Forfeiture and waiver
Encyclopedia
Forfeiture and waiver are two concepts that U.S. courts apply in determining whether reversible error
has occurred. Waiver
is the voluntary relinquishment, surrender or abandonment of some known right or privilege. Forfeiture
is the act of losing or surrendering something as a penalty for a mistake or fault or failure to perform, etc.
Per U.S. v. Olano, if a defendant has waived a right, then he cannot obtain redress in appellate court. If he has merely forfeited the right, e.g. by failing to raise a timely objection
, then the standard of review
become plain error pursuant to Federal Rule of Criminal Procedure 52(b). This means that, whereas if he had raised a timely objection, the burden of proof would have been on the opposing party to show that the error was harmless error
, now the burden of proof is on the aggrieved party to show that the error was plain error. Moreover, in federal cases, the U.S. Court of Appeals may or may not choose to exercise its discretion to correct the plain error. It usually will not, unless failure to correct it would result in a miscarriage of justice
that would seriously affect the fairness, integrity or reputation of the justice system. However, the courts relax their application of the plain-error test in cases involving constitutional error.
An example of a waiver would be invited error
would be if a defendant requested that the court impose a condition of supervised release. In such a case, he could not later challenge the legality of the condition. When a defendant raises an argument and then abandons it, he may be viewed as having waived that argument. For instance, a defendant raised objections to the presentence report in his case but it was ruled that he waived those objections when his counsel and the judge had the following conversation:
In another case, it was ruled that a Defendant could not have “affirmatively abandoned” an argument that he never made.
Courts have noted, however, that as a practical matter, a defendant's consent to a probation condition is likely to be nominal where consent is given only to avoid imprisonment.
Reversible error
In law, a reversible error is an error by the trier of law or the trier of fact or malfeasance by one of the trying attorneys which results in an unfair trial...
has occurred. Waiver
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
is the voluntary relinquishment, surrender or abandonment of some known right or privilege. Forfeiture
Forfeiture (law)
Forfeiture is deprivation or destruction of a right in consequence of the non-performance of some obligation or condition. It can be accidental, and therefore is distinguished from waiver; see waiver and forfeiture....
is the act of losing or surrendering something as a penalty for a mistake or fault or failure to perform, etc.
Per U.S. v. Olano, if a defendant has waived a right, then he cannot obtain redress in appellate court. If he has merely forfeited the right, e.g. by failing to raise a timely objection
Objection (law)
In the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
, then the standard of review
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
become plain error pursuant to Federal Rule of Criminal Procedure 52(b). This means that, whereas if he had raised a timely objection, the burden of proof would have been on the opposing party to show that the error was harmless error
Harmless error
A harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial. Harmless error is easiest to understand in an evidentiary context...
, now the burden of proof is on the aggrieved party to show that the error was plain error. Moreover, in federal cases, the U.S. Court of Appeals may or may not choose to exercise its discretion to correct the plain error. It usually will not, unless failure to correct it would result in a miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
that would seriously affect the fairness, integrity or reputation of the justice system. However, the courts relax their application of the plain-error test in cases involving constitutional error.
An example of a waiver would be invited error
Invited error
Invited error refers to a trial court's error against which a party cannot complain to an appellate court because the party encouraged or prompted the error by its own conduct during the trial. The original goal of the invited error doctrine was to prohibit a party from setting up an error at trial...
would be if a defendant requested that the court impose a condition of supervised release. In such a case, he could not later challenge the legality of the condition. When a defendant raises an argument and then abandons it, he may be viewed as having waived that argument. For instance, a defendant raised objections to the presentence report in his case but it was ruled that he waived those objections when his counsel and the judge had the following conversation:
- THE COURT: All right. There was a presentence report noted. There were objections. I think that all of those now have been resolved, have they not, Mr. Wagman?
- MR. WAGMAN: Yes, Your Honor.
In another case, it was ruled that a Defendant could not have “affirmatively abandoned” an argument that he never made.
Courts have noted, however, that as a practical matter, a defendant's consent to a probation condition is likely to be nominal where consent is given only to avoid imprisonment.