exclusive of questioned evidence to sustain its finding in favor of the plaintiff, such admission of incompetent evidence was held not reversible error, since there was sufficient evidence to establish facts involved. Dahlberg v. Johnson’s Estate, 70 Idaho 51, 211 P.2d 764 (1949).

Action by stepchildren of decedent for specific performance of an alleged oral contract of the decedent to will to them all of her property is a claim or demand against the estate of the deceased person, and it was reversible error for the court to allow the plaintiffs to testify as to what occurred prior to death of decedent over objections by the defendants. Johnson v. Flatness, 70 Idaho 37, 211 P.2d 769 (1949).

Administrator can waive objection to testimony by plaintiff in suit on claim, either by failure to object or by cross-examination. Chapman v. Booth, 71 Idaho 359, 232 P.2d 668 (1951).

Incompetency of witness to testify under this section as to any matter of fact occurring before death of deceased was not waived by executrix’s action in taking and filing discovery deposition even though deposition was not introduced in evidence. Thomas v. Thomas, 83 Idaho 86, 357 P.2d 935 (1960).

A right of action to enforce an agreement to devise certain real estate arose when the promisor died intestate and, where the promise was made prior to the effective date of the 1965 amendment to this section but the promisor died after, this section as amended in 1965 applied rather than the section as it existed when the promise was made. Quayle v. Mackert, 92 Idaho 563, 447 P.2d 679 (1968).

This section does not preclude all proof that could be submitted in husband’s claim against wife’s estate, as it does not prohibit others from testifying as to the facts. Estate of Carlson, 93 Idaho 258, 460 P.2d 393 (1969).

Where widow testified as to husband’s donative intent in a suit brought by children of deceased claiming a share, the court held her testimony was not in error as the widow was not a party, assignor, or person on whose behalf this suit was brought, nor was it a claim or demand against the estate. Greene v. Cooke, 96 Idaho 48, 524 P.2d 176 (1973).

Alleged hearsay declarations of deceased were properly admitted when testified to by at least one witness who was not a party in proceeding seeking to compel defendants to convey real property. Smith v. Smith, 95 Idaho 825, 521 P.2d 143 (1974).

Subdivision 3. only applies to claims against the estate of the deceased person. Webster v. Magleby, 98 Idaho 326, 563 P.2d 50 (1977).

From an examination of subdivision 3. of this section, it appears that the statute bars (1) certain persons from testifying (2) in specified actions (3) as to certain communications and all three conditions must be satisfied in order for the evidence to be barred. Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978). Statements concerning the state of a deed’s description upon delivery do not involve a “communication or agreement, not in writing” within the meaning of subdivision 3. of this section. Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978).

Although testimony concerning oral agreements is barred in appropriate cases, subdivision 3. of this section does not bar testimony concerning a state of affairs or matters of fact occurring before the decedent’s death. Argyle v. Slemaker, 99 Idaho 544, 585 P.2d 954 (1978).

— Actions to Which Applicable.

Under this section in an action against an administrator to establish a resulting trust against the decedent, the plaintiff in such action is disqualified from being a witness as to matters of fact occurring before the death of such deceased person. Rice v. Rigley, 7 Idaho 115, 61 P. 290 (1900).

Action by A and B against the estate of C to enforce specific performance of an alleged oral prospector’s contract and seeking to hold the estate of C as trustee of interest in mining claim is a claim or demand against said estate, and plaintiffs are disqualified from being witnesses as to matters of fact occurring before death of C. Rice v. Rigley, 7 Idaho 115, 61 P. 290 (1900).

The phrase “claim or demand”, as used in this section, embraces all rights of action for the establishment of a trust in land as well as claims or demands for debts or damages against the estate of a deceased person. Rice v. Rigley, 7 Idaho 115, 61 P. 290 (1900).

Action in claim and delivery to which administrator is a party, and in which certain of the parties claim right to possession as assignees of a claim against the estate represented by administrator, which is secured by mortgage upon property in question, and in which action no relief is sought against estate, is not an action “upon a claim or demand against the estate of a deceased person” such as to preclude a party thereto from testifying. Cunningham v. Stoner, 10 Idaho 549, 79 P. 228 (1904).

This section does not apply where claim is not against estate, but is to establish claim against third party. Bertleson v. Van Deusen Co., 37 Idaho 199, 217 P. 983 (1923).

Action to cancel notes and mortgage, executed and delivered to deceased, held to be an action on a claim or demand against the estate. Kilbourn v. Smith, 38 Idaho 646, 224 P. 432 (1924).

Enforcement of equitable lien against property of decedent involves “claim or demand” against estate. Thurston v. Holden, 45 Idaho 724, 265 P. 697 (1928).

This section applies only in actions against personal representative of deceased. Servel v. Corbett, 49 Idaho 536, 290 P. 200 (1930).

This section has no application to one directly defending against a claim in favor of an estate. Finlayson v. Harris, 49 Idaho 697, 291 P. 1071 (1930); Chiara v. Amabile, 64 Idaho 55, 127 P.2d 795 (1942).

Action in claim and delivery to recover possession of certificate of deposit brought against an administratrix, wherein plaintiff claimed that decedent had given the certificate to him, was not an action upon a claim or demand against the estate. Pickerd v. Dahl, 64 Idaho 14, 127 P.2d 759 (1942).

— Content of Will.

It was not error to admit testimony about a decedent’s will, where the evidence was properly admitted against a corporation and properly barred against the decedent’s estate. April Beguesse, Inc. v. Rammell, 156 Idaho 500, 328 P.3d 480 (2014).

— Persons to Whom Applicable.

In action brought against a bank by depositor to recover amount of a deposit made by plaintiff’s father in the name of plaintiff, cashier of the bank is not rendered incompetent to testify that, by the terms of the deposit made by the plaintiff’s father, since deceased, plaintiff’s father was to be permitted to check against the account. Greene v. Bank of Camas Prairie, 7 Idaho 576, 64 P. 888 (1901).

Party to a trust agreement with person since deceased cannot testify to the terms of such agreement in action involving title to property covered thereby. Coats v. Harris, 9 Idaho 458, 75 P. 243 (1904).

An officer or stockholder of a corporation is not a party within the meaning of this section. Webster-Soule Farm v. Woodmansee’s Adm’r, 36 Idaho 520, 211 P. 1090 (1922).

A stockholder of a corporation is not a person in whose behalf an action or proceeding is prosecuted. Webster-Soule Farm v. Woodmansee’s Adm’r, 36 Idaho 520, 211 P. 1090 (1922).

This section is not intended to prevent executor or administrator from being called as witness in support of a claim against estate, or to prevent plaintiff from being called in opposition to claim. Barton v. Dyer, 38 Idaho 1, 220 P. 488 (1923).

Where plaintiff, suing for malpractice against the estate of his deceased physician attempted to testify that he was not informed of the dangers inherent in the surgery he had undergone, his testimony was properly excluded under subdivision 3. of this section since he would be giving only his interpretation of the conversation, which the deceased could not rebut. Conrad v. St. Clair, 100 Idaho 401, 599 P.2d 292 (1979).

In an action to quiet title, the landowner’s testimony as to the deceased’s oral offer to purchase property was properly excluded under subdivision 3. of this section. Capps v. Wood, 110 Idaho 778, 718 P.2d 1216 (1986).

Where the decedent’s spouse relied upon an oral agreement with the decedent that the house owned by the decedent would belong to both of them and he produced no written evidence whatsoever to establish his claim, the magistrate court correctly applied subdivision 3. of this section when it ruled the spouse’s affidavit inadmissible for purposes of determining the character of the property. Keeven v. Wakley, 110 Idaho 452, 716 P.2d 1224 (1986).

— Right to Inherit.

This section does not prevent an heir from testifying concerning his relationship and his right to inherit from deceased. In re Stone’s Estate, 77 Idaho 63, 286 P.2d 329 (1955).

In a proceeding by alleged illegitimate son to establish right to inherit from father, who died in 1951, the plaintiff was entitled to testify concerning statement made by his mother prior to her death in 1941 as to who his father was, since the right asserted by the plaintiff could not have been asserted against the deceased father during his lifetime, and at the time of the statement the mother had no motive to distort the truth since there was no pending litigation. In re Stone’s Estate, 77 Idaho 63, 286 P.2d 329 (1955).

— Waiver of Prohibition.

In suit by son against the father’s estate, it was not error to allow testimony of son as to conversations with his mother occurring prior to her demise. Nielson v. Davis, 96 Idaho 314, 528 P.2d 196 (1974). — Waiver of Prohibition.

The disqualification of a witness or testimony respecting communications with the deceased may be waived by an executor or administrator, and a waiver of the statutory prohibition against introducing testimony of the communications with a deceased person results from the representative’s cross-examination of witnesses beyond the scope of the direct examination on the same subject. Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616 (1932).

Where provisions of this statute were waived by both parties, the sustaining of objection to certain telephone conversation did not constitute prejudicial error. Sweeney v. Hanmer, 66 Idaho 462, 162 P.2d 387 (1945).

Communications with Deceased Persons Prior to Death.

Testimony was allowed where the witnesses testified as to the contents of a written memorandum, but not to the specific communications made by the deceased. Simons v. Simons, 134 Idaho 824, 11 P.3d 20 (2000).

Contradictory Statements.

Although the jury in a rape case believed that the prosecutrix made contradictory statements with respect to the acts complained of, it did not necessarily follow that it must reject all of her testimony as untrue. State v. Harp, 31 Idaho 597, 173 P. 1148 (1918).

Deceased Persons.

Admitting a decedent’s brother’s affidavit testifying to the brother’s alleged oral agreements with the decedent was an abuse of discretion, because (1) the brother was a purported assignor of parties to a suit to declare the rights of the decedent’s widow and children in the decedent’s limited liability company, (2) the children made a claim against the decedent’s estate, (3) the testimony concerned a pre-death oral communication, (4) no writing substantiated the testimony, and (5) the testimony did not concern a state of affairs or matters of fact. Slavens v. Slavens, 161 Idaho 198, 384 P.3d 962 (2016).

Harmless Error.

Admission of testimony in violation of this section is not ground for reversal when it only goes to the proof of facts admitted in pleadings. Toulouse v. Burkett, 2 Idaho 184, 10 P. 26 (1886).

Admission of incompetent evidence is not reversible error, if other competent evidence is introduced to sustain finding of facts. Dahlberg v. Johnson’s Estate, 70 Idaho 51, 211 P.2d 764 (1949); Nielson v. Davis, 96 Idaho 314, 528 P.2d 196 (1974).

In General.

This section did not apply in an action by the widow and administratrix of the deceased against the former partner of the deceased and there was no claim or demand against the estate of the deceased. Ridley v. VanderBoegh, 95 Idaho 456, 511 P.2d 273 (1973).

In an action to quiet title as a result of a complex series of transfers among members of a family, some now dead, where a third party complaint by one of the defendants was an action to establish or enforce a trust against the estate of a deceased person which was also a defendant in the original action, parol evidence concerning a missing deed was improperly excluded under this section since objection was not made by a representative of the estate of the deceased person nor a party having an interest therein. Smith v. Smith, 95 Idaho 477, 511 P.2d 294 (1973). District court did not abuse its discretion by admitting evidence concerning a beneficiary’s intent when signing a promissory note on behalf of a relative because the action did not concern a demand against an estate or a claim against an executor or administrator under subdivision 3; moreover, the evidence did not constitute hearsay because it was offered for the purpose of showing the beneficiary’s state of mind. Rowan v. Riley, 139 Idaho 49, 72 P.3d 889 (2003).

Oral Trusts.

Plaintiff in suit to establish oral trust against real estate of decedent could not testify concerning same. Ferrell v. McVey, 71 Idaho 339, 232 P.2d 134 (1951).

Personal Representatives.

Personal representatives should not be allowed to avoid application of this section by seizing assets of the estate for their personal benefit and thereby forcing the heirs to initiate legal action to recover the misappropriated assets. Kolouch v. First Sec. Bank, 128 Idaho 186, 911 P.2d 779 (Ct. App. 1996).

Persons of Unsound Mind.

Person is not of unsound mind within meaning of statute if he can comprehend obligation of oath and is capable of giving fairly correct account of what he has seen or heard. State v. Simes, 12 Idaho 310, 85 P. 914 (1906); State v. Sims, 35 Idaho 505, 206 P. 1045 (1922).

Female who is ravished is not necessarily disqualified from testifying in prosecution for rape, although such prosecution is based on her mental incapacity to consent to act complained of; but in such case the question of her competency to testify in view of her insanity is to be determined in same manner as competency of other witnesses. State v. Simes, 12 Idaho 310, 85 P. 914 (1906); State v. Cosler, 39 Idaho 519, 228 P. 277 (1924).

Allowing witness to testify without examination as to mental capacity is not reversible error where record discloses that witness was competent. State v. Sims, 35 Idaho 505, 206 P. 1045 (1922).

Unsoundness of mind is relative term. There is no valid reason why one who is capable of receiving and relating impressions should be ordinarily prohibited from testifying, and statute must necessarily have included only those who are so incapable. State v. Cosler, 39 Idaho 519, 228 P. 277 (1924).

Am. Jur. 2d.

§ 9-203. Confidential relations and communications.

There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases:

1. A husband cannot be examined for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other, nor does this exception apply to any case of physical injury to a child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents, nor does this exception apply to any case of lewd and lascivious conduct or attempted lewd and lascivious conduct where either party would otherwise be protected by this privilege.
2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. The word client used herein shall be deemed to include a person, a corporation or an association.
3. A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.
4. A physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient, provided, however, that:
   1. Nothing herein contained shall be deemed to preclude physicians from reporting of and testifying at all cases of physical injury to children, where it appears the injury has been caused as a result of physical abuse or neglect by a parent, guardian or legal custodian of the child.
   2. Nothing herein contained shall be deemed to preclude physicians from testifying at all cases of physical injury to a person where it appears the injury has been caused as a result of domestic violence.
   3. After the death of a patient, in any action involving the validity of any will or other instrument executed, or claimed to have been executed, by him, conveying or transferring any real or personal property or incurring any financial obligation, such physician or surgeon may testify to the mental or physical condition of such patient and in so testifying may disclose information acquired by him concerning such patient which was necessary to enable him to prescribe or act for such deceased.
   4. That where any person or his heirs or representatives brings an action to recover damages for personal injuries or death, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated said injured or deceased person and whose testimony is material in the action may testify.
   5. That if the patient be dead and during his lifetime had not given such consent, the bringing of an action by a beneficiary, assignee or payee or by the legal representative of the insured, to recover on any life, health or accident insurance policy, shall constitute a consent by such beneficiary, assignee, payee or legal representative to the testimony of any physician who attended the deceased.
5. A public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by disclosure.
6. Any certificated counselor, psychologist or psychological examiner, duly appointed, regularly employed and designated in such capacity by any public or private school in this state for the purpose of counseling students, shall be immune from disclosing, without the consent of the student, any communication made by any student so counseled or examined in any civil or criminal action to which such student is a party. Such matters so communicated shall be privileged and protected against disclosure.
7. Any parent, guardian or legal custodian shall not be forced to disclose any communication made by their minor child or ward to them concerning matters in any civil or criminal action to which such child or ward is a party. Such matters so communicated shall be privileged and protected against disclosure; excepting, this section does not apply to a civil action or proceeding by one against the other nor to a criminal action or proceeding for a crime committed by violence of one against the person of the other, nor does this section apply to any case of physical injury to a minor child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents, guardian or legal custodian.

History.

C.C.P. 1881, § 899; R.S., R.C., & C.L., § 5958; C.S., § 7937; I.C.A.,§ 16-203; am. 1963, ch. 104, § 1, p. 324; am. 1963, ch. 122, § 1, p. 351; am. 1967, ch. 121, § 1, p. 265; am. 1971, ch. 36, § 1, p. 81; am. 1972, ch. 29, § 1, p. 42; am. 1979, ch. 151, § 1, p. 465; am. 1996, ch. 302, § 1, p. 994.

Cross References.

Competency of husband and wife in criminal proceedings,§ 19-3002.

Privileges of all witnesses,§ 9-1302.

Effective Dates.

Section 2 of S.L. 1971, ch. 36 declared an emergency. Approved February 27, 1971.

Section 2 of S.L. 1972, ch. 29 declared an emergency retroactive to and including January 1, 1972. Approved February 28, 1972.

Binding Effect of Evidence.

A board, court, or jury must accept as true the positive uncontradicted testimony of a credible witness, unless inherently improbable or rendered improbable by facts and circumstances adduced in evidence. Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 74 P.2d 171 (1937).

Communications Between Attorneys.

Communications between attorneys for the same client are protected by the attorney-client privilege in the absence of any showing of waiver. State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984).

Communications with Attorney.

Third person who, by accident or by design of attorney, overhears confidential communications between client and attorney may be compelled to divulge what he so hears. Perry v. State, 4 Idaho 224, 38 P. 655 (1894).

Communications which pass between one who is merely conveyancer or friendly advisor of grantor or grantee in a deed are not privileged communications under this subdivision. Later v. Haywood, 12 Idaho 78, 85 P. 494 (1906).

When attorney is called as witness and declines to answer a question or produce letters or documents on the ground that same are privileged under provisions of subdivision 2 of this section, burden is upon him to show sufficient facts and circumstances to establish the general privileged character of the communications or documents. The rule does not necessitate attorney disclosing the contents of documents or import of communications, but rather devolves upon him the necessity of showing the relation existing between him and his client at the time communications or documents were received, and circumstances under which he came into possession of same, and that they were obtained by him while acting as attorney for client. In re Niday, 15 Idaho 559, 98 P. 845 (1908).

Use of words “without the consent” of client makes no change in common law, and this section is mere restatement of common law. Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928).

The admission in evidence of a confidential communication between attorney and client is harmless where the defendant testified to the same state of facts. State v. Johnston, 62 Idaho 601, 113 P.2d 809 (1941).

The privilege against self-incrimination, as well as the attorney-client privilege, refers only to communicative and not “real” evidence, and, in a murder prosecution, an order for the defense counsel to produce evidence, which consisted of items burglarized from victim’s home which had been found by defendant’s family, was proper, even though defendant contends that he was, in effect, ordered to incriminate himself through his attorney. State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971). A wife’s attorney’s general statements, such as that wife contacted him, that he arranged to meet with husband’s accountant, and so on, were clearly not privileged since they were not attorney-client communications; nor was any of the affidavit which discussed the meeting with the accountant privileged, for it did not discuss communications, and even if it did they would not be privileged since they were made in the presence of a third person. Compton v. Compton, 101 Idaho 328, 612 P.2d 1175 (1980).

Order granting independent conflict counsel access to the state appellate public defender’s (SAPD) client file on defendant violated defendant’s attorney-client privilege, because it gave counsel carte blanche to access all of the SAPD’s files relating to its representation of defendant, which undoubtedly contained some privileged information. Hall v. State, 155 Idaho 610, 315 P.3d 798 (2013).

— Following Refusal to Take Case.

Any communication between an attorney and a potential client subsequent to the attorney’s refusal to handle the individual’s case falls outside the scope of the attorney-client privilege and is admissible. State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984).

— Prior to Employment.

Communications between attorney and client made in the course of professional employment are protected by the attorney-client privilege; the privilege extends to communications made with a view toward employing the attorney by a potential client, whether or not actual employment results. State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984).

— Waiver of Privilege.

As at common law, the “consent” of the client to disclosure of confidential communications under subdivision 2 may be either express or implied from the conduct of the client, and when such consent is found, the privilege is said to have been “waived.” Skelton v. Spencer, 98 Idaho 417, 565 P.2d 1374 (1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 758 (1978).

Where a client who was challenging a settlement agreement testified as to her communications with her attorneys throughout the settlement process thereby making privileged communications an issue of her defense, she waived the attorney-client privilege for all communications relevant to the settlement process and the conduct of her former attorneys, and those attorneys were properly permitted to testify with regard to such communications. Skelton v. Spencer, 98 Idaho 417, 565 P.2d 1374 (1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 758 (1978).

Subdivision 2 of this section provides that an attorney cannot be examined regarding confidential communications made in the course of employment “without the consent of his client.” The statute thus makes it clear that the client is the holder of the privilege; accordingly, only the client can waive the privilege. State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984).

Communications with Clergy.

Communications with Physician.

Where testimony complained of, a deposition of a Catholic priest read into evidence in a divorce proceeding, does not relate to any confession made to the witness in the course of discipline enjoined by the Church but merely consisted of friendly conversations, the priest was not an incompetent witness under our privileged communication statute. Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788 (1962). Communications with Physician.

Any information acquired by attending physicians at an operation or gathered from an examination of diseased parts, removed by the operation a considerable time afterwards, is privileged information and cannot be given in evidence without consent of patient. Jones v. Caldwell, 23 Idaho 467, 130 P. 995 (1913).

All statements made to physician by patient for purpose of determining patient’s condition are privileged, although they have nothing to do with patient’s treatment. Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932 (1917).

It is well settled that information based upon observation comes within statute, as well as information based upon statements of patient. Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037 (1921).

Physician cannot be cross-examined as to extent and permanency of plaintiff’s injuries when such testimony is objected to as privileged. Nelson v. Johnson, 41 Idaho 697, 243 P. 647 (1925).

In an action between husband and wife wherein she testified he had infected her with a venereal disease, she may be compelled in spite of this section to testify what her physician told her with respect thereto. Radermacher v. Radermacher, 59 Idaho 716, 87 P.2d 461 (1938).

Questioning of doctor as to what information he secured from patient, as result of his examination at the hospital, was held improper, as privileged, since information was secured by doctor for purpose of treating his patient. Gardner v. Hobbs, 69 Idaho 288, 206 P.2d 539 (1949).

This statute should not be extended by the court to prohibit pertinent disclosure, upon agreement by personal representative and all heirs, after a patient’s death of information gained by a physician or surgeon during the decedent’s lifetime. In re Groan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

In a divorce action the court properly sustained objections to the husband’s questions to the wife’s psychiatrist, subpoenaed by him, concerning his psychiatric findings concerning her, offered on the question of the wife’s fitness for custody of the children. Barker v. Barker, 92 Idaho 204, 440 P.2d 137 (1968).

— Existence of Professional Relationship.

It is immaterial in application of this statute that physician was not hired by patient but patient’s employer. Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932 (1917).

Consulting physician employed to take and interpret an X-ray picture of a fractured arm comes within the terms of the statute. Shaw v. Nampa, 31 Idaho 347, 171 P. 1132 (1918).

If relation of physician and patient has ceased to exist at the time information is obtained, such information is not privileged. Bressan v. Herrick, 35 Idaho 217, 205 P. 555 (1922).

— Waiver of Privilege.

Plaintiff servant, by testifying that one of the results of accident was hernia, did not waive privilege, where he did not testify that a physician had attended him. Federal Mining & Smelting Co. v. Dalo, 252 F. 356 (9th Cir. 1918).

Stipulation for life insurance waiving provision of this section disqualifying physician from testifying to any information acquired by him while attending his patient is valid, and entitles both beneficiary in the policy and insurer, in action on policy, to call and examine physician who attended insured during his last sickness, and to exact information which, except for such waiver, would be regarded as a privileged communication. Trull v. Modern Woodmen of Am., 12 Idaho 318, 85 P. 1081 (1906). Patient may, under provisions of this section, waive her right to secrecy in respect to one of her physicians; such waiver does not operate as waiver of her right to object to the testimony of another of her physicians called by opposing party in the action. Jones v. Caldwell, 20 Idaho 5, 116 P. 110 (1911), overruled on other grounds, Labonte v. Davidson, 31 Idaho 644, 175 P. 588 (1918).

Patient does not waive privilege of statute by testifying he followed physician’s advice. Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932 (1917).

Right to waive privilege as to testimony of physician survives and may be exercised after death of patient. Sprouse v. Magee, 46 Idaho 622, 269 P. 993 (1928). See In re Groan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

In proceeding to revoke will, privilege affecting testimony of physician and attorney of testatrix could be waived by executor. Marker v. McCue, 50 Idaho 462, 297 P. 401 (1931).

Where privileged communications are, in the main, brought out on cross-examination beyond matters elicited in chief and when they are proven by other competent witnesses there is no error in their admission. By cross-examining beyond the scope of the direct examination counsel waives benefit of statute. Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616 (1932).

In an action to recover for disability benefits under life policy where the insured, in the application for the policy, stipulated that he waived all provisions of law forbidding his physician from testifying as to any information acquired by him in attending or examining him, the trial court was justified in ordering that certain X-ray pictures, taken by physician in the insured’s employ, be submitted before trial to the insurance company’s physician for examination. Murphy v. Mutual Life Ins. Co., 62 Idaho 362, 112 P.2d 993 (1941).

In suit for personal injuries growing out of mutual combat in which plaintiff called one doctor as a witness, plaintiff did not thereby waive the privilege of objecting to the testimony of any other physician. Harrington v. Hadden, 69 Idaho 22, 202 P.2d 236 (1949).

Witness, who testified in malpractice action, that spinal anesthesia was currently in use by staff physicians in obstetrical cases and produced charts of other patients, could be questioned as to whether the cases referred to were all obstetrical cases, or for other reasons were not comparable to plaintiff’s case. Walker v. Distler, 78 Idaho 38, 296 P.2d 452 (1956).

The testimony of a physician can be elicited only upon grant of a waiver, and upon the death of the patient such right to waive passes to those properly regarded as standing in his place or representing him. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

Anyone claiming through the decedent, personal representative, or some, but not all, of the heirs may waive this privilege in respect to medical testimony. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

Since no privilege existed at common law, privilege being a creation of statute, and privilege being personal to the patient, the statute contemplating waiver by the patient himself, upon death of the patient, becomes inoperative; therefore, it would no longer bind the physician or surgeon to the privilege. In re Goan’s Estate, 83 Idaho 568, 366 P.2d 831 (1961).

Construction.

The use of the words “without the consent” of the client in subdivision 2 made no change in the common law and this subsection should be interpreted in accordance with the common law. Skelton v. Spencer, 98 Idaho 417, 565 P.2d 1374 (1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 758 (1978).

Criminal Actions.

Testimony of nurses who attended defendant at hospital was admissible in manslaughter proceeding since privilege as to communications under this section is restricted to civil cases. State v. Bounds, 74 Idaho 136, 258 P.2d 751 (1953).

Communications between defendant and his personal physician are not privileged in a criminal action since privilege as to such communications under this section is limited to civil actions. State v. Coburn, 82 Idaho 437, 354 P.2d 751 (1960).

Reporters.

A newsman testifying in a civil suit does not have a privilege against disclosure of the identity of a confidential source. Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791, cert. denied, 434 U.S. 930, 98 S. Ct. 418, 54 L. Ed. 2d 291 (1977).

New testimonial privileges are disfavored since they obstruct the search for truth. Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791, cert. denied, 434 U.S. 930, 98 S. Ct. 418, 54 L. Ed. 2d 291 (1977).

Testimony of Spouses.

Wife of defendant may be examined as witness on the part of plaintiff without the consent of her husband, where there are defendants other than husband against whom a separate judgment may be rendered; but in such case court should instruct the jury that testimony of the wife should apply only to such other defendants. Shields v. Ruddy, 3 Idaho 148, 28 P. 405 (1891).

Party to divorce action, by calling the other as witness, consents to his testifying. Boeck v. Boeck, 29 Idaho 639, 161 P. 576 (1916).

In habeas corpus proceeding by husband against wife to obtain custody of their minor children, husband may cross-examine wife as adverse party or may examine her as his own witness. Mabbett v. Mabbett, 34 Idaho 611, 202 P. 1057 (1921).

Where declarations of deceased husband do not come within rule of privileged communications, testimony concerning them is admissible against surviving wife without her consent. Hess v. Hess, 41 Idaho 359, 239 P. 956 (1925).

All ancient reasons for exclusion of testimony of husband or wife, whether well founded or not, are merged in statutory declaration of such incompetency. Hess v. Hess, 41 Idaho 359, 239 P. 956 (1925).

Where objection was made to testimony of witness on ground witness was common-law wife of defendant on trial for commission of lewd acts upon the 10-year-old child of such witness, before permitting such witness to testify regarding material facts, a determination should have been made as to the existence or nonexistence of such relation. State v. Riley, 83 Idaho 346, 362 P.2d 1075 (1961).

The clear expressed intent of the legislature must be given effect in the permitting of a wife to testify against her husband in cases of criminal violence upon one by the other and there is no occasion to construe this to mean that a serious wrong against the minor child of a wife is a crime against the wife sufficient to remove her disqualification as a witness. State v. Riley, 83 Idaho 346, 362 P.2d 1075 (1961). The amendment of subdivision 1 of this section to exclude from the privilege cases “of physical injury to a child where the injury has been caused as a result of physical abuse or neglect by one or both of the parents” does not amend§ 19-3002 by implication so as to permit a wife to testify against her husband in a prosecution for lewd conduct with a minor female. State v. McGonigal, 89 Idaho 177, 403 P.2d 745 (1965).

An involuntary manslaughter conviction was not reversible for the alleged error in permitting the defendant’s ex-wife and assertedly present common-law wife to testify against him where defendant’s only objections to her testimony were on grounds other than that of marital privilege. State v. Chaffin, 92 Idaho 629, 448 P.2d 243 (1968), overruled on other grounds, State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991).

Those who claim privileged marital communication between themselves and their common-law spouse must demonstrate the existence of a common-law marriage by showing a mutual assumption of marital rights, duties or obligations as provided in§ 32-201. Still v. State, 97 Idaho 375, 544 P.2d 1145 (1976).

A divorce prior to trial terminates the incompetency of one spouse to testify against the other; divorce, however, does not terminate the privilege afforded marital communications made during the existence of the marriage. State v. Fowler, 101 Idaho 546, 617 P.2d 850 (1980), cert. denied, 450 U.S. 916, 101 S. Ct. 1359, 67 L. Ed. 2d 341 (1981).

Defendant’s former wife was competent to testify, in the prosecution of defendant for assault with a deadly weapon, that defendant possessed a revolver at the time of the assault, that the gun was kept in defendant’s nightstand, and that she moved the gun to a different location. State v. Fowler, 101 Idaho 546, 617 P.2d 850 (1980), cert. denied, 450 U.S. 916, 101 S. Ct. 1359, 67 L. Ed. 2d 341 (1981).

Knowledge of the possessions of one spouse and their location is generally not a spousal communication. State v. Fowler, 101 Idaho 546, 617 P.2d 850 (1980), cert. denied, 450 U.S. 916, 101 S. Ct. 1359, 67 L. Ed. 2d 341 (1981).

The court properly allowed the defendant’s ex-wife to testify to marital communications where no objection based on the marital communications privilege was interposed at any point during her testimony. State v. Nab, 113 Idaho 168, 742 P.2d 423 (Ct. App. 1987).

— Waiver of Privilege.

The admissibility of a spouse’s testimony about the acts of the other spouse will not be considered on appeal as a violation of the confidential marital communication privilege if there is no objection to it during trial. State v. Anspaugh, 97 Idaho 519, 547 P.2d 1124 (1976).

Am. Jur. 2d.

C.J.S.

ALR.

Waiver of evidentiary privilege by inadvertent disclosure — Federal law. 159 A.L.R. Fed. 153.

Views of United States supreme court as to attorney-client privilege. 159 A.L.R. Fed. 243.

Cross References.

Board of accountancy,§ 54-203 et seq.

Testimony Not Privileged.

This section is intended only to prevent the disclosure of confidential information imparted to an accountant, not to prevent all disclosure of an individual’s financial affairs; accordingly, the district court erred in refusing the bookkeeper’s testimony. Capps v. Wood, 110 Idaho 778, 718 P.2d 1216 (1986).

Am. Jur. 2d.

C.J.S.

ALR.

§ 9-205. Interpreters.

In any civil or criminal action in which any witness or a party does not understand or speak the English language, or who has a physical disability which prevents him from fully hearing or speaking the English language, then the court shall appoint a qualified interpreter to interpret the proceedings to and the testimony of such witness or party. Upon appointment of such interpreter, the court shall cause to have the interpreter served with a subpoena as other witnesses, and such interpreter shall be sworn to accurately and fully interpret the testimony given at the hearing or trial to the best of his ability before assuming his duties as an interpreter. The court shall determine a reasonable fee for all such interpreter services which shall be paid out of the district court fund.

History.

I.C.,§ 9-205, as added by 1975, ch. 64, § 2, p. 130; am. 1994, ch. 215, § 1, p. 672; am. 2010, ch. 235, § 2, p. 542.

Cross References.

District court fund,§ 31-867.

Interpreters’ fees,§ 9-1603.

Prior Laws.

Former§ 9-205, which comprised C.C.P. 1881, § 901; R.S., R.C., & C.L., § 5960; C.S., § 7938; I.C.A.,§ 16-205, was repealed by S.L. 1975, ch. 64, § 1.

Amendments.

The 2010 amendment, by ch. 235, substituted “physical disability” for “physical handicap” in the first sentence.

Accuracy of Translation.

An interpreter is considered a witness in the sense that the accuracy of her translation is a question of fact for the jury which may be disputed by counsel. State v. Puente-Gomez, 121 Idaho 702, 827 P.2d 715 (Ct. App. 1992).

Where defendant has failed to indicate that interpreter was not qualified or that her translations were somehow deficient, she is presumed to have translated accurately. State v. Puente-Gomez, 121 Idaho 702, 827 P.2d 715 (Ct. App. 1992).

Drug Addiction by Interpreter.

Where the victim of a homicide was a Chinese, unfamiliar with the English language, and his purported dying statement was interpreted by a Chinese interpreter and taken down in shorthand by a stenographer, evidence of the fact that the interpreter was addicted to the use of opium or other drugs was competent for the purpose of showing the mental balance of such interpreter, and his capacity to remember the questions that were propounded by the prosecuting attorney through him to the deceased, and the deceased’s answers thereto as the admissibility of such purported dying declaration depended on the truthfulness and accuracy of the interpretation of such questions and answers. State v. Fong Loon, 29 Idaho 248, 158 P. 233 (1916).

Duty of Court.

In defendant’s assault on an officer trial, having appointed an interpreter to be readily available to assist defendant if necessary, the district court was under no obligation to constantly monitor the use which defendant and trial counsel made of the interpreter. State v. Alsanea, 138 Idaho 733, 69 P.3d 153 (Ct. App. 2003).

Failure to Swear Interpreter.

Failure to swear an interpreter is not reversible error per se, and the testimony provided by an unsworn interpreter is not nullified by a lack of oath; failure to require an oath of an interpreter does not require reversal in the absence of a suitable objection at trial. State v. Puente-Gomez, 121 Idaho 702, 827 P.2d 715 (Ct. App. 1992).

Illiterate Defendant.

Although defendant was illiterate in both English and Spanish, he understood the proceedings, and therefore, there was no error or abuse of discretion when the court refused to appoint an interpreter. State v. Hernandez, 120 Idaho 785, 820 P.2d 380 (Ct. App. 1991).

Necessity Question of Law.

Question whether or not witness requires an interpreter is a question for court. State v. Bogris, 26 Idaho 587, 144 P. 789 (1914).

State’s Right to Examine Defendant.

Cited

Because of claim that he cannot understand English, the state cannot be deprived of the right to cross-examine the defendant in a criminal action, and the state may call witnesses to prove the defendant can speak English, which evidence should be taken, however, out of the presence of the jury. The right to have such evidence heard by the court alone is waived, however, unless request that the jury be excused is made. State v. Bogris, 26 Idaho 587, 144 P. 789 (1914). Cited Murillo v. State, 144 Idaho 449, 163 P.3d 238 (Ct. App. 2007).

Am. Jur. 2d.

C.J.S.

ALR.

§ 9-206. Deceased or absent witnesses — Transcribed testimony admissible.

The testimony of a witness who testified at the trial in an action or proceeding in any district court of the State of Idaho, when transcribed and certified to be true or correct by the court reporter reporting such testimony at such trial or proceeding, shall be admissible at any subsequent trial between the same parties and relating to the same subject matter, when such witness is deceased, absent from the state or otherwise unavailable or unable to testify as a witness.

History.

1945, ch. 16, § 1, p. 25.

Deceased Witness of Other Case.

Transcribed testimony of since deceased witness before industrial accident board was properly ruled inadmissible in murder prosecution, although the sanity of accused was in controversy, the witness was another victim and was examined both on direct and cross-examination; the parties and issues involved were not the same, and neither the state nor the accused had any opportunity to cross-examine the witness. State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964).

Where the parties and issues in the prior proceedings are not the same as in the proceeding where the deceased witness’ testimony is sought to be introduced, the trial court is vested with discretion as to the admission of the previous testimony. State v. Nagel, 98 Idaho 129, 559 P.2d 308 (1977).

Am. Jur. 2d.

§ 9-207. Admissibility of expressions of apology, condolence and sympathy.

1. 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 apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, including any accompanying explanation, 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 shall be inadmissible as evidence for any reason including, but not limited to, as an admission of liability or as evidence of an admission against interest.
2. A statement of fault which is otherwise admissible and is part of or in addition to a statement identified in subsection (1) of this section shall be admissible.
3. For the purposes of this section, unless the context otherwise requires:
   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.

History.

I.C.,§ 9-207, as added by 2006, ch. 204, § 1, p. 624.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 902, R.S., R.C., & C.L., § 5965; C.S., § 7940; I.C.A.,§ 16-301, was repealed by S.L. 1990, ch. 213, § 2, effective July 1, 1990. For present law, see§ 74-101 et seq.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 903, R.S., R.C., & C.L., § 5966; C.S., § 7941; I.C.A.,§ 16-302, was repealed by S.L. 1990, ch. 213, § 2, effective July 1, 1990. For present comparable law, see§ 74-101 et seq.

General Law Defined.

A general law is one framed in general terms restricted to no locality and operating upon all alike. Mix v. Board of Comm’rs, 18 Idaho 695, 112 P. 215 (1910).

In determining whether or not a law is general or special, the court will look to its substance and necessary operation as well as to its form and phraseology. Mix v. Board of Comm’rs, 18 Idaho 695, 112 P. 215 (1910).

A statute is general if its terms apply to, and its provisions operate upon, all persons and subject-matters in like situations. Jones v. Power County, 27 Idaho 656, 150 P. 35 (1915).

Judicial Records.

In broad sense, register of actions, files, minutes, orders, decree, judgment, judgment book, and docket are “judicial records.” Evans v. District Court, 50 Idaho 60, 293 P. 323 (1930).

Special Law Defined.

A special law is one that applies only to a special locality or to an individual, or to a number of individuals selected out of a class to which they belong. Mix v. Board of Comm’rs, 18 Idaho 695, 112 P. 215 (1910).

Am. Jur. 2d.

C.J.S.

