The Doctrine of Waiver

• Author: By Major Edwin P. Wasinger
• Pages: 03

This article presents a study of the doctrine of waiver aapplied in criminal trials by civilian and military courts in the United States. The author erplores the evolution, applieation, and present-day validity of the doctrine, partieulailp with .respect to constitutional and fvmdwmental n'ghts. He eonelirdes that id1 recordation in certain waiver situations, though not totally satisfaetorv, is the best coume to be followed at the teal leuel.

I. INTRODUCTION

It is basically in accord with the efficient administration of judicial procedure that a failure by the accused to assert a known right or defense at the trial level should operate as a forfeiture of the issue on appeal. A procedure which permits an accused to raise objections for the first time on appeal, would frequently make fact-finders out of appellate agencies and/or cause interminable delay in prosecuting a case to final judgement. However, it may aometimes occur that an accused has a defense to offer which might be considered doubtful and dangerous to present and which he keeps to himself at the trial level. If a conviction results under such circumstances, especially in a capital case, it may be embarrassing and difficult perhaps literally to hang him on the basis that he or his advisors were less than candid and did not present his real defense to the trial court. Further, par-ticularly in the recent past, with the great emphasis on and expansion of the fundamental and constitutional rights which sur-round an accused at or before the trial,' the noncompli'This article was adapted from a thesia presented to The Judge Advocate Generai's School U.S. Army. Chariattesville Virginia while the author 9 8 8 B member of th; Fifteenth Advaneed Caurk The &ions and eanclusianr presented herein are thaw of the author and da not necessarily represent the views of The Judge Advocate General's School or m y other governmental BeenCY

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**JAW U.S. Army: P.S. Army Judieiary. Offies of the Judge Advocate Generai: B.S., 1857, LLB., 1860, Marquette University: admitted to practice before the bars of the State of Wisemain the United States Diatriet Court Eaatern District 01 Wisconsin, the Unite< States Court of Militmy Appeaia: and tho United States Supreme Court.

' E.g., Miranda V. Arizona, 384 U.S. 436 (19631 (exclusion of evidence of incommunicado pretrial interrogstianl; Eates V. Texas, 381 0.S. 532(1865) (rinht to trial free from unreasonable publicity); Eseobeda V. Illinois, 378 U.S. 478 (1964) (exclusim of evidence obtained after Violation of

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ance XTith any or all of which are sufficiently simificant in the eyes of the judiciary to deny an accused B fair trial, courts may feel extremely reluctant to deny the full litigation of issues inml\ing these rights merely on the basis of a procedural error by counsel Faced with the dilemma of a rule designed to promote judicial efficiency and the possible unfairness which may result to an accused upon its application, the courts have, as to be expected. made the doctrine. by exceptions acd interpretations. more equitable than litera! implementation muld demand. The attitude of the federal courts regarding the dactnne of waiver can be observed beat in their treatment of constitutional or fundamental rights. This article an waiver will pursue the extent ofthat attitude in this area. The principle of a general relaxation of the strict application of the doctrine 111 itself on a clear equitab!e basis does not promote significant mntro\-ersy. Hornever. the implications inherent ~n Some exceptiona and interpretations to the rule and, Indeed. the application of the exceptions to specific cases hare met with vigorous dissent - The extent of the i'elaxatian of the doctrine regardine constitutional rights in the federal civilian courtn and the scope and extent of the relaxation at the doctrine in the military Judicial system have raised sig- . The nature of these questions involve the defi-as currently applied. the circumstances or the r inactivity by the defense under which wai\-er will be applied in federal criminal trials, and the validity of the historical doctrine, particularly from the viewpoint of preserving judicial efficiency.

The concept af wai~erof rights and the uncertainty generated

as to the proper application of the doctrine in the area of fundamenVal rights ~n federal criminal trials haie their roots in the treatment accorded those rights in the ancient common law as well as in Colonial America. An understanding of the treatment of these rights and the reason8 frequent!y cited therefor is sig-nificant in understanding the approach to the doctrine in the modern era.

