Appellate Procedure,  Waiver of Issues

“Forfeiture” vs. “Waiver” of Issues on Appeal

The Court of Appeal in People v. Campos, case no. B191256 (2d Dist. Nov. 14, 2007) points out in a footnote the difference between “forfeiture” of one’s right to raise an issue on appeal and a “waiver” of that right:

While the People use the term “waiver” in reference to defendants’ failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)

The Sheena K. court, in turned, cited several U. S. Supreme Court decisions noting the distinction in terms, and noted “As a practical matter, the two terms on occasion have been used interchangeably.” On occasion? I think that is putting it mildly. The use of “waiver” seems to me quite widespread.

Which is why I am posting this under the category “Waiver of Issues.” I think far more people will look for posts on this topic under the term “waiver,” and you can’t fight the masses.

Though by the time you read this, I may have changed the category name to “Preservation/Waiver/Forefeiture of Issues.” More cumbersome, but more accurate. I’ll mull it over.

One Comment

  • Darren Chaker

    Great site dedicated to the appellate system in California. Sheena K. was a heavily litigated case and the opinion makes great points concerning waiver.