Effect of Section.

Books published under authority of a state, territory or foreign country and purporting to contain the statutes, code or other written law thereof, or proved to be commonly admitted in their respective tribunals, are admissible in Idaho as evidence of such law. Moore v. Pooley, 17 Idaho 57, 104 P. 898 (1909).

The latest official edition of the Napoleonic Code in French, together with the last English translation of the French Civil Code, were properly admitted in evidence under this section. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968).

Necessity of Pleading and Proof.

The supreme court can not take judicial notice of laws of sister state. They must be proved as prescribed by this section. Cummings v. Lowe, 52 Idaho 1, 10 P.2d 1059 (1932); Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936).

In a divorce proceeding by wife in Idaho filed subsequent to an interlocutory judgment of divorce in favor of the husband in California, the contention of the husband that because of the peculiar California statutory law and construction of the California courts an interlocutory judgment of divorce in California was final could not be sustained, where the husband neither pleaded nor proved the California law, hence Idaho law controlled. Newell v. Newell, 77 Idaho 355, 293 P.2d 663, cert. denied, 352 U.S. 871, 77 S. Ct. 95, 1 L. Ed. 2d 76 (1956).

Presumption as to Foreign Law.

Sufficiency of Proof.

In absence of proof to the contrary, court will assume that the same law prevails in a sister state as that which prevails here. Moore v. Pooley, 17 Idaho 57, 104 P. 898 (1909); Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080 (1910); Mason v. Pelkes, 57 Idaho 10, 59 P.2d 1087, cert. denied, 299 U.S. 615, 57 S. Ct. 319, 81 L. Ed. 453 (1936). Sufficiency of Proof.

When a party to an action requests that the trial court notice the statutory law of a sister state, the trial court shall have the authority to ascertain that law and proof of a sister state’s statutory law may be achieved by introducing a semi-official compilation of that law. White v. White, 94 Idaho 26, 480 P.2d 872 (1971).

Am. Jur. 2d.

§ 9-305. Proof of Statutes Act — Uniformity of interpretation.

This act shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact it.

History.

1935, ch. 149, § 2, p. 367.

Compiler’s Notes.

The words “this act” refer to S.L. 1935, ch. 149 compiled as§§ 9-304 to 9-306.

Compiler’s Notes.

The words “this act” refer to S.L. 1935, ch. 149 compiled as§§ 9-304 to 9-306.

The Uniform Proof of Statutes Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1966.

In General.

Properly certified certificates of birth, death, marriage, collective heirship, and notoriety from French officials were properly admitted in evidence on the question of heirship of residents of France claiming to be heirs at law of deceased French legatees of an Idaho testator, who died during the pendency of the administration of the testator’s estate. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968).

Am. Jur. 2d.

§ 9-308. Oral evidence of common law — Reports of decisions.

The oral testimony of witnesses skilled therein is admissible as evidence of the unwritten law of another state, territory or foreign country, as are also printed and published books of reports of decisions of the courts of such state, territory or country, commonly admitted in such courts.

History.

C.C.P. 1881, § 908; R.S., R.C., & C.L., § 5971; C.S., § 7946; I.C.A.,§ 16-306.

Am. Jur. 2d.

§ 9-309. Recitals in statutes — Conclusiveness.

The recitals in a public statute are conclusive evidence of the facts recited for the purpose of carrying it into effect, but no further. The recitals in a private statute are conclusive evidence between parties who claim under its provisions, but no further.

History.

C.C.P. 1881, § 909; R.S., R.C., & C.L., § 5972; C.S., § 7947; I.C.A.,§ 16-307.

Public Writings.

Judgment rolls, files, papers and orders in a case are “judicial records,” “public writings,” and “public records,” within the meaning of the statutes. Evans v. District Court, 50 Idaho 60, 293 P. 323 (1930).

Records Required.

Proceedings of the district court should be recorded either in the minutes or in the reporter’s notes, whichever is appropriate to the nature of the proceedings had. Darrar v. Joseph, 91 Idaho 210, 419 P.2d 211 (1966).

Am. Jur. 2d.

C.J.S.

Cross References.

Authentication of judicial records,§ 9-312.

Official Highway Maps.

In a wrongful death action arising out of a traffic accident, the admission into evidence of a simplified map of an interchange for the limited purpose of illustrating the manner in which the automobile accident occurred was not barred by the hearsay rule or the best evidence rule, where the simplified version was prepared by a qualified person and where the original official highway maps had been introduced into evidence. Dawson v. Olson, 97 Idaho 274, 543 P.2d 499 (1975).

“Raw Notes.”

Trial court erred in holding that, as a matter of law, “raw notes” (“handwritten notes,” “raw minutes”) taken by clerk of the board of county commissioners during meetings of the county board of commissioners could not be public writings. Fox v. Estep, 118 Idaho 454, 797 P.2d 854 (1990).

Am. Jur. 2d.

C.J.S.

Changing or Altering Record.

Where the official record of a court of another state had been properly authenticated, evidence that might add to, change, alter or impeach the record is not admissible. Stafford v. Field, 70 Idaho 331, 218 P.2d 338 (1950).

Effect of Certified Copies.

Copies certified by clerk as provided for in this section have same effect in court as originals when they are produced and their execution is proved; it is not necessary to first prove execution of the papers filed and recorded before the certifications can be received in evidence. Kramer v. Settle, 1 Idaho 485 (1873).

Full Faith and Credit.

In the prosecution of an alleged recidivist, where the prior convictions took place in another state, certified copies of the judgment of the prior convictions, properly authenticated, were admissible in evidence and entitled to “full faith and credit” which would have been accorded to them in the state where they were rendered. State v. Prince, 64 Idaho 343, 132 P.2d 146 (1942).

Presumption and Sufficiency of Foreign Judgment.

Proof of Prior Convictions.

Where the judgments of the courts of another state convicting the accused of felonies established that such courts had a presiding judge, a clerk, and a seal, the presumption obtained that such courts were of general jurisdiction, and that such judgments were final and were proof and were the “best evidence” of what they showed on their face, establishing the jurisdiction of the courts in such state. State v. Prince, 64 Idaho 343, 132 P.2d 146 (1942). Proof of Prior Convictions.

Where a certified copy of a federal judgment of conviction of someone with the defendant’s name complied with the requirements of this section regarding the proper authentication of a judicial record and was admitted without objection, and photocopied records of a mug shot and fingerprint card of the defendant, which were certified by the official custodian of records at a federal prison were also introduced into evidence, the jury could, and did, find that the defendant in the present prosecution and the person involved in the federal conviction were the same person for the purpose of enhanced punishment as a persistent violator of the law. State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct. App. 1982).

A judgment of conviction from a California court may be admitted and proved by satisfying the relevant provisions of the Idaho Evid. R. 902 and does not also need to satisfy the requirements of this section or 28 U.S.C.S. § 1738. This section is just one method by which a public record may be certified in accordance with Idaho Evid. R. 902(4). State v. Howard, 150 Idaho 471, 248 P.3d 722 (2011).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Gasoline, lubricating oil and fuel oil adulterating and misbranding, certificate of chemist of department of public welfare as prima facie evidence,§ 37-2508.

Acts of Municipal Corporation.

Under this statute proof of publication of ordinances as a prerequisite to their introduction in evidence is not required. State v. Dawe, 31 Idaho 796, 177 P. 393 (1918).

On appeal from municipal court, neither district nor supreme court will take judicial notice of city ordinance. State v. Egli, 41 Idaho 422, 238 P. 514 (1925).

Certified Copies of Foreign Documents.

Properly certified certificates of birth, death, marriage, collective heirship, and notoriety from French officials were properly admitted in evidence on the question of heirship of residents of France claiming to be heirs at law of deceased French legatees of an Idaho testator, who died during the pendency of the administration of the testator’s estate under subdivision 8 of this section. Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968).

Fingerprint Cards.

Although the district court erred in admitting the fingerprint cards over defendant’s objection for a lack of foundation, where there was a multitude of other sources of information from which the jury would have come to the same conclusion regarding defendant’s guilt, the admission of the fingerprint evidence was harmless. State v. Norton, 134 Idaho 875, 11 P.3d 494 (Ct. App. 2000).

Official Highway Maps.

In a wrongful death action arising out of a traffic accident, the admission into evidence of a simplified map of an interchange for the limited purpose of illustrating the manner in which the automobile accident occurred was not barred by the hearsay rule or the best evidence rule, where the simplified version was prepared by a qualified person and where the original official highway maps had been introduced into evidence. Dawson v. Olson, 97 Idaho 274, 543 P.2d 499 (1975).

Prima Facie Evidence.

Certificate in the form prescribed by law and purporting to be made by proper custodian is prima facie evidence of the genuineness of city ordinance, entitling it to be admitted in evidence without other proof; its admissibility is not affected by lapse of time or fact that person who made it was not in office at time it was offered in evidence. State v. Dawe, 31 Idaho 796, 177 P. 393 (1918).

Sufficiency of Certification.

Defendant alleged he was prejudiced by the admission of the exhibit showing that the state board of highway directors fixed and designated 35 miles per hour as the reasonable, safe, prima facie speed limit upon a certain portion of U.S. Highway 30. He could not make a showing of prejudice in view of the uncontradicted evidence to the effect that the section of highway where the collision occurred was in an “urban district” and, as such, 35 miles per hour is the prima facie speed limit thereon. State v. Wendler, 83 Idaho 213, 360 P.2d 697 (1961). Sufficiency of Certification.

The certificate of the county recorder of the county where defendant was alleged to have been previously convicted of a felony that he had compared a photocopy of fingerprints purporting to be of those of the person convicted with the original and found them to be identical, without any showing that the county recorder was the keeper of fingerprint records, was insufficient to qualify such photocopy for admission in evidence. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S. Ct. 2129, 23 L. Ed. 2d 765 (1969).

A proper foundation was laid for the introduction into evidence of certain fingerprint cards by a police officer who identified the cards as a part of the permanent records of the police department which it was his duty to keep and maintain as custodian. State v. Polson, 93 Idaho 912, 478 P.2d 292 (1970), cert. denied, 402 U.S. 930, 91 S. Ct. 1527, 28 L. Ed. 2d 863 (1971).

Where a certified copy of a federal judgment of conviction of someone with the defendant’s name complied with the requirements of§ 9-312 regarding the proper authentication of a judicial record and was admitted without objection, and photocopied records of a mug shot and fingerprint card of the defendant, which were certified by the official custodian of records at a federal prison, were also introduced into evidence, the jury could, and did, find that the defendant in the present prosecution and the person involved in the federal conviction were the same person for the purpose of enhanced punishment as a persistent violator of the law. State v. Martinez, 102 Idaho 875, 643 P.2d 555 (Ct. App. 1982).

Am. Jur. 2d.

C.J.S.

Hearsay.

The accident report of the investigating officer may be used by him to refresh his memory during the trial notwithstanding the fact that it included hearsay evidence. Bell v. O’Connor Transp. Ltd., 94 Idaho 406, 489 P.2d 439 (1971), overruled on other grounds, Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979).

Although a police accident report may be used, in a civil trial, by an officer to refresh his memory, it may not be admitted as substantive evidence since it may contain many unreliable hearsay conclusions and speculations of the officer and criminal charges which may or may not have been sustained, and to the extent Bell v. O’Connor Transp. Ltd., 94 Idaho 406, 489 P.2d 439 (1971) holds to the contrary it is overruled. Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979).

C.J.S.

§ 9-317. Official reports as evidence — Notice before trial.

Such report or finding shall be admissible only if the party offering it has delivered a copy of it, or so much thereof as may relate to the controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.

History.

1939, ch. 105, § 2, p. 174.

Designation of Highway Speed Limit.

Defendant alleged he was prejudiced by the admission of the exhibit showing that the state board of highway directors fixed and designated 35 miles per hour as the reasonable, safe, prima facie speed limit upon a certain portion of the U.S. Highway 30. He could not make a showing of prejudice in view of the uncontradicted evidence to the effect that the section of highway where the collision occurred was in an “urban district” and, as such, 35 miles per hour is the prima facie speed limit thereon. State v. Wendler, 83 Idaho 213, 360 P.2d 697 (1961).

Hearsay.

Where the accident report of the investigating officer included hearsay evidence, it may be used by him to refresh his memory during the trial. Bell v. O’Connor Transp. Ltd., 94 Idaho 406, 489 P.2d 439 (1971), overruled on other grounds, Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979).

Although a police accident report may be used, in a civil trial, by an officer to refresh his memory, it may not be admitted as substantive evidence since it may contain many unreliable hearsay conclusions and speculations of the officer and criminal charges which may or may not have been sustained, and to the extent Bell v. O’Connor Transp. Ltd., 94 Idaho 406, 489 P.2d 439 (1971) holds to the contrary it is overruled. Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979).

Veterans’ Administration Reports.

An objection on the basis of hearsay was not sustainable to an official report of the veterans’ administration. Johnson v. Boise Cascade Corp., 93 Idaho 107, 456 P.2d 751 (1969).

Compiler’s Notes.

The words “this act” refer to S.L. 1939, ch. 105 compiled as§§ 9-316 to 9-320.

Compiler’s Notes.

The words “this act” refer to S.L. 1939, ch. 105 compiled as§§ 9-316 to 9-320.

The Official Reports as Evidence Act was withdrawn by the National Conference of Commissioners on Uniform Law in 1966.

Cross References.

Certified copy of record of conveyance admissible in evidence,§ 9-410.

Transfers of real property to be in writing, exception,§§ 9-503, 9-504.

Certification.

A certified copy of a record of a sister state, not certified by the officer who is the legal keeper of the records of that state, is not admissible in evidence. Kleinschmidt v. Scribner, 54 Idaho 185, 30 P.2d 362 (1934).

Effect of Unauthorized Change.

Prima facie evidence of facts stated in public record may be overcome by evidence, clear and convincing, that unauthorized changes or interlineations have been made. Hudson v. Kootenai Power Co., 44 Idaho 423, 258 P. 169 (1927); Jackson v. Lee, 47 Idaho 589, 277 P. 548 (1929).

Minutes of County Commissioners.

Clerk of the board, under provisions of§ 31-712 (redesignated as subsection (3) of§ 31-710), is required to enter the order calling a special meeting upon records of said board, and under this section the record copy becomes prima facie evidence of facts stated in such order. Black Canyon Irrigation Dist. v. Marple, 19 Idaho 176, 112 P. 766 (1911).

C.J.S.

§ 9-323. Transcript of docket of justice of another state — Admissibility.

A transcript from the record or docket of a justice of the peace of another state or territory of a judgment rendered by him, of the proceedings in the action before the judgment, of the execution and return, if any, subscribed by the justice and verified in the manner prescribed in the next section, is admissible evidence of the facts stated therein.

History.

C.C.P. 1881, § 917; R.S., R.C., & C.L., § 5980; C.S., § 7955; I.C.A.,§ 16-316.

Foreign Judgments.

Where a foreign judgment had been certified in substantial conformity with the requirements of state and federal statutes, it was entitled to be admitted in evidence. Nadel v. Campbell, 18 Idaho 335, 110 P. 262 (1910).

C.J.S.

§ 9-326. Certificate of purchase or location of lands — Effect as evidence.

A certificate of purchase, or of location, of any lands in this state, issued or made in pursuance of any law of the United States, is primary evidence that the holder or assignee of such certificate is the owner of the land described therein; but this evidence may be overcome by proof that, at the time of the location, or time of filing a preemption claim on which the certificate may have been issued, the land was in the adverse possession of the adverse party, or those under whom he claims, or that the adverse party is holding the land for mining purposes.

History.

C.C.P. 1881, § 920; R.S., R.C., & C.L., § 5983; C.S., § 7958; I.C.A.,§ 16-319.

Homestead Entries.

Homestead is recognized as private property by this section and certificate of entry is primary evidence that holder thereof is owner of land therein described. Johnson v. Oregon S. L. R.R., 7 Idaho 355, 63 P. 112 (1900); Fall Creek Sheep Co. v. Walton, 24 Idaho 760, 136 P. 438 (1913).

C.J.S.

§ 9-327. Entries by officers — Effect as evidence.

An entry made by an officer, or board of officers, or under the direction and in the presence of either, in the course of official duty, is prima facie evidence of the facts stated in such entry.

History.

C.C.P. 1881, § 921; R.S., R.C., & C.L., § 5984; C.S., § 7959; I.C.A.,§ 16-320.

Cross References.

Entries in public and official books and records, prima facie evidence,§ 9-322.

Official reports as evidence,§§ 9-316 to 9-320.

Best Evidence.

The record thereof is the best evidence of judgments and court proceedings generally. State v. Sedam, 62 Idaho 26, 107 P.2d 1065 (1940).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

These sections, which comprised 1943, ch. 81, § 2, p. 165; am. 1976, ch. 42, §§ 2, 3, p. 90, were repealed by S.L. 1992, ch. 165, § 1.

Compiler’s Notes.

Brackets have been inserted around the word “to” near the end of the section to indicate that it is surplusage.

Compiler’s Notes.

This section which comprised I.C.,§ 9-340, as added by 1997, ch. 60, § 2, p. 111; am. 1998, ch. 164, § 1, p. 552; am. 1998, ch. 262, § 1, p. 865; am. 1998, ch. 293, § 1, p. 968; am. 1998, ch. 308, § 1, p. 1012; am. 1998, ch. 411, § 4, p. 1275, was repealed by S.L. 1999, ch. 30, § 1, p. 41, effective July 1, 1999.

Prior Laws.

Former§9-340H, which comprised I.C., § [9-340H] 9-340G, as added by 2000, ch. 194, § 3, p. 483, was repealed by S.L. 2002, ch. 27, § 1.

Compiler’s Notes.

Former§ 9-348, as enacted by S.L. 1990, ch. 213, § 1, was amended and redesignated as§ 9-349 by § 2 of S.L. 1992, ch. 279 and was redesignated as§ 9-350 by S.L. 1996, ch. 122, § 2. However, since another§ 9-350 already existed, the section was redesignated as [9-349A] by the compiler. That redesignation was made permanent by S.L. 2005, ch. 25, § 13. The section was then amended and redesignated as§ 9-351 by S.L. 2011, ch. 302, § 3, effective July 1, 2011.

Compiler’s Notes.

Former§ 9-349 was redesignated as§ 9-350 by S.L. 2011, ch. 302, § 2, effective July 1, 2011.

Compiler’s Notes.

Former§ 9-349A was redesignated as§ 9-351 by S.L. 2011, ch. 302, § 3, effective July 1, 2011, and subsequently repealed by S.L. 2015, ch. 140, § 1, effective July 1, 2015.

Compiler’s Notes.

Former§ 9-350 was redesignated as§ 9-352 by S.L. 2011, ch. 302, § 4, effective July 1, 2011.

Cross References.

Abstract of title as evidence,§ 54-102.

Bank stock books,§ 26-404.

Great seal of the state,§ 59-1005.

Effect on Omission of Seal.

It is held by many courts that the omission of a required seal is not fatal and is a mere irregularity which may be supplied by amendment and does not render the process or other paper from which it is omitted void, and this is the rule recognized in Idaho. Harpold v. Doyle, 16 Idaho 671, 102 P. 158 (1908).

Am. Jur. 2d.

C.J.S.

ALR.

Proof of authorship or identity of sender of telegram as prerequisite of its admission in evidence. 5 A.L.R.3d 1018.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 A.L.R.3d 551.

Admissibility of newspaper article as evidence of the truth of the facts stated therein. 55 A.L.R.3d 663. Letters to or from customers or suppliers as business records under statutes authorizing reception of business records in evidence. 68 A.L.R.3d 1069.

Admissibility under business injury statutes of hospital records in criminal cases. 69 A.L.R.3d 22.

Admissibility under Uniform Business Records as Evidence Act or similar statute of medical report made by consulting physician to treating physician. 69 A.L.R.3d 104.

Construction and effect of§ 1-202 of the Uniform Commercial Code dealing with documents which are prima facie evidence of their own authenticity and genuineness. 72 A.L.R.3d 1243.

Requirement of notice as condition for admission in evidence of summary of voluminous records. 80 A.L.R.3d 405.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient. 80 A.L.R.3d 456.

Admissibility of computerized private business records. 7 A.L.R.4th 8.

Proof of foreign official record under rule 44(a)(2) of federal rules of civil procedure. 41 A.L.R. Fed. 784.

Drug Charts.

The state laid a sufficient foundation of reliability of the federal drug enforcement agency charts to permit the admission of the expert’s opinion based upon them. State v. Crabb, 107 Idaho 298, 688 P.2d 1203 (Ct. App. 1984).

Drug Instruction Sheet.

In suit against doctors on charge of negligence in performing operation, it was error for the trial court to exclude from evidence an exhibit showing instruction sheet enclosed in each package of the drug used during the operation. Julien v. Barker, 75 Idaho 413, 272 P.2d 718 (1954).

Scientific Journals.

The admission of an enlargement of a journal article dealing with the dangers of handling liquid ammonia in an agricultural context and the need for better educational programs was not error, where the article was relevant to show that the president of defendant corporation was on notice of the contents of that article, where proper foundation was laid in showing that the author was an authority in the field and that the president was a member of a society, all of whose members received the journal article, and where the article represented authoritative research on ammonia handling safety measures. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

It is unreasonable to require a scientific work to concern facts known by or of interest to the general public before it is admissible; rather it need be known or of interest only to the particular field of endeavor in which it is used. State v. Crabb, 107 Idaho 298, 688 P.2d 1203 (Ct. App. 1984).

Admission of article in a scientific magazine on the subject of eyewitness testimony was not barred in a prosecution for robbery by this state’s version of the hearsay rule, despite a lack of live testimony by the author. State v. Alger, 115 Idaho 42, 764 P.2d 119 (Ct. App. 1988).

Treatises.

In an action by a construction company against a county to recover on a sanitary land fill contract, the trial court erroneously excluded from evidence a solid waste disposal report prepared by a metropolitan area planning agency and a report prepared by the United States environmental protection agency, since the treatises were admissible under an exception to the hearsay rule for use in examination of plaintiff’s experts as a foundation for their expert opinion testimony. McKay Constr. Co. v. Ada County Bd. of County Comm’rs, 96 Idaho 881, 538 P.2d 1185 (1975).

Am. Jur. 2d.

§ 9-403. Notice to produce writing — Proof upon failure to produce — When notice not necessary.

If the writing be in the custody of the adverse party, he must first have reasonable notice to produce it. If he then fail to do so, the contents of the writing may be proved as in case of its loss. But the notice to produce it is not necessary where the writing is itself a notice, or where it has been wrongfully obtained or withheld by the adverse party.

History.

C.C.P. 1881, § 924; R.S., R.C., & C.L., § 5991; C.S., § 7962; I.C.A.,§ 16-403.

Carbon Copy as Original.

Carbon copy of letter is admissible without notice to produce where opposing party denies having received it. American Sur. Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1933).

Contents of Check.

Admission of parol proof of contents of check was erroneous where it had gone out of plaintiff’s hands when he cashed it, defendant being entitled to reasonable notice to produce it. Leonard, Crossett & Riley, Inc. v. Whaley, 44 F.2d 692 (9th Cir. 1930).

Am. Jur. 2d.

§ 9-404. Writing need not be introduced.

Though a writing called for by one party is produced by the other, and is thereupon inspected by the party calling for it, he is not obliged to produce it as evidence in the case.

History.

C.C.P. 1881, § 925; R.S., R.C., & C.L., § 5992; C.S., § 7963; I.C.A.,§ 16-404.

Am. Jur. 2d.

§ 9-405. Proof of writings.

Any writing may be proved either:

1. By any one who saw the writing executed; or
2. By evidence of the genuineness of the handwriting of the maker; or
3. By a subscribing witness.

History.

C.C.P. 1881, § 926; R.S., R.C., & C.L., § 5993; C.S., § 7964; I.C.A.,§ 16-405.

Cross References.

Admission of execution,§ 9-407.

Exemplars,§ 9-412.

Probate of wills,§ 15-3-101 et seq.

Proof of instrument by handwriting,§§ 55-721, 55-722.

Identification of Statement.

The federal rules of civil procedure do not permit petitioner to seek the production of memoranda and statements gathered by counsel of adverse party in the course of his activities as counsel. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (See Idaho R. Civ. P. 26(b)(3)).

Where one witness to statement signed by “x” was not produced and another witness thereto testified she was not sure plaintiff had placed “x” thereon, the court properly excluded the statement on the ground that it had not been properly identified. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498 (1944).

Letters.

The mere receipt of letters, though on official stationery, is not evidence that they were written by the person whose name they bear. Beloit v. Green, 43 Idaho 265, 251 P. 621 (1926).

Where there is no direct knowledge of handwriting, there must be something which assures the recipient of letters in a responsible way of their genuineness before he can swear to their writer. Beloit v. Green, 43 Idaho 265, 251 P. 621 (1926).

The mere fact that a letter purports to be written by the person in question is not sufficient to establish its authenticity. State v. Golden, 67 Idaho 497, 186 P.2d 485 (1947).

Letters which are not shown by any evidence to have been in fact signed by their alleged authors, or identified as genuine, are not admissible for any purpose. State v. Golden, 67 Idaho 497, 186 P.2d 485 (1947). Where defendant sought to negative certain evidence by introducing a letter in evidence which he had written to a bank and which had been obtained from bank by sheriff, such letter was properly excluded where no representative of the bank was called to identify the letter, its contents, or the writer. State v. Golden, 67 Idaho 497, 186 P.2d 485 (1947).

Proof of Genuineness.

For writings, which are not self-authenticating, it is necessary to provide other proof of its genuineness than the mere writing itself before the writing is admissible, and the purported signature or recital of authorship on the face of a writing will not be accepted as sufficient preliminary proof of authenticity for the admission of a writing in evidence. Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979).

Am. Jur. 2d.

C.J.S.

C.J.S.

CASE NOTES

Identification of Statement.

Where one witness to statement signed by “x” was not produced and another witness thereto testified she was not sure plaintiff had placed “x” thereon, the court properly excluded the statement on the ground that it had not been properly identified. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498 (1944).

Cross References.

Denial by subscribing witness, proof,§ 9-406.

Private writings, acknowledgment, proof,§ 9-409.

Proof of instrument by handwriting,§§ 55-721, 55-722.

Proof of writings in general,§ 9-405.

Account Book Entries.

Entries in account book kept by decedent are not admissible in evidence where it is not shown that entries were against the interest of person making them, or that they were made in a professional capacity and in the ordinary course of professional conduct, or that they were made in performance of a duty specially enjoined by law. Kent v. Richardson, 8 Idaho 750, 71 P. 117 (1902).

Declarations Against Interest.

Declarations of decedent in the form of writings are admissible if made against interest. Foster v. Diehl Lumber Co., 77 Idaho 26, 287 P.2d 282 (1955).

Entries Made in Professional Capacity.

In an action to enjoin defendant from obstructing an alleged county road which crossed defendant’s land, a survey made by a county surveyor, since deceased, was admissible in evidence under this section. Bonner County v. Dyer, 92 Idaho 699, 448 P.2d 986 (1968).

Cross References.

Acknowledgments of conveyances,§ 55-701 et seq.

Proof of conveyance of real property,§ 9-410.

C.J.S.

§ 9-410. Instruments affecting realty — Certified copies of record — Admissibility.

Every instrument conveying or affecting real property, acknowledged or proved, and certified, as provided by law, may, together with the certificate of acknowledgment or proof, be read in evidence in an action or proceeding, without further proof; and a certified copy of the record of such conveyance or instrument thus acknowledged or proved, may also be read in evidence, with the like effect as the original, on proof, by affidavit or otherwise, that the original is not in the possession or under the control of the party producing the certified copy.

History.

C.C.P. 1881, § 931; R.S., R.C., & C.L., § 5998; C.S., § 7969; I.C.A.,§ 16-410.

Cross References.

Abstracts of title as evidence,§ 54-102.

Public record of private writing, how proved,§ 9-321.

Transfers of real property to be in writing, exception,§§ 9-503, 9-504.

Construction of Statute.

Provisions of this section are mandatory and it is erroneous to admit copy of deed in evidence without compliance with its requirements. Oatman v. Hampton, 43 Idaho 675, 256 P. 529 (1927).

C.J.S.

§ 9-411. Secondary evidence of writings — When admissible.

There can be no evidence of the contents of a writing other than the writing itself, except in the following cases:

1. When the original has been lost or destroyed; in which case proof of the loss or destruction must first be made.
2. When the original is in the possession of the party against whom the evidence is offered, and he fails to produce it after reasonable notice.
3. When the original is a record or other document in the custody of a public officer.
4. When the original has been recorded, and a certified copy of the record is made evidence by this code or other statutes.
5. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.
6. When the original consists of medical charts or records of hospitals licensed in this state, and the provisions of section 9-420, Idaho Code, have been followed.

In the cases mentioned in subdivisions 3, 4 and 6, a copy of the original, or of the record, must be produced; in those mentioned in subdivisions 1 and 2, either a copy or oral evidence of the contents.

History.

C.C.P. 1881, § 932; R.S., R.C., & C.L., § 5999; C.S., § 7970; I.C.A.,§ 16-411; am. 1971, ch. 47, § 1, p. 100.

Cross References.

Abstracts of title,§ 54-102.

Compiler’s Notes.

The reference to “this Code” in this section is to the Code of Civil Procedure, a division of the Idaho Code, consisting of titles 1 through 13.

Application of Subdivision 5.

Rule stated in subdivision 5 can not be extended to cover case where some of the books and records could not be identified properly and others had been permitted to be lost or destroyed by representatives of the creditors in whose behalf the action was being prosecuted. Stolz v. Scott, 28 Idaho 417, 154 P. 982 (1916).

Carbon Copy of Letter.

Carbon copy of letter is admissible without notice to produce where opposing party denies having received it. American Sur. Co. v. Blake, 54 Idaho 1, 27 P.2d 972 (1933).

Carbon Copy of Will.

That the proof by a witness that a copy of a will is a carbon or duplicate copy of a lost will is the best evidence of the contents of the will does not make such copy the “best evidence” or even admissible on examination of any other witness as to the provisions of the will, unless the witness personally knows it is a carbon or duplicate copy of the alleged lost will. Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940).

Conclusions from Books and Records.

Where books of account and records of a corporation have been investigated by an expert accountant who has reached a conclusion therefrom as to the solvency of the corporation, and as to whether a dividend had been declared and paid from its capital stock or from surplus profits, and where some of the books had been subsequently lost or destroyed and others could not be properly identified as records of the corporation, it was not error for the trial court to reject as evidence the report of the accountant and oral testimony supplementing the same as to his conclusions. Stolz v. Scott, 28 Idaho 417, 154 P. 982 (1916).

Plaintiff in damage suit was entitled to testify as to net loss sustained in gasoline sales based on record of gas company though records were not produced in court. Driesbach v. Lynch, 74 Idaho 225, 259 P.2d 1039 (1953).

Copy.

None of the exceptions contained in this section applied to copy of agreement in which party purportedly brought disputed mining claims; therefore, court did not err in excluding such copy. Golden Condor, Inc. v. Bell, 106 Idaho 280, 678 P.2d 72 (Ct. App. 1984).

Failure to Demand.

Failure to demand production of original is no ground for rejecting copy where addressee admits receiving original letter. Fairbanks v. Fairbanks, 59 Idaho 1, 80 P.2d 17 (1938).

In General.

The “best evidence” rule, codified as this section and essentially reproduced at Idaho Evid. R. 1002, states a preference in favor of original written instruments — as opposed to copies, testimony, or other secondary sources of information — to prove the terms of a writing; the rule is not applicable if the writing is collateral to testimony about an extrinsic event. State v. Rosencrantz, 110 Idaho 124, 714 P.2d 93 (Ct. App. 1986).

Objection to Admission.

Evidence clearly not admissible was properly admitted where there was no specific objection and the only objection was that it was irrelevant, immaterial and incompetent. Smith v. Smith, 95 Idaho 477, 511 P.2d 294 (1973).

Parol Evidence Rule.

General rule that written contract can not be contradicted or varied by evidence of oral agreement between parties is especially applicable to cases where bona fide holders of negotiable securities are sought to be deprived of rights to which they were entitled according to legal import of terms of such instruments. Burke v. Dulaney, 153 U.S. 228, 14 S. Ct. 816, 38 L. Ed. 698 (1894).

Rule that excludes parol evidence to contradict written instrument has no application where writing was never delivered as present contract. Burke v. Dulaney, 153 U.S. 228, 14 S. Ct. 816, 38 L. Ed. 698 (1894).

Admission of parol proof of contents of check was erroneous where it had gone out of plaintiff’s hands when he cashed it, defendant being entitled to reasonable notice to produce it. Leonard, Crossett & Riley, Inc. v. Whaley, 44 F.2d 692 (9th Cir. 1930).

Where an agreement for sale of property and an addendum were facially ambiguous as to the deadline for buyers to secure financing and complete the sale, district court erred in granting summary judgment to sellers who had repudiated agreement. Parol evidence could be used to resolve this facial ambiguity and determine the intent of the parties. Cannon v. Perry, 144 Idaho 728, 170 P.3d 393 (2007).

Photographic Copies.

Photographic copies, which were produced not in the ordinary course of business but for trial, did not fall within§ 9-417 but rather they were secondary evidence governed by this section. School Dist. No. 91, Bonneville County v. Taysom, 94 Idaho 599, 495 P.2d 5 (1972).

Where a review of the record indicated that the bank made an adequate showing of loss and inability to produce the originals such that secondary evidence of the promissory notes could be admitted in evidence, admission of the photo copies of the notes was not violative of the “best evidence rule.” Idaho First Nat’l Bank v. Wells, 100 Idaho 256, 596 P.2d 429 (1979).

Where the trial court was satisfied with the foundation laid for the necessity and trustworthiness of a photocopy of a ledger-sheet and its admission in evidence, and given the wide discretion allowed to the trial court and the substantial although conflicting evidence upon which the exhibit was admitted, the trial court did not abuse its discretion in admitting the exhibit into evidence. Curiel v. Mingo, 100 Idaho 303, 597 P.2d 26 (1979).

Proof of Inability to Produce.

Receipt as Prima Facie.

Secondary evidence of the contents of an insurance application should not have been received until proof had been made that the original writing itself could not be produced in a suit by appellant alleging he was a pretermitted son and sole heir of deceased, such insurance application allegedly acknowledging appellant as son of deceased. In re Stone’s Estate, 78 Idaho 632, 308 P.2d 597 (1957). Receipt as Prima Facie.

A simple receipt is only “prima facie evidence” of the truth of the statements recited therein, and parol evidence is admissible to explain or contradict it. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 62 Idaho 683, 115 P.2d 401 (1941).

Statements in Deposition.

In an action to foreclose mortgage, that portion of defendant’s deposition describing an alleged written agreement by which defendant was to be given a warranty deed to resort property did not fall within any of the exceptions provided for in this section and, thus, was properly excluded by the trial court. Russ Ballard & Family Achievement Inst. v. Lava Hot Springs Resort, Inc., 97 Idaho 572, 548 P.2d 72 (1976).

Tape Recording.

The “best evidence” rule did not bar admission of the police officer’s testimony of an interview with the defendant where a tape recording of the interview existed, and the officer used the tape recording only to refresh his memory. State v. Rosencrantz, 110 Idaho 124, 714 P.2d 93 (Ct. App. 1986).

Am. Jur. 2d.

§ 9-412. Exemplar.

Whenever the genuineness of a writing is at issue, any writing admitted or proved to be genuine is competent evidence as an exemplar for the purpose of comparison with the disputed writing: provided, that such writing so admitted or proved to be genuine shall in no way refer or relate to any matter then in issue.

History.

R.C., § 6000, as added by 1915, ch. 154, § 1, p. 335; reen. C.L., § 6000; C.S., § 7971; I.C.A.,§ 16-412.

Common Law Abrogated.

This section abrogates common-law rule and permits any writing either admitted or proved to be genuine to be admitted as an exemplar for the purpose of comparison with a disputed writing. State v. Allen, 53 Idaho 737, 27 P.2d 482 (1933).

“Exemplar” Defined.

Letters, checks, affidavits, notebooks, and other writings, positively sworn to be in testator’s handwriting, were competent as ultimate evidence that will was in his handwriting, under this section; “exemplar,” being a “specimen,” which is capable of supporting both deduction and inference. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

Harmless Error.

Admission of certain exhibits into case and cross-examination of witness thereon without objection may be harmless error, especially where no prejudice has resulted from course. Mitchell v. First Nat’l Bank, 40 Idaho 463, 234 P. 154 (1925).

Rule in General.

Before specimen of handwriting is admissible as standard of comparison, its genuineness must be established or shown by clear and undoubted testimony. State v. Brassfield, 33 Idaho 660, 197 P. 559 (1921).

In actions involving genuineness of signature, only such papers as are admitted in evidence in case for other purposes and such as are admitted to be genuine should, except in very exceptionable cases, be admitted for purpose of comparison. Mitchell v. First Nat’l Bank, 40 Idaho 463, 234 P. 154 (1925).

Mark in lieu of signature was, under the circumstances, properly the subject of expert testimony. Greenstreet v. Greenstreet, 65 Idaho 36, 139 P.2d 239 (1943). Relief warrant issued to deceased which was indorsed and cashed could not be used as an exemplar to prove handwriting on written instrument not witnessed or acknowledged as that of deceased where auditor testified that he could not say positively that handwriting on warrant was handwriting of deceased. Fredricksen v. Fullmer, 74 Idaho 164, 258 P.2d 1155 (1953).

Cross References.

Binding effect of bank statement,§ 28-4-406.

Chattel Mortgages.

In action to recover penalties and damages for failure to satisfy chattel mortgages and conditional sales contracts, exhibits were held to be admissible in view of this act. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

Payroll Records.

In proceeding by employer to determine 1949 experience rate, it was error to strike payroll records of employer from the evidence, where agency had destroyed its records covering years of 1939 to 1948. In re Potlatch Forests, 72 Idaho 291, 240 P.2d 242 (1952).

Purpose of Statute.

In enacting this act, the legislature apparently intended to broaden the scope of admissibility of records made in the regular course of business. Henderson v. Allis-Chalmers Mfg. Co., 65 Idaho 570, 149 P.2d 133 (1943).

What Constitutes “Business.”

The term “business,” as used in this act, is not limited to profit making or commercial enterprises, but also includes noncommercial entities such as an estate. Daniel v. Moss, 93 Idaho 612, 469 P.2d 50 (1970).

Books of Account.

Where defendant, who was sued for money had and received and money loaned, filed counterclaims for money still due under the contract, plaintiff’s books of account, showing the amount of cash advanced to defendant, were properly admitted in evidence. Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Construction.

The legislative intent requires that the business record exception be broadly construed. Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (1983).

