specially concurring.
I concur in Parts I and III, together with the result reached in Part II, of the Court’s opinion. I write separately on the troublesome question of whether an issue raised on direct appeal from a judgment of conviction can be raised again by an application for post-conviction relief.
This question is framed today by our declaration that an accused has a constitutional right to testify in his own behalf. The present record suggests, but does not, conclusively show, that defense counsel abridged this right by waiving it without the accused’s consent. Because the record is sufficient to raise — but not to decide— the waiver question, we refrain from disposing of it on the merits. Rather, we note that the issue could be addressed more appropriately in a post-conviction proceeding. The Court’s opinion then states that by leaving the waiver question undecided, we have preserved the issue and have avoided the preclusive effect of res judicata in later proceedings. This statement is correct as far as it goes. Preclusion may be avoided by expressly authorizing a claim or issue to be raised in subsequent litigation. But I think the analysis should be taken one step further. Does res judicata apply at all?
Practitioners of criminal law must find it disquieting to be told that only the discretionary largesse of an appellate court stands between them and the bar of res judicata. After all, in Kraft v. State, 100 Idaho 671, 603 P.2d 1005 (1979), our Supreme Court was not so protective. The Court held that a claim made on appeal could not be made again, even upon a more fully developed record, in a post-conviction proceeding. The Kraft decision stands in contrast to Carter v. State, 108 Idaho 788, 702 P.2d 826 (1985). There, the Supreme Court allowed a post-conviction applicant to assert a claim previously rejected on appeal, explaining that a prior appellate opinion virtually had invited him to do so.
The Kraft and Carter decisions create uncertainty. Practitioners are abjured by Idaho Code § 19-4901(b) not to treat a post-conviction proceeding as “a substitute for ... an appeal from the sentence or conviction.” A conscientious lawyer, mindful of this statute, may feel obliged to raise a claim or issue on appeal even though a better record could be developed in a post-conviction proceeding. If he does so, will his client be impaled by the thrust of Kraft or saved by the parry of Carterl
I think the time has come to reexamine the source of this disquietude — the assumption that post-conviction proceedings invariably are subject to the same rules of res judicata which govern other civil litigation. Kraft broadly and uncritically embraces this assumption. In my view, the Kraft opinion stands on shallow footings. In its discussion of res judicata, it adverts to an *525earlier decision in Larsen v. May, 93 Idaho 602, 468 P.2d 866 (1970). Larsen was, indeed, a post-conviction case; but the Court there said nothing about res judicata. Rather, the Court simply said that if a post-conviction application framed no genuine issues of material fact, and raised nothing more than questions of law previously decided on appeal, a new hearing was unnecessary. Summary disposition was appropriate under I.C. § 19-4906. Nothing in Larsen, as I read it, was a harbinger of res judicata in Kraft.
The Kraft opinion not only invoked res judicata, it also enunciated the doctrine in its broadest form:
[The] expectation that entire controversies will be presented and that all relevant material will be produced has long been the rule in Idaho: “We think the correct rule to be that in an action between the same parties upon the same claim or demand, the former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim but also as to every matter which might or should have been litigated in the first suit.” (Emphasis added.) Joyce v. Murphy Land Etc. Co., 35 Idaho 549, 553, 208 P. 241, 242 (1922). Ramseyer v. Ramseyer, 98 Idaho 554, 556, 569 P.2d 358, 360 (1977).
100 Idaho at 673, 603 P.2d at 1007. By embracing Joyce and Ramseyer, Kraft announced that res judicata would attach to all matters that “might” be raised on appeal. This announcement wholly disregarded a previously recognized distinction between “ ‘mere trial errors’ (which can be corrected only by direct appeal) and ‘fundamental errors’ (which may be raised even though they could have been raised on appeal).” Smith v. State, 94 Idaho 469, 475, 491 P.2d 733, 739 (1971).
