Module 1: The Role of the County Prosecuting Attorney

Where the Office Comes From

The county prosecuting attorney does not appear in the county government article of the Idaho Constitution. Article XVIII, section 6 names the elected county offices: commissioners, sheriff, assessor, coroner, and treasurer, with the clerk of the district court serving as ex officio auditor and recorder. No prosecutor on that list.¹ The office comes from the judicial article, Article V, section 18:

"A prosecuting attorney shall be elected for each organized county in the state, by the qualified electors of such county, and shall hold office for the term of two years, and commencing with the general election in 1984 shall hold office for the term of four years, and shall perform such duties as may be prescribed by law; he shall be a practicing attorney at law, and a resident and elector of the county for which he is elected. He shall receive such compensation for services as may be fixed by law."

Idaho Constitution, art. V, § 18

The voters of each county pick the person. The Legislature supplies nearly everything else: duties "prescribed by law," pay "fixed by law." So the office is elected like a county office, sits in the constitution like a court office, and is shaped almost entirely by statute. The main statute is Idaho Code Title 31, chapter 26, sections 31-2601 through 31-2610.²

Election and Qualifications

Section 34-623 puts a prosecutor on the ballot in every county at the 1984 general election "and every four (4) years thereafter," which means 2024 and 2028. A candidate must be at least 21, admitted to practice law in Idaho, a United States citizen, and a qualified elector in the county. The declaration of candidacy goes to the county clerk with a $40 filing fee deposited in the county treasury.³

Section 31-2601 adds a second test at a different moment. No one is eligible to qualify unless "an attorney and counselor at law duly licensed to practice" in the district courts of the state "at the time he assumes office."⁴ Admission is checked at filing, an active license at the oath. The same section bars a prosecutor from holding any other county or state office, with one exception: the Attorney General may appoint a sitting prosecutor or deputy as a special assistant attorney general for work in another county, but only when that county's prosecutor asks in writing and never without the appointee's consent.

Term and Oath

The term is four years. County officers other than commissioners take the oath on the second Monday of January after the general election, before the chairman of the board, and file it with the county recorder.⁵ By that rule the current term began Monday, January 13, 2025, and the next begins Monday, January 8, 2029. Those dates are my calendar count, not copied text. The oath is short: support the United States and Idaho constitutions and "faithfully discharge the duties" of the office "according to the best of my ability."⁶

Vacancies, Conflicts and Special Prosecutors

Section 59-901 lists how an elective office becomes vacant: resignation, death, removal by lawful procedure, a tribunal's declaration of abandonment or incapacity beyond 90 days, ceasing to reside in the county, a failure to elect anyone, forfeiture under another law, or conviction of a felony or of a public offense involving the oath of office.⁷ Section 59-906 then fills a county vacancy. The commissioners appoint, until the next general election, on this clock:

• The county central committee of the former officer's party sends the commissioners a list of three within 15 days of the vacancy.
• The commissioners appoint from that list within 15 days.
• If they do not, the committee designates one of its three.
• If the committee does not act within that second 15 days, the commissioners appoint someone within 5 days.
• If the former officer had no party, the commissioners appoint directly.

An appointee must meet the qualifications for election. A prosecutor who gives written notice of a future resignation lets the process run early, so a replacement can take over the next day. If the officer rescinds the notice in writing, everything done to fill the anticipated vacancy is void.⁸ Once sworn and bonded, an appointee holds all the powers and carries all the liabilities of the officer replaced.⁹

Small Counties

Section 59-907 addresses a problem only this office has. When there are three or fewer resident attorneys "willing and qualified to perform the functions of prosecuting attorney," the commissioners may appoint or contract with an attorney from outside the county for the rest of the term or a shorter period. Two counties may also contract if both boards pass resolutions. That is a "limited exception" to the section 31-2601 bar on holding another county office.¹⁰

Special Prosecutors

Section 31-2603(a) lets the district court, on petition of the prosecutor or the commissioners, appoint "some suitable person" to act when the prosecutor is absent from court, has acted as counsel for the accused in the same matter, is near of kin to the accused, has a business connection or kinship with the complainant or defendant, or is unable to attend to the duties. The order goes in the court's minutes and must state the cause. Subsection (b) is the route to state help: the prosecutor may petition for a special assistant attorney general, and if the judge finds good cause and the Attorney General approves, the appointee's pay "shall be paid by the attorney-general" from the Attorney General's appropriation.¹¹ That is one of the few places in this chapter where the state, not the county, pays.

Section 31-2604 and the Duty List

The job description sits in section 31-2604. Section 31-2601 only sets qualifications. The duty section lists six items.¹²

1. Prosecute or defend all actions, civil or criminal, in the district court of the county in which the people, the state or the county are interested, and follow a moved case to the other county.
2. Prosecute all felonies "irrespective of whom the arresting officer is"; prosecute state misdemeanors, infractions and county ordinance violations when the arresting or charging officer is a state or county employee; conduct preliminary examinations; and prosecute city misdemeanors and ordinances only under a written contract with the city.
3. Advise the commissioners "and other public officers of his county, when requested."
4. Attend the grand jury when requested, draw indictments, informations and accusations, and issue subpoenas.
5. Settle with the auditor on the first Monday of each month and pay collected money to the treasurer, and file by the first Monday of October a sworn account of fines, forfeitures, penalties and costs received, naming each payer, the amount and the cause.
6. Perform all other duties required by law.