Discretion of Court.

Prior to adoption of the Idaho rules of evidence, admission of business records was governed by this section. This section and Idaho Evid. R. 803(6) have been interpreted broadly to liberally allow introduction of business records. Herrick v. Leuzinger, 127 Idaho 293, 900 P.2d 201 (Ct. App. 1995). Discretion of Court.

The trial court has broad discretion as to the admission of evidence, including business records, and the exercise of that discretion will not be overturned absent the clear showing of abuse. Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (1983).

Farming Services.

Exhibits consisting of papers listing the charge per acre for various farming services signed by one of the defendants and a record of the charges to that defendant as performed were business records and as such admissible. Simplot Soilbuilders, Inc. v. Leavitt, 96 Idaho 17, 523 P.2d 1363 (1974).

Financial Statement.

A financial statement of a corporation prepared by a certified public accountant, who testified that such statement had been prepared by him with the assistance of the bookkeeper of the company in the ordinary course of business and for the company and from the books and records of the company was admissible in evidence. Hammond v. Hammond, 92 Idaho 623, 448 P.2d 237 (1968).

Inadmissible.

In action to recover balance of contract price set forth in construction contract exhibit that consisted of a photostatic copy of a list of principal contract bidders for a project, where such exhibit was covered with phone numbers, notes and mathematical computations made by plaintiff and such computations were not labeled in any way, where the figures thereon were not in and of themselves intrinsically understandable, and where such exhibit was not produced by plaintiff in response to interrogatories but was offered in the rebuttal portion of the trial to prove that the work in question was not intended to be included in the contract, such exhibit was not relevant to the issues presented at the trial and was inadmissible since there was no showing on the exhibit as to how plaintiff calculated his bid, since plaintiff’s testimony and explanation action of the exhibit only explained how it provided the basis for his bids to other contractors and since printed legend on copy was in conflict with typed and written information in the body of the document; consequently, there was no way to indicate the intent of the parties or determine whether a mutual mistake was made by the parties. Ed Sparks & Sons v. Joe Campbell Constr. Co., 99 Idaho 139, 578 P.2d 681 (1978).

Ledger Sheet.

Where the trial court was satisfied with the foundation laid for the necessity and trustworthiness of a photocopy of a ledger sheet and its admission in evidence, and given the wide discretion allowed to the trial court and the substantial although conflicting, evidence upon which the exhibit was admitted, the trial court did not abuse its discretion in admitting the exhibit into evidence. Curiel v. Mingo, 100 Idaho 303, 597 P.2d 26 (1979).

Prejudicial Impact.

Price Tag.

In an action to recover damages to plaintiff’s crops due to negligence by defendants in applying herbicide to the neighboring crops, where defendants’ exhibit purported to recite the temperature, quitting time and other data concerning application of the herbicide and it was represented as an authentic business record and not as a document prepared in anticipation of trial, the probability that the exhibit could have tainted the verdict of jury was apparent and, thus, the mere existence of fraud, taken together with the probability of influence resulting therefrom, was sufficient to require vacation of judgment and a new trial. Heston v. Payne, 97 Idaho 193, 541 P.2d 617 (1975). Price Tag.

Where stolen recorder, together with its price tag, was admitted on the basis of the testimony of a management employee, who testified to the authenticity of the tag and that from the price tag code he could approximate the market value of the article, the price tag met the test of relevance in that it, along with the verbal testimony, established the value of the stolen item, which was an essential element of the grand larceny charge. Since the expert testimony concerning the value of the recorder depended largely upon the content of the writing on the price tag, the price tag must be considered hearsay, but even accepting the hearsay character of the price tag admitted in evidence, it fell within the business records exception to the hearsay rule as stated in this section and its admission was not error. State v. McPhie, 104 Idaho 652, 662 P.2d 233 (1983).

Proof.

Where signature card and deposit slip along with ledger account at bank was introduced into evidence on issue of intent of defendant, court did not err in admission of exhibits though state did not establish that signature on card was the signature of the defendant. State v. Baldwin, 69 Idaho 459, 208 P.2d 161 (1949).

Purpose of Statute.

By the enactment of§§ 9-413 to 9-416, the legislature intended to broaden the scope of the admissibility of business records. John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955); Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Reconstruction of Bank Statement.

Where the parties, in an action for issuing a check with insufficient funds, agreed that if the defendant’s bank statement had not been lost it would have been admissible under the business records exception, a hearsay objection concerning a reconstruction of that lost statement was inapplicable; once the original evidence had withstood a hearsay objection, secondary evidence of that original was not subject to a hearsay analysis. State v. White, 102 Idaho 924, 644 P.2d 318 (1982).

Summaries of Records.

In action on contract for care and feeding of cattle, monthly summaries of amount of feed used were properly admitted as business records since they were made in the ordinary course of business and not in preparation for trial. Cheney v. Palos Verdes Inv. Corp., 104 Idaho 897, 665 P.2d 661 (1983).

Tax Returns.

Testimony of Store Manager.

In an action by administratrix for attorney fees due decedent in connection with work for defendant’s estate to establish amount of fee that plaintiff’s decedent meant to charge the estate, the federal estate tax return, filed for the estate, which stated that $900 was the attorney fee “agreed upon” for the legal work done by plaintiff’s decedent in connection with the probate of the estate, and which was made in the regular course of business more than two years prior to the attorney’s death, was admissible into evidence as a business record under this section. Daniel v. Moss, 93 Idaho 612, 469 P.2d 50 (1970). Testimony of Store Manager.

Testimony of store manager was competent for the purpose of laying a foundation for admission of business records governing transaction sued upon. John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1939, ch. 106 compiled as§§ 9-413 to 9-416.

Purpose of Statute.

By the enactment of§§ 9-413 to 9-416 the legislature intended to broaden the scope of the admissibility of business records. John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955); Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Compiler’s Notes.

The words “this act” refer to S.L. 1939, ch. 106 compiled as§§ 9-413 to 9-416.

The Business Records as Evidence Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1966.

Purpose of Statute.

By the enactment of§§ 9-413 to 9-416 the legislature intended to broaden the scope of the admissibility of business records. John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 289 P.2d 621 (1955); Kelson v. Ahlborn, 87 Idaho 519, 393 P.2d 578 (1964).

Photographic Copies.

Photographic copies which were produced not in the ordinary course of business, but for trial, did not fall within this section, but rather they were secondary evidence governed by§ 9-411. School Dist. No. 91, Bonneville County v. Taysom, 94 Idaho 599, 495 P.2d 5 (1972).

Where the trial court was satisfied with the foundation laid for the necessity and trustworthiness of a photocopy of a ledger-sheet and its admission in evidence, and given the wide discretion allowed to the trial court and the substantial although conflicting evidence upon which the exhibit was admitted, the trial court did not abuse its discretion in admitting the exhibit into evidence. Curiel v. Mingo, 100 Idaho 303, 597 P.2d 26 (1979).

The court did not err in refusing to admit a photocopy of a signed original contract under this section, where the copy was not prepared by the offering parties in the course of their business, and the origin of the copy could not be satisfactorily established. Baker v. Kulczyk, 112 Idaho 417, 732 P.2d 386 (Ct. App. 1987).

Compiler’s Notes.

The words “this act” refer to S.L. 1951, ch. 173, which is compiled as§§ 9-417 to 9-419.

Compiler’s Notes.

The words “this act” refer to S.L. 1951, ch. 173, which is compiled as§§ 9-417 to 9-419.

Effective Dates.

Section 4 of S.L. 1935, ch. 173 provided said act should be in full force and effect from and after July 1, 1951.

Am. Jur. 2d.

C.J.S.

Cross References.

Corroboration required in divorce cases,§ 32-703.

“Perjury” defined,§ 18-5401.

“Treason” defined,Idaho Const., Art. V, § 5.

Am. Jur. 2d.

70 Am. Jur. 2d, Sedition, Subversive Activities and Treason, § 84.

C.J.S.

87 C.J.S., Treason, §§ 14, 15.

ALR.

Validity of lease or sublease subscribed by one of the parties only. 46 A.L.R.3d 619.

Comment note. Statute of frauds and conflict of laws. 47 A.L.R.3d 137.

Action by employee and reliance on employment contract which violates statute of frauds as rendering contract enforceable. 54 A.L.R.3d 715.

Promissory estoppel as basis for avoidance of statute of frauds. 56 A.L.R.3d 1037.

Exceptions to rule that oral gifts of land are unenforceable under statute of frauds. 83 A.L.R.3d 1294.

Cross References.

Formal requisites of wills,§ 15-2-501.

Probate of wills,§ 15-3-101 et seq.

Cross References.

Instruments affecting realty, certified copies of record admissible,§ 9-410.

Public records of private writings, how proved,§ 9-314.

Action on Lease.

In action for unlawful detainer, evidence of taking possession by lessee and the payment of part of the consideration or performance of work as part of the consideration was not admissible as a defense. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937).

Agency.

When agency is denied, it is necessary to show agency in writing, subscribed by owner of the land. Thompson v. Burns, 15 Idaho 572, 99 P. 111 (1908).

The name of the grantee cannot be inserted by an agent for the grantor (beneficial owner here) unless the agent’s authority is in writing. If the authority of the agent is not in writing, his insertion of the grantee’s name in the deed does not pass title. Erb v. Kohnke, 121 Idaho 328, 824 P.2d 903 (Ct. App. 1992).

Applicability.

Grant of summary judgment in favor of the purchaser in a lawsuit to recover money deposits from the sellers after two codependent land sale contracts involving the parties failed to close was proper, in part because the district court’s citation to this section was irrelevant. The statute of frauds does not come into play; the contracts are integrated, they had not been extended, modified, or renewed by any writing conforming with the amendments and waivers provision, and any argument to the contrary was without merit. Buku Props., LLC v. Clark, 153 Idaho 828, 291 P.3d 1027 (2012).

Auctions.

The statute of frauds applies to auctions of land in the same manner as any other land transaction. Wakelum v. Hagood, 151 Idaho 688, 263 P.3d 742 (2011).

While a sale of land is not taken outside the statute of frauds just because it involves an auction, the auction terms agreed upon by the seller, in a writing, can be considered in determining whether the writing satisfies the statute of frauds. Wakelum v. Hagood, 151 Idaho 688, 263 P.3d 742 (2011).

When landowner signed a representation agreement, authorizing an absolute auction of his properties on the terms therein stated, all terms essential to a land sale contract were contained within that agreement. While the representation agreement did not specifically state the purchase price for any parcel, or the name of the buyer or buyers who would submit the highest bid thereon, the agreement contained an appropriate provision for reducing those material terms to certainty. Wakelum v. Hagood, 151 Idaho 688, 263 P.3d 742 (2011).

Authorized in Writing.

Construction and Application.

Agreement by defendant’s attorney and prospective purchasers for a sale on terms other than those stipulated in broker’s contract of employment did not constitute a sale, authorizing a broker’s commission, in the absence of written authority from the defendant to her attorney to enter into an agreement for the sale of the real estate. Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 442 P.2d 442 (1968). Construction and Application.

This section is statutory declaration of common-law rule based on statute of frauds. Quirk v. Bedal, 42 Idaho 567, 248 P. 447 (1926).

Where title to land is not involved, fact of possession or occupancy may be established like any other fact, and written instrument is not necessary. Albrethsen v. Clements, 48 Idaho 80, 279 P. 1097 (1929).

This statute prescribes a rule of evidence, and in the instances enumerated the evidence must be in writing; it was intended to prevent proof in cases where grantors in warranty deeds attempt to contradict the terms of the deed and establish a trust in favor of third parties and to prevent titles becoming subject to capricious memories of interested witnesses. Dunn v. Dunn, 59 Idaho 473, 83 P.2d 471 (1938).

Easement.

Trial court erred in granting a parking easement to purchaser of adjoining property, where easement was based on an oral agreement made when purchaser was only a tenant, since this section requires a writing for the creation of such an easement. Fajen v. Powlus, 96 Idaho 625, 533 P.2d 746 (1975).

Where landowner and owner of adjoining property entered into a written contract whereby adjoining owner agreed to deliver culinary and domestic well water, but where landowner was not granted any right to adjoining owner’s property nor any right to go upon that property, landowner did not acquire an easement by express agreement by which he could implement his contractual right to the delivery of water. Shultz v. Atkins, 97 Idaho 770, 554 P.2d 948 (1976).

There was no express easement to use a road for ingress and egress based on a deed or a sale agreement where the language was insufficient to create such; the parties’ intent was insufficient to substitute for a writing. Tower Asset Sub Inc. v. Lawrence, 143 Idaho 710, 152 P.3d 581 (2007).

Sale agreement did not create an express easement where it did not indicate an immediate grant of easement rights; the language gave the seller the right to obtain an access easement for the benefit of some other property, and there was no intent to convey any property interest until the balance owing on the sale agreement was paid. Further, a deed did not reserve or except an easement. Capstar Radio Operating Co. v. Lawrence, 143 Idaho 704, 152 P.3d 575 (2007).

At a minimum, a valid express easement must identify the land subject to the easement and express the intent of the parties. Thus, while specific words are not required to create an express easement, the writing must make clear the parties’ intention to establish a servitude. Baker v. KAL, LLC, 163 Idaho 530, 415 P.3d 939 (2018).

An easement is considered to be an encumbrance on real property and, therefore, must be in writing. Sec. Inv’r Fund LLC v. Crumb, — Idaho —, 443 P.3d 1036 (2019).

Estoppel.

Where vendor and vendee entered into a purchase and sale agreement, the terms of which were definite and, in reliance thereto, purchaser changed his position by selling his cattle to his substantial damage, under the principal of equitable estoppel, in order to promote the ends of justice and accomplish that which should be done between the parties, vendor should be, and is, estopped to deny vendee’s right to purchase the subject property in accord with the terms of the agreement which the trial court found and determined to be the agreement between the parties. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963). A defendant who is induced to rely on an oral agreement and who changes position to his own detriment cannot be defrauded by a plaintiff who interposes the statute of frauds to declare the agreement invalid. Idaho Migrant Council, Inc. v. Northwestern Mut. Ins. Co., 110 Idaho 804, 718 P.2d 1242 (Ct. App. 1986).

Where plaintiffs and vendor of defendant had orally agreed to sale of disputed property, plaintiffs had taken possession of the disputed land, exercised control over it for approximately three years, made substantial improvements thereon, and paid vendor $1,200 of the $1,500 sale price, and where the actual parties to the agreement testified to its essential terms, the description of the land was certain and was based on uncontradicted testimony, and after the second payment of $600 vendor gave plaintiffs a receipt stating who the parties were and that $1,200 had been received in payment for the disputed land leaving a balance of $300 to be paid, such evidence was clear and convincing; therefore, district court did not err in concluding that defendant was estopped from raising the statute of frauds to avoid enforcement of the oral agreement and court’s order that the agreement be specifically enforced was proper. Mikesell v. Newworld Dev. Corp., 122 Idaho 868, 840 P.2d 1090 (Ct. App. 1992).

Extension Agreements.

Written contract, giving an option to purchase real estate within specified time, can not be legally extended by verbal agreement. Lawyer v. Post, 109 F. 512 (9th Cir. 1901).

A written option to purchase real estate within a certain time could not be extended by an oral agreement. Southern v. Southern, 92 Idaho 180, 438 P.2d 925 (1968).

Laterals.

Ownership of laterals could not be transferred to ditch company by virtue of recitations in instruments not signed by owners, since irrigation ditches and water rights are real estate and can only be transferred by contract and deed signed by the owner, or by adverse possession, condemnation and operation of law. Hale v. McCammon Ditch Co., 72 Idaho 478, 244 P.2d 151 (1951).

Leases.

Purported lease, not definite and certain and not complete within itself as to all essentials of a lease of real property for a term of more than one year, does not satisfy requirements of this section. Gaskill v. Jacobs, 38 Idaho 795, 225 P. 499 (1924).

A lease for a term not exceeding one year is expressly authorized by this section. Abbl v. Morrison, 64 Idaho 489, 134 P.2d 94 (1943).

The evidence produced by an occupant of land did not establish the essential terms of an oral lease with sufficient definiteness and certainty so as to avoid the strictures of the statute of frauds nor was the part performance of the agreement sufficient, as a matter of law, to justify the equitable remedy of specific enforcement. Wing v. Munns, 123 Idaho 493, 849 P.2d 954 (Ct. App. 1993).

Operation of Law.

Oral Agreement.

In a title insurance dispute, limited liability company owned by insureds, to which they had conveyed the property by a properly executed warranty deed, was not considered to have obtained title to the property by operation of law and, thus, was not an insured under the policy. Point of Rocks Ranch, LLC v. Sun Valley Title Ins. Co., 143 Idaho 411, 146 P.3d 677 (2006). Oral Agreement.

An oral agreement to substitute the mode or time of performance of an executory contract required to be in writing is valid and binding, provided that no other material term is changed and the agreement is made before the expiration of the written contract. Kelly v. Hodges, 119 Idaho 872, 811 P.2d 48 (Ct. App. 1991).

Although this section requires that a conveyance of real property must be in writing,§ 9-504 provides an exception to the rule so long as partial acceptance has occurred. Thus, where it was undisputed that plaintiffs had taken possession of the disputed property under oral agreement, exercised exclusive control over it for approximately three years, made substantial improvements thereon and paid most of the purchase price, vendors were estopped from raising the statute of frauds as a defense to liability under the agreement. Mikesell v. Newworld Dev. Corp., 122 Idaho 868, 840 P.2d 1090 (Ct. App. 1992).

Because the real property contract was subject to the statute of frauds, gaps in essential terms regarding the security agreement could not be filled by parol evidence. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

In a matter involving an appeal from a failed venture to develop a Christian retreat ranch, an oral contract existed, but there was no violation of the statute of frauds as the oral contract was for the formation of a partnership for the purpose of developing the Christian retreat ranch, not an oral contract for the sale of land, which transaction was incidental to the oral contract. Spence v. Howell, 126 Idaho 763, 890 P.2d 714 (1995).

As a consequence of this section and§§ 9-504 and 9-505(5), where alleged part performance can be explained as consistent with some other purpose or arrangement, an oral contract to sell will not be established; therefore, where evidence indicated tenants/alleged purchasers did not take any action regarding the premises other than moving in and operating the bakery, made monthly payments consistent with rental, and made no valuable improvements to premises with repairs being made by landlord/alleged vendors, no clear and convincing evidence existed to support existence of an oral contract to sell. Hinkle v. Winey, 126 Idaho 993, 895 P.2d 594 (Ct. App. 1995).

Where the parties agreed to lease a particular parcel of farmland for a term of five years at a certain yearly rent, where the plaintiff agreed to pay for water assessment, electricity and property taxes, and where there was partial performance of the contract, there was sufficient evidence to show that the oral agreement was taken outside of the statute of frauds and was enforceable. Corder v. Idaho Farmway, Inc., 133 Idaho 353, 986 P.2d 1019 (Ct. App. 1999).

Oral Gifts.

Oral gifts of land generally fall within the terms of the statute of frauds and are invalid, but the conditions of a particular case can take it out of the operation of the statute, especially when the donee has taken exclusive possession under the gift and has made valuable and permanent improvements to the realty. Erb v. Kohnke, 121 Idaho 328, 824 P.2d 903 (Ct. App. 1992).

Part Performance.

Oral contract under which one party acquired right of way and constructed irrigating ditch over lands of another, under agreement that latter should take fifty inches of water from said ditch annually for irrigation of said lands, will not be held void in action brought by successors in interest of respective parties after lapse of sixteen years. Stowell v. Tucker, 7 Idaho 312, 62 P. 1033 (1900). Oral contract to convey right to use water for irrigation and domestic purposes, where there has been part performance of contract of sale and possession and use of such water has changed, will be enforced in equity. Francis v. Green, 7 Idaho 668, 65 P. 362 (1901).

Where husband and wife enter into oral contract for sale of their homestead, and purchaser takes possession thereof and pays purchase-price and makes valuable improvements thereon, all of which are done with the full knowledge and consent of wife, purchaser is entitled to specific performance. Grice v. Woodworth, 10 Idaho 459, 80 P. 912 (1904).

Where defendant proceeded under contract to purchase interest in mining claims as though it had been signed by all parties, made payments under it, went into possession, participated in development of property, and, on trial, refused to produce original, it may be inferred that he had signed contract. Ferguson v. Blood, 152 F. 98 (9th Cir. 1907).

Where evidence showed that plaintiff had paid full purchase-price for a one-seventh interest in certain mining claims, or in the net proceeds arising from the working or sale thereof, plaintiff was entitled to specific performance, although contract did not comply with requirements of this section. Coughanour v. Grayson, 19 Idaho 255, 113 P. 724 (1911).

Part performance of oral agreement gives court of equity power to enforce specific performance. Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122 (1916).

Mere giving of check as earnest money in transaction for transfer of real property is not sufficient evidence of purchase in absence of conveyance or other written instrument signed by party to be charged. Schulz v. Hansing, 36 Idaho 121, 209 P. 727 (1922).

Where grantor conveyed property pursuant to prior oral agreement, with agreement that grantee would reconvey after performance of certain conditions and grantee fully performed her part of the agreement, the statute of frauds did not preclude enforcement of the agreement. Chatterton v. Luker, 66 Idaho 242, 158 P.2d 809 (1945).

Oral agreement by which decedent promised to devise certain real estate to plaintiff if she did not file claim against certain estate and “stayed by him” will be enforced by specific performance and is not within the statute of frauds where there is partial or complete performance of the agreement. McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960).

Assuming that an amount of $619.95 originally considered as rental payments had been paid to apply on the purchase price, such payment did not by itself constitute such part performance as to justify specific performance of the oral contract, since it was only a small part of the $25,000 purchase price. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

Competent evidence may clearly show that possession, after the making of an oral contract, was definitely referable to the contract; however, the possession of land to constitute part performance of a contract which would be invalid under the statute of frauds must be actual, notorious and in pursuance of the contract. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

Even when a party was entitled to specific performance because his possession after Jan. 1, 1958, was referable to the oral contract under the evidence, the court did not find that it was such a possession as constituted part performance. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

In order to be considered as constituting part performance of a contract, improvements must be substantial in relation to the value of the property involved. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963). In view of the fact that the trial court did not determine what loss was in fact suffered by respondent as a result of marketing his cattle when he did in reliance on an oral contract, nor whether the legal remedy would be inadequate, the court did not feel that such collateral act under the circumstances in this case should be regarded as part performance. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

What constitutes part performance must depend upon the particular facts of each case and the sufficiency of particular actions is a matter of law. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

Where possession is relied upon as part performance to take the case out of the statute of frauds, the taking of the possession is of great importance and the continuance of a possession assumed or commenced before the making of a contract under some right or in some capacity is not such a taking and holding of possession as may alone, or in connection with other acts, be regarded as part performance of the contract. Boesiger v. Freer, 85 Idaho 551, 381 P.2d 802 (1963).

Where there has been full or partial performance of a contract normally within the statute of frauds, such a contract is nonetheless valid where the remedy sought is specific performance. Tew v. Manwaring, 94 Idaho 50, 480 P.2d 896 (1971).

Where practically all the individual terms of the original contract, accord and satisfaction had been performed except the delivery of the deed, the court properly decreed specific performance though the agreement to transfer the real estate was oral. Brown v. Burnside, 94 Idaho 363, 487 P.2d 957 (1971).

Where partial performance has occurred under a contract for the sale of real estate, the trial court has the discretion to compel specific performance, despite the lack of written evidence of the parties’ agreement. Jolley v. Clay, 103 Idaho 171, 646 P.2d 413 (1982).

Where the evidence showed that the purchasers took possession of the property based on an oral contract and lived upon it as owners for 15 years, that they made improvements upon the property valued at $10,000, or roughly the amount of the purchase price, that purchasers paid the taxes on the property from 1964 to 1975, and that they paid $5,500 of the $10,000 purchase price, there was unquestionably part performance sufficient to take the contract out of the statute of frauds. Jolley v. Clay, 103 Idaho 171, 646 P.2d 413 (1982).

Judgment for specific performance of an oral contract to convey land was upheld because there was clear and convincing evidence of the oral agreement, there was partial performance by the brother, and the map of the property was sufficiently drawn to describe the property under the provisions of this section. Thorn Springs Ranch, Inc. v. Smith, 137 Idaho 480, 50 P.3d 975 (2002).

In a dispute regarding an oral agreement for the sale of land between two tenants in common, the part performance exception did not allow for specific performance since the alleged contract was not definite regarding what property was included in the sale. Watson v. Watson, 144 Idaho 214, 159 P.3d 851 (2007).

Powers of Equity Courts.

Courts of equity have power to so reform an executory contract valid and binding on its face as to make the statements speak the truth as it was intended, but have no power to construct an executory agreement for parties or to insert therein new and essential elements or matter that is required by the statute to be reduced to writing in order to make contract valid and binding. Allen v. Kitchen, 16 Idaho 133, 100 P. 1052 (1909). Executory contract for sale of real estate, which fails to designate the state, county, civil, or political district in which land is situated, and fails to disclose the municipal or other subdivision to which the tract of land is an “addition,” is insufficient and void description and cannot be supplied or aided by parol evidence. Allen v. Kitchen, 16 Idaho 133, 100 P. 1052 (1909). But see Barnhart v. Hansen, 36 Idaho 419, 211 P. 438 (1922).

Under provisions of§ 9-504, provisions of this section must not be construed to abridge power of any court to compel the specific performance of agreement made in regard to sale of real estate in case of part performance thereof. King v. Seebeck, 20 Idaho 223, 118 P. 292 (1911).

Where one party has so acted in reliance upon contract that it would be perpetrating fraud upon him to allow other party to repudiate contract, equity will regard case as having been removed from operation of statute of frauds. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924).

Doctrine of estoppel in pais, to avoid injustice by enforcement of this section according to its strict letter, is sparingly applied by courts of equity. Quirk v. Bedal, 42 Idaho 567, 248 P. 447 (1926).

Where a contract has been fully performed by the purchaser and the purchaser has been given possession by the seller and has made valuable improvements on the property, the statute of frauds is satisfied and the purchaser is entitled to specific performance in equity, even though the contract is oral. Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686 (1950).

Right of Way.

Right of way for ditch over land is an easement or interest in real property, which, under this section, can be created only by operation of law, or a conveyance or other instrument in writing, subscribed by the party granting such easement or right of way. McReynolds v. Harrigfeld, 26 Idaho 26, 140 P. 1096 (1914), overruled on other grounds, Eliopulos v. Kondo Farms, Inc. 102 Idaho 915, 643 P.2d 1085 (Ct. App. 1982).

Security Provision.

Although a real estate contract need not contain a security provision, if none is contemplated, once parties attempt to provide for security it becomes an essential term of the contract. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

Settlement Agreement.

A stipulation to settle litigation whose subject matter is within the statute of frauds must be in writing and signed by the parties to be charged; thus, when the subject matter of the stipulation falls within the proscription of the statute of frauds and the agreement is oral and executory, it is unenforceable. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

A settlement agreement which includes a deed of trust falls within the scope of this section and must be in writing: but a party may be equitably estopped from asserting the statute of frauds where his attorney had an apparent authority to enter the oral agreement and the second party had no notice that the attorney lacked the authority to enter the binding agreement Ogden v. Griffith, 149 Idaho 489, 236 P.3d 1249 (2010).

Sufficiency of Writing.

Receipt reading, “Lowe, Idaho, March 17, 1902. Received from S. C. Kurdy, one hundred and ninety dollars on land, Sec. 25, Ts. 32 R. 2E. 160 acres,” signed by parties sought to be charged, is insufficient to support demand for specific performance. Kurdy v. Rogers, 10 Idaho 416, 79 P. 195 (1904).

Deed properly executed and left with attorney of grantor of real estate for the inspection of grantee, who has already paid the purchase-price, is a sufficient writing to remove the bar of the statute of frauds and conveyance may be specifically enforced. Robbins v. Porter, 12 Idaho 738, 88 P. 86 (1906).

To comply with this section, the writing must state contract with such certainty that its essentials will be known from the memorandum itself or by reference contained in it to some other writing, without recourse to parol evidence. Thompson v. Burns, 15 Idaho 572, 99 P. 111 (1908).

Paper reading, “Robin, June 16, 1902. We, the undersigned citizens of Robin, Idaho, voluntarily agree to deed and redeed to the old lines as they stand at present” cannot be specifically enforced. Armstrong v. Henderson, 16 Idaho 566, 102 P. 361 (1909).

Prospectus containing statements as to character and nature of contracts proposed to be made and entered into by company issuing prospectus, standing alone, is not sufficient to support an action. Idaho Fruit Land Co. v. Great W. Beet Sugar Co., 18 Idaho 1, 107 P. 989 (1910).

The statute of frauds does not invalidate all contracts with imperfect legal descriptions for it is not pressed to the extreme of a literal and rigid logic. Russell v. Russell, 99 Idaho 151, 578 P.2d 1082 (1978).

Where earnest money agreement for the purchase of a farm referred to the property by giving the name of the present owner and the address of the property and further provided that a full legal description was attached, fact that the full legal description was contained on a separate sheet of paper which also contained a description of other land not involved in the transaction and was not physically attached to the agreement but was kept beside the agreement in the broker’s files, did not invalidate the agreement for lack of sufficient legal description thereby requiring resort to parol evidence. Russell v. Russell, 99 Idaho 151, 578 P.2d 1082 (1978).

The statute of frauds was satisfied where party only initialed the changes since the traditional form of signature is, of course, the handwritten name of the signer but initials or any symbol may also be used. George W. Watkins Family v. Messenger, 115 Idaho 386, 766 P.2d 1267 (Ct. App. 1988).

Where both parties to real estate purchase and sale agreement mutually acknowledge the existence of their agreement with respect to the purchase of the property, such agreement was not invalid under the statute of frauds for lack of seller’s signature. Kelly v. Hodges, 119 Idaho 872, 811 P.2d 48 (Ct. App. 1991).

Because all of the documents in the case which purported to transfer or convey real property were in writing and subscribed by settlor, there was no violation of parol evidence rule, and because there was a formal, fully executed trust with amendments which supplied any terms not contained in the script, no parol evidence was needed to supply any missing terms. Salfeety v. Seideman, 127 Idaho 817, 907 P.2d 794 (1995).

Legal description in a real estate purchase agreement was insufficient to satisfy the statute of frauds; while it might be possible for someone to identify the property being conveyed by referring to the descriptions in the tax notices that were referenced in an addendum to the purchase agreement, one could not tell exactly what property was being conveyed merely by the descriptions. Additionally, the description in the exclusive seller representation agreement, which only contained the home address and the appropriate acreage being sold, was insufficient to meet the statutory requirements of§§ 54-2050(1)(b) or this section. Garner v. Bartschi, 139 Idaho 430, 80 P.3d 1031 (2003). A property description in a real estate sales contract that consisted solely of a physical address did not satisfy the statute of frauds. In re McMurdie, 448 B.R. 826 (Bankr. D. Idaho 2010).

Annexation agreement between a city and a property owner created an enforceable lien under§ 9-505(4) and this section because the agreement and its exhibits adequately described the location, quantity, and exterior boundaries of the property. It was not necessary to provide specific descriptions of each lot within the planned subdivision. Old Cutters, Inc. v. City of Hailey (In re Old Cutters, Inc.), 488 B.R. 130 (Bankr. D. Idaho 2012), aff’d, 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Transfer by Gift.

Where a donee of real property takes exclusive possession under an oral agreement and makes valuable and permanent improvements, the gift is not invalid under the statute of frauds. Suter v. Suter, 97 Idaho 461, 546 P.2d 1169 (1976).

Trusts.

Although a trust in real property can arise by implication or operation of law without a writing as required by this section, a person claiming ownership through such a trust must establish such claim by evidence that is clear, satisfactory and convincing. The determination of whether such evidence has been presented is a question of fact to be determined by the trial court, and that court’s findings will be disturbed only if they are clearly erroneous. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994).

Plaintiff’s assertion that defendants bought dairy farm intending to hold title in trust for plaintiff failed where plaintiff merely offered his own uncorroborated testimony that the defendants entered into oral contract to let the plaintiffs take over or assume ownership of the dairy, and that a transfer to them would occur sometime in the future, for such testimony failed to present clear and convincing evidence of any fraudulent representation on the part of defendants in order to establish a constructive trust in favor of plaintiff. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994).

Verbal Contracts.

Verbal contract for sale or transfer of real estate is not admissible in evidence to establish title against a stranger to contract. McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020 (1898).

Written contract for sale of real property may be modified by a subsequent oral agreement, but where it is claimed that oral agreement modifies the terms of a written contract, evidence to establish such oral agreement should be clear and satisfactory. Prairie Dev. Co. v. Leiberg, 15 Idaho 379, 98 P. 616 (1908).

Oral agreement for transfer of real property is void, where not evidenced by any written instrument or delivery of possession of real property. Schulz v. Hansing, 36 Idaho 121, 209 P. 727 (1922).

The complaint sufficiently stated a cause of action where former realty owners against whom mortgage had been foreclosed alleged an agreement had been entered into with junior lienholder that latter was to redeem property on last day of redemption period and that former owners were then to secure a purchaser for such realty and personal property located thereon, they to be compensated for such services by the grant of certain parcels of land, but buyer and junior lienholder in violation of such oral agreement consummated the sale depriving former owners of agreed compensation. Harvey v. Brown, 80 Idaho 379, 330 P.2d 982 (1958). Oral sales of real property are void. Good v. Hansen, 110 Idaho 953, 719 P.2d 1213 (Ct. App. 1986).

Warranty Deed Delivered to Escrow Holder.

A warranty deed delivered to escrow holder was held a sufficient “note” or “memorandum” to take an oral escrow transaction out of the statute of frauds where the purchase price had been paid. Nelson v. Altizer, 65 Idaho 428, 144 P.2d 1009 (1943).

Water Rights.

A water right is defined, not in terms of metes and bounds as in other real property, but in terms of the priority, amount, season of use, purpose of use, point of diversion, and place of use and a compromise, in a stipulation to settle a water rights dispute, to change or exchange any of these definitional factors would be identical to a compromise to change or exchange a portion of the metes and bounds description of real property and, as such, would fall directly within the statute of frauds. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Where oral stipulation to settle water rights dispute changed existing water rights by reshuffling priority dates and changing amounts of use, such stipulation was a contract falling within the statute of frauds and, if still executory, was unenforceable. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Am. Jur. 2d.

C.J.S.

ALR.

§ 9-504. Exceptions to preceding section.

The preceding section must not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law, nor to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.

History.

C.C.P 1881, § 936; R.S., R.C., & C.L., § 6008; C.S., § 7975; I.C.A.,§ 16-504.

Estoppel.

Where plaintiffs and vendor of defendant had orally agreed to sale of disputed property, plaintiffs had taken possession of the disputed land, exercised control over it for approximately three years, made substantial improvements thereon, and paid vendor $1,200 of the $1,500 sale price, and where the actual parties to the agreement testified to its essential terms, the description of the land was certain and was based on uncontradicted testimony, and after the second payment of $600 vendor gave plaintiffs a receipt stating who the parties were and that $1,200 had been received in payment for the disputed land leaving a balance of $300 to be paid, such evidence was clear and convincing; therefore, district court did not err in concluding that defendant was estopped from raising the statute of frauds to avoid enforcement of the oral agreement and court’s order that the agreement be specifically enforced was proper. Mikesell v. Newworld Dev. Corp., 122 Idaho 868, 840 P.2d 1090 (Ct. App. 1992).

Fraudulent Conveyance.

In action to quiet title based on fraudulent conveyance from father to son, the court erred in refusing to admit in evidence letters constituting receipts for payment. Van Winkle v. Van Winkle, 56 Idaho 588, 57 P.2d 692 (1936).

Oral Contract.

Part Performance.

An oral contract for the conveyance of real property or under which the title thereto is acquired may be enforced, is binding upon the parties thereto, and is not within the statute of frauds, where there is partial or complete performance of the same. Stowell v. Tucker, 7 Idaho 312, 62 P. 1033 (1900); Feeney v. Chester, 7 Idaho 324, 63 P. 192 (1900); Male v. Leflang, 7 Idaho 348, 63 P. 108 (1900); Francis v. Green, 7 Idaho 668, 65 P. 362 (1901); Barton v. Dunlap, 8 Idaho 82, 66 P. 832 (1901); Deeds v. Stevens, 8 Idaho 514, 69 P. 534 (1902); Fleming v. Baker, 12 Idaho 346, 85 P. 1092 (1906); Havlick v. Davidson, 15 Idaho 787, 100 P. 91 (1909); King v. Seebeck, 20 Idaho 223, 118 P. 292 (1911); Houser v. Hobart, 22 Idaho 735, 127 P. 997 (1912); Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122 (1916). Part Performance.

The doctrine of part performance has frequently been invoked by lessees against lessors. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937).

Oral agreement by which decedent promised to devise certain real estate to plaintiff if she did not file claim against certain estate and “stayed by him” will be enforced by specific performance and is not within the statute of frauds, where there is partial or complete performance of the agreement. McMahon v. Auger, 83 Idaho 27, 357 P.2d 374 (1960).

Extension of a lease by oral agreement did not constitute part performance of the option to purchase by a certain time in the original lease so as to take it out of the statute of frauds. Southern v. Southern, 92 Idaho 180, 438 P.2d 925 (1968).

An oral agreement to devise certain land to the owner in consideration of his sale of it to the party for a lower price than he had been offered by others was brought within the exceptions of this section by the owner’s fulfillment of the agreement by sale and conveyance of land as agreed. Quayle v. Mackert, 92 Idaho 563, 447 P.2d 679 (1968).

Where practically all the individual terms of the original contract, accord and satisfaction had been performed except the delivery of the deed, the court properly decreed specific performance though the agreement to transfer the real estate was oral. Brown v. Burnside, 94 Idaho 363, 487 P.2d 957 (1971).

A defendant who is induced to rely on an oral agreement and changes position, through partial performance, to his own detriment cannot be defrauded by a plaintiff who interposes the statute of frauds to declare the agreement invalid. Roundy v. Waner, 98 Idaho 625, 570 P.2d 862 (1977).

Where parents invited their daughter and her husband to purchase certain property and the daughter and her spouse, relying on the oral agreement, made extensive repairs to the property and paid a number of the parents’ debts, their part performance took the transaction out of the statute of frauds and justified the trial court’s decision to quiet title in the daughter and her husband. Roundy v. Waner, 98 Idaho 625, 570 P.2d 862 (1977).

Where partial performance has occurred under a contract for the sale of real estate, the trial court has the discretion to compel specific performance, despite the lack of written evidence of the parties’ agreement. Jolley v. Clay, 103 Idaho 171, 646 P.2d 413 (1982).

