Forfeiture and waiver are two concepts that U.S. courts apply in determining whether
reversible error has occurred.
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
A waiver is often written, such as a disclaimer that has been accepted, but it may also be spoken between two or more parties. When the right to hold a ...
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
In law, the standard of review is the amount of deference given by one court (or some other appellate tribunal) 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 o ...
become
plain error The scope of review refers generally to the right to have an issue raised on appeal. It entails whether an issue was preserved by or available to an appellant on appeal. Scope of review is to the appellate court what the burden of proof is to the ...
pursuant to
Federal Rule of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government. They are the companion to the Fe ...
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
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 i ...
, 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
A miscarriage of justice occurs when an unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Innocent ...
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
An invitation system is a method of encouraging people to join an organization, such as a club or a website. In regular society, it refers to any system whereby new members are chosen; they cannot simply apply. In relation to websites and other te ...
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.
References
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American legal terminology