Section 31-2605 requires duplicate receipts for money collected. Section 31-2606 bars the prosecutor from taking a private fee for official work and from having a law partner defend any matter the prosecutor handles for the state. Section 31-2607 makes the prosecutor "the legal adviser of the board of commissioners."¹³ The civil side has its own module: Module 2, the prosecutor as civil advisor.

Enforcement Sits With Two County Officers

Section 31-2227 states the policy behind it: "the primary duty of enforcing all the penal provisions of any and all statutes of this state, in any court, is vested in the sheriff and prosecuting attorney of each of the several counties." If those officers need help the county lacks, they may call on the Idaho State Police.¹⁴ The Legislature chose two elected county officers for front-line enforcement, not one statewide agency.

Deputies, Budget and Who Pays

Deputies

Deputies come from section 31-2602, not from section 31-3107 or the deputy sentence of Article XVIII, section 6, neither of which names the prosecutor. A prosecutor "may be empowered by the board of county commissioners" to appoint deputies "upon a finding by such board" that they are "necessary for the proper conduct of his office." The board fixes each salary, paid monthly on the auditor's warrant. A deputy must meet the prosecutor's qualifications "except that of county residency."¹⁵ The board's finding is a decision that belongs in the minutes.

Salary and the Budget Calendar

Article V says the prosecutor's pay is "fixed by law." The law is short. Section 31-3106 has the commissioners fix "the annual salaries of the several county officers" through the budget process, as of October 1.¹⁶ Salaries are paid monthly from the county treasury, and actual and necessary expenses are a charge against the county.¹⁷ After the final budget, no salary may be raised without a resolution entered in the minutes.¹⁸

The county auditor is the budget officer. By the first Monday in May the auditor notifies every office to file an itemized estimate by the third Monday in May, showing the two preceding fiscal years. The suggested budget reaches the commissioners by the first Monday in August. Notice of the proposed amount for each office is due by the third week of August. The final hearing, where "any taxpayer may appear and be heard," falls on or before the Tuesday after the first Monday in September. Adopted appropriations are limits: each official is "limited in making expenditures or the incurring of liabilities" to them.¹⁹

Neither elected body answers to the other on the substance of the work. The board holds the money, the prosecutor holds the cases. I read that as a feature: the commissioners must fit every office under one set of revenues, and the prosecutor must justify the office in public, in the same hearing as the sheriff and the road department.

What the State Pays and What the County Pays

In the chapters I read, the county pays for the office: the prosecutor's salary, the deputies' salaries, and the expenses. The state appears in narrow places. The Attorney General pays a special assistant attorney general appointed under 31-2603(b). Fines in most state-law prosecutions are apportioned under section 19-4705: for violations outside the fish and game, motor vehicle, driving privilege and DUI categories, 10 percent goes to the state treasurer and 90 percent to the district court fund of the county where the violation occurred. I found no provision that sends fine money into the prosecutor's budget and no statute that pays an elected prosecutor from state funds.²⁰ Cities come in by contract: city misdemeanors may be prosecuted by the county only under a written contract, and section 31-3113 requires "the unanimous approval of the board of county commissioners, and ... the consent of the prosecuting attorney." The statute sets no price.²¹

Prosecutorial Discretion: What the Statute Does and Does Not Require

Section 31-2604(2) says the prosecutor shall "prosecute all felony criminal actions." That reads like a command. Nothing in chapter 26 tells a prosecutor which referrals to charge, how much evidence is enough, or whether to publish a policy. I read the whole chapter and it is silent on all three. What the Code and the court rules supply are edges around the discretion.

Before a Case Is Filed

The United States Supreme Court said in 1978: "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." That is a federal due process floor from Bordenkircher v. Hayes, 434 U.S. 357 (1978), a plea bargaining case, not an Idaho policy.²² Idaho adds its own text. Section 19-1306 covers a case where an offender was committed or held to bail after a preliminary examination. A prosecutor who decides an information "ought not to be filed" must file a signed statement "containing his reasons, in fact and in law" with the clerk of the court. The court may examine it, and if not satisfied "the prosecuting attorney shall be directed by the court to file the proper information."²³ I found no Idaho decision applying that section, so I cannot say how courts treat it now. A reporter can ask a clerk whether any such statements are on file.

After a Case Is Filed

Walking away from a filed case runs through the court. Section 19-3504 allows dismissal "in furtherance of justice" on the court's motion or the prosecutor's application, and "[t]he reasons of the dismissal must be set forth in an order entered upon the minutes." Section 19-3505 abolishes the nolle prosequi: neither the Attorney General nor the prosecutor "can discontinue or abandon a prosecution for a public offense except as provided in the last section." Idaho Criminal Rule 48(b) says a dismissal order "must state the court's reasons for dismissal."²⁴ Declining to file is wide open. Abandoning a filed case comes with a written reason on a public court record.