Where the evidence showed that the purchasers took possession of the property based on an oral contract and lived upon it as owners for 15 years, that they made improvements upon the property valued at $10,000, or roughly the amount of the purchase price, that purchasers paid the taxes on the property from 1964 to 1975, and that they paid $5,500 of the $10,000 purchase price, there was unquestionably part performance sufficient to take the contract out of the statute of frauds. Jolley v. Clay, 103 Idaho 171, 646 P.2d 413 (1982).

Although§ 9-503 requires that a conveyance of real property must be in writing, this section provides an exception to the rule so long as partial acceptance has occurred. Thus, where it was undisputed that plaintiffs had taken possession of the disputed property under oral agreement, exercised exclusive control over it for approximately three years, made substantial improvements thereon and paid most of the purchase price, vendors were estopped from raising the statute of frauds as a defense to liability under the agreement. Mikesell v. Newworld Dev. Corp., 122 Idaho 868, 840 P.2d 1090 (Ct. App. 1992). The evidence produced by an occupant of land did not establish the essential terms of an oral lease with sufficient definiteness and certainty so as to avoid the strictures of the statute of frauds, nor was the part performance of the agreement sufficient, as a matter of law, to justify the equitable remedy of specific enforcement. Wing v. Munns, 123 Idaho 493, 849 P.2d 954 (Ct. App. 1993).

As a consequence of§ 9-503, this section and§ 9-505(5), where alleged part performance can be explained as consistent with some other purpose or arrangement, an oral contract to sell will not be established; therefore, where evidence indicated tenants/alleged purchasers did not take any action regarding the premises other than moving in and operating the bakery, made monthly payments consistent with rental, and made no valuable improvements to premises with repairs being made by landlord/alleged vendors, no clear and convincing evidence existed to support existence of an oral contract to sell. Hinkle v. Winey, 126 Idaho 993, 895 P.2d 594 (Ct. App. 1995).

Doctrine of part performance could not make an oral contract for the purchase of real property subject to specific enforcement, where the absence of a meeting of the minds on a material provision supported the conclusion that no contract had been formed by the parties. Chapin v. Linden, 144 Idaho 393, 162 P.3d 772 (2007).

This section provides for a part-performance exception only to the general statute of frauds provisions of§ 9-503. It has no application to the statutes regulating real estate brokers and agents found in Title 54, Chapter 20, Idaho Code. Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009).

Resulting Trust.

Resulting trust arises by operation of law in favor of person who advances purchase-money for land, though title be taken in name of another; or in favor of person for whom it is advanced by way of a loan, title being taken in the name of lender. Such trust, being one which results by implication or construction of law, does not fall within provisions of the statute of frauds and may be established by parol evidence. Pittock v. Pittock, 15 Idaho 426, 98 P. 719 (1908); Coughanour v. Grayson, 19 Idaho 255, 113 P. 724 (1911).

This section empowers the court to decree a resulting trust where a party fails to establish an express trust, since a resulting trust may be established by parol evidence. Aker v. Aker, 52 Idaho 713, 20 P.2d 796, cert. denied, 290 U.S. 587, 54 S. Ct. 80, 78 L. Ed. 518 (1933).

Although a trust in real property can arise by implication or operation of law without a writing as required by§ 9-503, a person claiming ownership through such a trust must establish such claim by evidence that is clear, satisfactory and convincing. The determination of whether such evidence has been presented is a question of fact to be determined by the trial court, and that court’s findings will be disturbed only if they are clearly erroneous. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994).

Statute of Frauds.

Plaintiff’s assertion that defendants bought dairy farm intending to hold title in trust for plaintiff failed where plaintiff merely offered his own uncorroborated testimony that the defendants entered into oral contract to let the plaintiffs take over or assume ownership of the dairy, and that a transfer to them would occur sometime in the future, for such testimony failed to present clear and convincing evidence of any fraudulent representation on the part of defendants in order to establish a constructive trust in favor of plaintiff. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994). Statute of Frauds.

Where a contract has been fully performed by the purchaser and the purchaser has been given possession by the seller and has made valuable improvements on the property, the statute of frauds is satisfied and the purchaser is entitled to specific performance in equity, even though the contract is oral. Wormward v. Taylor, 70 Idaho 450, 221 P.2d 686 (1950).

Statute of frauds does not apply to action by corporation to recover profits made by office, since action is one to recover under an implied trust. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

Am. Jur. 2d.

C.J.S.

Cross References.

Contracts of executors or administrators,§ 15-3-808.

Leases of more than ten head of livestock to be in writing,§ 25-2001.

Sales contracts,§ 28-2-201.

Compiler’s Notes.

Former subsection (4) of this section, concerning lease of chattels, was repealed by S.L. 1967, ch. 161,§ 10-102. For present law, see§ 28-2-201.

Acknowledgement.

A defendant’s admission of an unwritten contract during the course of litigation will prevent the defendant from relying upon the statute of frauds, if the acknowledgement is of the exact alleged contract and not just evidence of some agreed terms. Peterson v. Shore, 146 Idaho 476, 197 P.3d 789 (Ct. App. 2008).

Annexation Agreement.

Annexation agreement between a city and a property owner created an enforceable lien under subsection (4) of this section and§ 9-503 because the agreement and its exhibits adequately described the location, quantity, and exterior boundaries of the property. It was not necessary to provide specific descriptions of each lot within the planned subdivision. Old Cutters, Inc. v. City of Hailey (In re Old Cutters, Inc.), 488 B.R. 130 (Bankr. D. Idaho 2012), aff’d, 2014 U.S. Dist. LEXIS 45787 (D. Idaho Mar. 31, 2014).

Application of Section.

This section does not apply to action by corporation to recover profits made by office, since action is one to recover under an implied trust. Melgard v. Moscow Idaho Seed Co., 73 Idaho 265, 251 P.2d 546 (1952).

This section applies to agreements for the leasing of real property, not to the assignment of an existing lease agreement. Hunt v. Hunt, 110 Idaho 649, 718 P.2d 560 (Ct. App. 1985).

The statute of frauds is inapplicable when a contract, although not fully performed by both sides, is mutually acknowledged to exist. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

The term “full” performance means performance of all obligations by both sides to a contract; it is universally recognized that the statute of frauds is inapplicable to a contract fully performed by both sides. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

This section generally requires a written promise; however, an exception exists when the promise is original or independent from, and not merely collateral to, the agreement between the promisee and a third-party debtor since an original obligation of the promisor is not covered by the terms of the statute of frauds. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 115 Idaho 373, 766 P.2d 1254 (Ct. App. 1988).

A contract dispute between a pension services company and a home builder, who developed a subdivision with a loan of funds from the pension company, related to the repayment terms of the loan and not to the sale of property; thus, the provisions of this section were not applicable. Am. Pension Servs. v. Cornerstone Home Builders, Llc, 147 Idaho 638, 213 P.3d 1038 (2009).

Because an employer’s promise to answer for a newly hired employee’s loan obligation to her previous employer directly benefitted the new employer, the agreement is an exception to the statute of frauds requirement of written evidence. Campbell v. Parkway Surgery Ctr., LLC, 158 Idaho 957, 354 P.3d 1172 (2014).

Subsection (2) did not apply to a vice president’s breach of contract claim, where he alleged that an investment advisory company and his employer assumed joint liability for his compensation as original obligors, the record supported those allegations, and there was triable issue of fact as to whether the advisory company intended to bind itself to pay the vice president’s compensation. Bailey v. Peritus 1 Assets Mgmt., LLC, 162 Idaho 458, 398 P.3d 191 (2017).

Boundary of Land.

Where the location of true boundary line between coterminous owners is unknown to either party and is uncertain or in dispute, an oral agreement between them fixing the boundary line is not regarded as a conveyance of real property in violation of the statute of frauds, but merely as the location of respective existing estates and the common boundary of each of the parties. Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960).

Where the location of a true boundary line between coterminous owners is known to either of the parties, or is not uncertain and not in dispute, oral agreement between them purporting to establish another line between them as the boundary between their properties constitutes an attempt to convey real property in violation of statute of frauds and is invalid. Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960).

Where the location of the true boundary line between coterminous owners is unknown, uncertain or in dispute, the coterminous owners may orally agree upon a boundary line, and the agreement, when possession is taken under it, will be binding upon the owners and those claiming under them and will not violate the statute of frauds for lack of a writing because it is not a conveyance of land, but merely the locating and establishing of the common boundary. Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972), overruled on other grounds, Nesbitt v. Wolfkiel, 100 Idaho 396, 598 P.2d 1046 (1979). In every case where a boundary by agreement is asserted, the underlying issue is whether such an agreement represents an oral conveyance of land in violation of the statute of frauds. The general rule of case law is that an agreement which arises from uncertainty or dispute over the location of a boundary is valid and does not constitute an oral conveyance of land. Norwood v. Stevens, 104 Idaho 44, 655 P.2d 938 (Ct. App. 1982).

Mediation agreement fell within the boundary agreement exception to statute of frauds, the elements of which are: (1) an uncertain or disputed boundary and (2) an express or implied agreement subsequently fixing that boundary. Goodman v. Lothrop, 143 Idaho 622, 151 P.3d 818 (2007).

An oral agreement purporting to establish a new boundary line between two properties, and thus transfer land from one owner to another, would violate the statute of frauds. Fischer v. Croston, 163 Idaho 331, 413 P.3d 731 (2018).

There is an exception to the general rule that an agreement to convey real estate is invalid under the statute of frauds unless it is committed to writing, where such an agreement qualifies as a boundary by agreement. This exception is permitted because such an agreement does not constitute an oral conveyance of land. The two requirements for a boundary by agreement are: an uncertain or disputed boundary and an express or implied agreement as to the new boundary. Fischer v. Croston, 163 Idaho 331, 413 P.3d 731 (2018).

Concealment of Material Fact.

Where there was no evidence at the trial court level to indicate that defendants concealed from buyer a “no sale” policy regarding lot in question, there was no knowingly false statement or concealment of a material fact sufficient to entitle plaintiffs to enforcement of an oral contract under a theory of equitable estoppel. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Promissory estoppel was not properly invoked as a defense to Idaho’s statute of frauds, in a case dealing with a bank promising to lend money above the statutory amount, where borrower never proved that the bank made any false representations or concealed any material facts with actual or constructive knowledge of the truth. Kimmes v. D.L. Evans Bank (In re Kimmes), 2014 Bankr. LEXIS 543 (Bankr. D. Idaho Feb. 10, 2014), aff’d, Kimmes v. D.L. Evans Bank (In re Kimmes), 528 B.R. 436 (D. Idaho 2015).

Construction.

This section is strictly construed. Kerr v. Finch, 25 Idaho 32, 135 P. 1165 (1913); Kratzer v. Day, 12 F.2d 724 (9th Cir. 1926).

When consideration of a party’s promise is for money to be furnished to or received by a third person, if transaction be such that third person remains responsible to person who furnishes him with such money, such promise is collateral and, under the statute of frauds, will not bind the party unless it be in writing. Storer v. Heitfeld, 19 Idaho 170, 113 P. 80 (1910).

Where there is no allegation in complaint that third person was responsible to person who furnished him with money, or that defendant was to pay debt or default of third person, or that there was any personal liability on his part to do so, transaction is not brought within provisions of this section. Hoy v. Anderson, 39 Idaho 430, 227 P. 1058 (1924). While evidence to answer for debt or default of another must be in writing, no such rule obtains where party treats debt as his own. Kelly v. Arave, 41 Idaho 723, 243 P. 366 (1925).

The legislature used “extend[ing]” in subsection 5 to mean “granting or making available” and not as a grant to lengthen or “extend” the period for repayment of the loan. Rule Sales & Serv., Inc. v. U.S. Bank Nat’l Ass’n, 133 Idaho 669, 991 P.2d 857 (Ct. App. 1999).

Contents of Memorandum.

Although no particular form of language or instrument is necessary to constitute a note or memorandum required by the statute of frauds, the essentials of the oral agreement must be contained in the writing(s); the memorandum must plainly set forth the parties to the contract, the subject matter thereof, the price or consideration, a description of the property, and all the essential terms and conditions of the agreement. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Court Judgments.

Statute of frauds and parol evidence rule had no application to a court judgment that was not contractually agreed upon by stipulation or settlement agreement. McKoon v. Hathaway, 146 Idaho 106, 190 P.3d 925 (Ct. App. 2008).

Covenant Not to Compete.

In an action to enforce an unwritten five-year covenant not to compete, the employee was not estopped to invoke the statute of frauds, where the employer failed to identify any actions, such as payment of extra consideration, referable to and evidencing the covenant. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

The five-year covenant not to compete which contained no reference to death was not removed from the statute of frauds by the possible termination by death. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

Non-compete covenant prohibited competition for five years, which did fall within the statute of frauds, but the covenantor did not show how this particular assignment of the non-compete covenant from one corporation to another was subject to the statute of frauds, i.e., that the assignment itself could not be performed within one year. Bybee v. Isaac, 145 Idaho 251, 178 P.3d 616 (2008).

Debt of Another.

One who has property of debtor in his hands and agrees to sell it and to apply proceeds of sale to payment of debtor’s debt does not thereby promise to answer for the debt of another, within meaning of this section. Smith v. Caldwell, 6 Idaho 436, 55 P. 1065 (1899).

Stockholder’s promise to pay creditor’s claim against corporation, if creditor would accept less than full amount, was within statute of frauds. Reed v. Samuels, 43 Idaho 55, 249 P. 893 (1926).

Agreement by creditor to pay rent due by debtor, in consideration of landlord refraining from attaching goods in tenant’s store, was not within statute of frauds where tenant owed creditor for some of the goods and creditor removed these from store. Sullivan v. Idaho Whsle. Co., 43 Idaho 149, 249 P. 895 (1926).

Agreement to pay for material or services furnished independent contractor is promise to answer for debt, default, or miscarriage of another and is within statute. McQuade v. Edward Rutledge Timber Co., 46 Idaho 471, 268 P. 570 (1928). Indorsement by stockholder in national bank of notes of investment company organized by stockholders to take over doubtful paper of bank was not within statute of frauds where it was made in consideration of other stockholders taking over bank and all his bank stock. Thomas v. Hoebel, 46 Idaho 744, 271 P. 931 (1928).

Where amount of mortgage indebtedness is deducted from purchase-price and retained by purchaser, purchaser, assuming mortgage indebtedness, does not promise to answer for debt of another so as to require agreement to be in writing. Sickman v. Moler, 47 Idaho 446, 276 P. 309 (1929). See also First Nat’l Bank v. Peterson, 47 Idaho 794, 279 P. 302 (1929).

Defendants who entered into oral contract to purchase lumber from plaintiff, which lumber was thereafter delivered to a corporation organized by the defendants, could not contend that, if they were held liable, they would be held responsible for the debt, default or miscarriage of another without a promise in writing, since the defendants were the principal debtors and not the sureties. Hoff Bldg. Supply v. Wright, 76 Idaho 298, 282 P.2d 478 (1955).

Where the shareholders of a corporation had mutually agreed to pay attorney’s fees, such agreement was made separately and remotely from earlier written promises to guarantee the obligations of the corporation, and the defense of the lawsuits in question was for the benefit of the shareholders in their personal capacities, the oral agreement that obligated each shareholder to pay one-third of the attorney’s fees incurred for the defense of lawsuits against the corporation was an original one under§ 9-506, rather than a collateral agreement within the terms of subdivision 2 of this section. Therefore, the statute of frauds did not bar plaintiff shareholder’s claim for reimbursement of money expended for attorney’s fees. Beaupre v. Kingen, 109 Idaho 610, 710 P.2d 520 (1985).

An oral agreement that the bank would lend the lessee money, which would be used to pay the rent, in return for subordination of the lessor’s security interest in the lessee’s crops, was not a promise to answer for the debt of another and did not contravene subdivision 2 of this section. Johnson Cattle Co. v. Idaho First Nat’l Bank, 111 Idaho 604, 716 P.2d 1376 (Ct. App. 1986).

Contractor’s action to enforce an oral agreement by a business/property owner to guaranty her tenant’s credit card payment was barred by subsection 2., as there was not a sufficient writing signed by the owner. Mickelsen Constr., Inc. v. Horrocks, 154 Idaho 396, 299 P.3d 203 (2013).

Easements.

Easements are interests in real property, and subdivision 5 provides that interests in real property must be transferred by written instrument; an easement established by unwritten agreement is merely a license, revocable by the licensor. Bob Daniels & Sons v. Weaver, 106 Idaho 535, 681 P.2d 1010 (Ct. App. 1984).

Effect of Complete Performance.

Statute of frauds does not apply to contracts fully performed. Willis v. Willis, 33 Idaho 353, 194 P. 470 (1920).

Oral contract to leave property to another on death of promisor does not come within inhibition of statute of frauds when there has been complete performance on the part of the promisees. Bedal v. Johnson, 37 Idaho 359, 218 P. 641 (1923). Delivery of warranty deed to escrow agent was sufficient to take escrow agreement out of the statute of frauds. Nelson v. Altizer, 65 Idaho 428, 144 P.2d 1009 (1943).

An agreement by defendant to pay plaintiff $10,000, payable $1,000 a year for ten years, was taken out of the statute of frauds where plaintiff had performed her share of the bargain, to-wit; by refraining from filing of proceeding to contest will of father of parties. Sims v. Purcell, 74 Idaho 109, 257 P.2d 242 (1953).

Full performance would remove an oral contract from the proscriptions of the statute of frauds, even if it were applicable. Fairfax v. Ramirez, 133 Idaho 72, 982 P.2d 375 (Ct. App. 1999).

Effect of Part Performance.

Part performance of an oral agreement for lease of property for longer than a year takes same out of the statute and renders it enforceable. Deeds v. Stephens, 8 Idaho 514, 69 P. 534 (1902).

A deed properly executed and left with the attorney of the grantor of real estate is sufficient to remove the bar of the statute of frauds in an action for specific performance, where the purchase price has been paid. Robbins v. Porter, 12 Idaho 738, 88 P. 86 (1906).

The doctrine of part performance by lessees against lessors is sustained in this state. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937).

Part performance of an oral contract for the conveyance of real property takes same out of the statute and may be enforced by specific performance. Anselmo v. Beardmore, 70 Idaho 392, 219 P.2d 946 (1950).

The transaction in question was taken out of the statute of frauds because it had been partially executed by the transfer of the property to the defendant by two of the debtors, where when judgment became a lien upon the land, two of the three judgment debtors sold to the purchaser, the purchaser while failing to do so having orally agreed to pay the judgment, the creditor thereupon levying upon sums of such third debtor to satisfy the judgment. Jones v. Better Homes, Inc., 79 Idaho 294, 316 P.2d 256 (1957).

Where there has been full or partial performance of a contract normally within the statute of frauds, such a contract is nonetheless valid where the remedy sought is specific performance. Tew v. Manwaring, 94 Idaho 50, 480 P.2d 896 (1971).

Sufficient part performance by a purchaser of real property removes the contract from the operation of the statute of frauds, and although the equitable doctrine of part performance is inapplicable to an action at law, satisfaction of the doctrine of part performance would entitle the purchaser to specific performance. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Where city’s approval of subdivision of property was a condition precedent to the existence of any contract, oral or written, for the sale of property and purchasers were willing to assume expense of securing subdivision as part of negotiation costs, purchasers’ actions in having property surveyed and submitting subdivision plat did not constitute possession, either actual or pursuant to oral agreement, sufficient to establish part performance and remove oral contract from the statute of frauds; moreover, the cost of securing subdivision approval ($436) was not substantial enough in relation to the $90,000 value of the property to establish part performance. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Where employee’s reliance when accepting his job transfer and taking out interest-free home equity loan was no less referable to the loan agreement itself, and to comply policies identified in the record, than to the oral agreement by employer to buy employee’s house and where no acts separately referable to the oral agreement have been demonstrated, there was no part performance sufficient to take the agreement out of the statute of frauds. IBM Corp. v. Lawhorn, 106 Idaho 194, 677 P.2d 507 (Ct. App. 1984). Where purchaser did not take possession of the property or make any improvements thereof, nor paid taxes thereon, there was no part performance which would take oral contract for sale of land out of the statute of frauds. Hemingway v. Gruener, 106 Idaho 422, 679 P.2d 1140 (1984).

Part performance, when established, yields an equitable remedy — specific performance of the oral agreement by the other party; accordingly, where employee did not seek by his counterclaim to enforce oral agreement for a sale of property to employer, the doctrine of part performance as an exception to statute of frauds would yield a remedy unsuited to the purpose for which the doctrine was urged and court would not apply it. IBM Corp. v. Lawhorn, 106 Idaho 194, 677 P.2d 507 (Ct. App. 1984).

In some circumstances, an oral agreement may be removed from the strictures of the statute of frauds by part or full performance; the exception protects a party who demonstrates reliance upon an oral contract by acts that would not have been done except for the contract. However, such reliance cannot be established by conduct referable to a cause other than the oral contract. IBM Corp. v. Lawhorn, 106 Idaho 194, 677 P.2d 507 (Ct. App. 1984).

In some circumstances, part performance may establish an equitable ground to avoid the strictures of the statute of frauds. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

Even if an indemnity contract is a surety agreement as contemplated by this section, part performance of an unwritten agreement will satisfy the statute of frauds. Essex Crane Rental Corp. v. Weyher/Livsey Constructors, Inc., 713 F. Supp. 1350 (D. Idaho 1989), rev’d on other grounds, 940 F.2d 1253 (9th Cir. 1991).

Employment Contract.

Where oral contract of employment was to continue for a period of seven years from Dec. 1, 1959, the fact that employee was working under such agreement from Oct. 24, 1959, until his arrest by his employer on Dec. 11, 1959, and as an added part performance of such contract had moved his family to the place of his employment, would not validate the agreement, which by its terms was not to be performed within one year and was not in writing. Allen v. Moyle, 84 Idaho 18, 367 P.2d 579 (1961).

Where labor union agreement failed to mention the duration period to discuss terms of payment and to denote the parties, the agreement was not a memorandum or writing embodying the oral agreement and, therefore, it was irrelevant to the oral contract under which plaintiff claimed damages. Remlinger v. Dravo Corp., 94 Idaho 292, 486 P.2d 1005 (1971).

If, under an oral employment contract, the employee was hired for a fixed period coterminous with the 30-year lease on the plant site, then the fixed period would place his employment contract squarely within the statute of frauds. Whitlock v. Haney Seed Co., 110 Idaho 347, 715 P.2d 1017 (Ct. App. 1986).

Where the oral employment agreement contained both a condition, satisfactory performance by the employee, and a contingency, any extrinsic event such as change in company ownership, cessation of plant operations, or expiration of the plant lease, the contract did not fall within the statute of frauds because of the contingency, even if satisfactory performance is not a type of condition which obviates the statute of frauds. Whitlock v. Haney Seed Co., 110 Idaho 347, 715 P.2d 1017 (Ct. App. 1986). The statute of frauds barred enforcement of the noncompetition clause because plaintiff never signed the proposed employment contract, and the evidence was insufficient to demonstrate equitable estoppel, or that defendant admitted the contract. Treasure Valley Gastroenterology Specialists, P.A. v. Woods, 135 Idaho 485, 20 P.3d 21 (Ct. App. 2001).

Equitable Estoppel.

Performance in reliance upon an oral promise must be explainable only by existence of the promise to prove estoppel in a statute of frauds action. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

The doctrine of full performance by one party, like the doctrine of part performance, does not take the contract out of the statute of frauds; rather, it should be treated as a form of equitable estoppel. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

The elements of equitable estoppel may be satisfied in a statute of frauds case when one party orally has made a false promise and the promisee has relied specifically upon it, changing position to his detriment. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

Evidence and Pleading.

This section is a substantive law dealing with contracts affecting personal property and commercial transactions. It deals with the origin and basis of a cause of action, and the rule of evidence that it embodies is only an incident to remedy under the statute. Kerr v. Finch, 25 Idaho 32, 135 P. 1165 (1913); Seder v. Grand Lodge, A.O.U.W., 35 Idaho 277, 206 P. 1052 (1922).

Where it appears on the face of the complaint that the contract sued on is within the statute, it need not be set up in the answer. Magee v. Winn, 52 Idaho 553, 16 P.2d 1062 (1932).

A contract falling within the statute of frauds is not void but voidable and a complaint which alleges a contract generally is sufficient. Slusser v. Aumock, 56 Idaho 793, 59 P.2d 723 (1936).

In an action for four months’ rent on a building, the complaint was not demurrable on the ground that the rental agreement was not alleged to be in writing, where there was nothing in the complaint to indicate that the agreement was for a renting of a building for more than from month to month. Winter v. Bens, 62 Idaho 250, 109 P.2d 890 (1941).

Exchange of Real Property.

Where plat was not signed by both parties and the signed exchange agreement did not expressly refer to it, the plat cannot be used to provide the required legal description and, thus, the exchange agreement failed for lack of sufficient legal description. Scott v. Castle, 104 Idaho 719, 662 P.2d 1163 (Ct. App. 1983).

Execution Required by Both Parties.

Where consideration of such contracts consists of mutual promises of each, the memorandum must be signed by both parties, and it must be complete in all essentials and leave nothing to parol. Houser v. Hobart, 22 Idaho 735, 127 P. 997 (1912).

Contract within the purview of this section, executed as required by law by one party but not by the other, is invalid and can not be enforced by either party at any time. Kerr v. Finch, 25 Idaho 32, 135 P. 1165 (1913).

That defendant signed unperformed agreement for work by plaintiff on mining claims did not take agreement out of statute, it being void for want of mutuality. Rouker v. Richardson, 49 Idaho 337, 288 P. 167 (1930). An agreement for the extension of a real estate mortgage executed by the mortgagor’s grantee and forwarded to the mortgagee’s home office and returned to its agent who caused it to be recorded was not subject to the objections that it lacked mutuality and was not executed by the mortgagee as required by the statute of frauds, since the acceptance and recording of the agreement, at the mortgagee’s instance, although not completed until some two months after the execution by the mortgagor’s grantee, rendered the agreement binding on the mortgagee, particularly where both parties treated the instrument as a consummated extension agreement, payments being thereafter made and received in accordance with its terms. Union Cent. Life Ins. Co. v. Nielson, 62 Idaho 483, 114 P.2d 252 (1941).

This section requires both parties to a bilateral oral contract to sign the memorandum supporting the oral agreement. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

The signature of both parties is required only where the agreement is bilateral. Hunt v. Hunt, 110 Idaho 649, 718 P.2d 560 (Ct. App. 1985).

Where both parties to real estate purchase and sale agreement mutually acknowledge the existence of their agreement with respect to the purchase of the property, such agreement was not invalid under the statute of frauds for lack of seller’s signature. Kelly v. Hodges, 119 Idaho 872, 811 P.2d 48 (Ct. App. 1991).

Failure to Comply.

Failure to comply with the statute of frauds renders an oral agreement unenforceable both in an action at law for damages and in a suit in equity for specific performance. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Failure to comply with subdivision 5 renders an oral agreement transferring an interest in real property unenforceable both in law and in equity. Bob Daniels & Sons v. Weaver, 106 Idaho 535, 681 P.2d 1010 (Ct. App. 1984).

Installment Sale.

Where buyer of real property sent to seller a letter which declared purchase price, percentage down payment and interest rate, but did not indicate the maturity date of the note, the beginning date of the installment payments, the amount of installment payments, or whether and how the note was secured, the letter was not sufficient to take the parties’ oral agreement out of the statute of frauds. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Where the parties to an oral agreement to sell real estate intend deferred payments, the terms and conditions of the credit transaction must be set forth in the memorandum in order to satisfy the statute of frauds. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Oral Agreement.

Oral agreement to build and maintain partition fences is not a contract for sale or lease of realty. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924).

Oral agreements to build and maintain partition fences are binding upon parties and their privies when recognized and acted upon. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924).

Oral agreement of plaintiff to purchase house being constructed on defendant’s property was not enforceable where deed, though placed with bank, was under control of defendant, and material elements of the agreement were not agreed upon, so that plaintiff was entitled to recover for material and labor furnished as a down payment contingent on plaintiff securing a loan for the balance, since contract was not completed and remained in the stage of negotiations. Raff v. Baird, 76 Idaho 422, 283 P.2d 927 (1955). Where plaintiff, in suit to quiet title, was not relying on an oral contract for the conveyance of real property but was holder of legal title the defense of the statute of frauds was not established. Dickerson v. Brewster, 88 Idaho 330, 399 P.2d 407 (1965).

If husband and wife orally contracted to make and did make irrevocable mutual and reciprocal wills, and husband died without changing his will, contract would be enforceable in equity at wife’s death, notwithstanding it would transfer an interest in real property. Collord v. Cooley, 92 Idaho 789, 451 P.2d 535 (1969).

Where oral agreement was made for purchase of real property, which was confirmed by buyer’s letter to seller accompanied by a $5,000 deposit check which seller placed in escrow, and where buyer executed a deed of trust, a deed of trust note, a seller’s closing statement, a lot sale agreement and other loan documents, none of which were signed by the seller, the oral agreement was unenforceable under the statute of frauds since the deposit check, which was the only writing signed by both parties, did not set out the terms of the agreement and could not be supplemented by the buyer’s letter because it made no reference to such letter. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

An oral agreement by employer to buy property for the amount of employee’s equity, if the property was not sold within nine months after employee moved to his new assignment was unenforceable under subdivision 5. IBM Corp. v. Lawhorn, 106 Idaho 194, 677 P.2d 507 (Ct. App. 1984).

An oral agreement to substitute the mode or time of performance of an executory contract required to be in writing is valid and binding, provided that no other material term is changed and the agreement is made before the expiration of the written contract. Kelly v. Hodges, 119 Idaho 872, 811 P.2d 48 (Ct. App. 1991).

For a valid gift of real property, there must be a “conveyance or other instrument in writing” subscribed by the party to be charged. If made by an agent of the party to be charged, such authority must also be in writing. Although no particular instrument is necessary to constitute a note or memorandum required by the statute of frauds, the essential terms of an oral gift must be contained in the writing or writings. Erb v. Kohnke, 121 Idaho 328, 824 P.2d 903 (Ct. App. 1992).

In a matter involving an appeal from a failed venture to develop a Christian retreat ranch, an oral contract existed, but there was no violation of the statute of frauds as the oral contract was for the formation of a partnership for the purpose of developing a Christian retreat ranch, not an oral contract for the sale of land, which transaction was incidental to the oral contract. Spence v. Howell, 126 Idaho 763, 890 P.2d 714 (1995).

The plain language of subsection 5 does not mandate that all terms of a loan agreement and associated security arrangements be in writing; therefore, the oral agreement to lengthen plaintiff’s time for performance under the promissory note and to modify defendant’s collection rights under the security agreements did not alter defendant’s promise to lend money and were not subject to the statute of frauds. Rule Sales & Serv., Inc. v. U.S. Bank Nat’l Ass’n, 133 Idaho 669, 991 P.2d 857 (Ct. App. 1999).

Oral Modification.

This section barred a breach of contract claim because, assuming that there was in fact a pre-commitment to loan money and that the bank agreed to take a second position on an eighty-acre parcel, no one claimed that such an agreement was in writing. Bank of Commerce v. Jefferson Enters., LLC, 154 Idaho 824, 303 P.3d 183 (2013). Oral Modification.

A verbal agreement entered into to lease a room made in return for a written lease of another room, being intended for a period longer than one year, was invalid due to the application of the statute of frauds. Bennett v. Richards, 80 Idaho 140, 326 P.2d 986 (1958).

Oral modification of bank’s letter of guarantee would be barred under the statute of frauds. USA Fertilizer, Inc. v. Idaho First Nat’l Bank, 120 Idaho 271, 815 P.2d 469 (Ct. App. 1991).

Parol Proof Inadmissible.

To render oral contract that falls within the statute of frauds enforceable by action, the memorandum thereof must state contract with such certainty that its essentials can be known from memorandum itself, or by a reference contained in it to some other writing, without recourse to parol proof to supply them. Blumauer-Frank Drug Co. v. Young, 30 Idaho 501, 167 P. 21 (1917).

If a boundary line is not disputed, indefinite or uncertain, a parol agreement changing its location is within the statute of frauds and is void. Kunkle v. Clinkingbeard, 66 Idaho 493, 162 P.2d 892 (1945).

Despite livestock owner’s contention to the contrary, alleged oral agreement between the livestock owner and a bank regarding financing did not satisfy the statute of frauds, and commitment letters could not provide evidence of a writing when they were never executed; there was no applicable exception to the statute of frauds, and the doctrines of part performance, equitable estoppel and promissory estoppel did not apply. Lettunich v. Key Bank Nat’l Ass’n, 141 Idaho 362, 109 P.3d 1104 (2005).

Part Performance.

“Part” performance means performance by either or both parties of less than all their respective obligations under the contract. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

Doctrine of part performance was not applicable where lease did not implicate the statute of frauds. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

As a consequence of§§ 9-503, 9-504 and this section, where alleged part performance can be explained as consistent with some other purpose or arrangement, an oral contract to sell will not be established; therefore, where evidence indicated tenants/alleged purchasers did not take any action regarding the premises other than moving in and operating the bakery, made monthly payments consistent with rental, and made no valuable improvements to premises with repairs being made by landlord/alleged vendors, no clear and convincing evidence existed to support existence of an oral contract to sell. Hinkle v. Winey, 126 Idaho 993, 895 P.2d 594 (Ct. App. 1995).

Performance Within One Year.

Contract whereby corporation agrees to employ a man at a specified salary so long as he continues to own and hold his stock in the corporation does not come within purview of the statute of frauds on ground that the same was not in writing, for the reason that such contract is capable of being fully performed, completed, and terminated within a year. Darknell v. Coeur d’Alene & St. Joe Transp. Co., 18 Idaho 61, 108 P. 536 (1910). First subdivision of this section will not prevent recovery of an agreed and stipulated price contracted to be paid for services and labor which have been rendered by employee during a period exceeding one year, simply because contract was not reduced to writing. Darknell v. Coeur d’Alene & St. Joe Transp. Co., 18 Idaho 61, 108 P. 536 (1910).

Written contracts not containing the main features of oral contracts which they were intended to replace do not take the oral contracts out of the statute of frauds. Welch v. Bigger, 24 Idaho 169, 133 P. 381 (1913).

Where termination of contract is dependent upon the happening of a contingency which may occur within a year, although it may not happen until after expiration of a year, contract is not within the statute of frauds. Seder v. Grand Lodge, A.O.U.W., 35 Idaho 277, 206 P. 1052 (1922); Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

A contract which by its terms is not to be performed within a year from the making thereof is not taken out of the statute of frauds by reservation of an option to cancel the same by one or both parties within a year. Seder v. Grand Lodge, A.O.U.W., 35 Idaho 277, 206 P. 1052 (1922).

Continuous employment for continuous service is valid if termination be dependent on contingency which may occur within a year. Hubbard v. Ball, 59 Idaho 78, 81 P.2d 73 (1938).

Where plaintiff’s answers to interrogatories contemplated the endurance of alleged contract for four or five years and in his affidavit for summary judgment it was his opinion that the terms of the contract could and might be completed within one year, the answers and opinion were conflicting and thus did not comply with the provisions of Idaho R. Civ. P. 56(e) to render it admissible in showing a genuine issue of material fact, that the contract could be performed within one year from making thereof, so as to take that oral contract out of statute of frauds. Remlinger v. Dravo Corp., 94 Idaho 292, 486 P.2d 1005 (1971).

Even if a contract appears on its face to anticipate performance for more than one year, it may fall outside this section if it is subject to a condition or contingency that could occur within a year, terminating further performance. Whitlock v. Haney Seed Co., 110 Idaho 347, 715 P.2d 1017 (Ct. App. 1986).

Where an alleged oral contract of employment could not be performed within 1 year, the trial court should have instructed the jury on the statute of frauds defense. Burton v. Atomic Workers Fed. Credit Union, 119 Idaho 17, 803 P.2d 518 (1990).

Where an oral contract was subject to several contingencies, all of which could have occurred within one year, the statute of frauds did not bar enforcement of the contract. General Auto Parts Co. v. Genuine Parts Co., 132 Idaho 849, 979 P.2d 1207 (1999).

District court erred in holding that an alleged oral contract for long-term employment fell within the statute of frauds where the employee alleged that the term of the contract was until his retirement, and the employee could have retired within one year. Mackay v. Four Rivers Packing Co., 145 Idaho 408, 179 P.3d 1064 (2008).

Purpose.

Parents of debtors who declared Chapter 7 bankruptcy were not precluded under this section from filing a claim against the debtors’ bankruptcy estate, seeking payment of a loan they made to the debtors so the children could purchase a house. Even though the parties to the loan did not create a writing which outlined the terms of the loan, this section allows the use of verbal contracts that can be performed in less than a year, and both the parents and the debtors believed that the loan would be repaid in less than a year. In re Lacey, 2014 Bankr. LEXIS 598 (Bankr. D. Idaho Feb. 13, 2014). Purpose.

The object of the statute of frauds is to prevent potential fraud by forbidding disputed assertions of enumerated kinds of contracts without any written basis. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068 (Ct. App. 1986).

The apparent purpose of this section is to protect banks and other businesses from claims that they made an oral commitment to lend money or to grant credit and breached such commitment by failing to deliver the funds. Once the loan funds have been delivered to the borrower, so there is no longer an executory promise to make a loan, this section, by its plain language, has no further application. Rule Sales & Serv., Inc. v. U.S. Bank Nat’l Ass’n, 133 Idaho 669, 991 P.2d 857 (Ct. App. 1999).

Ratification.

Invalid ratification of an agreement that was unenforceable under this section because of the lack of prior written authorization for the original agent who signed the agreement did not prevent later valid ratification of the agreement by a principal under this section, where the ratification occurred before the prospective purchaser decided to decline the purchase. Graham Capital Corp. v. Simpson, 126 Idaho 749, 890 P.2d 335 (1995).

Real Estate Contract.

Because the real property contract was subject to the statute of frauds, gaps in essential terms regarding the security agreement could not be filled by parol evidence. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

Although a real estate contract need not contain a security provision if none is contemplated, once parties attempt to provide for security, it becomes an essential term of the contract. Lawrence v. Jones, 124 Idaho 748, 864 P.2d 194 (Ct. App. 1993).

Where the real estate agreement between the parties was unenforceable for noncompliance with the statute of frauds, the developer could not enforce that part of the agreement regarding arbitration. Lexington Heights Dev., LLC v. Crandlemire, 140 Idaho 276, 92 P.3d 526 (2004).