B nght to counsel), Gideon v WYsmm%ht. 372 U.S 336 11963) (right 10coun~el), Won? Sun v Umted Statee, 371 C S 471 (19i3) (exclusion of verbal evidence bared on unlawful search1

-E#,, Henry r. Minuinppi. 3:s C.S. 143, 4i7 (1986) tBsilan, J.. dissent-ins), Fay \,. Naia, 372 U S 391. 448 (1963) (Harlan, J dissenting)

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THE DOCTRINE OF WAIVER

1. CRIMIXAL WAIVER AT COYMOS LAW

   As a positive individual principle uniformly applicable to a certain class of rights, the doctrine of waiver in criminal trials is not of great antiquity. It is conceded by the Supreme Court of the L'nited States that under the rule of the common law an accused generally was not permitted to waive any right which was intended for his protection.a Indeed, 8ome state courts which the Supreme Court has cited approvingly have indicated that the accused, under the common law, could waive no right at aL4 The Wi'isconsin Supreme Court, in Hack v. State,: asserted the gen-erally accepted view that the underlying reasons for this principle at common law were unquestionably founded upon the anxiety of the courts to see that no innocent man should be convicted. More specifically, it was asserted that the accused in those days could not testify in his own behalf, frequently did not have benefit of counsel, and was punished, if guilty, by the death penalty or some other serere punishment out of all proportion tC the gravity of his crime. Thus, it was said the concept of nonapplication of waiver was utilized by the courts to reverse a case nhere the accused had been unjustly convicted. Other authority has cited the principal reason for this rule to hare been that conviction of crime operated to attaint and forfeit official titles of inheritance. thereby affecting third party rights which were thought to be an improper subject of waiver by the accused partie8.O Indeed, these conclusions Seem supported-r at least it may be conjectured that these reasons motivated in part the nonapplication of waiver --since the death penalty could be imposed for a great variety of cases. Even in Blackstone's day, no less than one hundred and sixty crimes were punishable by death.i A closer look at the ancient English legal system, however, discloses perhaps a more practical reason why the doctrine never obtained a footing at common law In England prior to 1640, there \%'ere no case reports of criminal trials, properly so-called. The only cases of which report8 remained were for the most part politically significant cases which, because of the subject matter involved, may be suspect with regard to expounding generally applicable rules of

   .See Patton I,. United States. 281 US. 276, 306 I19301'See Hack V. State, 141 Wir. 346, 124 X.W. 492 (19101'Id. at 351, 124 N.W. 494.'See Diekinaon 5,. Cnited States. 159 F 801. 312 (1st Cir. 19081 (Aidrich, J.. dissenting)..sea 4 BLACXST~E'S

   C O M ~ ~ E ~ T A R ~ E S

   Ox THE LAW 154 (Davit ed. 1841).' 1 .l STEPHEN, HISTORY OF THE CnrilIrar LAW OF EZ-CLAZD 326 (1883).

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   law. Although the trial procedure spoken of by the court in Hack v. State gradually changed after 1640, apparently without legislative enactmert,u in almost every criminal case in this era the only record consisted of a private memorandum book kept by an officer of the court Herein was kept the jurors' names, an abstract of indictments, and a memo of pleas. rerdicts, and sen-tences. If It became necessary to make up a record, this private memorandum book was employed to make up a~ elaborate account."' The record of trial took no notice of evidence or inrtruc. tions by the judge to the jury.'1 Even as late as the nineteenth century, there waz practically 110 possibility of appealing an the facts in criminal cases and only a limited opportumty of appeal-ing on the law Often a pardon was the only remedy for an unjust conviction Thus, in view of these propositions, it would probably be more satisfactory to conclude that the judicial processes, including an abaence of any significant record of the occurrence^ at the trial level and the extremely limited opportunity of an accused obtaining appellate review, were the primary factor8 in nonapplicatian of \?rairer. at least with regard to those rights associated with the admissibility of evidence. Those rights re-lating to the jury. indictments, pleas. verdicts. sentences. and other fundamental rights of trial in the nature of those ultimately secured to the citizens of the United States by the Federal Constitution, were practically the only rights to which the Supreme Court of Wisconsin. in Hack v. State, could have been referring. since the other mea were generally not appealable.

2. CRIYISAL WAIVER I S COLOSIAL .IMERICIEven prior to the establishment of the union of states in America. some of the colonies were issuing reports of their cases. Although it is difficult to find any discussion of the concept of \waiver in this era. it is clear that some colonial courts \rere not followng the strict common law doctrine reaarding waiver in criminal trials. Indeed. there is authority that an accused RBS

   permitted to waixe such a substantial right as a trial by jury in the earliest dara of the Xaryland colony," and a reported Maryland ~-

   THE DOCTRINE OF WAIVER

   ease as eariy as 1770 held acc~rdingly.~~

   However, as case law developed...