The One Statutory Diversion Program

Section 19-3509 says a prosecutor "may, at the prosecuting attorney's discretion, establish a diversion program." Read the eligibility section before assuming it covers everything. Section 19-3508 limits it to people charged with driving under the influence under section 18-8004 or 18-8004A who either held no commercial license or was not driving a commercial vehicle, whose conduct injured no one, and who have no DUI conviction in ten years and no earlier diversion. The terms go in a written agreement signed by the prosecutor and the defendant. The period is at least 12 months, with an ignition interlock, 32 hours of labor or community service, and 24 hours of counseling or education. The case is dismissed and can be refiled if the person fails.²⁵ If your county's prosecutor runs a program for other offenses, it runs on general discretion and the office's own written terms. I found no statute that standardizes it. Ask for the form.

The Prosecutor as Public Officer: Rule 3.8 and the Duty to Seek Justice

A prosecutor is a licensed lawyer first, and one Idaho Rule of Professional Conduct is written for prosecutors alone. I read Rule 3.8 in the Idaho State Bar's published PDF of the rules. I could not fetch a court-hosted copy to compare, so check the current text before quoting it in print.²⁷ The rule says the prosecutor in a criminal case shall:

"(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; ... (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."

Idaho Rules of Professional Conduct, Rule 3.8(a) and (d)

Paragraph (c) bars seeking a waiver of important pretrial rights, such as a preliminary hearing, from an unrepresented accused. Paragraph (f) restricts extrajudicial comments with "a substantial likelihood of heightening public condemnation of the accused," except statements "necessary to inform the public of the nature and extent of the prosecutor's action" that serve "a legitimate law enforcement purpose." The comment says a prosecutor "has the responsibility of a minister of justice and not simply that of an advocate," and that "knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4."²⁸ Discretion has an outer edge, then. The rule does not say where it is, and I found no Idaho disciplinary decision in this review that draws it.

What the Supreme Court Said

In Berger v. United States, 295 U.S. 78 (1935), the Court called a federal prosecutor "the servant of the law" who "may prosecute with earnestness and vigor" and "may strike hard blows" but "is not at liberty to strike foul ones."²⁹ In Brady v. Maryland, 373 U.S. 83 (1963), it held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."³⁰ Neither is an Idaho decision. Idaho's own Criminal Rule 6.1(b)(1) carries the principle into the grand jury room: "when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of the subject of the investigation the prosecutor must present or otherwise disclose that evidence to the grand jury."³¹

The bar and the courts enforce these rules, not the commissioners and not the press. Voters get a say every four years and, in between, recall. That is why an elected prosecutor's stated policies matter: they are the part the public can read.

Charging Vehicles: Complaint, Information, Indictment and Victims' Rights

The Idaho Constitution limits how a felony case can start. Article I, section 8 says no one shall be held to answer for a felony "unless on presentment or indictment of a grand jury or on information of the public prosecutor, after a commitment by a magistrate," and that "after a charge has been ignored by a grand jury, no person shall be held to answer, or for trial therefor, upon information of public prosecutor."³²

Path One: Complaint, Preliminary Hearing, Information

Under Idaho Criminal Rule 5.1, a person charged by complaint with a felony is entitled to a preliminary hearing unless a grand jury has indicted. The hearing must be set within 14 days of the initial appearance for a person in custody and 21 days for one who is not, unless extended. The magistrate must find probable cause "based on substantial evidence on every material element of the offense charged." If the finding is made, the defendant answers in district court. If not, the complaint is dismissed.³³ The information is then filed and signed by the prosecuting attorney "as informant" under section 19-1302.

Path Two: Grand Jury and Indictment

Section 19-1101 directs the grand jury to "inquire into all public offenses committed or triable within the county." Under Idaho Criminal Rule 6, a grand jury has 16 jurors, and 12 are a quorum. On the prosecutor's motion, a district judge may order one impaneled "at such times as the public interest requires." The jurors are chosen under the Uniform Jury Selection and Service Act, not by the prosecutor. An indictment needs 12 or more votes, each charge is voted on separately, and a no bill is placed in writing and kept under seal. A grand jury serves up to six months unless the court orders otherwise.³⁴ Rule 6.1 lets the prosecutor attend all sessions except deliberations, present evidence, list the elements, advise on probable cause, and prepare the indictment. Rule 6.3 keeps everyone present silent except by court order.

A small knot sits in the texts. Section 19-1107 says a grand jury ought to indict when the evidence, "if unexplained or uncontradicted, would, in their judgment, warrant a conviction by a trial jury." Rule 6.5(a), adopted in 2017, uses probable cause. I found no decision reconciling them. Section 19-1112 says grand jury matters "shall be subject to disclosure according to chapter 1, title 74," while Rule 6.3(c) keeps participants silent. A reporter should ask the clerk what is on the public record.³⁵ This module does not cover misdemeanor procedure.