Legal description in the parties’ real estate agreement did not contain a sufficient description of the property to be sold because it did not contain any description sufficient to identify the approximate five-acre parcel that was to be excluded from the sale; the agreement was invalid regardless of whether the parties did or could have agreed upon the boundaries of the excluded property and the landowners could have then obtained a survey of the property and the agreement did not reference as the boundaries of the excluded parcel any structure or landmark that could be then identified by parol evidence. Lexington Heights Dev., LLC v. Crandlemire, 140 Idaho 276, 92 P.3d 526 (2004).

Lock-in agreement regarding a certain interest rate for a home refinancing did not constitute a commitment to lend that violated the statute of frauds; moreover, the question was whether the agreement was an enforceable contract. Bajrektarevic v. Lighthouse Home Loans, Inc., 143 Idaho 890, 155 P.3d 691 (2007).

Trial court erred in finding that statute of frauds was satisfied in a contract dispute for the sale of real property because the property description within the contract was insufficient. Ray v. Frasure, 146 Idaho 625, 200 P.3d 1174 (2009).

Where a real estate development agreement provided the existing legal description of the entire property and identified a specific amount of completed lots that were to be developed and sold by the debtor to the other contracting party within each portion of the parcel, the agreement contained a sufficient description of the property to satisfy this section. Gugino v. Kastera, LLC (In re Ricks), 433 B.R. 806 (Bankr. D. Idaho 2010). To satisfy the statute of frauds, not only must an agreement for the sale of real property be in writing and subscribed by the party to be charged, but the writing must also contain an adequate description of the property, either in terms or by reference, so that the property can be identified without resort to parol evidence. Gugino v. Kastera, LLC (In re Ricks), 433 B.R. 806 (Bankr. D. Idaho 2010).

A property description in a real estate sales contract that consisted solely of a physical address did not satisfy the statute of frauds. In re McMurdie, 448 B.R. 826 (Bankr. D. Idaho 2010).

Sales and Leases of Realty.

Receipt or memorandum reading, “Lowe, Idaho, March 7, 1902. Received from S. C. Kurdy, one hundred and ninety dollars on land, Sec. 25, Ts. 32 R. 2 E. 160 acres,” signed by the parties sought to be charged, is insufficient upon which to enforce specific performance. Kurdy v. Rogers, 10 Idaho 416, 79 P. 195 (1904).

Mere giving of a check as earnest money is not sufficient evidence of the purchase of real property. Schulz v. Hansing, 36 Idaho 121, 209 P. 727 (1922).

Purported lease, not being definite and certain and not being complete within itself as to all essentials of lease of real property for term of more than one year, so that there is nothing left to be established by parol, does not satisfy requirements of this section. Gaskill v. Jacobs, 38 Idaho 795, 225 P. 499 (1924).

Assignee of mortgagee, knowing that mortgagee had agreed that mortgage should be valid only if sale was not consummated and had taken an assignment of deposit of the purchase-price, could not assert that contract of sale was made by agent without written authority. Corbett v. Vette, 9 F.2d 773 (9th Cir.), cert. denied, 271 U.S. 663, 46 S. Ct. 475, 70 L. Ed. 1139 (1926).

Where strip of land was attempted to be sold orally, contrary to the provisions of this section, the subsequent quiet title action by the purchaser’s successor in title failed in the absence of a showing of any uncertainty or misunderstanding as to the true boundary. Balmer v. Pollak, 67 Idaho 494, 186 P.2d 217 (1947).

The instrument of “formal written contract” to which appellants refer is appended to and made a part of the amended complaint: it is in the form of a contract for the sale and purchase of real property, but it cannot be regarded as a contract, since it is not subscribed by respondents, the parties sought to be charged, and since appellants admit the insufficiency of the memorandum, standing alone, as a contract for the sale and purchase of real property, the statute of frauds defeats appellants’ contention. Moen v. Minzel, 79 Idaho 228, 313 P.2d 1079 (1957).

The complaint sufficiently stated a cause of action where former realty owners against whom mortgage had been foreclosed alleged an agreement had been entered into with junior lienholder that latter was to redeem property on last day of redemptive period and that former owners were then to secure a purchaser for such realty and personal property located thereon, they to be compensated for such services by the grant of certain parcels of land, but buyer and junior lienholder in violation of such oral agreement consummated the sale depriving former owners of agreed compensation. Harvey v. Brown, 80 Idaho 379, 330 P.2d 982 (1958). Proof of an oral lease as defense against claim to land on basis of adverse possession was not barred by this section because the lease in question was terminable at will and had been executed prior to bringing the action. Aldape v. State, 98 Idaho 912, 575 P.2d 891 (1978).

Where the record indicated that counsel for the plaintiff renters had conceded in argument before the trial court that the renters did not have a sales contract with the defendant owners of the property, the trial court properly denied plaintiffs’ motion to amend their claim in order to prove an oral agreement for sale of the property since the evidence supported the trial court’s finding that the parties, in fact, reached no meeting of the minds. Haskin v. Glass, 102 Idaho 785, 640 P.2d 1186 (Ct. App. 1982).

Where neither the attorney’s letter to purchaser concerning land transaction nor the warranty deed were referred to in the check from purchaser to seller which was the only writing signed by both parties to the transaction, the documents were not sufficient to take the transaction out of the statute of frauds. Hemingway v. Gruener, 106 Idaho 422, 679 P.2d 1140 (1984).

Failure of parties who entered into agreement for real estate purchase to reach agreement initially as to payment date was not fatal to their contract for the date was subsequently fixed and the date and amount due were set out in writing in letters to the purchasers and the closing agent, and a deed signed and acknowledged was sent to the closing agent. Crittenden v. Crane, 107 Idaho 213, 687 P.2d 996 (Ct. App. 1984).

Where real estate agreement was expressed in a written contract, as later supplemented by written correspondence, and contained all the essential terms and conditions, as a matter of law, it did not violate the statute of frauds; therefore, seller was liable in damages for breach of the contract when he refused to convey the property to the purchaser on the date set for closing. Crittenden v. Crane, 107 Idaho 213, 687 P.2d 996 (Ct. App. 1984).

Sales of Goods.

Where none of the requirements of this section are complied with at the time sale is made, the contract can only be enforced against purchaser if he afterwards receives and accepts the goods; but in case he does afterwards so receive and accept them, the contract becomes executed and the statute has no application. Coffin v. Bradbury, 3 Idaho 770, 35 P. 715 (1894).

Where evidence is conflicting, question of what constitutes such a receipt and acceptance of the goods, as to take contract out of the statute, is a question for jury. Coffin v. Bradbury, 3 Idaho 770, 35 P. 715 (1894).

Where seller orders goods for buyer from third person according to specifications furnished by latter, and the goods are shipped by third person and stored in a warehouse for buyer, who, on being informed of the fact, makes a payment on the purchase-price and states that he will remove goods in a few days, transaction is not a sale from seller to buyer within provisions of this section, but seller is rather an agent for buyer. C.R. Shaw Lumber Co. v. Manville, 4 Idaho 369, 39 P. 559 (1895).

Where W sues F and procures an attachment, and F by way of cross-complaint claims damages against A, resulting from the wrongful issuance of attachment, and orally assigns to C, for a consideration already paid, any judgment that he may recover on his cross-complaint, such assignment is not within the statute of frauds. McCornick v. Friedman, 9 Idaho 754, 76 P. 762 (1904).

Where essential part of a contract for sale of mining stock for more than $200.00 rests in parol, and there has been no delivery of any part of property and no payment of any part of purchase-price, such contract is void. Snow Storm Mining Co. v. Johnson, 186 F. 745 (9th Cir. 1911). Act of buyer of goods under a contract in offering to sell goods which he has contracted to purchase is such an act as constitutes an acceptance of the goods so as to take contract out of the operation of the statute. Bicknell v. Owyhee Sheep & Land Co., 31 Idaho 696, 176 P. 782 (1918).

Settlement Agreement.

A stipulation to settle litigation whose subject matter is within the statute of frauds must be in writing and signed by the parties to be charged; thus, when the subject matter of the stipulation falls within the proscription of the statute of frauds, and the agreement is oral and executory, it is unenforceable. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Signing of Memorandum.

Although it is not necessary that the memorandum evidencing an oral agreement be signed with the intent to comply with the statute of frauds, the signature must be made with the declared or apparent intent of authenticating the writing relied upon as a memorandum. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Unsigned Writings.

Idaho follows the doctrine that an unsigned writing may be considered as part of a memorandum supporting an oral agreement only where express reference to it is made in a signed writing. Hoffman v. SV Co., 102 Idaho 187, 628 P.2d 218 (1981).

Although an agreement for the sale of real property was reduced to writing several times, it never was signed by the party to be charged and, consequently, there was no enforceable agreement. Wolske Bros. v. Hudspeth Sawmill Co., 116 Idaho 714, 779 P.2d 28 (Ct. App. 1989).

Where written documents, unsigned by mortgagee, did not match the loan amount and interest rate that mortgagee believed that bank had promised, there was no meeting of the minds and, thus, no contract to be enforced between the parties. Countrywide Home Loans, Inc. v. Sheets, 160 Idaho 268, 371 P.3d 322 (2016).

Waiver of Defense.

The defense of the statute of frauds is waived where it does not appear from the complaint that the contract sued on does not fall within it, and the party relying on the statute as a defense fails to plead it. Slusser v. Aumock, 56 Idaho 793, 59 P.2d 723 (1936); Magee v. Winn, 52 Idaho 553, 16 P.2d 1062 (1932).

Even though it would have been a better practice for the plaintiff lessee to have raised the affirmative defense of the statute of frauds in her reply to the defendant lessor’s counterclaim or to have requested an amendment, where the defendant knew of the affirmative defense and was given time to present argument in opposition to the defense, the plaintiff did not waive her right to raise the statute of frauds defense by first raising it in a summary judgment motion. Bluestone v. Mathewson, 103 Idaho 453, 649 P.2d 1209 (1982).

Water Rights.

Failure to plead the defense of the statute of frauds in the amended answer acts as a waiver of the defense and all objections based on it; therefore, defendant’s failure to first present the statute of frauds issue to the trial court for resolution precludes consideration of the question on appeal. Ernst v. Hemenway & Moser Co., 120 Idaho 941, 821 P.2d 996 (Ct. App. 1991), modified, 126 Idaho 980, 895 P.2d 581 (1995). Water Rights.

A water right is defined, not in terms of metes and bounds as in other real property, but in terms of the priority, amount, season of use, purpose of use, point of diversion, and place of use and a compromise, in a stipulation to settle a water rights dispute, to change or exchange any of these definitional factors would be identical to a compromise to change or exchange a portion of the metes and bounds description of real property and, as such, would fall directly within the statute of frauds. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Where oral stipulation to settle water rights dispute changed existing water rights by reshuffling priority dates and changing amounts of use, such stipulation was a contract falling within the statute of frauds and, if still executory, was unenforceable. Olson v. Idaho Dep’t of Water Resources, 105 Idaho 98, 666 P.2d 188 (1983).

Written Authority.

District court erred in granting summary judgment to the prospective purchasers of lot on the basis that the sale agreement was unenforceable because the seller’s original agent did not have written authority to sign the agreement as required by subdivision 5 of this section prior to the signing, because, although there was not an express ratification of the agreement before the prospective purchasers declined the purchase, the agreement was enforceable as the closing documents were signed by the president and the secretary acting as valid agents of the seller before the purchaser declined to purchase the property. Graham Capital Corp. v. Simpson, 126 Idaho 749, 890 P.2d 335 (1995).

Am. Jur. 2d.

C.J.S.

ALR.

Sufficiency of description of terms and conditions of lease, or lease provision, so as to comply with statute of frauds. 12 A.L.R.6th 123.

Antecedent Obligation of Another.

Because an employer’s promise to answer for a newly hired employee’s loan obligation to her previous employer directly benefitted the new employer, the agreement is an exception to the statute of frauds requirement of written evidence. Campbell v. Parkway Surgery Ctr., LLC, 158 Idaho 957, 354 P.3d 1172 (2014).

Collateral Agreements.

If consideration of party’s promise is for money to be furnished or received by third person, such promise is collateral, where the transaction is such that third person remains answerable to person who furnishes him with such money; such promise will not, therefore, bind party unless it is in writing. Storer v. Heitfeld, 19 Idaho 170, 113 P. 80 (1910). There is no consideration moving to stockholder as individual to sustain his promise that, if creditors of corporation would accept less than their claims, such stockholder would pay them. Reed v. Samuels, 43 Idaho 55, 249 P. 893 (1926).

Agreement to pay for material or services furnished independent contractor is promise to answer for debt, default, or miscarriage of another and is within the statute. McQuade v. Edward Rutledge Timber Co., 46 Idaho 471, 268 P. 570 (1928).

The transaction in question was taken out of the statute of frauds because it had been partially executed by the transfer of the property to the defendant by two of the debtors, where, when judgment became a lien upon the land two of the three judgment debtors sold to the purchaser, the purchaser while failing to do so having orally agreed to pay the judgment, the creditor thereupon levying upon sums of such third debtor to satisfy the judgment. Jones v. Better Homes, Inc., 79 Idaho 294, 316 P.2d 256 (1957).

Section 9-505 generally requires a written promise; however, an exception exists when the promise is original or independent from, and not merely collateral to, the agreement between the promisee and the third-party debtor since an original obligation of the promisor is not covered by the terms of the statute of frauds. Treasure Valley Plumbing & Heating, Inc. v. Earth Resources Co., 115 Idaho 373, 766 P.2d 1254 (Ct. App. 1988).

Function of Trial Court.

The trial judge is the arbiter of whether the evidence indicating an original obligation is sufficient to allow the statute of frauds question to go to the jury. Beaupre v. Kingen, 109 Idaho 610, 710 P.2d 520 (1985).

New Obligation.

Where conversation between bank and fertilizer company concerning payment for fertilizer sold to farmer did not result in an agreement, either written or oral, that bank would guarantee payment of farmer’s account beyond the initial fertilizer application, and where president of fertilizer company conceded that bank official never specifically stated that the guarantee was open-ended, and a bank official denied ever making such a representation, district court finding that the conversation did not constitute a new obligation expressly exempted from the statute of frauds was not clearly erroneous. USA Fertilizer, Inc. v. Idaho First Nat’l Bank, 120 Idaho 271, 815 P.2d 469 (Ct. App. 1991).

Original Agreements.

Agreement by one who has the property of debtor in his possession to sell and apply proceeds in payment of debt is within this section. Smith v. Caldwell, 6 Idaho 436, 55 P. 1065 (1899).

Where D works for R, and on settlement of his work R agrees to pay C and S, to whom D is indebted, the debt thus assumed becomes debt of R and is not within the statute of frauds. Sherer v. Rubedew, 11 Idaho 536, 83 P. 512 (1905).

Under subdivision 3, promise to answer for the obligation of another is deemed an original obligation of promisor and need not be in writing, where promise is for an antecedent obligation of another and is made upon the consideration that party receiving it cancels the antecedent obligation and accepts the new promise as a substitute therefor. McCallum v. McClarren, 15 Idaho 374, 98 P. 200 (1908). Where one corporation has purchased all the property and rights of another corporation, and, as a part of the consideration for such purchase and transfer, purchaser has agreed to assume and pay outstanding debts and liabilities of old corporation, such transaction constitutes liability of the new company to pay such indebtedness and original obligation, which is not required to be in writing under the statute of frauds. Mineau v. Imperial Dredge & Exploration Co., 19 Idaho 458, 114 P. 23 (1911).

While evidence to answer for debt or default of another must be in writing, no such rule obtains where party treats debt as his own. Kelly v. Arave, 41 Idaho 723, 243 P. 366 (1925).

Promise to pay rent in consideration of party foregoing action and attachment against tenant is original obligation on consideration, beneficial to party promising. Sullivan v. Idaho Whsle. Co., 43 Idaho 149, 249 P. 895 (1926).

A shareholder of a corporation who, upon dissolution of the corporation, took assets of the corporation along with obligations of the corporation, and who subsequently told a creditor of the corporation that he would pay the original corporate account, became obligated to pay that account as an original obligation under this section. Dalby v. Kennedy, 94 Idaho 72, 481 P.2d 30 (1971).

Where the shareholders of a corporation had mutually agreed to pay attorney’s fees, such agreement was made separately and remotely from earlier written promises to guarantee the obligations of the corporation, and the defense of the lawsuits in question was for the benefit of the shareholders in their personal capacities, the oral agreement that obligated each shareholder to pay one-third of the attorney’s fees incurred for the defense of lawsuits against the corporation was an original one under this section, rather than a collateral agreement within the terms of§ 9-505(2). Therefore, the statute of frauds did not bar plaintiff shareholder’s claim for reimbursement of money expended for attorney’s fees. Beaupre v. Kingen, 109 Idaho 610, 710 P.2d 520 (1985).

The promise to pay the debt of another is an original promise. M.T. Deaton & Co. v. Leibrock, 114 Idaho 614, 759 P.2d 905 (Ct. App. 1988).

Question of Fact.

Whether an oral promise constitutes a collateral or an original obligation, for the purposes of the statute of frauds, is generally a question for the finder of fact. Beaupre v. Kingen, 109 Idaho 610, 710 P.2d 520 (1985).

Application of Section.

Commission agreement in compliance with terms of statute is necessary to warrant recovery, notwithstanding sale is made by owner to purchaser furnished by complainant. Laker Land & Loans v. Nye, 40 Idaho 793, 237 P. 630 (1925), overruled on other grounds, Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 442 P.2d 442 (1968).

This section is not applicable to oral representations in violation of fiduciary relationship. Jenkins v. Standrod, 46 Idaho 614, 269 P. 586 (1928).

Cross References.

Licensing of real estate brokers,§ 54-2021 et seq.

Acknowledgment of Services.

A written acknowledgment of broker’s services and promise to pay therefor, being unrelated to the oral promise to pay for such services when yet to be performed, was sufficient to satisfy the requirements of the statute of frauds or this section, such written instrument being presumptive evidence of a valid consideration and the burden would rest on appellants to avoid such instrument. Homefinders v. Lawrence, 80 Idaho 543, 335 P.2d 893 (1959).

The requirements of this section are not satisfied by an acknowledgment in a contract of sale that the sellers employed the real estate agent and would pay any fee to which he might be entitled and hold the buyers harmless from any liability therefor. Robertson v. Hansen, 89 Idaho 107, 403 P.2d 585 (1965).

A real estate broker’s contract of employment was not invalid because of gross errors in the description of the real estate to be sold where both the owner and the broker were in agreement as to the real estate to be sold, the farm was well known in the neighborhood, and the acreage and location as to county and section numbers were readily available. Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 442 P.2d 442 (1968). Real estate broker was entitled to a commission on the ground that her prior services provided sufficient consideration, even though there was no prior agreement for payment of a commission, where ranch owner knew that commission clause in sales contract stated that payment was for services rendered and plaintiff had procured a party willing to buy the ranch at certain terms and had fulfilled all obligations. Isaguirre v. Echevarria, 96 Idaho 641, 534 P.2d 471 (1975).

Application in General.

No recovery can be had by broker on oral contract in action on quantum meruit; neither can he recover his expenses incurred in effecting sale in absence of contract to pay therefor. Weatherhead v. Cooney, 32 Idaho 127, 180 P. 760 (1919); Brace v. Johnson, 45 Idaho 327, 262 P. 148 (1927).

This section does not apply to contract between two brokers, one of whom is employed to assist in sale. Phy v. Selby, 35 Idaho 409, 207 P. 1077 (1922).

Oral agreement, under which defendant was to pay plaintiff excess of sale price over certain fixed sum if plaintiff should procure purchaser upon defendant’s acquiring title through sheriff’s deed, was within this section. Brace v. Johnson, 45 Idaho 327, 262 P. 148 (1927).

No commission is collectible unless the real estate broker is authorized in writing to find a purchaser. Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844 (1942).

A brokerage contract requires the signature of both the broker and the party seeking to obtain a purchaser and it is not a unilateral agreement which the broker may accept by full performance. C. Forsman Real Estate Co. v. Hatch, 97 Idaho 511, 547 P.2d 1116 (1976).

Where a partnership has made a real estate brokerage contract with one broker which authorizes him to “secure the cooperation” of other such brokers, the fact that the other brokers were not parties to the contract did not preclude their sharing in any brokerage fees recovered when they secured a buyer who was ready, willing, and able to perform. Marshall Bros. v. Geisler, 99 Idaho 734, 588 P.2d 933 (1978).

A real estate broker’s agreement to find a buyer for property was valid and enforceable where the parties’ agreement was in writing, the property was adequately described, the amount of the commission and terms of the listing were specified, and the agreement was signed by two of the co-owners with representations made to the broker by the signing co-owners that the contemplated transaction would be approved by the third co-owner, even though proposed sale failed because of third co-owner’s refusal to sell her share of property. Rexburg Realty, Inc. v. Compton, 101 Idaho 466, 616 P.2d 245 (1980).

Absent a broker’s employment contract or listing agreement meeting the requirements of this section, a broker in Idaho may recover a commission only in exceptional circumstances. Century 21 Quality Properties, Inc. v. Chandler, 103 Idaho 193, 646 P.2d 435 (Ct. App. 1982).

The fundamental purpose of this section is not served if the writing furnished by the broker and relied upon by him for his commission tends to create rather than dispel disputes. Century 21 Quality Properties, Inc. v. Chandler, 103 Idaho 193, 646 P.2d 435 (Ct. App. 1982).

Broker was not entitled to a commission under a purchase agreement between a business owner and the purchaser of the business’s assets because no agent of the broker signed the agreement; thus, the statute of frauds was not satisfied. Commercial Ventures v. Lea Family Trust, 145 Idaho 208, 177 P.3d 955 (2008).

Brokerage Commission.

A contract dispute between a pension services company and a home builder, who developed a subdivision with a loan of funds from the pension company, related to the repayment terms of the loan and not to the sale of property; thus, the provisions of this section were not applicable. Am. Pension Servs. v. Cornerstone Home Builders, Llc, 147 Idaho 638, 213 P.3d 1038 (2009). Brokerage Commission.

Where an “earnest money” form agreement did no more than provide that a brokerage commission would be paid if a particular sale was completed by a certain date, but the sale was delayed without any fraudulent attempt by the owners or the purchasers, the brokerage house was not entitled to its commission where the sale occurred after that date. Century 21 Quality Properties, Inc. v. Chandler, 103 Idaho 193, 646 P.2d 435 (Ct. App. 1982).

Co-owners of Property.

A co-owner of property who has expressly or impliedly represented to a broker that he can convey the property to be sold cannot escape personal liability under a brokerage commission contract because it was not signed by the other co-owners and, accordingly, where a landowner signed a brokerage commission contract, but such contract was not signed by his wife or the family corporation, the co-owners of the property in question, the landowner could not escape liability on the contract. Garfield v. Tindall, 98 Idaho 841, 573 P.2d 966 (1978).

Description of Property.

Under§ 54-2050 and this section, commission agreements do not have to include property descriptions that meet the stringent requirements of§ 9-503. Rather, for purposes of a real estate brokerage agreement, a property description is sufficient where it is shown that there is no misunderstanding between the property owner and the broker as to the property to be offered for sale. In addition, parol evidence may be used to identify the property that is the subject of the agreement, provided it does not vary, add to, or subtract from the agreement the parties intended to make. Callies v. O’Neal, 147 Idaho 841, 216 P.3d 130 (2009).

Pleading.

In a real estate broker’s action for commission, a complaint pleading the contract of employment equally susceptible of construction that the commissions were to be charged to the purchaser and to landowners was sufficient as against a general demurrer. Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844 (1942).

In a broker’s action for commission, the allegation of his complaint, that the contract of his employment was signed by the owners of the real estate, was taken as true for the purpose of defendant’s demurrer. Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844 (1942).

Statute of Frauds.

This section is a form of statute of frauds applicable to a real estate broker employment agreement. Rexburg Realty, Inc. v. Compton, 101 Idaho 466, 616 P.2d 245 (1980).

Verbal Agreements.

Cited

The complaint sufficiently stated a cause of action where former realty owners against whom mortgage had been foreclosed alleged an agreement had been entered into with junior lienholder that latter was to redeem property on last day of redemption period and that former owners were then to secure a purchaser for such realty and personal property located thereon, they to be compensated for such services by the grant of certain parcels of land, but buyer and junior lienholder in violation of such oral agreement consummated the sale depriving former owners of agreed compensation. Harvey v. Brown, 80 Idaho 379, 330 P.2d 982 (1958). Cited Hull v. Cartin, 61 Idaho 578, 105 P.2d 196 (1940); Jones v. Maestas, 108 Idaho 69, 696 P.2d 920 (Ct. App. 1985).

Compiler’s Notes.

The bracketed word “does” in the last sentence was inserted by the compiler.

Admissibility of Writing.

This section allows admission of a document if the alteration can be explained. Pocatello R.R. Employees Fed. Credit Union v. Galloway, 117 Idaho 739, 791 P.2d 1318 (Ct. App. 1990).

Holographic Will.

Duty devolves on proponent of holographic will to explain cancellations on face and reverse side thereof, or at least to show that original instrument had not been altered since coming into her hands. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

A proponent showing that she took a holographic will, sealed when she first saw it, from the testator’s private safe and delivered it, still sealed, to her attorney with instructions to deliver it to the probate judge, who opened it, may invoke the presumption that the testator and none other was responsible for cancellation on the face and reverse side of said will. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929).

Evidence that the proponent had access for some considerable time to the repository in which a will was found is not sufficient to destroy the presumption that a cancellation therein was made by the testator, in view of the proponent’s sworn testimony that she never saw the will itself until the probate judge opened an envelope containing it. In re Fisher’s Estate, 47 Idaho 668, 279 P. 291 (1929). In action by assignee of conditional seller for possession of an automobile, the conditional sales contract, on which the signature of the secretary and treasurer of the seller had been stricken out and that of the president substituted, was admissible to prove title, where the president explained the change and testified that the alteration was made prior to the execution of the contract by the buyer. Fidelity Acceptance Corp. v. Erickson, 62 Idaho 152, 108 P.2d 1031 (1941).

Promissory Note.

An amended promissory note was admissible in evidence where plaintiff admitted signing, along with her deceased husband, a note for $20,000, and where plaintiff further conceded that her husband had borrowed an additional $5,600 and that he initialed the original note upon borrowing the additional sum. Lowry v. Ireland Bank, 116 Idaho 708, 779 P.2d 22 (Ct. App. 1989).

Sufficiency of Compliance.

The party presenting a written instrument in evidence which, upon its face, shows that it has been altered is required to explain such alteration or at least to show that such instrument has not been altered since it came into his hands. The party who made or executed the instrument may have made or assented to the alteration before its execution and, yet, holder be unable to prove that fact. Therefore, the exigency of the statute is complied with when the party presenting the instrument shows that there has been no alteration since it came into his hands. Mulkey v. Long, 5 Idaho 213, 47 P. 949 (1897); GMAC v. Talbott, 39 Idaho 707, 230 P. 30 (1924).

Altered bail bond is admissible in evidence where it is explained that the alteration appearing thereon was made with the consent of obligors, and it is shown that no alterations were made since delivery of the bond to the proper authorities. State v. Baird, 13 Idaho 126, 89 P. 298 (1907).

Am. Jur. 2d.

C.J.S.

ALR.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 941 — 943; R.S., R.C., & C.L., §§ 6035 — 6037; C.S., §§ 7981 — 7983; I.C.A.,§§ 16-701 — 16-703, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 45(a), 45(c)(2).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 944; R.S., R.C., & C.L., § 6038; C.S., § 7984; I.C.A.,§ 16-704, was repealed by S.L. 2007, ch. 80, § 1.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 945; R.S., R.C., & C.L., § 6039; C.S., § 7985; am. 1929, ch. 40, § 1, p. 50; I.C.A.,§ 16-705; am. 1969, ch. 260, § 1, p. 799, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 947; R.S., R.C., & C.L., § 6041; C.S., § 7987; I.C.A.,§ 16-707, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 37(b)(1), 45(f).

Cross References.

Civil damages for refusal to testify in an election contest before the legislature,§ 34-2110.

Am. Jur. 2d.

C.J.S.

Cross References.

Order for production of prisoner in court,§ 19-4601.

Effective Dates.

Section 11 of S.L. 1969, ch. 126 provided that the act be effective January 11, 1971.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Order for production of prisoner in court,§ 19-4601.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

This section was made a rule of procedure and practice for the courts of Idaho and designated§ 9-740 by order of the supreme court promulgated March 19, 1951, which order was rescinded by order of the supreme court promulgated October 24, 1974, effective January 1, 1975.

It is deemed to have been superseded by Idaho R. Civ. P. 35(a) and 35(b) in accordance with Idaho R. Civ. P. Rule 86.

Prior Laws.

The following sections were declared null and void December 31, 1997 by Section 4 of S.L. 1995, ch. 359 which read: “Section 1 of this act shall be in full force and effect on and after July 1, 1995 and shall be null and void and of no force and effect on and after December 31, 1997. Section 2 of this act shall be in full force and effect on and after July 1, 1995. Section 3 of this act shall be in full force and effect on and after December 31, 1995.”

Sections 9-801, 9-802, 9-805 — 9-811 which comprised I.C.,§§ 9-801, 9-802, 9-805 — 9-811 as added by 1995, ch. 359, § 1, p. 1218 was declared null and void December 31, 1997, by S.L. 1995, ch. 359, § 1.

Section 9-803 which comprised I.C.,§ 9-803, as added by 1995, ch. 359, § 1, p. 1218; am. 1996, ch. 414, § 1, p. 1376.

Section 9-804 which comprised I.C.,§ 9-804, as added by 1995, ch. 359, § 1, p. 1218; am. 1996, ch. 414, § 2, p. 1376.

Another former§ 9-801, which comprised C.C.P. 1881, § 954; R.S., R.C., & C.L., § 6052; C.S., § 7994; I.C.A.,§ 16-801, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Prior Laws.

Former§ 9-802 was declared null and void. See Prior Laws,§ 9-801.

Another former§ 9-802, which comprised C.C.P. 1881, § 955; R.S., R.C., & C.L., § 6053; C.S., § 7995; I.C.A.,§ 16-802, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Official Comment

1. Section 2(1). “Mediation.”

1. Section 2(1). “Mediation.”

2. Section 2(2). “Mediation Communication.”

The emphasis on negotiation in this definition is intended to exclude adjudicative processes, such as arbitration and fact-finding, as well as counseling. It was not intended to distinguish among styles or approaches to mediation. An earlier draft used the word “conducted,” but the Drafting Committees preferred the word “assistance” to emphasize that, in contrast to an arbitration, a mediator has no authority to issue a decision. The use of the word “facilitation” is not intended to express a preference with regard to approaches of mediation. The Drafters recognize approaches to mediation will vary widely. 2. Section 2(2). “Mediation Communication.”

Mediation communications are statements that are made orally, through conduct, or in writing or other recorded activity. This definition is aimed primarily at the privilege provisions of Sections 4-6 [§§ 9-804 through 9-806]. It is similar to the general rule, as reflected in Uniform Rule of Evidence 801, which defines a “statement” as “an oral or written assertion or nonverbal conduct of an individual who intends it as an assertion.” Most generic mediation privileges cover communications but do not cover conduct that is not intended as an assertion. Ark. Code Ann. Section 16-7-206 (1993); Cal. Evid. Code Section 1119 (1997); Fla. Stat. Ann. Section 44.102 (1999); Iowa Code Ann. Section 679C.3 (1998); Kan. Stat. Ann. Section 60-452a (1964) (assertive representations); Mass. Gen. Laws ch. 233, Section 23C (1985); Mont. Code Ann. Section 26-1-813 (1999); Neb. Rev. Stat. Section 25-2914 (1997); Nev. Rev. Stat. Section 25-2914 (1997) (assertive representations); N.C. Gen. Stat. 7A-38.1(1) (1995); N.J. Rev. Stat. Section 2A:23A-9 (1987); Ohio Rev. Code Ann. Section 2317.023 (1996); Okla. Stat. tit. 12, Section 1805 (1983); Or. Rev. Stat. Ann. Section 36.220 (1997); 42 Pa. Cons. Stat. Ann. Section 5949 (1996); R.I. Gen. Laws Section 9-19-44 (1992); S.D. Codified Laws Section 19-13-32 (1998); Va. Code Ann. Section 8.01-576.10 (1994); Wash. Rev. Code Section 5.60.070 (1993); Wis. Stat. Section 904.085(4)(a) (1997); Wyo. Stat. Ann. Section 1-43-103 (1991). The mere fact that a person attended the mediation — in other words, the physical presence of a person — is not a communication. By contrast, nonverbal conduct such as nodding in response to a question would be a “communication” because it is meant as an assertion; however nonverbal conduct such as smoking a cigarette during the mediation session typically would not be a “communication” because it was not meant by the actor as an assertion.

A mediator’s mental impressions and observations about the mediation present a more complicated question, with important practical implications. See Olam v. Congress Mortgage Co. , 68 F. Supp. 2d 1110 (N.D. Cal. 1999). As discussed below, the mediation privilege is modeled after, and draws heavily upon, the attorney-client privilege, a strong privilege that is supported by well-developed case law. Courts are to be expected to look to that well developed body of law in construing this Act. In this regard, mental impressions that are based even in part on mediation communications would generally be protected by privilege.

More specifically, communications include both statements and conduct meant to inform, because the purpose of the privilege is to promote candid mediation communications. U.S. v. Robinson , 121 F.3d 911, 975 (5th Cir. 1997). By analogy to the attorney-client privilege, silence in response to a question may be a communication, if it is meant to inform. U.S. v. White , 950 F.2d 426, 430 n.2 (7th Cir. 1991). Further, conduct meant to explain or communicate a fact, such as the re-enactment of an accident, is a communication. See Weinstein’s Federal Evidence 503.14 (2000). Similarly, a client’s revelation of a hidden scar to an attorney in response to a question is a communication if meant to inform. In contrast, a purely physical phenomenon, such as a tattoo or the color of a suit of clothes, observable by all, is not a communication.

If evidence of mental impressions would reveal, even indirectly, mediation communications, then that evidence would be blocked by the privilege. Gunther v. U.S., 230 F.2d 222, 223-224 (D.C. Cir. 1956). For example, a mediator’s mental impressions of the capacity of a mediation participant to enter into a binding mediated settlement agreement would be privileged if that impression was in part based on the statements that the party made during the mediation, because the testimony might reveal the content or character of the mediation communications upon which the impression is based. In contrast, the mental impression would not be privileged if it was based exclusively on the mediator’s observation of that party wearing heavy clothes and an overcoat on a hot summer day because the choice of clothing was not meant to inform. Darrow v. Gunn , 594 F.2d 767, 774 (9th Cir. 1979).

There is no justification for making readily observable conduct privileged, certainly not more privileged than it is under the attorney-client privilege. If the conduct is seen in the mediation room, it can also be observed, even photographed, outside of the mediation room, as well as in other contexts. One of the primary reasons for making mediation communications privileged is to promote candor, and excluding evidence of a readily observable characteristic is not necessary to promote candor. In re Walsh , 623 F.2d 489, 494 (7th Cir. 1980).

The provision makes clear that conversations to initiate mediation and other non-session communications that are related to a mediation are considered “mediation communications.” Most statutes are silent on the question of whether they cover conversations to initiate mediation. However, candor during these initial conversations is critical to insuring a thoughtful agreement to mediate, and the Act therefore extends confidentiality to these conversations to encourage that candor.

The definition in Section 2(2) is narrowly tailored to permit the application of the privilege to protect communications that a party would reasonably believe would be confidential, such as the explanation of the matter to an intake clerk for a community mediation program, and communications between a mediator and a party that occur between formal mediation sessions. These would be communications “ made for the purposes of considering, initiating, continuing, or reconvening a mediation or retaining a mediator.” This language protects the confidentiality of such a communication when doing so advances the underlying policies of the privilege, while at the same time gives the courts the latitude to restrict the application of the privilege in situations where such an application of the privilege would constitute an abuse. For example, an individual trying to hide information from a court might later attempt to characterize a call to an acquaintance about a dispute as an inquiry to the acquaintance about the possibility of mediating the dispute. This definition would permit the court to disallow a communication privilege, and admit testimony from that acquaintance by finding that the communication was not “ made for the purposes of initiating considering, initiating, continuing, or reconvening a mediation or retaining a mediator.”

Responding in part to public concerns about the complexity of earlier drafts, the Drafting Committees also elected to leave the question of when a mediation ends to the sound judgment of the courts to determine according to the facts and circumstances presented by individual cases. See Bidwell v. Bidwell , 173 Or. App. 288 (2001) (ruling that letters between attorneys for the parties that were sent after referral to mediation and related to settlement were mediation communications and therefore privileged under the Oregon statute). In weighing language about when a mediation ends, the Drafting Committees considered other more specific approaches for answering these questions. One approach in particular would have terminated the mediation after a specified period of time if the parties failed to reach an agreement, such as the 10-day period specified in Cal. Evid. Code Section 1125 (1997) (general). However, the Drafting Committees rejected that approach because it felt that such a requirement could be easily circumvented by a routine practice of extending mediation in a form mediation agreement. Indeed, such an extension in a form agreement could result in the coverage of communications unrelated to the dispute for years to come, without furthering the purposes of the privilege. Finally, this definition would also include mediation “briefs” and other reports that are prepared by the parties for the mediator. Whether the document is prepared for the mediation is a crucial issue. For example, a tax return brought to a divorce mediation would not be a “mediation communication” because it was not a “statement made as part of the mediation,” even though it may have been used extensively in the mediation. However, a note written on the tax return to clarify a point for other participants would be a mediation communication. Similarly, a memorandum specifically prepared for the mediation by the party or the party’s representative explaining the rationale behind certain positions taken on the tax return would be a “mediation communication.” Documents prepared for the mediation by expert witnesses attending the mediation would also be covered by this definition. See Section 4(b)(3) [§ 9-804(2)(c)].

3. Section 2(3). “Mediator.”

3. Section 2(3). “Mediator.”

Several points are worth stressing with regard to the definition of mediator. First, this definition should be read in conjunction with Section 9(c) [§ 9-809(3)], which makes clear that the Act does not require that a mediator have a special qualification by background or profession. Second, this definition should be read in conjunction with the model language in Section 9(a) through (e) [§ 9-809(1) through (5)] on disclosures of conflicts of interest. Finally, the use of the word “conducts” is intended to be value neutral, and should not be read to express a preference for the manner by which mediations are conducted. Compare Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Tactics: A Grid for the Perplexed , 1 Harv. Neg. L. Rev. 7 (1996) with Joseph B. Stulberg, Facilitative vs. Evaluative Mediator Orientations: Piercing the “Grid” Lock , 24 Fla. St. U. L. Rev. 985 (1997)

4. Section 2(4). “Nonparty Participant.”

4. Section 2(4). “Nonparty Participant.”

This definition would cover experts, friends, support persons, potential parties, and others who participate in the mediation. The definition is pertinent to the privilege accorded nonparty participants in Section 4(b)(3) [§ 9-804(2)(c)], and to the ability of parties to bring attorneys or support persons in Section 10 [§ 9-810]. In the event that an attorney is deemed to be a nonparty participant, that attorney would be constricted in exercising that right by ethical provisions requiring the attorney to act in ways that are consistent with the interests of the client. See Model Rule of Professional Conduct 1.3 (Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client.); and Rule 1.6(a) (Confidentiality of Information. A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).).

