Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue at trial, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial). A waived error, however, is typically (though not necessarily) not reviewed at all.
For example, an accused who pleads guilty and waives his right to a trial cannot complain on appeal that he was denied the right to a trial, because he knowingly and voluntarily waived that right when he pleaded guilty. But an accused whose defense counsel merely fails to object to some impropriety by the prosecution generally only forfeits the objection and may raise the issue for the first time on appeal (but faces a higher burden than if there had been an objection at trial that the military judge overruled).
Military precedents, however, do not clearly distinguish between the concepts of waiver and forfeiture. At least, not until recently. Two cases addressing the difference and decided in 2018, and a rules change that took effect on January 1, 2019, provide clear distinctions between waiver and forfeiture. Combined they are the #5 Military Justice Story of 2018.
First came a unanimous decision in United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page). Andrews pleaded guilty to some offenses and not guilty to other offenses at a general court-martial, and the prosecution’s closing argument crossed the line into what both the Navy-Marine Corps CCA and CAAF agreed “was severe prosecutorial misconduct.” 77 M.J. at 402. Andrews’ defense counsel, however, did not object to the improper arguments. That failure to object led CAAF to begin its analysis of the severe prosecutorial misconduct with the then-applicable Rule for Courts-Martial 919(c), which stated:
Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.
(emphasis added). The question for CAAF – apparent in Andrews and specifically raised in numerous other cases – was whether the word waiver in R.C.M. 919(c) means waiver as it is understood in modern parlance, or whether it means forfeiture as CAAF has long interpreted it to mean. CAAF applied stare decisis to hold that the rule means forfeiture, concluding that the balance of factors favors adhering to precedent rather than reinterpreting the meaning of the rule. Unfortunately for Andrews, however, the evidence of his guilt was so strong that CAAF was convinced (as was the CCA) that Andrews would have been convicted “regardless of trial counsel’s improper arguments.” 77 M.J. at 403.
Next came a fractured decision in United States v. Hardy, 77 M.J. 438 (C.A.A.F. Jun. 5, 2018) (CAAFlog case page). Hardy entered into a pretrial agreement to plead guilty to numerous child sex offenses in exchange for a confinement cap of 12 years. But the agreement did not include a common term that would waive all waivable motions, and on appeal Hardy raised the issue of unreasonable multiplication of charges (UMC) – which is a legal doctrine that addresses uniquely-military factory increasing the potential for overcharging – and Hardy argued that his sentence should be even lower. The Air Force CCA rejected Hardy’s claim, however, concluding that his failure to raise it at trial was a waiver, and a majority of CAAF agreed.
Writing for a three-judge majority, Judge Maggs reviewed the then-applicable R.C.M. 905(e), which began:
Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver.
(emphasis added). Judge Maggs explained that an objection to UMC is one which must be made before pleas are entered, and so if the use of the word waiver in the rule means actual waiver then Hardy’s claim was indeed waived by the failure to raise it at trial. Then, parsing decisions from 1999, 2002, and 2017, Judge Maggs concluded that “R.C.M. 905(b)(2) and (e) provide that a UMC objection is waived if not raised at trial.” 77 M.J. at 443.
Finally, however, came a rules change that codified CAAF’s decision in Andrews and abrogated CAAF’s decision in Hardy. The change actually came first, in Executive Order 13825 of March 1, 2018, but it did not take effect until January 1, 2019. The President changed both R.C.M. 905(e) and R.C.M. 919(c) to explicitly state that the failure to object is forfeiture, not waiver, absent some other affirmative act. R.C.M. 905(e) now begins:
Failure by a party to raise defenses or objections or to make motions or requests which must be made before pleas are entered under subsection (b) of this rule forfeits the defenses or objections absent an affirmative waiver.
(emphasis added). And R.C.M. 919(c) now states:
Failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute forfeiture of the objection.