Victims' Rights

Article I, section 22 gives a crime victim, "as defined by statute," rights to fairness, timely disposition, notice of proceedings, presence, communication with the prosecution, a hearing on pleas and sentencing, restitution, refusal of defense interviews, and the presentence report. It does not authorize a court to dismiss a case for a violation and creates no claim for money damages.³⁶ Section 19-5306 sets the prosecutor's practical duties. When a complaint is filed, the prosecutor "shall inform the victim of the various opportunities provided by this section," and the victim asserts them on a form the prosecutor provides to the clerk. For crimes of violence, sex crimes and crimes against children, the victim must be "advised of any proposed plea agreement by the prosecuting attorney prior to entering into a plea agreement." The section covers a "criminal offense" meaning any charged felony or misdemeanor involving physical injury, the threat of injury, or a sexual offense.³⁷

The Attorney General and the County Prosecutor

Whether the Attorney General can take a case from a county prosecutor was answered in part by the Idaho Supreme Court in 1996, and the Legislature has narrowed and widened the answer since.

The Baseline: Assist, Not Supervise

Section 67-1401(7) makes it the Attorney General's duty, "when required by the public service, to repair to any county in the state and assist the prosecuting attorney thereof in the discharge of duties."³⁸ In Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996), the Minidoka County prosecutor asked for help with three homicide cases. When she declined to hand over control, the Attorney General notified her that his office was "assuming exclusive prosecutorial responsibility." The Idaho Supreme Court, per curiam on August 2, 1996, granted a writ "prohibiting the Attorney General from asserting dominion and control over the cases." It read the assisting power as "a collaborative effort between the Attorney General and the Prosecuting Attorney, not the functioning of one to the exclusion of the other," and relied on section 31-2227.³⁹

When Newman was decided, section 67-1401 also gave the Attorney General "supervisory powers over prosecuting attorneys." The Legislature deleted that in 1998. In State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003), the Court noted the deletion and held that "it is the county prosecutor, not the Attorney general who has the authority to initiate felony criminal proceedings," and that the Attorney General "does not have the power to initiate criminal proceedings absent a petition and order of the district court." It told the office to take the case "as fair warning."⁴⁰ The Attorney General's own Opinion No. 23-1 (April 27, 2023) agrees that county prosecutors "do not answer to the Attorney General." An opinion is the office's reading, not a court holding.⁴¹

Where the Legislature Added State Authority

• Elected county officers. Section 31-2002 lets the Attorney General investigate any allegation that an elected county officer violated state criminal law in an official capacity. The Attorney General must then issue a finding of no further action, suggest training or other nonjudicial remedies, or retain the matter as special prosecutor, and has subpoena power for the investigation. The section is not exclusive and does not stop a county prosecutor from investigating, prosecuting, or referring the matter to a neighboring county.⁴² A sitting prosecutor is an elected county officer, so the section reaches the prosecutor too.
• Refusal backstop. Section 18-623(4) gives the Attorney General sole-discretion authority over one specific crime if the local prosecutor refuses to prosecute it "without regard to the facts or circumstances."
• Governor and State Police. Under section 31-2227(3), when "in the judgment of the governor the penal laws of this state are not being enforced as written" in a county, the governor may direct the State Police to act independently of the sheriff and prosecutor, and "the attorney general shall exclusively exercise all duties, rights and responsibilities of the prosecuting attorney."⁴³

Section 67-1401(12) also tells the Attorney General to report to the governor on "the reports received from prosecuting attorneys." The statute does not say what reports prosecutors must send. That is a records question for the Attorney General's office.

Recall and Removal

Idaho gives voters a direct way to end a prosecutor's term between elections, and a second route runs through the grand jury and the district court.

Recall

Section 34-1701(2)(a) lists the county officers subject to recall: "the members of the board of county commissioners, sheriff, treasurer, assessor, prosecuting attorney, clerk of the district court, and coroner." Section 34-1702(3) sets the count. The petition goes to the county clerk and "must be signed by registered electors of the county equal in number to twenty percent (20%) of the number of electors registered to vote at the last general election held in the county for the election of county officers at which the officer was elected."⁴⁴ For a prosecutor elected in November 2024, that is the number registered for that election, not today's rolls and not the votes cast. Ask the clerk for the figure.

• Sponsors first deliver a prospective petition signed by at least 20 electors. The clerk approves it as to form in writing. Signatures on the prospective petition do not count.
• From that approval the sponsors have 75 days to collect the full count. A petition short at day 75 is void.⁴⁵
• Each petition states its reasons in no more than 200 words, with no more than twenty signature lines to a sheet.
• The clerk verifies signatures within 15 business days. If the petition is sufficient, the officer has five business days to resign. If not, the clerk orders a countywide special election on the date set in section 34-106.⁴⁶
• The ballot is headed "RECALL BALLOT" and prints up to 200 words from each side. The officer stays in office until the result is proclaimed.

Section 34-1713 bars circulation until the officer has held office "under the current term for at least ninety (90) days," which by my count ran to about April 13, 2025, and for the term starting in 2029 would run to about April 8, 2029. After one special recall election, a second petition in the same term requires the petitioners to repay the cost of the first, and the same reason cannot be reused. A signer may strike his or her own name until filing. Section 34-1714 makes it a felony to forge signatures, sign twice, or knowingly file false ones.⁴⁷ In the sections I read, the Legislature fixed the form, the count and the clock, and did not list required grounds. The petition states reasons. Voters decide whether they are enough.