5. Section 2(5). “Mediation Party.”

5. Section 2(5). “Mediation Party.”

The Act defines “mediation party” to be a person who participates in a mediation and whose agreement is necessary to resolve the dispute. These limitations are designed to prevent someone with only a passing interest in the mediation, such as a neighbor of a person embroiled in a dispute, from attending the mediation and then blocking the use of information or taking advantage of rights meant to be accorded to parties. Such a person would be a non-party participant and would have only a limited privilege. See Section 4(b)(3) [§ 9-804(2)(c)]. Similarly, counsel for a mediation party would not be a mediation party, because their agreement is not necessary to the resolution of the dispute.

Because of these structural limitations on the definition of parties, participants who do not meet the definition of “mediation party,” such as a witness or expert on a given issue, do not have the substantial rights under additional sections that are provided to parties. Rather, these non-party participants are granted a more limited privilege under Section 4(b)(3) [§ 9-804(2)(c)]. Parties seeking to apply restrictions on disclosures by such participants — including their attorneys and other representatives — should consider drafting such a confidentiality obligation into a valid and binding agreement that the participant signs as a condition of participation in the mediation. A mediation party may participate in the mediation in person, by phone, or electronically. A person, as defined in Section 2(6), may participate through a designated agent. If the party is an entity, it is the entity, rather than a particular agent, that holds the privilege afforded in Sections 4-6 [§§ 9-804 through 9-806].

6. Section 2(6). “Person.”

6. Section 2(6). “Person.”

Sections 2(6) adopts the standard language recommended by the National Conference of Commissioners of Uniform State Laws for the drafting of statutory language, and the term should be interpreted in a manner consistent with that usage.

7. Section 2(7). “Proceeding.”

7. Section 2(7). “Proceeding.”

Section 2(7) defines the proceedings to which the Act applies, and should be read broadly to effectuate the intent of the Act. It was added to allow the Drafters to delete repetitive language throughout the Act, such as judicial, administrative, arbitral, or other adjudicative processes, including related pre-hearing and post-hearing motions, conferences, and discovery, or legislative hearings or similar processes.

8. Section 2(8). “Record” and Section 2(9). “Sign.”

8. Section 2(8). “Record” and Section 2(9). “Sign.”

These Sections adopt standard language approved by the Uniform Law Conference that is intended to conform Uniform Acts with the Uniform Electronic Transactions Act (UETA) and its federal counterpart, Electronic Signatures in Global and National Commerce Act (E-Sign) (15 U.S.C 7001, et seq. (2000).

Both UETA and E-Sign were written in response to broad recognition of the commercial and other use of electronic technologies for communications and contracting, and the consensus that the choice of medium should not control the enforceability of transactions. These Sections are consistent with both UETA and E-Sign. UETA has been adopted by the Conference and received the approval of the American Bar Association House of Delegates. As of December 2001, it had been enacted in more than 35 states. See also Section 11 [§ 9-811], Relation to Electronic Signatures in Global and National Commerce Act.

The practical effect of these provisions is to make clear that electronic signatures and documents have the same authority as written ones for purposes of establishing an agreement to mediate under Section 3(a) [§ 9-803(1)], party opt-out of the mediation privilege under Section 3(c) [§ 9-803(3)], and participant waiver of the mediation privilege under Section 5(a) [§ 9-805(1)].

Prior Laws.

Former§ 9-803 was declared null and void. See Prior Laws,§ 9-801.

Another former§ 9-803, which comprised C.C.P. 1881, § 956; R.S., R.C., & C.L., § 6054; C.S. § 7996; I.C.A.,§ 16-803, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975.

Official Comment

1. In general.

The Act is broad in its coverage of mediation, a departure from the common state statutes that apply to mediation in particular contexts, such as court-connected mediation or community mediation, or to the mediation of particular types of disputes, such as worker’s compensation or civil rights. See, e.g. , Neb. Rev. Stat. Section 48-168 (1993) (worker’s compensation); Iowa Code Section 216.15A (1999) (civil rights). Moreover, unlike many mediation privileges, it also applies in some contexts in which the Rules of Evidence are not consistently followed, such as administrative hearings and arbitration.

Whether the Act in fact applies is a crucial issue because it determines not only the application of the mediation privilege but also whether the mediator has the obligations regarding the disclosure of conflicts of interest and, if asked, qualifications in Section 9 [§ 9-809]; is prohibited from making disclosures about the mediation to courts, agencies and investigative authorities in Section 7 [§ 9-807]; and must accommodate requirements regarding accompanying individuals in Section 10 [§ 9-810].

Because of the breadth of the Act’s coverage, it is important to delineate its scope with precision. Section 3(a) [(1)] sets forth three different mechanisms that trigger the Act’s coverage, and will likely cover most mediation situations that commonly arise. Section 3(b) [(2)] on the other hand, carves out a series of narrow and specific exemptions from the Act’s coverage. Finally, Section 3(c) [(3)] provides a vehicle through which parties who would be mediating in a context covered by Section 3(a) [(1)] may “opt out” of the Act’s protections and responsibilities. The central operating principle throughout this Section is that the Act should support, and guide, the parties’ reasonable expectations about whether the mediations in which they are participating are included within the scope of the Act.

2. Section 3(a) [(1)]. Mediations covered by Act; triggering mechanisms.

2. Section 3(a) [(1)]. Mediations covered by Act; triggering mechanisms.

Section 3(a) [(1)] sets forth three conditions, the satisfaction of any one of which will trigger the application of the Act. This triggering requirement is necessary because the many different forms, contexts, and practices of mediation and other methods of dispute resolution make it sometimes difficult to know with certainty whether one is engaged in a mediation or some other dispute resolution or prevention process that employs mediation and related principles. See, e.g. , Ellen J. Waxman & Howard Gadlin, Ombudsmen: A Buffer Between Institutions, Individuals , 4 Disp. Resol. Mag. 21 (Summer 1998) (describing functions of ombuds, which can at times include mediation concepts and skills); Janice Fleischer & Zena Zumeta, Group Facilitation: A Way to Address Problems Collaboratively , 4 Disp. Resol. Mag. 4 (Summer 1998) (comparing post-dispute mediation with pre-dispute facilitation); Lindsay “Peter” White, Partnering: Agreeing to Work Together on Problems , 4 Disp. Resol. Mag. 18 (Summer 1998) (describing a common collaborative problem solving technique used in the construction industry). This problem is exacerbated by the fact that unlike other professionals — such as doctors, lawyers, and social workers — mediators are not licensed and the process they conduct is informal. If the intent to mediate is not clear, even a casual discussion over a backyard fence might later be deemed to have been a mediation, unfairly surprising those involved and frustrating the reasonable expectations of the parties. The first triggering mechanism, Section 3(a)(1) [(1)(a)], subject to exceptions provided in 3(b) [(2)], covers those situations in which mediation parties are either required to mediate or referred to mediation by governmental institutions or by an arbitrator. Administrative agencies include those public agencies with the authority to prescribe rules and regulations to administer a statute, as well as the authority to adjudicate matters arising under such a statute. They include agricultural departments, child protective services, civil rights commissions and worker’s compensation boards, to name only a few. Through this triggering mechanism, the formal court-referred mediation that many people associate with mediation is clearly covered by the Act. Where Section 3(a)(1) [(1)(a)] focuses on publicly referred mediations, the second triggering mechanism, Section 3(a)(2) [(1)(b)], furthers party autonomy by allowing mediation parties and the mediator to trigger the Act by agreeing to mediate in a record that is signed by the parties and by the mediator. A later note by one party that they agreed to mediate would not constitute a record of an agreement to mediate. In addition, the record must demonstrate the expectation of the mediation parties and the mediator that the mediation communications will have a privilege against disclosure.

Yet significantly, these individuals are not required to use any magic words to obtain the protection of the Act. See Haghighi v. Russian-American Broadcasting Co. , 577 N.W.2d 927 (Minn. 1998). The lack of a requirement for magic words tracks the intent to be inclusive and to embrace the many different approaches to mediation. Moreover, were magic words required, party and mediator expectations of confidentiality under the Act might be frustrated, since a mediation would only be covered by the Act if the institution remembered to include them in any agreement.

The phrase “privileged against disclosure” clarifies the type of expectations that the record must demonstrate tin order to show an expectation of confidentiality in a subsequent legal setting. Mere generalized expectations of confidentiality in a non-legal setting are not enough to trigger the Act if the case does not fit under Sections 3(a)(1) [(1)(a)] or 3(a)(3) [(1)(c)]. Take for example a dispute in a university between the heads of the Spanish and Latin departments that is mediated or “worked out informally” with the assistance of the head of the French department, at the suggestion of the university provost. Such a mediation would not reasonably carry with it party or mediator expectations that the mediation would be conducted pursuant to an evidentiary privilege, rights of disclosure and accompaniment and the other protections and obligations of the Act. Indeed, some of the parties and the mediator may more reasonably expect that the mediation results, and even the underlying discussions, would be disclosed to the university provost, and perhaps communicated throughout the parties’ respective departments and elsewhere on campus. By contrast, however, if the university has a written policy regarding the mediation of disputes that embraces the Act, and the mediation is specifically conducted pursuant to that policy, and the parties agree to participate in mediation in a record signed by the parties, then the parties would reasonably expect that the Act would apply and conduct themselves accordingly, both in the mediation and beyond.

The third triggering mechanism, Section 3(a)(3) [(1)(c)], focuses on individuals and organizations that provide mediation services and provides that the Act applies when the mediation is conducted by one who is held out as a mediator. For example, disputing neighbors who mediate with a volunteer at a community mediation center would be covered by the Act, since the center holds itself out as providing mediation services. Similarly, mediations conducted by a private mediator who advertises his or her services as a mediator would also be covered, since the private mediator holds himself or herself out to the public as a mediator. Because the mediator is publicly held out as a mediator, the parties may reasonably expect mediations they conduct to be conducted pursuant to relevant law, specifically the Act. By including those mediations conducted by private mediators who hold themselves out as mediators, the Act tracks similar doctrines regarding other professions. In other contexts, “holding out” has included making a representation in a public manner of being in the business or having another person make that representation. See 18A Am. Jur. 2d Corporations Section 271 (1985).

Mediations can be conducted by ombuds practitioners. See Standards for the Establishment and Operation of Ombuds Offices (August 2001). If such a mediation is conducted pursuant to one of these triggering mechanisms, such as a written agreement under Section 3(a)(2) [(1)(b)], it will be protected under the terms of the Act. There is no intent by the Drafters to exclude or include mediations conducted by an ombuds a priori . The terms of the Act determine applicability, not a mediator’s formal title.

Finally, on the issue of Section 3(a) [(1)] inclusions into the Act, the Drafting Committees discussed whether it should cover the many cultural and religious practices that are similar to mediation and that use a person similar to the mediator, as defined in this Act. On the one hand, many of these cultural and religious practices, like more traditional mediation, streamline and resolve conflicts, while solving problems and restoring relationships. Some examples of these practices are Ho’oponopono, circle ceremonies, family conferencing, and pastoral or marital counseling. These cultural and religious practices bring richness to the quality of life and contribute to traditional mediation. On the other hand, there are instances in which the application of the Act to these practices would be disruptive of the practices and therefore undesirable. On balance, furthering the principle of self-determination, the Drafting Committees decided that those involved should make the choice to be covered by the Act in those instances in which other definitional requirements of Section 2 [§ 9-802] are met by entering into an agreement to mediate reflected by a record or securing a court or agency referral pursuant to Section 3(a)(1) [(1)(a)]. At the same time, these persons could opt out the Act’s coverage by not using this triggering mechanism. This leaves a great deal of leeway, appropriately, with those involved in the practices.

3. Section 3(b)(1) and (2) [(2)(a) and (b)]. Exclusion of collective bargaining disputes.

3. Section 3(b)(1) and (2) [(2)(a) and (b)]. Exclusion of collective bargaining disputes.

Collective bargaining disputes are excluded because of the longstanding, solidified, and substantially uniform mediation systems that already are in place in the collective bargaining context. See Memorandum from ABA Section of Labor and Employment Law of the American Bar Association to Uniform Mediation Act Reporters 2 (Jan. 23, 2000) (on file with UMA Drafting Committees); Letter from New York State Bar Association Labor and Employment Law Section to Reporters, Uniform Mediation Act 2-4 (Jan. 21, 2000) (on file with UMA Drafting Committees). This exclusion includes the mediation of disputes arising under the terms of a collective bargaining agreement, as well as mediations relating to the formation of a collective bargaining agreement. By contrast, the exclusion does not include employment discrimination disputes not arising under the collective bargaining agreement as well as employment disputes arising after the expiration of the collective bargaining agreement. Mediations of disputes in these contexts remain within the protections and responsibilities of the Act.

4. Section 3(b)(3) [(2)(c)]. Exclusion of certain judicial conferences.

4. Section 3(b)(3) [(2)(c)]. Exclusion of certain judicial conferences.

Difficult issues arise in mediations that are conducted by judges during the course of settlement conferences related to pending litigation, and this Section excludes certain judicially conducted mediations from the Act. Some have the concern that party autonomy in mediation may be constrained either by the direct coercion of a judicial officer who may make a subsequent ruling on the matter, or by the indirect coercive effect that inherently inures from the parties’ knowledge of the ultimate presence of that judge. See, e.g., James J. Alfini, Risk of Coercion Too Great: Judges Should Not Mediate Cases Assigned to Them For Trial , 6 Disp. Resol. Mag. 11 (Fall 1999), and Frank E.A. Sander, A Friendly Amendment , 6 Disp. Resol. Mag. 11 (Fall 1999).

This concern is further complicated by the variegated nature of judicial settlement conferences. As a general matter, judicial settlement conferences are typically conducted under court or procedural rules that are similar to Rule 16 of the Federal Rules of Civil Procedure, and have come to include a wide variety of functions, from simple case management to a venue for court-ordered mediations. See Mont. R. Civ. P., Rule 16(a). In situations in which a part of the function of judicial conferences is case management, the parties hardly have an expectation of confidentiality in the proceedings, even though there may be settlement discussions initiated or facilitated by the judge or judicial officer. In fact, such hearings frequently lead to court orders on discovery and issues limitations that are entered into the public record. In such circumstances, the policy rationales supporting the confidentiality privilege and other provisions of the Act are not furthered.

On the other hand, there are judicially-hosted settlement conferences that for all practical purposes are mediation sessions for which the Act’s policies of promoting full and frank discussions between the parties would be furthered. See generally Wayne D. Brazil, Hosting Settlement Conferences: Effectiveness in the Judicial Role , 3 Ohio St. J. on Disp. Resol. 1 (1987); Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference , 33 UCLA L. Rev. 485 (1985).

The Act recognizes the tension created by this wide variety of settlement functions by drawing a line with regard to those conferences that are covered by the Act and those that are not covered by the Act. The Act excludes those settlement conferences in which information from the mediation is communicated to a judge with responsibility for the case. This is consistent with the prohibition on mediator reports to courts in Section 7 [§ 9-807]. The term “judge” in Section 3(b)(3) [(2)(c)] includes magistrates, special masters, referees, and any other persons responsible for making rulings or recommendations on the case. However, the Act does not apply to a court mediator, or a mediator who contracts or volunteers to mediate cases for a court because they may not make later rulings on the case. Similarly mediations conducted by judges specifically and exclusively are assigned to mediate cases, so-called “buddy judges,” and retired judges who return to mediate cases do not fall within the Section 3(b)(3) [(2)(c)] exemption because such mediators do not make later rulings on the case.

Local rules are usually not recognized beyond the court’s jurisdiction, and may not provide assurance of confidentiality if the mediation communications are sought in another jurisdiction, and if the jurisdiction does not permit recognize privilege by local rule.

5. Section 3(b)(4)(A) [(2)(d)(i)]. Exclusion of peer mediation.

5. Section 3(b)(4)(A) [(2)(d)(i)]. Exclusion of peer mediation.

The Act also exempts mediations between students conducted under the auspices of school programs because the supervisory needs of schools toward students, particularly in peer mediation, may not be consistent with the confidentiality provisions of the Act. For example, school administrators need to be able to respond to, and in a proceeding verify, legitimate threats to student safety or domestic violence that may surface during a mediation between students. See Memorandum from ABA Section of Dispute Resolution to Uniform Mediation Act Reporters (Nov. 15, 1999) (on file with UMA Drafting Committees). The law has “repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Independent Community School District , 393 U.S. 503, 508 (1969), citing Epperson v. Arkansas , 393 U.S. 97, 104 (1968) and Meyer v. Nebraska , 262 U.S. 390, 402 (1923).

This exemption does not include mediations involving a teacher, parent, or other non-student as such an exemption might preclude coverage of truancy mediation and other mediation sessions for which the privilege is pertinent.

6. Section 3(b)(4)(B) [(2)(d)(ii)]. Exclusion of correctional institutions for youth.

6. Section 3(b)(4)(B) [(2)(d)(ii)]. Exclusion of correctional institutions for youth. The Act also exempts programs involving youths at correctional institutions if the mediation parties are all residents of the institution. This is to facilitate and encourage mediation and conflict prevention and resolution techniques among those juveniles who have well-documented and profound needs in those areas. Kristina H. Chung, Kids Behind Bars: The Legality of Incarcerating Juveniles in Adult Jails, 66 Ind. L.J. 999, 1021 (1991). Exempting these programs serves the same policies as are served by the peer mediation exclusion for non-incarcerated youths. The Drafters do not intend to exclude cases where at least one party is not a resident, such as a class action suit against a non-resident in which the parties mediate or attempt to mediate the case.

7. Section 3(c) [(3)]. Alternative of non-privileged mediation.

7. Section 3(c) [(3)]. Alternative of non-privileged mediation.

This Section allows the parties to opt for a non-privileged mediation or mediation session by mutual agreement, and furthers the Act’s policy of party self-determination. If the parties so agree, the privilege sections of the Act do not apply, thus fulfilling the parties reasonable expectations regarding the confidentiality of that mediation or session. For example, parties in a sophisticated commercial mediation, who are represented by counsel, may see no need for a privilege to attach to a mediation or session, and may by express written agreement “opt out” of the Act’s privilege provisions. Similarly, parties may also use this option if they wish to rely on, and therefore use in evidence, statements made during the mediation. It is the parties rather than the mediator who make this choice, although a mediator could presumably refuse to mediate a mediation or session that is not covered by this Act. Even if the parties do not agree in advance, the parties, mediator, and all nonparty participants can waive the privilege pursuant to Section 5. In this instance, however, the mediator and other participants can block the waiver in some respects.

If the parties want to opt out, they should inform the mediators or nonparty participants of this agreement, because without actual notice, the privileges of the Act still apply to the mediation communications of the persons who have not been so informed until such notice is actually received. Thus, for example, if a nonparty participant has not received notice that the opt-out has been invoked, and speaks during a mediation, that mediation communication is privileged under the Act. If, however, one of the parties or the mediator tells the nonparty participant that the opt-out has been invoked, the privilege no longer attaches to statements made after the actual notice has been provided, even though the earlier statements remain privileged because of the lack of notice.

8. Other scope issues.

The Act would apply to all mediations that fit the definitions of mediation by a mediator unless specifically excluded by the State adopting the Act. For example, a State may want to exclude international commercial conciliation, which is covered by specific statute in some States. See, e.g. , N.C. Gen. Stat. Section 1-567.60 (1991); Cal. Civ. Pro. Section 1297.401 (1988); Fla. Stat. Ann. Section 684.10 (1986).

Prior Laws.

Former§ 9-804 was declared null and void. See Prior Laws,§ 9-801.

Another former§ 9-804, which comprised C.C.P. 1881, § 957; R.S., R.C., & C.L., § 6055; C.S., § 7997; I.C.A.,§ 16-804; am. 1943, ch. 74, § 1, p. 156; am 1969, ch. 126, § 3, p. 388, was repealed by S.L. 1975, ch. 242, § 1.

Official Comment

1. In general.

2. The mediation privilege structure.

Sections 4 through 6 [§§ 9-804 through 9-806] set forth the Uniform Mediation Act’s general structure for protecting the confidentiality of mediation communications against disclosure in later legal proceedings. Section 4 [this section] sets forth the evidentiary privilege, which provides that disclosure of mediation communications generally cannot be compelled in designated proceedings or discovery and results in the exclusion of these communications from evidence and from discovery if requested by any party or, for certain communications, by a mediator or nonparty participant as well, unless within an exception delineated in Section 6 [§ 9-806] applies or the privilege is waived under the provisions of Section 5 [§ 9-805]. It further delineates the fora in which the privilege may be asserted. The term “proceeding” is defined in Section 2(7) [§ 9-802(7)]. The provisions of Sections 4-6 [§§ 9-804 through 9-806] may not be expanded by the agreement of the parties, but the protections may be waived under Section 5 [§ 9-805] or under Section 3(c) [§ 9-803(3)]. 2. The mediation privilege structure.

3. Section 4(a) [(1)]. Description of effect of privilege.

3. Section 4(a) [(1)]. Description of effect of privilege.

The words “is not subject to discovery or admissible in evidence” in Section 4(a) [(1)] make explicit that a court or other tribunal must exclude privileged communications that are protected under these sections, and may not compel discovery of them. Because the privilege is unfamiliar to many using mediation, this Section provides a description of the effect of the privilege provided in Sections 4(b) [(2)], 5, and 6 [§§ 9-805 and 9-806]. It does not change the reach of the remainder of the Section.

4. Section 4(b) [(2)]. Operation of privilege.

4. Section 4(b) [(2)]. Operation of privilege.

As with other privileges, a mediation privilege operates to allow a person to refuse to disclose and to prevent another from disclosing particular communications. See generally Strong, supra , at Section 72; Developments in the Law — Privileged Communications , 98 Harv. L. Rev. 1450 (1985).

This blocking function is critical to the operation of the privilege. As discussed in more detail below, parties have the greatest blocking power and may block provision of testimony about or other evidence of mediation communications made by anyone in the mediation, including persons other than the mediator and parties. The evidence may be blocked whether the testimony is by another party, a mediator, or any other participant. However, if all parties agree that a party should testify about a party’s mediation communications, no one else may block them from doing so, including a mediator or nonparty participant. Mediators may block their own provision of evidence, including their own testimony and evidence provided by anyone else of the mediator’s mediation communications, even if the parties consent. Nonetheless, the parties’ consent is required to admit the mediator’s provision of evidence, as well as evidence provided by another regarding the mediator’s mediation communications.

Finally, a nonparty participant may block evidence of that individual’s mediation communication regardless of who provides the evidence and whether the parties or mediator consent. Once again, nonetheless, the nonparty participant may not provide such evidence if the parties do not consent. This is consistent with fixing the limits of the privilege to protect the expectations of those persons whose candor is most important to the success of the mediation process.

a. The holders of the privilege.

1. In general.

A critical component of the Act’s general rule is its designation of the holder — i.e., the person who is eligible to raise and waive the privilege.

This designation brings both clarity and uniformity to the law. Statutory mediation privileges are somewhat unusual among evidentiary privileges in that they often do not specify who may hold and/or waive the privilege, leaving that to judicial interpretation. See, e.g., 710 Ill. Comp. Stat. Section 20/6 (1987) (community dispute resolution centers); Ind. Code Section 20-7.5-1-13 (1987) (university employee unions); Iowa Code Section 679.12 (1985) (general); Ky. Rev. Stat. Ann. Section 336.153 (1988) (labor disputes); 26 Me. Rev. Stat. Ann. Section 1026 (1999) (university employee unions); Mass. Gen. Laws ch. 150, Section 10A (1985) (labor disputes).

Those statutes that designate a holder tend to be split between those that make the parties the only holders of the privilege, and those that also make the mediator a holder. Compare Ark. Code Ann. Section 11-2-204 (1979) (labor disputes); Fla. Stat. Ann. Section 61.183 (1996) (divorce); Kan. Stat. Ann. Section 23-605 (1999) (domestic disputes); N.C. Gen. Stat. Section 41A-7(d) (1998) (fair housing); Or. Rev. Stat. Ann. Section 107.785 (1995) (divorce) (providing that the parties are the sole holders) with Ohio Rev. Code Ann. Section 2317.023 (1996) (general); Wash. Rev. Code Ann. Section 7.75.050 (1984) (dispute resolution centers (making the mediator an additional holder in some respects).

The Act adopts an approach that provides that both the parties and the mediators may assert the privilege regarding certain matters, thus giving weight to the primary concern of each rationale. See Ohio Rev. Code Ann. Section 2317.023 (1996) (general); Wash. Rev. Code Section 5.60.070 (1993) (general). In addition, the Act provides a limited privilege for nonparty participants, as discussed in Section (c) below.

2. Parties as holders.

The mediation privilege of the parties draws upon the purpose, rationale, and traditions of the attorney-client privilege, in that its paramount justification is to encourage candor by the mediation parties, just as encouraging the client’s candor is the central justification for the attorney-client privilege. See Paul R. Rice, Attorney Client Privilege in the United States 2.1-2.3 (2d ed. 1999). The analysis for the parties as holders appears quite different at first examination from traditional communications privileges because mediations involve parties whose interests appear to be adverse. However, the law of attorney-client privilege has considerable experience with situations in which multiple-client interests may conflict, and those experiences support the analogy of the mediation privilege to the attorney-client privilege. For example, the attorney-client privilege has been recognized in the context of a joint defense in which interests of the clients may conflict in part and yet one may prevent later disclosure by another. See Raytheon Co. v. Superior Court , 208 Cal. App. 3d 683, 256 Cal. Rptr. 425 (1989); United States v. McPartlin , 595 F.2d 1321 (7th Cir. 1979), cert denied , 444 U.S. 898 (1979); Visual Scene, Inc. v. Pilkington Bros., PLC , 508 So.2d 437 (Fla. App. 1987); but see Gulf Oil Corp. v. Fuller , 695 S.W.2d 769 (Tex. App. 1985) (refusing to apply the joint defense doctrine to parties who were not directly adverse); see generally Patricia Welles, A Survey of Attorney-Client Privilege in Joint Defense , 35 U. Miami L. Rev. 321 (1981). Similarly, the attorney-client privilege applies in the insurance context, in which an insurer generally has the right to control the defense of an action brought against the insured, when the insurer may be liable for some or all of the liability associated with an adverse verdict. Desriusseaux v. Val-Roc Truck Corp. , 230 A.D.2d 704 (N.Y. Supreme Ct. 1996); Paul R. Rice, Attorney-Client Privilege in the United States , 4:30-4:38 (2d ed. 1999).

It should be noted that even if the mediator loses the privilege to block or assert a privilege, the parties may still come forward and assert their privilege, thus blocking the mediator who has lost the privilege from providing testimony about the affected mediation. This Section should be read in conjunction with 9(d) below.

3. Mediator as holders.

Mediators are made holders with respect to their own mediation communications, so that they may participate candidly, and with respect to their own testimony, so that they will not be viewed as biased in future mediations, as discussed further in the Reporter’s Prefatory Note. As noted above in Section 4(a)(2) above and in commentary to Section 9(d) below, even if the mediator loses the privilege to block or assert a privilege, the parties may still come forward and assert their privilege.

4. Nonparty participants as holders.

In addition, the Act adds a privilege for the nonparty participant, though limited to the communications by that individual in the mediation. See 5 U.S.C. Section 574(a)(1). The purpose is to encourage the candid participation of experts and others who may have information that would facilitate resolution of the case. This would also cover statements prepared by such persons for the mediation and submitted as part of it, such as experts’ reports. Any party who expects to use such an expert report prepared to submit in mediation later in a legal proceeding would have to secure permission of all parties and the expert in order to do so. This is consistent with the treatment of reports prepared for mediation as mediation communications. See Section 2(2) [§ 9-802(2)].

5. Contractual notice of intent to invoke the mediation privilege.

As a practical matter, a person who holds a mediation privilege can only assert the privilege if that person knows that evidence of a mediation communication will be sought or offered at a proceeding. This presents no problem in the usual case in which the subsequent proceeding arises because of the failure of the mediation to resolve the dispute because the mediation party would be one of the parties to the proceeding in which the mediation communications are being sought. To guard against the unusual situation in which a party or mediator may wish to assert the privilege, but is unaware of the necessity, the parties and mediator may wish to contract for notification of the possible use of mediation information, as is a practice under the attorney-client privilege for joint defense consultation. See Paul R. Rice, et. al., Attorney-Client Privilege in the United States Section 18-25 (2d ed. 1999) (attorney client privilege in context of joint representation).

5. Section 4(c) [(3)]. Otherwise discoverable evidence.

5. Section 4(c) [(3)]. Otherwise discoverable evidence.

This provision acknowledges the importance of the availability of relevant evidence to the truth-seeking function of courts and administrative agencies, and makes clear that relevant evidence may not be shielded from discovery or admission at trial merely because it is communicated in a mediation. For purposes of the mediation privilege, it is the communication that is made in a mediation that is protected by the privilege, not the underlying evidence giving rise to the communication. Evidence that is communicated in a mediation is subject to discovery, just as it would be if the mediation had not taken place.

There is no “fruit of the poisonous tree” doctrine in the mediation privilege. For example, a party who learns about a witness during a mediation is not precluded by the privilege from subpoenaing that witness. This is a common exemption in mediation privilege statutes, and is also found in Uniform Rule of Evidence 408. See, e.g. , Fla. Stat. Ann. Section 44.102 (1999) (general); Minn. Stat. Ann. Section 595.02 (1996) (general); Ohio Rev. Code Ann. Section 2317.023 (1996) (general); Wash. Rev. Code Section 5.60.070 (1993) (general).

Prior Laws.

Former§ 9-805 was declared null and void. See Prior Laws,§ 9-801.

Another former§ 9-805, which comprised C.C.P. 1881, § 958; R.S., R.C., & C.L., § 6056; R.S., R.C., & C.L., § 6056; C.S., § 7998; I.C.A.,§ 16-805, was repealed by S.L. 1975, ch. 242, § 1.

Official Comment

1. Section 5(a) [(1)] and (b) [(2)]. Waiver and preclusion.

1. Section 5(a) [(1)] and (b) [(2)]. Waiver and preclusion.

Section 5 [this section] provides for waiver of privilege, and for a party, mediator, or nonparty participant to be precluded from asserting the privilege in situations in which mediation communications have been disclosed before the privilege has been asserted. Waiver must be express and either recorded through a writing or electronic record or made orally during specified types of proceedings. These rules further the principle of party autonomy in that mediation participants may generally prefer not to waive their mediation privilege rights. However, there may be situations in which one or more parties may wish to be freed from the burden of privilege, and the waiver provision permits that possibility. See, e.g., Olam v. Congress Mortgage Co. , 68 F. Supp. 2d 1110, 1131-33 (N.D. Cal. 1999).

Significantly, these provisions differ from the attorney-client privilege in that the mediation privilege does not permit waiver to be implied by conduct. See Michael H. Graham, Handbook of Federal Evidence Section 511.1 (4th ed. 1996). The rationale for requiring explicit waiver is to safeguard against the possibility of inadvertent waiver, such as through the often salutary practice of parties discussing their dispute and mediation with friends and relatives. In contrast to these settings, there is a sense of formality and awareness of legal rights in all of the proceedings to which the privilege may be waived if the waiver is oral. They generally are conducted on the record, easing the difficulties of establishing what was said. Read together with Section 4 [§ 9-804], the waiver operates as follows:

•  For testimony about mediation communications made by a party, all parties are the holders and therefore all parties must waive the privilege before a party or nonparty participant may testify or provide evidence; if that testimony is to be provided by a mediator, all parties and the mediator must waive the privilege.

•  For testimony about mediation communications that are made by the mediator, both the parties and the mediator are holders of the privilege, and therefore both the parties and the mediator must waive the privilege before a party, mediator, or nonparty participant may testify or provide evidence of a mediator’s mediation communications.

•  For testimony about mediation communications that are made by a nonparty participant, both the parties and the nonparty participants are holders of the privilege and therefore both the parties and the nonparty participant must waive before a party or nonparty participant may testify; if that testimony is to be offered through the mediator, the mediator must also waive.

Earlier drafts included provisions that permitted waiver by conduct, which is common among communications privileges. However, the Drafting Committees deleted those provisions because of concerns that mediators and parties unfamiliar with the statutory environment might waive their privilege rights inadvertently. That created the anomalous situation of permitting the opportunity for one party to blurt out potentially damaging information in the midst of a trial and then use the privilege to block the other party from contesting the truth.

To address this anomaly, the Drafters added Section 5(b) [(2)], a preclusion provision to cover situations in which the parties do not expressly waive the privilege but engage in conduct inconsistent with the assertions of the privilege, and that cause prejudice. As under existing interpretations for other communications privileges, waiver through preclusion would not typically constitute a waiver with respect to all mediation communications, only those related in subject matter. See generally Unif. R. Evid. R. 510 and 511 (1986).

Critically, the preclusion provision applies only if the disclosure prejudices another in a proceeding. It is not intended to encompass the casual recounting of the mediation session to a neighbor that is not admissible in court, but would include disclosure that would, absent the exception, allow one party to take unfair advantage of the privilege. For example, if one party’s attorney states in court that the other party admitted destroying evidence during mediation, that party should not be able to block the use of testimony to refute that statement later in that proceeding. Such advantage-taking or opportunism would be inconsistent with the policy rationales that support continued recognition of the privilege, while the casual conversation would not. Thus, if Andy and Betty were the parties in a mediation, and Andy affirmatively stated in court that Betty admitted destroying evidence during the mediation, Andy is precluded from asserting that A did not waive the privilege. If Betty decides to waive as well, evidence of Andy’s and Betty’s statements during mediation may be admitted.

Analogous doctrines have developed regarding constitutional privileges, Harris v. New York , 401 U.S. 222, 224 (1971) (shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances), and the rule of completeness in Rule 106 of the Uniform Rules of Evidence, which states that if one party introduces part of a record, an adverse party may introduce other parts when to do otherwise would be unfair. Finally, it is worth noting that in arbitration, which is sometimes conducted without an ongoing record, it will be important for waiving parties to ask the arbitrator to note the waiver. Any individual who wants notice that another has received a subpoena for mediation communications or has waived the privilege can provide for notification as a clause in the agreement to mediate or the mediated agreement.

2. Section 5(c) [(3)]. Preclusion for use of mediation to plan or commit crime.

2. Section 5(c) [(3)]. Preclusion for use of mediation to plan or commit crime.

This preclusion reflects a common practice in the States of exempting from confidentiality protection those mediation communications that relate to the ongoing or future commission of a crime, as discussed in the Comments to Section 6(a)(4) [§ 9-806(1)(d)]. However, it narrows the preclusion, thus retaining broader confidentiality, and removes the privilege protection only when an actor uses or attempts to use the mediation itself to further the commission of a crime, rather than lifting the confidentiality protection more broadly to any discussion of crimes. For example, it would preclude gang members from claiming that a meeting to plan a drug deal was really a mediation that would privilege those communications in a later criminal or civil case.

This Section should be read together with Section 6(a)(4) [§ 9-806(1)(d)], which applies to particular communications within a mediation which are used for the same purposes. The two differ on the purpose of the mediation: Section 5(c) [(3)] applies when the mediation itself is used to further a crime, while Section 6(a)(4) [§ 9-806(1)(d)] applies to matters that are being mediated for other purposes but which include discussion of acts or statements that may be deemed criminal in nature. Under Section 5(c) [(3)], the preclusion applies to all mediation communications because the purpose of the mediation frustrates public policy. Under Section 6(a)(4) [§ 9-806(1)(d)], the preclusion only applies to those mediation communications that have a criminal character; the privilege may still be asserted to block the introduction of other communications made during the mediation. This rationale is discussed more fully in the comments to Section 6(a)(4) [§ 9-806(1)(d)].

Prior Laws.

Former§ 9-806 was declared null and void. See Prior Laws,§ 9-801.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “sections 9-337 through 9-347” in paragraph (1)(b).

Official Comment

1. In general.

This Section articulates specific and exclusive exceptions to the broad grant of privilege provided to mediation communications in Section 4 [§ 9-804]. As with other privileges, when it is necessary to consider evidence in order to determine if an exception applies, the Act contemplates that a court will hold an in camera proceeding at which the claim for exemption from the privilege can be confidentially asserted and defended. See, e.g., Rinaker v. Superior Court, 74 Cal. Rptr. 2d 464, 466 (Ct. App. 1998); Olam v. Congress Mortgage Co. , 68 F. Supp. 2d 1110, 1131-33 (N.D. Cal. 1999) (discussing whether an in camera hearing is necessary).

The exceptions in Section 6(a) [(1)] apply regardless of the need for the evidence because society’s interest in the information contained in the mediation communications may be said to categorically outweigh its interest in the confidentiality of mediation communications. In contrast, the exceptions under Section 6(b) [(2)] would apply only in situations where the relative strengths of society’s interest in a mediation communication and mediation participant interest in confidentiality can only be measured under the facts and circumstances of the particular case. The Act places the burden on the proponent of the evidence to persuade the court in a non-public hearing that the evidence is not otherwise available, that the need for the evidence substantially outweighs the confidentiality interests and that the evidence comes within one of the exceptions listed under Section 6(b) [(2)]. In other words, the exceptions listed in 6(b) [(2)] include situations that should remain confidential but for overriding concerns for justice.

2. Section 6(a)(1) [(1)(a)]. Record of an agreement.

2. Section 6(a)(1) [(1)(a)]. Record of an agreement.

This exception would permit evidence of a signed agreement, such as an agreement to mediate, an agreement regarding how the mediation should be conducted — including whether the parties and mediator may disclose outside of proceedings, or, more commonly, written agreements memorializing the parties’ resolution of the dispute. The exception permits such an agreement to be introduced in a subsequent court proceeding convened to determine whether the terms of that settlement agreement had been breached.

The words “agreement evidenced by a record” and “signed” refer to written and executed agreements, those recorded by tape recorded and ascribed to by the parties on the tape, and other electronic means to record and sign, as defined in Sections 2(9) and 2(10) [§ 9-802(9) and (10)]. In other words, a participant’s notes about an oral agreement would not be a signed agreement. On the other hand, the following situations would be considered a signed agreement: a handwritten agreement that the parties have signed, an e-mail exchange between the parties in which they agree to particular provisions, and a tape recording in which they state what constitutes their agreement.

