2.5.6 Waiver of an Appealable Issue

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

2.5.6 Waiver of an Appealable Issue

Most jurisdictions have contemporaneous objection rules for evidence. With such rules, the failure to make a timely objection at trial or to file a timely pretrial motion to suppress illegally obtained evidence usually bars subsequent consideration of the issue at trial or on appeal.¹³⁶ While a defendant is therefore considered to have waived the constitutional objection, it may more appropriately be termed a forfeiture of the right because it was not done voluntarily.¹³⁷ In addition, a plea of guilty or nolo contendere generally serves as a waiver of all non-jurisdictional defects. Once such a valid plea is received, the defendant normally may not appeal on the ground that a prior motion was erroneously denied.¹³⁸ Some jurisdictions have adopted an exception to this principle for conditional pleas that reserve the right to appeal prior motions. Moreover, in some...