Removal by Accusation

Chapter 41 of Title 19 supplies a criminal-procedure route. A county grand jury may present a written accusation against a county officer "for wilful or corrupt misconduct in office." Trial is by jury, and a judgment of removal must be entered on the minutes with the causes assigned. When the accused is the prosecutor, section 19-4114 sends the accusation through the clerk to the district judge, who "must thereupon appoint some one to act as prosecuting officer in the matter, or place the accusation in the hands of the prosecuting attorney of an adjoining county."⁴⁸ Removal opens a vacancy under section 59-901(1)(c).

Reporting Angles

Court rules, privilege and statute shield most of what a prosecutor's office does with individual cases. Most of what it does with money, staff, policy and promises is not shielded. The records below sit in that second group.

The Public Records Rules

Section 74-102(1) starts from a presumption: "all public records in Idaho are open at all reasonable times for inspection except as otherwise expressly provided by statute."⁴⁹ An agency may require a written request that "specifically describes the subject matter and records sought, including a specific date range," with the requester's name, mailing address, email, telephone and a sworn statement of residency. Section 74-103(1) adds that the request must clearly say it is a public records request and go to the designated custodian (section 74-119).

A resident gets a grant or denial in three working days, or written notice that up to ten working days are needed. Nonresidents get 21 and 35 days. Silence is a denial. A denial must be in writing, say whether the agency's attorney reviewed it, cite the statutory authority, and state appeal rights and deadlines.⁵⁰ The remedy is a district court petition within 180 calendar days of the mailing of the denial (section 74-115(1)). The court may examine records in camera. Fees go to the prevailing party only if the request or refusal was "frivolously pursued" (section 74-116), and a deliberate bad-faith refusal carries a civil penalty up to $1,000 (section 74-117).⁵¹ Residents get the first two hours of labor and first 100 pages free (section 74-102(10)).

The Criminal Investigation Exemption

Section 74-105(1) exempts investigatory records of a law enforcement agency under section 74-124, and section 74-124(3) defines that agency to include "the office of any prosecuting attorney, sheriff or municipal police department." But the exemption applies "only to the extent that the production of such records would" cause one of seven harms: interfere with enforcement proceedings, deny a fair trial, invade personal privacy without warrant, disclose a confidential source, disclose investigative techniques, endanger law enforcement personnel, or disclose a child abuse reporter's identity. An inactive investigatory record "shall be disclosed" unless one of those applies. And "investigatory record" excludes the time, date, location and nature of a reported crime, the name, sex, age and address of a person arrested, the crime charged, documents given to the arrested person, informations and indictments, and criminal history reports.⁵² Section 74-112 requires separating exempt from nonexempt material. Section 74-115(3) notes the Act does not replace discovery or reach prosecution files already given to a defendant in an appeal or post-conviction case.

Records Worth Requesting

• Policies. Any written charging, declination, diversion, plea and victim-notification policy. If there is none, ask in writing and keep the answer.
• Counts by year. Referrals received, filed, declined and dismissed, by referring agency, as the office already keeps them.
• Section 19-1306 statements. Ask the clerk of the district court for any filed.
• The October account under section 31-2604(5) and the monthly receipts under section 31-2605, from the county auditor.
• Budget papers. The office's May estimate, the August notice, the final budget, salary resolutions, and the minutes showing the section 31-2602 finding.
• Contracts. City prosecution contracts (31-2604(2), 31-3113), outside-attorney contracts (59-907), and the board resolutions behind them. Special prosecutor orders (31-2603) are in court minutes.
• Diversion paperwork. The blank agreement under section 19-3509 and counts of referrals, completions and refilings.
• Staff pay. Under section 74-106(1), gross salary, salary history, bonuses, severance and reimbursed expenses are public. Evaluations and grievances are not.

Meetings and Numbers

Watch the May estimates, the August submission and the September hearing, plus agenda items on salary resolutions, deputy findings and contracts. For what boards may discuss in private, see the Idaho open meetings course. Worth comparing: the office's share of the general fund now and five years back; felony referrals and filings per deputy; declination rate by referring agency; time from referral to charging decision; dismissal rate and stated reasons; and your county against two neighbors of similar size using the same definitions.

Questions for the Officeholder

• What written standard decides whether you file, decline or refer a felony?
• What did the commissioners find under section 31-2602 when they approved your deputies?
• What is your policy on notifying victims before a plea in a violent case?
• Who runs diversion, and where is the agreement form?

Send these in writing to the officeholder and the custodian at the same time, and the answer is documented either way.

