Forfeiture and waiver are two concepts that U.S. courts apply in determining whether
reversible error
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 (the jury, or the judge if it is a bench trial), or malfeasa ...
has occurred.
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
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 ov ...
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 t ...
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 Fed ...
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 ...
, 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
The United States courts of appeals are the intermediate appellate courts of the United States federal judiciary. The courts of appeals are divided into 11 numbered circuits that cover geographic areas of the United States and hear appeals fr ...
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 a grossly unfair outcome occurs in a criminal procedure, criminal or civil procedure, civil proceeding, such as the conviction and punishment of a person for a crime they actual innocence, did not commit. Mis ...
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
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princi ...
.
An example of a waiver would be
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 ...
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
A presentence investigation report (PSIR) is a legal document that presents the findings of an investigation into the "legal and social background" of a person convicted of a crime before sentencing to determine if there are extenuating circumsta ...
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