Written agreements are commonly excepted from mediation confidentiality protections, permitting the Act to embrace current practices in a majority of States. See Ariz. Rev. Stat. Ann. Section 12-2238 (1993); Cal. Evid. Code Section 1120(1) (1997) (general); Cal. Evid. Code Section 1123 (1997) (general); Cal. Gov’t Code Section 12980(i) (1998) (housing discrimination); Colo. Rev. Stat. Section 24-34-506.5 (1993) (housing discrimination); Ga. Code Ann. Section 45-19-36(e) (1989) (fair employment); 775 Ill. Comp. Stat. Section 5/7B-102(E)(3) (1989) (human rights); Ind. Code Section 679.2 (1998) (general); Iowa. Code Ann. Section 216.15(B) (1999) (civil rights); Ky. Rev. Stat. Ann. Section 344.200(4) (1996) (civil rights); La. Rev. Stat. Ann. Section 9:4112(B)(1)(c) (1997) (general); La. Rev. Stat. Ann. Section 51:2257(D) (1998) (human rights); 5 Me. Rev. Stat. Ann. Section 4612(1)(A) (1995) (human rights); Md. Code 1957 Ann. Art. 49(B) Section 28 (1991) (human rights); Mass. Gen. Laws. ch. 151B, Section 5 (1991) (job discrimination); Mo. Rev. Stat. Section 213.077 (1992) (human rights); Neb. Rev. Stat. Section 43-2908 (1993) (parenting act); N.J. Stat. Ann. Section 10:5-14 (1992) (civil rights); Or. Rev. Stat. Ann. Section 36.220(2)(a) (1997) (general); Or. Rev. Stat. Ann. 36.262 (1989) (agricultural foreclosure); 42 Pa. Consol. Stat. Section 5949(b)(1) (1996) (general); Tenn. Code Ann. Section 4-21-303(d) (1996) (human rights); Tex. Gov’t Code Ann. Section 2008.057 (1999) (Administrative Procedure Act); Vt. R. Civ. P., Rule 16.3 (1998) (general civil); Va. Code Ann. Section 8.01-576.10 (1994) (general); Va. Code Ann. Section 8.01-581.22 (1988) (general); Wash. Rev. Code Section 5.60.070 (1)(e) and (f) (1993) (general); Wash. Rev. Code Section 26.09.015(3) (1991) (divorce); Wash. Rev. Code Section 49.60.240 (1995) (human rights); W. Va. Code Section 5-11A-11(b)(4) (1992) (fair housing); W. Va. Code Section 6B-2-4(r) (1990) (public employees); Wis. Stat. Section 767.11(12) (1993) (family court); Wis. Stat. Section 904.085(4)(a) (1997) (general). This exception is noteworthy only for what is not included: oral agreements. The disadvantage of exempting oral settlements is that nearly everything said during a mediation session could bear on either whether the parties came to an agreement or the content of the agreement. In other words, an exception for oral agreements has the potential to swallow the rule of privilege. As a result, mediation participants might be less candid, not knowing whether a controversy later would erupt over an oral agreement. Unfortunately, excluding evidence of oral settlements reached during a mediation session would operate to the disadvantage of a less legally sophisticated party who is accustomed to the enforcement of oral settlements reached in negotiations. Such a person might also mistakenly assume the admissibility of evidence of oral settlements reached in mediation as well. However, because the majority of courts and statutes limit the confidentiality exception to signed written agreements, one would expect that mediators and others will soon incorporate knowledge of a writing requirement into their practices. See Vernon v. Acton , 732 N.E.2d 805 (Ind., 2000) (citing draft Uniform Mediation Act); Ryan v. Garcia, 27 Cal. App. 4th 1006, 1012 (1994) (privilege statute precluded evidence of oral agreement); Hudson v. Hudson , 600 So.2d 7, 9 (Fla. App. 1992) (privilege statute precluded evidence of oral settlement); Ohio Rev. Code Ann. Section 2317.023 (1996). For an example of a state statute permitting the enforcement of oral agreements under certain narrow circumstances, see Cal. Evid. Code Section 1118, 1124 (1997) (providing that oral agreement must be memorialized in writing within 72 hours).

Despite the limitation on oral agreements, the Act leaves parties other means to preserve the agreement quickly. For example, parties can agree that the mediation has ended, state their oral agreement into the tape recorder and record their assent. See Regents of the University of California v. Sumner , 42 Cal. App. 4th 1209, 1212 (1996). This approach was codified in Cal. Evid. Code Section 1118, 1124 (1997).

The parties may still provide that particular settlements agreements are confidential with regard to disclosure to the general public, and provide for sanctions for the party who discloses voluntarily. See Stephen A. Hochman, Confidentiality in Mediation: A Trap for the Unwary , SB41 ALI-ABA 605 (1995). However, confidentiality agreements reached in mediation, like those in other settlement situations, are subject to the need for evidence and public policy considerations. See Cole et al., supra , Section 9.23, 9.25.

3. Section 6(a)(2) [(1)(b)]. Mediations open to the public; meetings and records made open by law.

3. Section 6(a)(2) [(1)(b)]. Mediations open to the public; meetings and records made open by law.

Section 6(a)(2) [(1)(b)] makes clear that the privileges in Section 4 [§ 9-804] do not preempt state open meetings and open records laws, thus deferring to the policies of the individual States regarding the types of meetings that will be subject to these laws. In addition, it provides an exception when the mediation is opened to the public, such as a televised mediation.

This exception recognizes that there should be no after-the-fact confidentiality for communications that were made in a meeting that was either voluntarily open to the public — such as a workgroup meeting in a federal negotiated rule making that was made open to the general public, even though not required by Federal Advisory Committee Act (FACA) to be open — or was required to be open to the public pursuant to an open meeting law. For example, the Act would provide no privilege if an agency holds a closed meeting but FACA would require that it be open. This exception also applies if a meeting was properly closed but an open record law requires that the meeting summaries or other documents — perhaps even a transcript — be made available under certain circumstances, e.g. the Federal Sunshine Act (5 U.S.C. 552b (1995). In this situation, only the records would be excepted from the privilege, however.

4. Section 6(a)(3) [(1)(c)]. Threats of bodily injury or to commit a crime of violence.

4. Section 6(a)(3) [(1)(c)]. Threats of bodily injury or to commit a crime of violence.

The policy rationales supporting the privilege do not support mediation communications that threaten bodily injury or crimes of violence. To the contrary, in cases in which a credible threat has been made disclosure would serve the public interest in safety and the protection of others. Because such statements are sometimes made in anger with no intention to commit the act, the exception is a narrow one that applies only to the threatening statements; the remainder of the mediation communication remains protected against disclosure.

State mediation confidentiality statutes frequently recognize a similar exception. See Alaska Stat. Section 47.12.450(e) (1998) (community dispute resolution centers) (admissible to extent relevant to a criminal matter); Colo. Rev. Stat. Section 13-22-307 (1998) (general) (bodily injury); Kan. Stat. Ann. Section 23-605(b)(5) (1999) (domestic relations) (mediator may report threats of violence to court); Or. Rev. Stat. Section 36.220(6) (1997) (general) (substantial bodily injury to specific person); 42 Pa. Cons. St. Ann. Section 5949(2)(I) (1996) (general) (threats of bodily injury); Wash. Rev. Code Section 7.75.050 (1984) (community dispute resolution centers) (threats of bodily injury); Wyo. Stat. Section 1-43-103 (c)(ii) (1991) (general) (future crime or harmful act).

5. Section 6(a)(4) [(1)(d)]. Communications used to plan or commit a crime.

5. Section 6(a)(4) [(1)(d)]. Communications used to plan or commit a crime.

The policies underlying this provision mirror those underlying Section 5(c) [§ 9-805(3)], and are discussed there. This exception applies to particular communications used to plan or commit a crime, whereas Section 5(c) [§ 9-805(3)] applies when the mediation is used for these purposes. It includes communication intentionally used to conceal an ongoing crime or criminal activity.

Almost a dozen States currently have mediation confidentiality protections that contain exceptions related to a commission of a crime. Colo. Rev Stat. Section 13-22-307 (1991) (general) (future felony); Fla. Stat. Ann. Section 723.038 (mobile home parks) (ongoing or future crime or fraud); Iowa Code Section 216.15B (1999) (civil rights); Iowa Code Section 654A.13 (1990) (farmer-lender); Iowa Code Section 679C.2 (1998) (general) (ongoing or future crimes); Kan. Stat. Ann. Section 23-605(b)(3) (1989) (ongoing and future crime or fraud); Kan. Stat. Ann. Section 44-817(c)(3) (1996) (labor) (ongoing and future crime or fraud); Kan. Stat. Ann. Section 75-4332(d)(3) (1996) (public employment) (ongoing and future crime or fraud); 24 Me. Rev. Stat. Ann. Section 2857(2) (1999) (health care) (to prove fraud during mediation); Minn. Stat. Section 595.02(1)(a) (1996) (general); Neb. Rev. Stat. Section 25-2914 (1994) (general) (crime or fraud); N.H. Rev. Stat. Ann. Section 328-C:9(III) (1998) (domestic relations) (perjury in mediation); N.J. Stat Ann. Section 34:13A-16(h) (1997) (workers’ compensation) (any crime); N.Y. Lab. Laws Section 702-a(5) (1991) (past crimes) (labor mediation); Or. Rev. Stat. Ann. Section 36.220(6) (1997) (general) (future bodily harm to a specific person); S.D. Codified Laws Section 19-13-32 (1998) (general) (crime or fraud); Wyo. Stat. Ann. Section 1-43-103(c)(ii) (1991) (future crime). While ready to exempt attempts to commit or the commission of crimes from confidentiality protection, the Drafting Committees declined to cover “fraud” that would not also constitute a crime because civil cases frequently include allegations of fraud, with varying degrees of merit, and the mediation would appropriately focus on discussion of fraud claims. Some state statutes do exempt fraud, although less frequently than they do crime. See, e.g., Fla. Stat. Ann. Section 723.038(8) (1994) (mobile home parks) (communications made in furtherance of commission of crime or fraud); Kan. Stat. Ann. Section 23-605(b)(3) (1999) (domestic relations) (ongoing crime or fraud); Kan. Stat. Ann. Section 44-817(c)(3) (1996) (labor) (ongoing crime or fraud); Kan. Stat. Ann. Section 60-452(b)(3) (1964) (general) (ongoing or future crime or fraud); Kan. Stat. Ann. Section 75-4332(d)(3) (1996) (public employment) (ongoing or future crime or fraud); Neb. Rev. Stat. Section 25-2914 (1994) (general) (crime or fraud); S.D. Codified Laws Section 19-13-32 (1998) (general) (crime or fraud).

Significantly, this exception does not cover mediation communications constituting admissions of past crimes, or past potential crimes, which remain privileged. Thus, for example, discussions of past aggressive positions with regard to taxation or other matters of regulatory compliance in commercial mediations remain privileged against possible use in subsequent or simultaneous civil proceedings. The Drafting Committees discussed the possibility of creating an exception for the related circumstance in which a party makes an admission of past conduct that portends future bad conduct. However, they decided against such an expansion of this exception because such past conduct can already be disclosed in other important ways. The other parties can warn others, because parties are not prohibited from disclosing by the Act. The Act permits the mediator to disclose if required by law to disclose felonies or if public policy requires.

It is important to emphasize that the Act’s limited focus as an evidentiary and discovery privilege, rather than a broader rule of confidentiality means that this privilege provision would not prevent a party from calling the police, or warning someone in danger.

Finally, it should be noted that this exception is intended to prevent the abuse of the privilege as a shield to evidence that might be necessary to prosecute or defend a crime. The Drafters recognize that it is possible that the exception itself could be abused. Such unethical or bad faith conduct would continue to be subject to traditional sanction standards.

6. Section 6(a)(5) [(1)(e)]. Evidence of professional misconduct or malpractice by the mediator.

6. Section 6(a)(5) [(1)(e)]. Evidence of professional misconduct or malpractice by the mediator.

The rationale behind the exception is that disclosures may be necessary to promote accountability of mediators by allowing for grievances to be brought against mediators, and as a matter of fundamental fairness, to permit the mediator to defend against such a claim. Moreover, permitting complaints against the mediator furthers the central rationale that States have used to reject the traditional basis of licensure and credentialing for assuring quality in professional practice: that private actions will serve an adequate regulatory function and sift out incompetent or unethical providers through liability and the rejection of service. See, e.g., W. Lee Dobbins, The Debate Over Mediator Qualifications: Can They Satisfy the Growing Need to Measure Competence Without Barring Entry into the Market? , U. Fla. J. L. & Pub. Pol’y 95, 96-98 (1995).

7. Section 6(a)(6) [(1)(f)]. Evidence of professional misconduct or malpractice by a party or representative of a party.

7. Section 6(a)(6) [(1)(f)]. Evidence of professional misconduct or malpractice by a party or representative of a party.

Sometimes the issue arises whether anyone may provide evidence of professional misconduct or malpractice occurring during the mediation. See In re Waller , 573 A.2d 780 (D.C. App. 1990); see generally Pamela Kentra, Hear No Evil, See No Evil, Speak No Evil: The Intolerable Conflict for Attorney-Mediators Between the Duty to Maintain Mediation Confidentiality and the Duty to Report Fellow Attorney Misconduct , 1997 B.Y.U.L. Rev. 715, 740-751. The failure to provide an exception for such evidence would mean that lawyers and fiduciaries could act unethically or in violation of standards without concern that evidence of the misconduct would later be admissible in a proceeding brought for recourse. This exception makes it possible to use testimony of anyone except the mediator in proceedings at which such a claim is made or defended. Because of the potential adverse impact on a mediator’s appearance of impartiality, the use of mediator testimony is more guarded, and therefore protected by Section 6(c) [(3)]. It is important to note that evidence fitting this exception would still be protected in other types of proceedings, such as those related to the dispute being mediated.

Reporting requirements operate independently of the privilege and this exception. Mediators and other are not precluded by the Act from reporting misconduct to an agency or tribunal other than one that might make a ruling on the dispute being mediated, which is precluded by Section 8(a) and (b) [§ 9-807(1) and (2)].

8. Section 6(a)(7) [(1)(g)]. Evidence of abuse or neglect.

8. Section 6(a)(7) [(1)(g)]. Evidence of abuse or neglect.

An exception for child abuse and neglect is common in domestic mediation confidentiality statutes, and the Act reaffirms these important policy choices States have made to protect their citizens. See, e.g. , Iowa. Code Ann. Section 679c.3(4) (1998) (general); Kan. Stat. Ann. Section 23-605(b)(2) (1999) (domestic relations); Kan. Stat. Ann. Section 38-1522(a) (1997) (general); Kan. Stat. Ann. Section 44-817(c))(2) (1996) (labor); Kan. Stat. Ann. Section 72-5427(e)(2) (1996) (teachers); Kan. Stat. Ann. Section 75-4332(d)(1) (1996) (public employment); Minn. Stat. Ann. Section 595.02(2)(a)(5) (1996) (general); Mont. Code Ann. Section 41-3-404 (1999) (child abuse investigations) (mediator may not be compelled to testify); Neb. Rev. Stat. Section 43-2908 (1993) (parenting act) (in camera); N.H. Rev. Stat. Ann. Section 328-C:9(III)(c) (1998) (marital); N.C. Gen. Stat. Section 7A-38.1(L) (1999) (superior court); N.C. Gen. Stat. Section 7A-38.4(K) (1999) (district courts); Ohio Rev. Code Ann. Section 3109.052(c) (1990) (child custody); Ohio Rev. Code Ann. Section 5123.601 (1988) (mental retardation); Ohio Rev. Code Ann. Section 2317.02 (1998) (general); Or. Rev. Stat. Section 36.220(5) (1997) (general); Tenn. Code Ann. Section 36-4-130(b)(5) (1993) (divorce); Utah Code Ann. Section 30-3-38(4) (2000) (divorce) (mediator shall report); Va. Code Ann. Section 63.1-248.3(A)(10) (2000) (welfare); Wis. Stat. Section 48.981(2) (1997) (social services): Wis. Stat. Section 904.085(4)(d) (1997) (general); Wyo. Stat. Section 1-43-103(c)(iii) (1991) (general). But see Ariz. Rev. Stat. Ann. Section 8-807(B) (1998) (child abuse investigations) (rejecting rule of disclosure).

By referring to “child and adult protective services agency,” the exception broadens the coverage to include the elderly and disabled if that State has protected them by statute and has created an agency enforcement process. It should be stressed that this exception applies only to permit disclosures in public agency proceedings in which the agency is a party or nonparty participant. The exception does not apply in private actions, such as divorce, because the need for the evidence is not as great as in proceedings brought to protect against abuse and neglect so that the harm can be stopped, and is outweighed by the policy of promoting candor during mediation. For example, in a mediation between Husband and Wife who are seeking a divorce, Husband admits to sexually abusing a child. Husband’s admission would not be privileged in an action brought by the public agency to protect the child, but would be privileged in the divorce hearings. The last bracketed phrases make an exception to the exception to privilege of mediation communications in certain mediations involving such public agencies. Child protection agencies in many States have created mediation programs to resolve issues that arise because of allegations of abuse. Those advocating the use of mediation in these contexts point to the need for privilege to promote the use of the process, and these alternatives provide it. National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving the Child Abuse and Neglect Court Process , 1995. These alternatives are bracketed and offered to the states as recommended model provisions because of concerns raised by some mediators of such cases that mediator testimony sometimes can be necessary and appropriate to secure the safety of a vulnerable party in a situation of abuse. See Letter from American Bar Association Commission on Mental and Physical Disability Law, November 15, 2000 (on file with Drafting Committees).

The words “child or adult protection” are bracketed so that States using a different term or encouraging mediation of disputes arising from abuse of other protected classes can add appropriate language.

Each state may chose to enact either Alternative A or Alternative B. The Alternative A exception only applies to cases referred by the court or public agency. In this situation, allegations already have been made in an official context and a court has made the determination that settlement of that case is in the public interest by referring it to mediation. In Alternative B exception, no court referral is required. A state enacting Alternative B would be adopting a policy that it is sufficient that the public agency favors settlement of a particular case by its participation in the mediation. [Idaho adopted Alternative B.]

The term “public agency” may have to be modified in a State in which a private agency is charged by law to assume the duties to protect children in these contexts.

9. Section 6(b) [(2)]. Exceptions requiring demonstration of need.

9. Section 6(b) [(2)]. Exceptions requiring demonstration of need.

The exceptions under this Section constitute less common fact patterns that may sometimes justify carving an exception, but only when the unique facts and circumstances of the case demonstrate that the evidence is otherwise unavailable, and the need for the evidence outweighs the policies underlying the privilege. Thus, Section 6(b) [(2)] effectively places the burden on the proponent to persuade the court on these points. The evidence will not be disclosed absent a finding on these points after an in camera hearing. Further, under Section 6(d) [(4)] the evidence will be admitted only for that limited purpose.

10. Section 6(b)(1) [(2)(a)]. Felony and misdemeanors.

10. Section 6(b)(1) [(2)(a)]. Felony and misdemeanors.

As noted in the commentary to Section 6, point 5, the Act affords more specialized treatment for the use of mediation communications in subsequent felony proceedings, which reflects the unique character, considerations, and concerns that attend the need for evidence in the criminal process. States may also wish to extend this specialized treatment to misdemeanors, and the Drafters offer appropriate model language for states in that event. Existing privilege statutes are silent or split as to whether they apply only to civil proceedings, apply also to some juvenile or misdemeanor proceedings, or apply as well to all criminal proceedings. The split among the States reflects clashing policy interests. One the one hand, mediation participants operating under the benefit of a privilege might reasonably expect that statements made in mediation would not be available for use in a later felony prosecution. The candor this expectation promotes is precisely that which the mediation privilege seeks to protect. It is also the basis upon which many criminal courts throughout the country have established victim-offender mediation programs, which have enjoyed great success in misdemeanor, and, increasingly, felony cases. See generally Nancy Hirshman, Mediating Misdemeanors: Big Successes in Smaller Cases , 7 Disp. Resol Mag. 12 (Fall 2000); Mark S. Umbreit, The Handbook of Victim Offender Mediation (2001). Public policy, for example, specifically supports the mediation of gang disputes, and these programs may be less successful if the parties cannot discuss the criminal acts underlying the disputes. Cal. Penal Code Section 13826.6 (1996) (mediation of gang-related disputes); Colo. Rev. Stat. Section 22-25-104.5 (1994) (mediation of gang-related disputes).

On the other hand, society’s need for evidence to avoid an inaccurate decision is greatest in the criminal context — both for evidence that might convict the guilty and exonerate the innocent — because the stakes of human liberty and public safety are at their zenith. For this reason, even without this exception, the courts can be expected to weigh heavily the need for the evidence in a particular case, and sometimes will rule that the defendant’s constitutional rights require disclosure. See Rinaker v. Superior Court , 74 Cal. Rptr. 2d 464, 466 (Ct. App. 1998) (juvenile’s constitutional right to confrontation in civil juvenile delinquency trumps mediator’s statutory right not to be called as a witness); State v. Castellano , 460 So.2d 480 (Fla. App. 1984) (statute excluding evidence of an offer of compromise presented to prove liability or absence of liability for a claim or its value does not preclude mediator from testifying in a criminal proceeding regarding alleged threat made by one party to another in mediation). See also Davis v. Alaska , 415 U.S. 308 (1974).

After great consideration and public comment, the Drafting Committees decided to leave the critical balancing of these competing interests to the sound discretion of the courts to determine under the facts and circumstances of each case. It is drafted in a manner to ensure that both the prosecution and the defense have the same right with respect to evidence, thus assuring a level playing field. In addition, it puts the parties on notice of this limitation on confidentiality.

11. Section 6(b)(2) [(2)(b)]. Validity and enforceability of settlement agreement.

11. Section 6(b)(2) [(2)(b)]. Validity and enforceability of settlement agreement.

12. Section 6(c) [(3)]. Mediator not compelled.

This exception is designed to preserve traditional contract defenses to the enforcement of the mediated settlement agreement that relate to the integrity of the mediation process, which otherwise would be unavailable if based on mediation communications. A recent Texas case provides an example. An action was brought to enforce a mediated settlement. The defendant raised the defense of duress and sought to introduce evidence that he had asked the mediator to permit him to leave because of chest pains and a history of heart trouble, and that the mediator had refused to let him leave the mediation session. See Randle v. Mid Gulf, Inc., No. 14-95-01292, 1996 Tex. App. LEXIS 3451 (Tex App. 1996) (unpublished). The exception might also allow party testimony in a personal injury case that the driver denied having insurance, causing the plaintiff to rely and settle on that basis, where such a misstatement would be a basis for reforming or avoiding liability under the settlement. Under this exception the evidence will not be privileged if the weighing requirements are met. This exception differs from the exception for a record of an agreement in Section 6(a)(1) [(1)(a)] in that Section 6(a)(1) [(1)(a)] only exempts the admissibility of the record of the agreement itself, while the exception in Section 6(b)(2) [(2)(a)] is broader in that it would permit the admissibility of other mediation communications that are necessary to establish or refute a defense to the validity of a mediated settlement agreement. 12. Section 6(c) [(3)]. Mediator not compelled.

Section 6(c) [(3)] allows the mediator to decline to testify or otherwise provide evidence in a professional misconduct and mediated settlement enforcement cases to protect against frequent attempts to use the mediator as a tie-breaking witness, which would undermine the integrity of the mediation process and the impartiality of the individual mediator. Nonetheless, the parties and others may testify or provide evidence in such cases.

This Section is discussed in the comments to Sections 6(a)(7) [(1)(g)] and 6(b)(2) [(2)(b)]. The mediator may still testify voluntarily if the exceptions apply, or the parties waive their privilege, but the mediator may not be compelled to do so.

13. Section 6(d) [(4)]. Limitations on exceptions.

13. Section 6(d) [(4)]. Limitations on exceptions.

This Section makes clear the limited use that may be made of mediation communications that are admitted under the exceptions delineated in Sections 6(a) [(1)] and 6(b) [(2)]. For example, if a statement evidencing child abuse is admitted at a proceeding to protect the child, the rest of the mediation communications remain privileged for that proceeding, and the statement of abuse itself remains privileged for the pending divorce or other proceedings.

Prior Laws.

Former§ 9-807 was declared null and void. See Prior Laws,§ 9-801.

Another former§ 9-807, which comprised C.C.P. 1881, § 960; R.S., R.C., & C.L., § 6058; C.S., § 8000; I.C.A.,§ 16-807, was repealed by S.L. 1975, ch. 242, § 1.

Official Comment

1. Section 7. Disclosures by the mediator to an authority that may make a ruling on the dispute being mediated.

Section 7(a) [(1)] prohibits communications by the mediator in prescribed circumstances. In contrast to the privilege, which gives a right to refuse to provide evidence in a subsequent legal proceeding, this Section creates a prohibition against disclosure.

Some states have already adopted similar prohibitions. See, e.g. , Cal. Evid. Code Section 1121 (1997); Fla. Stat. Ann. Section 373.71 (1999) (water resources); Tex. Civ. Prac. & Rem. Code Section 154.053 (c) (1999) (general). Disclosures of mediation communications to a judge also could run afoul of prohibitions against ex parte communications with judges. See Code of Conduct for Federal Judges, Canon 3(A)(3), 175 F.R.D. 364, 367 (1998); American Bar Association Model Code of Conduct of Judicial Conduct at 9. The purpose of this Section is consistent with the conclusions of seminal reports in the mediation field condemn the use of such reports as permitting coercion by the mediator and destroying confidence in the neutrality of the mediator and in the mediation process. See Society for Professionals in Dispute Resolution, Mandated Participation and Settlement Coercion: Dispute Resolution as it Relates to the Courts (1991); Center for Dispute Settlement, National Standards for Court-Connected Mediation Programs (D.C. 1992).

Importantly, the prohibition is limited to reports or other listed communications to those who may rule on the dispute being mediated. While the mediators are thus constrained in terms of reports to courts and others that may make rulings on the case, they are not prohibited from reporting threatened harm to appropriate authorities, for example, if learned during a mediation to settle a civil dispute. In this regard, Section 7(b)(3) [(2)(c)] responds to public concerns about clarity and makes explicit what is otherwise implied in the Act, that mediators are not constrained by this Section in their ability to disclose threats to the safety and well being of vulnerable parties to appropriate public authorities, and is consistent with the exception for disclosure in proceedings in Section 6(a)(7) [§ 9-806(1)(g)]. Similarly, while the provision prohibits mediators from making these reports, it does not constrain the parties.

The communications by the mediator to the court or other authority are broadly defined. The provisions would not permit a mediator to communicate, for example, on whether a particular party engaged in “good faith” negotiation, or to state whether a party had been “the problem” in reaching a settlement. Section 7(b)(1) [(2)(a)], however, does permit disclosure of particular facts, including attendance and whether a settlement was reached. For example, a mediator may report that one party did not attend and another attended only for the first five minutes. States with “good faith” mediation laws or court rules may want to consider the interplay between such laws and this Section of the Act.

Prior Laws.

Former§ 9-808 was declared null and void. See Prior Laws,§ 9-801.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1 or 2, title 74” for “sections 9-337 through 9-347 or 67-2340 through 67-2347”.

Official Comment

The evidentiary privilege granted in Sections 4 to 6 [§§ 9-804 through 9-806] assures party expectations regarding the confidentiality of mediation communications against disclosures in subsequent legal proceedings. However, it is also possible for mediation communications to be disclosed outside of proceedings, for example to family members, friends, business associates and the general public. Section 8 focuses on such disclosures.

Prior Laws.

Former§ 9-809 was declared null and void. See Prior Laws,§ 9-801.

Official Comment

1. Sections 9(a) [(1)] and 9(b) [(2)]. Disclosure of mediator’s conflicts of interest.

1. Sections 9(a) [(1)] and 9(b) [(2)]. Disclosure of mediator’s conflicts of interest.

2. Section 9(c) [(3)] and (f) [(6)]. Disclosure of mediator’s qualifications

2. Section 9(c) [(3)] and (f) [(6)]. Disclosure of mediator’s qualifications

Sections 9(c) [(3)] and (f) [(6)] address the issue of mediator qualifications, and, like the conflicts of interest provision, are intended to further principles of party autonomy and informed consent. In particular, these Sections do not require mediators to have certain qualifications, specifically including a law degree; nor, unlike the conflicts of interest provision, do they impose an affirmative duty on the mediator to disclose qualifications. Rather, the mediator’s obligation is responsive: if a party asks for the mediator’s qualifications to mediate a particular dispute, the mediator must provide those qualifications.

In some situations, the parties may make clear that they care about the mediator’s substantive knowledge of the context of the dispute, or that they want to know whether the mediator in the past has used a purely facilitative mediation process or instead an evaluative approach. Compare Leonard L. Riskin, Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed , 1 Harv. Negotiation L. Rev. 7 (1996) with Joseph B. Stulberg, Facilitative Versus Evaluative Mediator Orientations: Piercing The “Grid” Lock , 24 Fla. State Univ. L. Rev. 985 (1997); see generally Symposium , Fla. State Univ. L. Rev. (1997). Experience mediating would seem important to some parties, and indeed this is one aspect of the mediator’s background that has been shown to correlate with effectiveness in reaching settlement. See, e.g. , Jessica Pearson & Nancy Thoennes, Divorce Mediation Research Results, in Divorce Mediation: Theory and Practice , 429, 436 (Folberg & Milne, eds., 1988); Roselle L. Wissler, A Closer Look at Settlement Week , 4 Disp. Resol. Mag. 28 (Summer 1998).

It must be stressed that the Act does not establish mediator qualifications. No consensus has emerged in the law, research, or commentary as to those mediator qualifications that will best produce effectiveness or fairness. As clarified by Section 9(f) [(6)], mediators need not be lawyers. In fact, the American Bar Association Section on Dispute Resolution has issued a statement that “dispute resolution programs should permit all individuals who have appropriate training and qualifications to serve as neutrals, regardless of whether they are lawyers.” ABA Section of Dispute Resolution Council Res., April 28, 1999.

At the same time, the law and commentary recognize that the quality of the mediator is important and that the courts and public agencies referring cases to mediation have a heightened responsibility to assure it. See generally Cole et al., supra , Section 11.02 (discussing laws regarding mediator qualifications); Center for Dispute Settlement, National Standards for Court-Connected Mediation Programs (1992); Society for Professionals in Dispute Resolution Commission on Qualifications, Qualifying Neutrals: The Basic Principles (1989); Society for Professionals in Dispute Resolution Commission on Qualifications, Ensuring Competence and Quality in Dispute Resolution Practice (1995); Society for Professionals in Dispute Resolution, Qualifying Dispute Resolution Practitioners: Guidelines for Court-Connected Programs (1997).

The decision of the Drafting Committees against prescribing qualifications should not be interpreted as a disregard for the importance of qualifications. Rather, respecting the unique characteristics that may qualify a particular mediator for a particular mediation, the silence of the Act reflects the difficulty of addressing the topic in a uniform statute that applies to mediation in a variety of contexts. Qualifications may be important, but they need not be uniform. It is not the intent of the Act to preclude a statute, court or administrative agency rule, arbitrator or contract between the parties from requiring that a mediator have a particular background or profession; those decisions are best made by individual states, courts, governmental entities, and parties.

3. Section 9(d) [(4)]. Violation of disclosure [and impartiality] requirements.

3. Section 9(d) [(4)]. Violation of disclosure [and impartiality] requirements.

a. In general

This provision makes clear that the mediator who violates the disclosure requirements of Sections 9(a) or (b) [(1) or (2)] may not refuse to disclose a mediation communication or prevent another person from disclosing a mediation communication of the mediator, pursuant to Section 4(b)(2) [§ 9-804(2)(b)]. If a state adopts the impartiality provision of Section 9(f) [(6)], a violation of that provision triggers the same denial of the privilege. Only those states adopting the impartiality provision should adopt the second bracket [(a), (b), or (g)]; all other states should adopt the first bracket [(a) or (b)]. [Idaho adopted the first bracket.] States that do not want to adopt either bracketed option, and prefer other remedies for violations of the duties prescribed in Sections 9(a) and (b) [and 9(g)], such as roster delisting, civil, criminal, or other sanctions, would simply delete the current language of 9(d) [(4)], and insert as the new 9(d) [(4)] appropriate reference to such preferred alternative remedy.

b. Only mediator privilege lost; party, nonparty participant privileges remain intact

Crucially, while the mediator who fails to comply with the Act’s conflicts of interest and impartiality requirements loses the privilege for purpose of that mediation, the parties and the non-party participants retain their privilege for that mediation. Thus, in a situation in which the mediator has lost the privilege, for example, the parties may still come forward and assert their privilege, thus blocking the mediator who has lost the privilege from providing testimony about the affected mediation. Similarly, to the extent the mediator’s purported testimony would be about the mediation communications of a nonparty participant, the nonparty participant may block the testimony if the mediator has lost the privilege.

The only person prejudiced by the violation is the mediator who failed to disclose a conflict [or who had a bias in the dispute], and as such the loss of privilege provides an important but narrowly tailored measure of accountability. Section 9(d) [(4)] makes clear that mediators cannot avoid testifying in such situations.

The Drafters considered other sanctions for mediators who failed to disclose conflicts [or who were partial], such as criminal and civil sanctions. However, it rejected specifically providing for those options because of the possibility of discouraging people from becoming mediators, and because the loss of privilege sanction was deemed to be tailored to the precise harm caused by the violation.

c. Practical operation

The loss of privilege in this narrow context raises important practical questions with regard to how a party or a nonparty participant would know that the mediator may lose, or has lost, the privilege with respect to a particular mediation. This is significant because they should have the opportunity to decide whether they wish to assert their own privilege and block the mediator’s testimony to the extent permitted by the privilege, or to permit the testimony, consistent with the Act’s underlying premises of party autonomy and informed consent. As a practical matter, notice is not likely to be a concern in the typical case in which the mediation communications evidence is being sought in an action to set aside the mediated settlement agreement, or in a professional misconduct proceeding or action, arising out of the conflict of interest. The parties would be aware of the loss of privilege, and indeed, the loss of the privilege is consistent with the exceptions permitting such testimony in cases to establish the validity of the settlement agreement or professional misconduct. See Sections 6(a)(6) and 6(b)(2) [§ 9-806(1)(f) and (2)(b)].

However, in the more remote situation in which these exceptions would not be applicable, and the mediator’s testimony is sought under a claim that the privilege has been lost by virtue of the mediator’s failure to disclose a conflict of interest, the notice issue becomes more problematic. It may be expected that the mediator would give notice to the other mediation participants who may be affected by such a request. It may also be expected under usual customs and practices that the party seeking the privileged testimony would move the matter before a court and provide notice to all interested persons who would have the right to assert the privilege. For a challenge to the mediation privilege, those interested parties would be the mediator, parties, and nonparty participants. In any event, mediation participants are advised to consider including notice provisions in their agreements to mediate that call for participants who receive subpoenas for privileged testimony to provide notice to the other participants of such a request.

As with the exceptions recognized under this Act, the Act anticipates that the question of whether a privilege has been lost would typically be decided by courts in an in camera proceeding that would preserve the confidentiality of the mediation communications that may be necessary to establish the validity of the loss of privilege claim. The materiality of the failure to disclose is not likely to be in issue in the more common situations in which the mediator’s testimony is being sought in a case other than to establish the invalidity of a mediated settlement agreement or professional misconduct arising from the failure to disclose. However, in those rare other situations in which the mediator’s testimony is being sought, the proponent of the evidence may also need to establish the materiality of the failure to disclose.

4. Section 9(e) [(5)]. Individual acting as a judge.

4. Section 9(e) [(5)]. Individual acting as a judge.

This Section averts a legislative prohibition on certain judicial actions, and defers to other more appropriate regulation of the judiciary. It extends the principles embodied in Section 3(b)(3) [§ 9-803(2)(c)], which places mediations conducted by judges who might make a ruling on the case outside the scope of the Act. The rationales described therein apply with equal force in this context.

5. Section 9(g) [(7)]. Mediator impartiality.

5. Section 9(g) [(7)]. Mediator impartiality.

“Impartiality” has been equated with “evenhandedness” in the Model Standards of Practice approved by the American Bar Association, American Association of Arbitrators, and the Society of Professionals in Dispute Resolution (now Association for Conflict Resolution). The mediator’s employment situation may present difficult issues regarding impartiality. A mediator who is employed by one of the parties is not typically viewed as impartial, especially if the person who mediates also represents a party. In the representation situation, the mediator’s overriding responsibility is toward a single party. For example, the parties’ legal counsel would not be an impartial mediator. Ombuds often are obligated by ethical standards to be impartial, although they are employed by one of the parties. While few would argue that it is almost always best for mediators to be impartial as a matter of practice, including such a requirement into a uniform law drew considerable controversy. Some mediators, reflecting a deeply and sincerely felt value within the mediation community that a mediator not be predisposed to favor or disfavor parties in dispute, persistently urged the Drafters to enshrine this value in the Act; for these, the failure to include the notion of impartiality in the Act would be a distortion of the mediation process. Other mediators, service providers, judges, mediation scholars, however, urged the Drafters not to include the term “impartiality” for a variety of reasons.

At least three are worth stressing. One pressing concern was that including such a statutory requirement would subject mediators to an unwarranted exposure to civil lawsuits by disgruntled parties. In this regard, mediators with a more evaluative style expressed concerns that the common practice of so-called “reality checking” would be used as a basis for such actions against the mediator. A second major concern was over the workability of such a statutory requirement. Scholarly research in cognitive psychology has confirmed many hidden but common biases that affect judgment, such as attributional distortions of judgment and inclinations that are the product of social learning and professional culturation. See generally , Daniel Kahneman and Amos Tversky, Choices, Values, and Frames (2000); Scott Plous, The Psychology of Judgment and Decision Making (1993). Similarly, mediators in certain contexts sometimes have an ethical or felt duty to advocate on behalf of a party, such as long-term care ombuds in the health care context. Third, some parties seek to use a mediator who has a duty to be partial in some respects — such as a domestic mediator who is charged by law to protect the interests of the children. It has been argued that such mediations should still be privileged.

For these and other reasons, the Drafting Committees determined that impartiality, like qualifications, was an issue that was important but that did not need to be included in a uniform law. Rather, out of regard for the gravity of the issue, the Drafting Committees determined that it was enough to flag the issue for states to consider at a more local level, and to provide model language that may be helpful to states wishing to pursue the issue.