Sources & Further Reading

Primary Sources

• Idaho Constitution: art. I, § 8, art. I, § 22, art. IV, § 1, art. IV, § 5, art. V, § 18, art. XVIII, §§ 5 through 8
• Idaho Code Title 31, chapter 26 (Prosecuting Attorney), §§ 31-2601 through 31-2610
• Idaho Code Title 31: § 31-2002, § 31-2227, § 31-3101, § 31-3106, § 31-3113, chapter 16 (County Budget Law)
• Idaho Code Title 34: § 34-623, chapter 17 (Recall Elections), §§ 34-1701 through 34-1714
• Idaho Code Title 59: §§ 59-401 through 59-405, §§ 59-901, 59-905 through 59-907, 59-916
• Idaho Code Title 19: §§ 19-901, 19-902, §§ 19-1101 through 19-1112, §§ 19-1302, 19-1306, 19-1308, §§ 19-3504 through 19-3509, §§ 19-4101 through 19-4114, § 19-4705, § 19-5306
• Idaho Code: § 67-1401, § 67-802, § 18-623
• Idaho Code Title 74, chapter 1 (Public Records Act): §§ 74-101 through 74-119 and 74-124
• Idaho Criminal Rules 5.1, 6 through 6.7, 7 and 48 (Idaho Supreme Court)
• Idaho Rules of Professional Conduct, Rule 3.8 (Idaho State Bar PDF)
• Cases: Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996), State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003), Berger v. United States, 295 U.S. 78 (1935), Brady v. Maryland, 373 U.S. 83 (1963), Bordenkircher v. Hayes, 434 U.S. 357 (1978)

Agency Guidance

• Idaho Attorney General Opinion No. 23-1 (April 27, 2023), on the Attorney General's authority to prosecute
• Idaho State Bar (publishes the Idaho Rules of Professional Conduct)

Related Training Modules

• Prosecuting Attorneys, Module 2: The Prosecutor as Civil Advisor
• Commissioners: Authority & Powers
• Sheriffs: The Role of the County Sheriff
• Clerks: The Role of the Clerk, Auditor & Recorder
• Treasurers: The Role of the County Treasurer
• Issues course: Idaho Open Meetings
• Issues course: Local Government
• Issues course: Idaho Property Taxes (how county budgets are funded)

