Forfeiture and waiver

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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.

In United States law, a reversible error is an error of sufficient gravity to warrant reversal of a judgment on appeal. It is an error by the trier of law (judge), or the trier of fact, or malfeasance by one of the trying attorneys, which results in an unfair trial. It is to be distinguished from harmless errors which do not rise to a level which brings the validity of the judgment into question and thus do not lead to a reversal upon appeal.

A waiver is the voluntary relinquishment or surrender of some known right or privilege.

In modern U.S. usage, 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.

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. [1]

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 court's decision. A high standard of review means that deference is accorded to the decision under review, so that it will not be disturbed just because the reviewing court might have decided the matter differently; it will be varied only if the higher court considers the decision to have obvious error. The standard of review may be set by statute or precedent. In the United States, "standard of review" also has a separate meaning concerning the level of deference the judiciary gives to Congress when ruling on the constitutionality of legislation.

In United States law, 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. Evidentiary errors are subject to harmless error analysis, under Federal Rule of Evidence 103(a) The general burden when arguing that evidence was improperly excluded or included is to show that the proper ruling by the trial judge may have, on the balance of probabilities, resulted in the opposite determination of fact.

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. [2] 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: [3]

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 and then complaining of it on appeal. In State v. Pam, the State of Washington intentionally set up an error in order to create a test case for appeal. Since then, the doctrine has been applied even in cases where the error resulted from neither negligence nor bad faith. See, e.g., State v. Studd, 137 533, 547.

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. [4]

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. [5]

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References

  1. ↑ United States v. Dazey,403F.3d.1147, 1174(10th Cir.2005).
  2. ↑ United States v. Teague,443F3d1310(10th Cir.2006).
  3. ↑ United States v. Carrasco-Salazar,494F3d1270(10th Cir.2007).
  4. ↑ United States v. Zubia-Torres,F.3d1202(10th Cir.2008).
  5. ↑ United States v. Pierce, 561F2d735 (CA9 Cal1977).
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