If this Section is adopted, the state should also choose the bracketed option with this Section in Section (d) [(4)], so that a mediator who is not impartial is precluded from asserting the privilege. Section (e) [(5)] makes this inapplicable to an individual acting as a judge, whose impartiality is governed by judicial canons.

Prior Laws.

Former§ 9-810 was declared null and void. See Prior Laws,§ 9-801.

Official Comment

The fairness of mediation is premised upon the informed consent of the parties to any agreement reached. See Wright v. Brockett , 150 Misc. 2d 1031 (1991) (setting aside mediation agreement where conduct of landlord/tenant mediation made informed consent unlikely); see generally , Joseph B. Stulberg, Fairness and Mediation , 13 Ohio St. J. on Disp. Resol. 909, 936-944 (1998); Craig A. McEwen, Nancy H. Rogers, Richard J. Maiman, Bring in the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation , 79 Minn. L. Rev. 1317 (1995). Some statutes permit the mediator to exclude lawyers from mediation, resting fairness guarantees on the lawyer’s later review of the draft settlement agreement. See, e.g. , Cal. Fam. Code Section 3182 (1993); McEwen, et al., 79 Minn. L. Rev., supra , at 1345-1346. At least one bar authority has expressed doubts about the ability of a lawyer to review an agreement effectively when that lawyer did not participate in the give and take of negotiation. Boston Bar Ass’n, Op. 78-1 (1979). Similarly, concern has been raised that the right to bring counsel might be a requirement of constitutional due process in mediation programs operated by courts or administrative agencies. Richard C. Reuben, Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice , 47 UCLA L. Rev. 949, 1095 (April 2000).

Some parties may prefer not to bring counsel. However, because of the capacity of attorneys to help mitigate power imbalances, and in the absence of other procedural protections for less powerful parties, the Drafting Committees elected to let the parties, not the mediator, decide. Also, their agreement to exclude counsel should be made after the dispute arises, so that they can weigh the importance in the context of the stakes involved.

The Act does not preclude the possibility of parties bringing multiple lawyers or translators, as often is common in international commercial and other complex mediations. The Act also makes clear that parties may be accompanied by a designated person, and does not require that person to be a lawyer. This provision is consistent with good practices that permit the pro se party to bring someone for support who is not a lawyer if the party cannot afford a lawyer. Most statutes are either silent on whether the parties’ lawyers can be excluded or, alternatively, provide that the parties can bring lawyers to the sessions. See, e.g. , Neb. Rev. Stat. Section 42-810 (1997) (domestic relations) (counsel may attend mediation); N.D. Cent. Code Section 14-09.1-05 (1987) (domestic relations) (mediator may not exclude counsel); Okla. Stat. tit. 12, Section 1824(5) (1998) (representative authorized to attend); Or. Rev. Stat. Section 107.600(1) (1981) (marriage dissolution) (attorney may not be excluded); Or. Rev. Stat. Section 107.785 (1995) (marriage dissolution) (attorney may not be excluded); Wis. Stat. Section 655.58(5) (1990) (health care) (authorizes counsel to attend mediation). Several States, in contrast, have enacted statutes permitting the exclusion of counsel from domestic mediation. See Cal. Fam. Code Section 3182 (1993); Mont. Code Ann. Section 40-4-302(3) (1997) (family); S.D. Codified Laws Section 25-4-59 (1996) (family); Wis. Stat. Section 767.11(10)(a) (1993) (family).

As a practical matter, this provision has application only when the parties are compelled to participate in the mediation by contract, law, or order from a court or agency. In other instances, any party or mediator unhappy with the decision of a party to be accompanied by an individual can simply leave the mediation. In some instances, a party may seek to bring an individual whose presence will interfere with effective discussion. In divorce mediation, for example, a new friend of one of the parties may spark new arguments. In these instances, the mediator can make that observation to the parties and, if the mediation flounders because of the presence of the nonparty, the parties or the mediator can terminate the mediation. The pre-mediation waiver of this right of accompaniment can be rescinded, because the party may not have understood the implication at that point in the process. However, this provision can be waived once the mediation begins. Limitations on counsel in small claims proceedings may be interpreted to apply to the small claims mandatory mediation program. If so, the States may wish to consider whether to provide an exception for mediation conducted within these programs.

The right to accompaniment does not operate to excuse any participation requirements for the parties themselves.

Prior Laws.

Former§ 9-811 was declared null and void. See Prior Laws,§ 9-801.

Official Comment

1. Varying by Agreement/Choice of Law

This Amendment allows parties to international commercial mediation to take advantage of the privilege protections of the Uniform Mediation Act, which typically are broader than the evidentiary exclusions of the UNCITRAL Model Law. A number of choices are available to the mediation participants:

1. If the participants prefer to have the mediation covered by the privilege protections of the Uniform Mediation Law, which are typically broader than the evidentiary exclusions of the UNCITRAL Model Law: This is the default situation under this Amendment to the Uniform Mediation Act. This result is reached by reading subsections (a) and (c) [(1) and (3)] together. No additional agreement is necessary.
2. If the participants prefer not to have the mediation covered by the provisions of the UNCITRAL Model Act but want the mediation covered by the Uniform Mediation Act: The parties should agree, pursuant to Article 1, subsection (7) of the UNCITRAL Model Law to exclude the applicability of the Model Law. In this situation, subsection (d) of the Amendment provides that the default is that the mediation is covered by the Uniform Mediation Act. (3) If the participants prefer the narrower protections for the use of mediation communications provided by the UNCITRAL Model Law and do not want to be covered by the privilege provisions of the Uniform Mediation Act: The participants should agree, in a record (written or other electronic form), that the privileges under Sections 4 through 6 [§§ 9-804 through 9-806] of the Uniform Mediation Act do not apply to the mediation or part agreed upon. It is important to note that this agreement does not preclude the raising of the privilege by a participant who does not know of the agreement before making the statement that is the subject of the privilege. Section 3(c) [§ 9-803(3)] provides:

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 Sections 4 through 6 [§§ 9-804 through 9-806] do not apply to the mediation or part agreed upon. However, Sections 4 through 6 [§§ 9-804 through 9-806] apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made.

If the participants so agree, the UNCITRAL Model Law provision on the use of mediation communications, Article 10, will be the default position.

(4) If the parties would like to have an open mediation, with mediation communications being available for later proceedings: The parties should enter the agreement described in point (3) and also agree that they exclude the applicability of Articles 9 and 10 of the UNCITRAL Model Law.

(5) If the parties would like to have the mediation covered by another law: They should designate in their agreement to mediate what law that will cover the international commercial mediation, in addition to taking the steps listed in point (4). They should realize, however, that a court may be unwilling to import a law of privilege because the court might deem privilege to be an aspect of procedure governed by the forum state’s law. In addition, if the parties seek to import a mediation privilege law that is broader than that of the forum state, the court might view the agreement as an attempt to keep evidence from the tribunal and against public policy and therefore unenforceable.

2. Confidentiality

Article 9 of the UNCITRAL Model Law is consistent with Section 8 [§ 9-808] of the Uniform Mediation Act, which indicates that mediation communications are confidential to extent agreed upon by the parties or provided in state law, when Article 9 is read together with the notes on interpretation in the to Draft Guide to Enactment and Use of UNCITRAL Model Law on International Commercial Conciliation. The Draft Guide makes clear that the violation of Article 9 should not be a basis for sanctions unless the party disclosing understood that the mediation was governed by the confidentiality rule. The Draft Guide also makes clear that a participant may warn or disclose in the public interest despite the prohibitions. This is the current state of U.S. contract law regarding secrecy agreements as discussed in the Reporter’s Notes to Section 8. The pertinent portion of the Draft Guide states:

The Working Group agreed that an illustrative and non-exhaustive list of possible exceptions to the general rule on confidentiality would more appropriately be provided in the Guide to Enactment. Examples of such laws may include laws requiring the conciliator or parties to reveal information if there is a reasonable threat that a person will suffer death or substantial bodily harm if the information is not disclosed and laws requiring disclosure if it is in the public interest. For example to alert the public about a health or environmental or safety risk. It is the intent of the drafters that, in the event a court or other tribunal is considering an allegation that a person did not comply with article 9, it should include in its consideration any evidence of conduct of the parties that shows whether they had, or did not have, an understanding that a conciliation existed and consequently an expectation of confidentiality. When enacting the Model Law, certain States may wish to clarity article 9 to reflect that interpretation. It is important that a reference to the Draft Guide be included in the Legislative Note, so that the courts will understand the intent of the UNCITRAL Model Law drafters.

3. Conflict of Laws

The drafters intend the privilege provisions to be widely applied by courts so that the mediation participants will know the breadth of the mediation communications privilege when they are engaged in the mediation, even though they may not anticipate all of the nations or states where the mediation communications might be sought or introduced. Nonetheless, the mediation participants should realize that choice of law rules in other nations and states vary and those rules may result in application of law other than that of the state where the mediation took place. See, e.g. , Asten, Inc. v. Wangner Systems Corp., No. C.A. 15617, 1999 Del. Ch. LEXIS 195 (Del. Ch. Sept 23, 1999) (applying South Carolina law to dispute arising out of Florida mediation of South Carolina court litigation between parties incorporated in Delaware because South Carolina had the most significant relationship to the transaction). In addition, courts in other nations and states may consider mediation privilege provisions to be procedural in nature, rather than substantive, and therefore apply the forum’s privilege law rather than the law where the mediation occurred. Even within the United States, the courts have acted inconsistently with respect to mediation privileges that apply where the mediation was held. See, e.g., United States v. Gullo , 672 F. Supp. 99 (W.D.N.Y. 1987) (applying a state privilege in a federal grand jury proceeding concerning communications made during mediation in state program); In re March, 1995 — Special Grand Jury , 897 F. Supp. 1170 (S.D. Ind. 1995) (refusing to apply state court mediation privilege in a federal grand jury proceeding concerning communications made during mediation in state court mediation program); In re Grand Jury Subpoena Dated Dec. 17, 1996 , 148 F.3d 487 (5th Cir. 1998) (refusing to apply state privilege in a federal grand jury proceeding concerning mediation conducted in federally-funded mediation program operated by state).

The choice of law rules in many jurisdictions in the United States recognize party autonomy to select the law that will govern their transactions. For this reason, the drafters believe that courts in the United States will be most likely to apply this law to international commercial mediations occurring in other nations or states that later become the subject of a suit in the United States if the parties to the mediation have specified that it will be governed by the Uniform Mediation Act.

4. Uniformity

This Amendment is recommended. Nonetheless, a State may decide to adopt the Uniform Mediation Act without this amendment without losing the designation that it represents a Uniform State Law.

5. Reports to the Court

Whenever mediation occurs as part of a legal proceeding, the parties would be especially aggrieved if, in absence of full settlement, the mediator could make reports to the judge who will rule on the dispute being mediated. Such reports are specifically prohibited by Section 7 [§ 9-807] of the Uniform Mediation Act.

6. Derogation from the Uniform Mediation Act

The drafters believe that Articles 9 and 10 of the UNCITRAL Model Law achieve the same result as Section 7 [§ 9-807] of the Uniform Mediation Act. Article 10(1) prohibits disclosures by a mediator and Article 10(3) prohibits a court or arbitral tribunal from ordering disclosures. When Article 9, which broadly requires confidentiality for all mediation information, is read in conjunction with these prohibitions, it should be interpreted to include a narrower confidentiality requirement that prohibits mediator reports, including recommendations of a specific outcome, to a judge or arbitrator. This interpretation maintains the reasonable expectations of the parties regarding confidentiality and avoids a situation in which the mediator could pressure settlement by threatening to make an unwelcome report to the person who will rule in the event that the mediation does not result in settlement. 6. Derogation from the Uniform Mediation Act

The Amendment, subsection (c) [(3)], provides that “nothing in Article 10 of the Model Law derogates from Section 4, 5 or 6 [§§ 9-804, 9-805 and 9-806].” Black’s Law Dictionary indicates that one law derogates another law if it “limits the scope or impairs its utility and force.” The drafters intend that the Uniform Mediation Act purposes should be achieved. For example, under the Uniform Mediation Act, a mediation communication includes any mediator statement whereas the Model Law protects only mediator proposals. This provision directs to court to protect mediator statements that were not proposals so that the protections of the Uniform Mediation Act are given full force. As a further example, the Uniform Mediation Act applies to discovery process, while the Model Law does not mention discovery. Under this provision, the court should accord a privilege during the discovery phase in order to avoid limiting the force of the Uniform Mediation Act.

The provision that the Model Law does not derogate also would apply to exceptions to the Uniform Mediation Act that are not recognized in the Model Act. For example, the Uniform Mediation Act excepts from the privilege a mediation communication that is a threat to commit a crime of violence, but the Model Law does not. The derogation provision makes clear that the court should give effect to the exception for the threat, because to do otherwise would frustrate the purposes of the Uniform Mediation Act.

7. Interpretation of the Model Law

The Model Law was drafted jointly by an international group. Therefore, the courts should use the interpretation guide referenced in the Legislative Note rather than drafting conventions of U.S. law as they interpret the Model Law.

8. Incorporation by Reference

It is important to note that the Amendment incorporates by reference a specific version of the Model Law, that adopted on June 22, 2002 (included in Appendix A). An amendment of the Model Law will not change this Section.

Some state legislatures may hesitate to incorporate by reference and may prefer to enact the Model Law. In that situation, the State can achieve uniformity by enacting this Amendment as well as the Model Law, changing the internal references accordingly.

UNCITRAL Model Law on International Commercial Conciliation

Article 1. Scope of application and definitions

1. This Law applies to international commercial conciliation. States wishing to enact this Model Law to apply to domestic as well as international conciliation may wish to consider the following changes to the text.
2. For the purposes of this Law, “conciliator” means a sole conciliator or two or more conciliators, as the case may be.
3. For the purposes of this Law, “conciliation” means a process, whether referred to by the expression conciliation, mediation or an expression of similar import, whereby parties request a third person or persons (“the conciliator”) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.
4. A conciliation is international if:
   1. The parties to an agreement to conciliate have, at the time of the conclusion of that agreement, their places of business in different States; or
   2. The State in which the parties have their places of business is different from either:
      1. The State in which a substantial part of the obligations of the commercial relationship is to be performed; or
      2. The State with which the subject matter of the dispute is most closely connected.
5. For the purposes of this article:
   1. If a party has more than one place of business, the place of business is that which has the closest relationship to the agreement to conciliate;
   2. If a party does not have a place of business, reference is to be made to the party’s habitual residence.
6. This Law also applies to a commercial conciliation when the parties agree that the conciliation is international or agrees to the applicability of this Law.
7. The parties are free to agree to exclude the applicability of this Law.
8. Subject to the provisions of paragraph (9) of this article, this Law applies irrespective of the basis upon which the conciliation is carried out, including agreement between the parties whether reached before or after a dispute has arisen, an obligation established by law, or a direction or suggestion of a court, arbitral tribunal or competent governmental entity.
9. This Law does not apply to:
   1. Cases where a judge or an arbitrator, in the course of judicial or arbitral proceedings, attempts to facilitate a settlement; and
   2. [...].
      1. In the interpretation of this Law, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith. (2) Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which this Law is based.

— Delete the word “international” in paragraph (1) of article 1; and

— Delete paragraphs (4), (5) and (6) of article 1.

The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

Article 2. Interpretation

Article 3. Variation by agreement

Except for the provisions of article 2 and article 6, paragraph (3), the parties may agree to exclude or vary any of the provisions of this Law.

Article 4. Commencement of conciliation proceedings

The following text is suggested for States that might wish to adopt a provision on the suspension of the limitation period:

Federal References.

Section 101(c) of the federal electronic signatures in global and national commerce act, referred to in this section, is codified as 15 U.S.C.S. § 7001(c).

Section 103(b) of the federal electronic signatures in global and national commerce act, referred to in this section, is codified as 15 U.S.C.S. § 7003(b).

Official Comment

This Section adopts standard language approved by the Uniform Law Conference that is intended to conform Uniform Acts with the Uniform Electronic Transactions Act (UETA) and its federal counterpart, Electronic Signatures in Global and National Commerce Act (E-Sign) (15 U.S.C 7001, et seq. (2000).

Both UETA and E-Sign were written in response to broad recognition of the commercial and other use of electronic technologies for communications and contracting, and the consensus that the choice of medium should not control the enforceability of transactions. These Sections are consistent with both UETA and E-Sign. UETA has been adopted by the Conference and received the approval of the American Bar Association House of Delegates. As of December 2001, it had been enacted in more than 35 states.

The effect of this provision is to reaffirm state authority over matters of contract by making clear that UETA is the controlling law if there is a conflict between this Act and the federal E-sign law, except for E-sign’s consumer consent provisions (Section 101(c) and its notice provisions (Section 103(b) (which have no substantive impact on this Act). Among other things, such clarification assures that agreements related to mediation — such as the agreement to mediate and the subsequently mediated settlement agreement — may not be challenged on the basis of a conflict between this Act and the federal E-sign law. Such challenges should be dismissed summarily by the courts.

Compiler’s Notes.

The phrase “the effective date of this chapter” refers to the effective date of chapter 8, title 9, Idaho Code, enacted by S.L. 2008, ch. 35, effective July 1, 2008.

Section 2 of S.L. 2008, ch. 35 provides: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Official Comment

Section 17 [this section] is designed to avert unfair surprise, by setting dates that will make it likely that the mediation participants took the Act into account in setting up the mediation. Subsection (a) [combined with (a) in Idaho] precludes application of the Act to mediations pursuant to pre-effective date referral or agreement on the assumption that most of those making these referrals or agreements did not take into account the changes in law. If parties to these mediations seek to be covered by the Act, they can sign a new agreement to mediate on or after the effective date of the Act.

Subsection (b) [combined with (a) from model act in one sentence in Idaho] is based on the assumption that persons involved in mediation are likely to know about the Act and would therefore be more surprised by the non-application of the Act than the application of the Act after that point. Each legislature can specify a year or another likely period for dissemination of the news among those involved in mediation.

Compiler’s Notes.

This section, which comprised 1893, p. 132, § 1; reen. 1899, p. 215, § 1; reen. R.C. & C.L., § 6059; C.S., § 8001; am. 1929, ch. 175, § 1, p. 309; I.C.A.,§ 16-901; am. 1969, ch. 126, § 4, p. 388, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 28(a), 28(d).

Compiler’s Notes.

These sections, which comprised 1893, p. 132,§§ 2-4; reen. 1899, p. 215,§§ 2-4; reen. R.C. & C.L.,§§ 6060-6060b; am. 1919, ch. 191, § 1, p. 574; C.S.,§§ 8002-8004; I.C.A.,§§ 16-902 — 16-904, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 5(b), 27(a)(2), 29, 30(a).

Compiler’s Notes.

These sections, which comprised 1893, p. 132, §§ 5, 6; reen. 1899, p. 215, §§ 5, 6; reen. R.C. & C.L., §§ 6061, 6062; C.S., §§ 8005, 8006; I.C.A.,§§ 16-905, 16-906, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 30(a), 30(b)(2).

Compiler’s Notes.

This section, which comprised 1893, p. 132, § 7; reen. 1899, p. 215, § 7; reen. R.C. & C.L., § 6063; C.S., § 8007; I.C.A.,§ 16-907, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 45(d)(2).

Compiler’s Notes.

This section, which comprised 1893, p. 132, § 8; reen. 1899, p. 215, § 8; reen. R.C. & C.L., § 6064; C.S., § 8008; I.C.A.,§ 16-908, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 32(a)(3).

Compiler’s Notes.

These sections, which comprised 1893, p. 132, §§ 9, 10; reen. 1899, p. 215, §§ 9, 10; reen. R.C. & C.L., §§ 6065, 6065a; C.S., §§ 8009, 8010; I.C.A.,§§ 16-909, 16-910; am. 1969, ch. 126, § 5, p. 388, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 37(a), 37(b)(1), 37(b)(2), 37(d), 45(d)(1).

Compiler’s Notes.

These sections, which comprised 1893, p. 132,§§ 11-14; reen. 1899, p. 215,§§ 11-14; reen. R.C. & C.L., §§ 6065b-6066a; C.S.,§§ 8011-8014; I.C.A.,§§ 16-911 — 16-914, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 30(c), 30(e), 30(f)(1).

Compiler’s Notes.

These sections, which comprised 1893, p. 132,§§ 15-19; reen. 1899, p. 215,§§ 15-19; reen. R.C. & C.L.,§§ 6067-6068c; C.S.,§§ 8015-8019; I.C.A.,§§ 16-915 — 16-919, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 28(a), 28(b), 29, 30(f)(3), 30(f)(4), 32(a).

Compiler’s Notes.

These sections, which comprised 1893, p. 132, §§ 20, 21; reen. 1899, p. 215, §§ 20, 21; reen. R.C. & C.L., §§ 6069, 6069a; C.S., §§ 8020, 8021; I.C.A.,§§ 16-920, 16-921, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 30(c), 32.

Compiler’s Notes.

These sections, which comprised 1893, p. 132, §§ 22, 29; reen. 1899, p. 215, §§ 22, 29; reen. R.C. & C.L., §§ 6069b, 6069c; C.S., §§ 8022, 8023; I.C.A.,§§ 16-922, 16-923, were repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 32.

Compiler’s Notes.

This section, which comprised 1893, p. 132, § 30; reen. 1899, p. 215, § 30; reen. R.C. & C.L., § 6069d; C.S., § 8024; I.C.A.,§ 16-924, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 30(g)(1), 30(g)(2).

Compiler’s Notes.

This section, which comprised 1893, p. 132, § 31; reen. 1899, p. 215, § 31; reen. R.C. & C.L., § 6070; C.S., § 8025; I.C.A.,§ 16-925, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 29, 31.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 957, 972-974; R.S., R.C., & C.L.,§§ 6071-6074; C.S.,§§ 8026-8029; I.C.A.,§§ 16-926 — 16-929; am. 1969, ch. 126, §§ 6, 7, p. 388, were repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 28(e), 29, 45(d)(1).

Compiler’s Notes.

This section, which comprised 1901, p. 132, § 1; reen. R.C. & C.L., § 6086; C.S., § 8042; I.C.A.,§ 16-1001, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 43(a), 53(b) to 53(d)(2), 53(e)(2).

Compiler’s Notes.

This chapter, which comprised C.C.P. 1881,§§ 985-991; 1893, p. 132,§§ 23-28; reen. 1899, p. 215,§§ 23-28; reen. R.S., R.C., & C.L.,§§ 6116-6126; C.S.,§§ 8051-8063; I.C.A.,§§ 16-1101 — 16-1113; am. 1969, ch. 126, §§ 8, 9, was repealed by S.L. 1975, ch. 242, § 1. For present rules, see Idaho Civil Procedure Rules 27(a)(1), 27(a)(3), 27(a)(4).

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 976; R.S., R.C., & C.L., § 6075; C.S., § 8030; I.C.A.,§ 16-1201, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho Civil Procedure Rules 43(a), 43(b)(1), 43(b)(5).

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6076; C.S., § 8031; I.C.A.,§ 16-1202, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 43(b)(1).

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6077; C.S., § 8032; I.C.A.,§ 16-1203, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 611.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6078; C.S., § 8033; I.C.A.,§ 16-1204, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 612.

Compiler’s Notes.

This section, which comprised 1888-1889, p. 1, § 5; R.S., R.C., & C.L., § 6079; C.S., § 8034; I.C.A.,§ 16-1205, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rules, see Idaho R. Civ. P. 43(b)(1) and Idaho Evid. R. 611.

Compiler’s Notes.

This section, which comprised 1909, p. 334, §§ 1, 2; reen. C.L., § 6079a; C.S., § 8035; I.C.A.,§ 16-1206; am. 1963, ch. 104, § 2, p. 324, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 611.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6080; C.S., § 8036; I.C.A.,§ 16-1207, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 607.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6081; C.S., § 8037; I.C.A.,§ 16-1208, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho R. Civ. P. 43(b)(5).

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6082; C.S., § 8038; I.C.A.,§ 16-1209, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 607.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6083; C.S., § 8039; I.C.A.,§ 16-1210, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 607.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6084; C.S., § 8040; I.C.A.,§ 16-1211, was repealed by S.L. 1975, ch. 242, § 1, effective March 31, 1975. For present rule, see Idaho Evid. R. 608.

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6085; C.S., § 8041; I.C.A.,§ 16-1212, was repealed by S.L. 1975, ch. 242, § 1. For present rule, see Idaho Civil Procedure Rule 43(b)(12).

Cross References.

Inherent power of court to compel attendance of persons to testify,§ 1-1603.

State need not prepay witness fees,§ 9-1605.

When witness not obliged to attend,§ 9-713.

Self-Incrimination.

Where two parties are separately charged with a felony and, upon the preliminary examination of one, the other is called as a witness on behalf of the state, he may refuse to answer any questions either on his examination in chief or on cross-examination that would tend in the least to incriminate him. State v. Bond, 12 Idaho 424, 86 P. 43 (1906).

Am. Jur. 2d.

C.J.S.

ALR.

§ 9-1302. Privilege of witnesses — Questions required to be answered.

A witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be the very fact in issue, or to a fact from which the fact in issue would be presumed. But a witness must answer as to the fact of his previous conviction for felony.

History.

C.C.P. 1881, § 978; R.S., R.C., & C.L., § 6091; C.S., § 8044; I.C.A.,§ 16-1302.

Cross References.

Bribery, incriminating testimony, immunity,§ 18-1308.

Conviction of Felony.

The statute does not require disclosure of either the number or the nature of the felony or felonies of which an accused has been previously convicted, to be used for impeachment purposes when he has taken the stand in his own defense; therefore, where defendant, charged with committing a lewd and lascivious act with a minor child under the age of 16 was asked the question on cross-examination, “Have you ever been previously convicted of a felony?” and the defendant answered in affirmative, it deprived the defendant of a fair trial by allowing the prosecution to continue further interrogation concerning number or nature of such previous felonies. State v. Shepherd, 94 Idaho 227, 486 P.2d 82 (1971).

The fact that the legislature did not repeal this section after adoption of the Idaho Rules of Civil Procedure is indicative of an intent to retain the practice of impeachment by use of a prior felony conviction. State v. Knee, 101 Idaho 484, 616 P.2d 263 (1980).

The use of a prior felony conviction for impeachment purposes did not deprive defendant of his right to a fair and impartial jury trial where a jury instruction limited the prejudicial impact by stating that the conviction could be considered only on the issue of credibility and that the conviction did not necessarily impair defendant’s credibility. State v. Knee, 101 Idaho 484, 616 P.2d 263 (1980).

Self-Incrimination.

Where accused refused to answer direct question as to former conviction of felony, but answered only of having liquor in his possession without specifying whether it was a second offense, he can not complain on appeal. State v. Alvord, 46 Idaho 765, 271 P. 322 (1928).

A defendant in a criminal action who takes the witness stand in his own behalf may be required on cross-examination to state whether or not he has ever been convicted of a felony, the objection that such answer may tend to incriminate him having no validity in such case. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967).

Am. Jur. 2d.

81 Am. Jur. 2d, Witnesses, § 78 et seq.

C.J.S.

ALR.

Admissibility, as against interest, in criminal case of declaration of commission of criminal act. 92 A.L.R.3d 1164.

Records required to be kept by Emergency Price Control Act, privilege with respect to. 157 A.L.R.3d 1463.

Cross References.

Incriminating testimony may be required in prosecution for offenses relating to bribery,§ 18-1308.

C.J.S.

§ 9-1304. Arrest in violation of preceding section — Contempt — Civil liability.

The arrest of a witness contrary to the preceding section is void, and, when wilfully made, is a contempt of the court; and the person making it is responsible to the witness arrested for double the amount of the damages which may be assessed against him, and is also liable to an action at the suit of the party serving the witness with the subpoena, for the damages sustained by him in consequence of the arrest.

History.

C.C.P. 1881, § 980; R.S., R.C., & C.L., § 6093; C.S., § 8046; I.C.A.,§ 16-1304.

Cross References.

Unlawful detention of witness a contempt,§ 7-601.

Effective Dates.

Section 11 of S.L. 1969, ch. 126 provided that the act should be effective at 12:01 a.m. on January 11, 1971.

Mayor of City.

A mayor of a city is without authority to administer oaths generally and has no authority to administer an oath to the appraisers in a condemnation proceeding. Thomas v. Boise City, 25 Idaho 522, 138 P. 1110 (1914).

Am. Jur. 2d.

C.J.S.

ALR.

Perjury conviction as affected by notary’s nonobservance of formalities for administration of oath to affiant. 80 A.L.R.3d 278.

Am. Jur. 2d.

C.J.S.

Form of Oath.

Testimony of deputy, that after he had signed the complaint the justice asked him “if that was the true facts as I knew it” and in answering that it was he felt in conscience he had taken on the obligation of the oath, was a sufficient compliance with the statute even though there was no formal administration of the oath, the deputy not having raised his hand or taken a verbal oath to the truth of the statements made in the complaint. State v. Parker, 81 Idaho 51, 336 P.2d 318 (1959).

Am. Jur. 2d.

C.J.S.

Form of Oath.

Testimony of deputy, that after he had signed the complaint the justice asked him “if that was the true facts as I knew it” and in answering that it was he felt in conscience he had taken on the obligation of the oath, was a sufficient compliance with the statute even though there was no formal administration of the oath, the deputy not having raised his hand or taken a verbal oath to the truth of the statements made in the complaint. State v. Parker, 81 Idaho 51, 336 P.2d 318 (1959).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Cross References.

Objections to mode of performance of contracts waived if not stated,§ 29-112.

Costs.

A plaintiff cannot recover costs but must pay costs to a defendant where a sufficient tender has been made prior to commencement of the action. Boise Lumber Co. v. Independent School Dist., 36 Idaho 778, 214 P. 143 (1923).

Creditor Entitled to a Reasonable Time to Reject or Accept.

There is nothing in this section that deprives a creditor of a reasonable time within which to reject or accept the tender and for the purpose of ascertaining the amount due. Hyams v. Bamberger, 36 P. 202 (1894); Wooten v. Dahlquist, 42 Idaho 121, 244 P. 407 (1926).

Effect of Not Objecting.

Where no objections are made at the time of tender under this section and§ 29-112, any objection that might have been urged thereto is waived. Harding v. Home Inv. & Sav. Co., 49 Idaho 64, 286 P. 920 (1930).

Forfeitures.

In suit by seller to quiet title to real estate sold on contract, which provided for notice by seller in event it elected to rescind contract for default in payment, cross-complaint by purchaser, which alleged willingness and ability to pay balance, barred forfeiture. Stockmen’s Supply Co. v. Jenne, 72 Idaho 57, 237 P.2d 613 (1951).

Mechanics’ Liens.

A tender of the amount due upon a claim for which a mechanic’s lien may be filed, if made prior to the filing of the lien, extinguishes the same. Boise Lumber Co. v. Independent School Dist., 36 Idaho 778, 214 P. 143 (1923).

Offer in Writing.

Defendant’s tender of performance by offering to convey two lots, submitted by way of a letter from defendant’s counsel to plaintiff’s counsel, comported with this section, where the letter represented an “offer in writing” to deliver deeds to the lots in question. Sewell v. Neilsen, Monroe, Inc., 109 Idaho 192, 706 P.2d 81 (Ct. App. 1985).

Oral Offers.

This statute applies to written tenders only and has no application to oral offers. Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936).

Statutes, declaring written offer to pay money or deliver an instrument or personalty equivalent to production and tender thereof, if not accepted, and providing that the debtor is entitled to a receipt and may demand a proper signature thereto as a condition precedent to the payment or delivery, are inapplicable to an oral offer by an agent of a mortgage assignee to pay the assignee of a prior mortgage the sum paid by the latter therefor. Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936).

Present Ability to Pay.

Like the common-law rule of tender, this section requires a present ability to pay the amount of the tender. Buckley v. Orem, 112 Idaho 117, 730 P.2d 1037 (Ct. App. 1986).

Sufficiency of Tender.

To stop the running of interest, it is not only necessary to tender whole amount due, but, if money so tendered is not accepted, it must be kept on deposit subject to demand of the person to whom tender is made, or, a sufficient offer in writing must be made to avoid necessity of keeping money on deposit. Machold v. Farnan, 20 Idaho 80, 117 P. 408 (1911).

Tender is an offer to pay money coupled with a present ability to do the act. It must be definite and certain in character so as to leave no reasonable doubt that the tenderer, at the time, intended to make full and unconditional payment. Wooten v. Dahlquist, 42 Idaho 121, 244 P. 407 (1926).

The “mode” (as used in§ 29-112) of performance includes unwarranted conditions in the tender which the person tendering upon objection by the creditor might remove and if objections to such conditions are not raised by the creditor, they are deemed waived. Harding v. Home Inv. & Sav. Co., 49 Idaho 64, 286 P. 920 (1930).

A letter, stating that a sum, which was more than the court found to be payable, was deposited with a bank, with instructions to remit said sum upon tender of deed with revenue stamps attached, satisfied the provisions of this section. Dohrman v. Tomlinson, 88 Idaho 313, 399 P.2d 255 (1965). Withdrawal of tender with the permission of the court did not render the tender void where defendants’ answer and counterclaim contained an offer to perform the agreement in litigation, pursuant to which tender was made. Darrar v. Joseph, 91 Idaho 210, 419 P.2d 211 (1966).

Tender by Check.

A tender by check sufficiently complies with this section in the absence of any objection to such tender. Boise Lumber Co. v. Independent School Dist., 36 Idaho 778, 214 P. 143 (1923).

Offer of payment of $100,000 by insurance check in hand, which would extinguish defendant parents’ liability, and partially satisfy defendant son’s liability, was unconditional, and, by either the terms of the policy or this section, insurer was not liable for interest accruing on $100,000 of the judgment after the letter making the offer was mailed. Buckley v. Orem, 112 Idaho 117, 730 P.2d 1037 (Ct. App. 1986).

Am. Jur. 2d.

C.J.S.

Section Inapplicable to Creditor.

This statute gives the “debtor” the right to demand a receipt but it has no application to a creditor. Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936).

A mortgage assignee’s offer to pay assignee of prior mortgage the amount paid by the latter therefor is held to be a legal tender, even if the offeror demanded an assignment instead of a release of prior mortgage, in the absence of objection to the mode, form, or substance of the offer. Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936).

Voluntary Payments Not Recoverable.

Generally, except where otherwise provided by statute, one cannot, either by set-off or counterclaim, or by a direct action, recover back money which he had voluntarily paid with full knowledge of all of the facts and without any fraud, duress, or extortion, although no obligation to make such payment existed. Breckenridge v. Johnston, 62 Idaho 121, 108 P.2d 833 (1940).

Cross References.

Election contests legislative and state executive offices, witnesses’ fees and mileage,§ 34-2112.

Procedures regarding costs, Idaho Civil Procedure Rules 54(d)(1) to 54(d)(6).

Effective Dates.

Section 2 of S.L. 1977, ch. 5 declared an emergency. Approved February 15, 1977.

Amount of Compensation.

Where trial lasts more than one day, and a witness is subpoenaed to be present at trial and makes arrangements to be called when needed and actually attends only on day he testifies, he is entitled to per diem compensation for one day only. Griffith v. Montandon, 4 Idaho 75, 35 P. 704 (1894).

Mileage.

Regardless of number of days in attendance at trial, witnesses are allowed mileage one way only once. Gasser v. Garden Water Co., 81 Idaho 421, 346 P.2d 592 (1959).

Who Entitled to Fees.

Witness is entitled to fees and same may be taxed as costs, although such witness is wife or mother of party calling her. Griffith v. Montandon, 4 Idaho 75, 35 P. 704 (1894); Anderson v. Ferguson-Bach Sheep Co., 12 Idaho 418, 86 P. 41 (1906).

This section does not require, as a condition precedent to recovery of mileage by a witness, that he should have been obliged to attend, or that he should have been subpoenaed, but the only test is, was he a witness; one who attends and testifies as a witness is entitled to mileage although he lives in another county from that of trial and more than thirty miles from seat of trial. Anderson v. Ferguson-Bach Sheep Co., 12 Idaho 418, 86 P. 41 (1906). Witness is entitled to fees and mileage for distance actually traveled within the state in going to place of trial, although he resides out of the state and is not obliged to attend. State v. Baird, 13 Idaho 126, 89 P. 298 (1907).

Agents and employees for corporation, and even its president, which is successful party to suit are nonetheless entitled to witness fees and mileage for their attendance upon trial when called as witnesses. Feenaughty Mach. Co. v. Turner, 44 Idaho 363, 257 P. 38 (1927).

Witness fees of an attorney who appeared as a witness merely as a courtesy to a litigant’s counsel may not be taxed as cost where there was no demand for such fee on the part of the attorney-witness. Feenaughty Mach. Co. v. Turner, 44 Idaho 363, 257 P. 38 (1927).

Am. Jur. 2d.

C.J.S.

ALR.

§ 9-1602. Witnesses’ fees in probate and justices’ courts. [Repealed.]

Compiler’s Notes.

This section, which comprised R.S., R.C., & C.L., § 6140; C.S., § 8070; I.C.A.,§ 16-1602; am. 1957, ch. 140, § 2, p. 232 courts was repealed by S.L. 1969, ch. 111, § 20.

Improper Charging of Party.

Trial court’s order, charging husband with the costs of translating documents in the Spanish language and submitted to the court by wife, was improper as this section provides that interpreter’s fees are to be paid out of the county treasury. Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990).

Cross References.

Subpoena on behalf of state, prepayment of fees not required,§ 31-3211.

Witnesses before county commissioners, prepayment or tender of fees not required,§ 31-846.

Prior Laws.

Former§§ 9-1701 and 9-1702 (S.L. 1978, ch. 275 [No. 1], § 3, p. 640) are deemed superseded by S.L. 1979, ch. 131, § 4.

Legislative Intent.

Section 1 of S.L. 2020, ch. 96 provided: “Legislative Intent. It is the intent of the Legislature that following the effective date of this Act [March 11, 2020] any references to the Bureau of Occupational Licenses in Idaho Code be understood to refer to the Division of Occupational and Professional Licenses. See§ 67-2602.

Prior Laws.

Former§ 9-1702 is deemed superseded. See Prior Laws,§ 9-1701.

Effective Dates.

Section 5 of S.L. 1979, ch. 131 declared an emergency. Approved March 27, 1979.

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Closed-circuit Television.

In allowing a child victim to testify by closed-circuit television, the record showed the district court considered the relative rights and interests of the parties under this section. State v. Baeza, 161 Idaho 38, 383 P.3d 1208 (2016).

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Compiler’s Notes.

Section 3 of S.L. 2003, ch. 152 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”