Footnotes

1. Idaho Constitution, art. XVIII, § 6 (county officers; the section lists commissioners, sheriff, assessor, coroner and treasurer, names the clerk of the district court as ex officio auditor and recorder, and says "[t]he county commissioners may employ counsel when necessary"). Art. XVIII, § 5 requires the Legislature to establish a uniform system of county governments. The section does not name a prosecuting attorney. Compare art. V, § 18.
2. Idaho Code §§ 31-2601 through 31-2610. Sections 31-2608 through 31-2610 deal with county stenographers at preliminary examinations and are not covered in this module. Statute pages checked October 13, 2026, at legislature.idaho.gov. The site states that statutes are updated to the website on July 1 following the legislative session.
3. Idaho Code § 34-623 (election of county prosecuting attorneys; qualifications). The 2024 and 2028 election years are derived from "1984, and every four (4) years thereafter." Last amended 1996, ch. 28. Idaho Code § 34-601(2) sets the general election on the first Tuesday after the first Monday of November.
4. Idaho Code § 31-2601 (qualifications; bar on holding other county or state office; special assistant attorney general exception). Last amended 1953, ch. 239. The constitution says "practicing attorney at law" (art. V, § 18); the statute says "duly licensed to practice" at the time of assuming office. I did not find an Idaho decision that distinguishes the two phrases.
5. Idaho Code § 59-404 (county officers; second Monday of January succeeding each general election; oath of the other county officers taken before the chairman of the board); § 59-405 (oath filed with the recorder of the county). January 13, 2025 and January 8, 2029 are the second Mondays of those Januaries by calendar count.
6. Idaho Code § 59-401 (official oath form); § 59-402 (time for taking oath where no other time is fixed by law).
7. Idaho Code § 59-901(1)(a) through (i). The list also includes acceptance of a military commission requiring service out of state for at least 60 days.
8. Idaho Code § 59-906(1) and (2); § 59-905 (county office vacancies filled by the procedure in § 59-906). Commissioner vacancies are filled by the governor instead.
9. Idaho Code § 59-916. See also Idaho Code § 59-806 (commissioners must review the sufficiency of county officer bonds at least twice a year); the Surety Bond Act is Idaho Code §§ 59-801 through 59-812.
10. Idaho Code § 59-907 (prosecuting attorney vacancy; residency; contracting with another prosecuting attorney). Last amended 2006, ch. 115.
11. Idaho Code § 31-2603(a) and (b). Last amended 1988, ch. 295. Subsection (a) does not say who pays a court-appointed special prosecutor. I did not find an Idaho Code section that answers that question for subsection (a).
12. Idaho Code § 31-2604(1) through (6). Last amended 1989, ch. 292.
13. Idaho Code §§ 31-2605, 31-2606, 31-2607. The history lines of all three list no amendment after the Idaho Code Annotated compilation.
14. Idaho Code § 31-2227(1) and (2) (enforcement of penal laws; primary responsibility). Last amended 2014, ch. 280.
15. Idaho Code § 31-2602 (deputy prosecuting attorneys; amended 1996, ch. 352); § 31-3107 (deputies for sheriff, coroner, assessor, treasurer and clerk; amended 2025, ch. 96); Idaho Constitution, art. XVIII, § 6 (deputy language). The prosecutor is not named in § 31-3107 or in the deputy sentence of art. XVIII, § 6.
16. Idaho Code § 31-3106 (salaries of county officers). The section refers to chapter 16, title 31 for the county budget process.
17. Idaho Code § 31-3101; Idaho Constitution, art. XVIII, §§ 7 and 8 (county officers paid fixed annual salaries from the county treasury; fees above expenses go into the county treasury). Art. XVIII, § 7 speaks of "county officers"; I did not find a decision on whether the prosecutor, whose office comes from art. V, § 18, is covered.
18. Idaho Code § 31-1606(1): "no salary may be increased during the ensuing year after the final budget is adopted without resolution of the board of county commissioners, which resolution shall be entered in the minutes."
19. Idaho Code § 31-1602 (budget officer; estimates due; the officer who fails to furnish estimates faces a $10 to $50 penalty); § 31-1603 (suggested budget); § 31-1604 (tentative appropriations; published notice; final budget meeting); § 31-1606 (expenditures limited by appropriations). Dates are as written in the statute; I did not verify whether a county has moved to a cash basis under § 31-1605A.
20. Idaho Code § 19-4705(1)(d). The 10 percent state share is divided 86 percent to the state general fund and 14 percent to the peace officers standards and training fund. Fish and game, motor vehicle, driving privilege and DUI fines follow other apportionments in subsections (1)(b) and (1)(c). I read the statute in the chapters I checked; I did not search the whole Code for every funding stream a prosecutor's office may use (grants, for example).
21. Idaho Code § 31-3113 (contracted duties of prosecuting attorneys with cities; amended through 2000, ch. 116).
22. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Argued November 9, 1977; decided January 18, 1978. The Court held that due process is not violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges on which he is plainly subject to prosecution. Text checked at law.cornell.edu/supremecourt/text/434/357. I give no pinpoint page because the version I read does not show internal page numbers.
23. Idaho Code § 19-1306. The history line shows enactment in 1890-1891, reenactment in 1899, and the compiled codifications, with no later amendment. I did not find an Idaho appellate decision applying it in this review.
24. Idaho Code §§ 19-3504, 19-3505; Idaho Criminal Rule 48(a) through (c) (text on the Idaho Supreme Court rules page, isc.idaho.gov/rules-procedure/icr, checked October 13, 2026). Section 19-3506 provides the bar effect: dismissal of a misdemeanor bars another prosecution for the same offense, except for diversion dismissals; dismissal of a felony is not a bar.
25. Idaho Code §§ 19-3506(2), 19-3507, 19-3508, 19-3509. Added 2019, ch. 305; § 19-3508 amended 2020, ch. 212. Subsection (1) of § 19-3509 refers to a diversion period "no shorter than twelve (12) months" and to the 32-hour and 24-hour requirements. I did not read the later subsections on ignition interlock funding and affidavits in full.
26. Idaho Code § 18-623(4) (added 2023, ch. 310). The section concerns abortion trafficking by an adult who procures an abortion for an unemancipated minor with intent to conceal it from the parents. I cite subsection (4) only for what it says about the Attorney General's authority to prosecute when the local prosecutor refuses. No view on the underlying policy is expressed here.
