Idaho Code
Idaho Code

Idaho Code § 19-2123 (2026)

Advisory instruction to acquit. 

✓ current as of May 2026
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Advisory instruction to acquit. 

If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant. But the jury are not bound by the advice.

Notes of Decisions
Cited in 13 cases, 1956–2008 · leading case: State v. Warden, 592 P.2d 836 (Idaho 1979).
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State v. Warden, 592 P.2d 836 (Idaho 1979). · cites it 4× “Appellant next contends that the trial court erred in not granting an advisory instruction to acquit pursuant to I.C. § 19-2123. It is well settled in Idaho that the granting or denying of an advisory instruction to acquit is within the discretion of the trial court.”
State v. Erwin, 572 P.2d 170 (Idaho 1977). · cites it 4× “Nor did defendant move for an advisory instruction to acquit under I.C. § 19-2123. The evidence does not sustain the verdict, and accordingly the judgment of conviction is reversed.”
State v. Huggins, 648 P.2d 1135 (Idaho Ct. App. 1982). · cites it 4× “WALTERS, C.J., and BURNETT, J., concur. NOTES [1] The state has not suggested that either of the spousal exceptions would apply in this case.”
State v. Jesser, 501 P.2d 727 (Idaho 1972). · cites it 4× “§ 8963, [now I.C. § 19-2123] is to limit this power, not to abolish it.”
State v. Urie, 437 P.2d 24 (Idaho 1968). · cites it 3× “Initially, he contends that the trial court erred in refusing to grant his motion for an advisory instruction to acquit under I.C. § 19-2123 based upon the insufficiency of the evidence and the lack of corroboration.”
United States v. Sharp, 179 P.3d 1059 (Idaho 2008). · cites it 2× “Idaho Code § 19-2117 states, “A conviction cannot be had on the testimony of an accomplice____” Idaho Code § 19-2123 requires the court to advise the jury to acquit if “the court deems [the evidence] insufficient to warrant a conviction.”
State v. McCallum, 295 P.2d 259 (Idaho 1956). · cites it 4× “§ 19-2023 (now I.C. § 19-2123) and said, 59 Idaho at page 704 , 89 P.”
State v. Elisondo, 644 P.2d 992 (Idaho Ct. App. 1982). · cites it 2× “” Between Elisondo’s assignment of error and his argument, it is difficult to ascertain whether he is claiming to have been aggrieved by his counsel’s failure to request an advisory instruction to acquit under I.C. § 19-2123, or by failure to move for a judgment of acquittal…”
State v. Gish, 393 P.2d 342 (Idaho 1964). · cites it 2× “Such motion is authorized under I.C. § 19-2123, which provides: “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant.”
State v. Wozniak, 486 P.2d 1025 (Idaho 1971). · cites it 2× “(What appellant has reference to is an advisory instruction to acquit, I.C. § 19-2123). Appellant bases these assignments of error first on the fact that the statement “I will kill your ass” by Wozniak was not proven to be a threat.”
State v. Puckett, 401 P.2d 784 (Idaho 1965). · cites it 2× “Advisory verdicts of acquittal are provided by statute, I.C. § 19-2123, as follows : “Advisory instruction to acquit.”
State v. Fox, 941 P.2d 357 (Idaho Ct. App. 1997). · cites it 2× “29 and for an advisory jury instruction to acquit under I.C. § 19-2123. Both of these motions were denied.”
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