When contrasted with Smith, the Joyce and Ramseyer cases were curious choices of precedent. Neither of them involved a post-conviction proceeding. Moreover, as we recently noted in Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct.App.1983), the Joyce-Ramseyer version of res judicata is now known as the doctrine of claim preclusion. That doctrine is fully articulated in the RESTATEMENT (SECOND) OF JUDGMENTS (1982). The Second Restatement identifies several exceptions to the doctrine of claim preclusion. One of these exceptions, found at Second Restatement § 26(f), is invoked where the second litigation challenges “the apparent invalidity of a continuing restraint or condition having a vital relation to personal liberty____” Comment i to this section provides the following explanation:
One instance [where claim preclusion does not apply] is a case in which the question at issue is the validity of a continuing restraint or condition having a vital relation to personal liberty. Although civil actions attacking penal custody resulting from criminal convictions are beyond the scope of this Restatement, such actions do illustrate the need to moderate conventional notions of finality when personal liberty is at stake.
It is not suggested that the concept of finality has no place in such cases, or that the court in every such case must allow splitting or relitigation without limit. What is indicated is the need for greater flexibility and, in some matters of this type, the need for special legislative treatment. [Emphasis added.]
Thus, post-conviction proceedings are outside the ambit of claim preclusion. They are creatures of, and are governed by, the Uniform Post-Conviction Procedure Act, I.C. §§ 19-4901 to -4911. This Act represents “special legislative treatment” as envisioned by the Second Restatement. The Act says nothing about res judicata or claim preclusion. It simply says, as noted earlier, that a post-conviction application is not a “substitute” for an appeal. I take this to mean, as our Supreme Court held in Larsen v. May, supra, that a post-conviction proceeding is no place for a convicted defendant to relitigate the same legal questions, in virtually the same factual context, *526already presented in a direct appeal. This meaning is consistent with I.C. § 19-4901(a)(4), which authorizes an application to be filed when “there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice____” If a post-conviction application presents a substantial question previously raised on appeal, but in a materially different factual context, nothing in the Uniform Act forbids addressing the question on its merits.
It might be argued that even if res judicata in the form of claim preclusion does not apply to post-convictión proceedings, collateral estoppel (now known as issue preclusion) might be applicable. However, once again, such argument would find no textual support in the Uniform Act. Moreover, the Second Restatement recognizes several important exceptions to issue preclusion. Second Restatement § 28 provides in pertinent part as follows:
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(2) The issue is one of law and ... (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them____
These exceptions may be invoked by post-conviction applications. If an application is grounded in facts beyond the record previously presented on appeal, and if the additional facts are those which could not, or customarily would not, be developed in a trial on criminal charges, there should be no issue preclusion.
The present case provides an illustration. The post-conviction application encouraged by today’s decision presumably will specify the communications, if any, between Darbin and the attorney concerning his defense and his right to testify. These facts, although crucial to determining whether counsel acted unilaterally in waiving Darbin’s right to testify, would have been peripheral to the issue of guilt or innocence pending before the trial court. Because the focus of the trial differed significantly from the prospective focus of a post-conviction proceeding, and because the accused’s communications with his attorney could be probed far more extensively in a post-conviction proceeding than in the trial, I believe this case would fall within the foregoing exceptions to issue preclusion.
The upshot of this discussion is that res judicata, as broadly enunciated in Kraft, provides an unsatisfactory framework for defining the roles of direct appeals and post-conviction proceedings in achieving criminal justice. As the Second Restatement observes, conventional notions of finality must be moderated where personal liberty is at stake. In a free society, where restraints on liberty are carefully imposed, we should not bar challenges to the legality of confinement merely because they “might” have been presented on direct appeal or, if presented, were hampered by an undeveloped appellate record. When a post-conviction application makes a substantial showing that due process or another fundamental right has been abridged— and the application is supported by facts ill-suited for development in the original trial — it should be addressed on its merits. Res judicata does not apply. Neither can such an application be characterized as a mere “substitute” for the appeal.
In this kind of case, the thrust of the Kraft decision is misdirected. There is no need to parry the thrust by “inviting” a post-conviction application. The application simply is not precluded. When that conclusion is understood and accepted, the dis*527quietude over res judicata can be put to rest.