27. Idaho Rules of Professional Conduct, Rule 3.8 and Comment, text from the Idaho State Bar PDF at isb.idaho.gov/wp-content/uploads/IRPC-acc.pdf (PDF creation date March 9, 2026). The Idaho Supreme Court rules pages (isc.idaho.gov/rules-procedure) did not list the professional conduct rules at a URL I could fetch, so I used the bar's copy. The preamble of the PDF states that the rules became effective November 1, 1986, with subsequent amendments, were revised effective July 1, 2004, and that the Court specifically adopted the comments.
28. Idaho Rules of Professional Conduct, Rule 3.8, Comment [1]. The comment also notes that "[m]any jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function"; I did not verify whether Idaho prosecutors or courts have adopted those standards.
29. Berger v. United States, 295 U.S. 78 (1935). Argued March 7, 1935; decided April 15, 1935; Sutherland, J. Text checked at law.cornell.edu/supremecourt/text/295/78. The case reversed a federal conviction after the Court found the prosecutor's conduct improper. I give no pinpoint page because the version I read lacks internal page numbers.
30. Brady v. Maryland, 373 U.S. 83 (1963). Argued March 18 and 19, 1963; decided May 13, 1963. Text checked at law.cornell.edu/supremecourt/text/373/83.
31. Idaho Criminal Rule 6.1(a) and (b) (adopted February 22, 2017, effective July 1, 2017). Text checked on the Idaho Supreme Court rules page.
32. Idaho Constitution, art. I, § 8 (prosecution only by indictment or information); Idaho Code §§ 19-901, 19-902; Idaho Criminal Rule 7(a) and (b).
33. Idaho Criminal Rule 5.1(a) through (c) (as amended effective August 1, 2019). The rule allows hearsay in the form of testimony or affidavits for certain categories of fact, and requires exclusion of evidence that would require suppression. Idaho Code § 19-1308 (preliminary examination required before information).
34. Idaho Criminal Rules 6(a) through (g), 6.1, 6.3, 6.5 and 6.7. Rule 6.5(a) states the probable cause standard; Idaho Code § 19-1107 states a different formulation. Idaho Code § 19-1112 (grand jury secrecy; disclosure under chapter 1, title 74, Idaho Code).
35. Idaho Code §§ 19-1101, 19-1102, 19-1103. Idaho Code § 19-1015 allows a court, in its discretion, to direct the summoning of another grand jury when an offense is committed during the sitting of the court after discharge of the grand jury.
36. Idaho Constitution, art. I, § 22 (rights of crime victims). The final paragraph provides that the section is self-enacting and that the Legislature may enact laws to define, implement, preserve and expand the rights.
37. Idaho Code § 19-5306(1), (2), (4) and (5). Section 19-5306 is in chapter 53, title 19, which is titled "Compensation of Victims of Crimes." I did not review the victim compensation provisions.
38. Idaho Code § 67-1401(7). Section 67-1401 was most recently amended by 2026 session laws ch. 101 and ch. 182; I did not compare the old and new text. Idaho Constitution, art. IV, § 1 (the executive department includes the attorney general, who performs duties "prescribed by this Constitution and as may be prescribed by law").
39. Newman v. Lance, 129 Idaho 98, 922 P.2d 395 (1996) (per curiam; decided August 2, 1996). Text checked in the Harvard Caselaw Access Project static files, static.case.law/idaho/129/cases/0098-01.json. The Court called earlier language in State v. Taylor, 59 Idaho 724 (1939) and State v. Edmonson, 113 Idaho 230 (1987) dictum on the point.
40. State v. Summer, 139 Idaho 219, 76 P.3d 963 (2003) (decided July 31, 2003; rehearing denied September 22, 2003). Text checked at static.case.law/idaho/139/cases/0219-01.json. The Court held the indictment was improperly instituted without a court order, but that the later order appointing the Attorney General as special prosecutor cured the defect on the facts of that case.
41. Idaho Attorney General Opinion No. 23-1 (April 27, 2023), ag.idaho.gov/content/uploads/2023/04/23-86095-Response-OPN-23-1.pdf. The opinion addresses the Attorney General's authority to prosecute violations of Idaho Code § 18-622. It also cites Newman and Summer. Citing it is not an endorsement of its conclusion; an Attorney General opinion is not binding on a court.
42. Idaho Code § 31-2002 (added 2014, ch. 280; amended 2016, ch. 135; 2025, ch. 296); § 67-1401(14), (16), (17); § 18-623(4); § 67-1401(12). Section 67-1401(17) cites § 50-238 for city officers; I did not read § 50-238.
43. Idaho Code § 31-2227(3) (added in its present form by 1998, ch. 246, and amended 2014, ch. 280); § 67-802(7) ("He may require the attorney general to aid any prosecuting attorney in the discharge of his duties"). Idaho Constitution, art. IV, § 5 vests supreme executive power in the governor, who "shall see that the laws are faithfully executed." I found no Idaho decision applying § 31-2227(3).
44. Idaho Code §§ 34-1701(2)(a), 34-1702(3) (amended 2025, ch. 205). Section 34-1703(3) gives the form of a county recall petition.
45. Idaho Code § 34-1704(1) and (2) (amended 2021, ch. 325). The 75 days run from the date of approval as to form.
46. Idaho Code §§ 34-1706 (verification within 15 business days), 34-1707(2), 34-1708, 34-1709. I did not read § 34-106, which sets the date of the special election, or §§ 34-1710 through 34-1712.
47. Idaho Code §§ 34-1713(1) through (3), 34-1714. The April 13, 2025 and April 8, 2029 dates are my arithmetic (90 days after January 13, 2025 and January 8, 2029) and should be confirmed with the county clerk.
48. Idaho Code §§ 19-902, 19-4101, 19-4102, 19-4103, 19-4110, 19-4112, 19-4114; § 59-901(1)(c) and (h). I did not read sections 19-4104 through 19-4109 or 19-4111 or 19-4113 (appeal).
49. Idaho Code § 74-102(1), (4), (10); § 74-101 (definitions, including "public record," "law enforcement agency," and "resident" as domiciled in Idaho continuously for at least 30 days); § 74-119 (custodian). Section 74-103 was amended in 2022, 2024 and 2025 (ch. 298); I read the current text.
50. Idaho Code § 74-103(1) through (5).
51. Idaho Code §§ 74-115(1), 74-116, 74-117. Section 74-124(4) separately provides for a verified petition on improperly withheld investigative records, with the court examining records in camera and awarding costs and fees in its discretion.
52. Idaho Code §§ 74-105(1), 74-124(1) through (4) (added 2015, ch. 140; amended 2018, ch. 252); § 74-101(6) and (7) (definitions of "investigatory record" and "law enforcement agency"; the § 74-124(3) definition of "law enforcement agency" is the one that names the office of any prosecuting attorney); § 74-112; § 74-115(3); § 74-106(1).