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Appellate Review – “Waiver” and “Forfeiture,” Generally

Best Price Plumbing, Inc. v. Erie Insurance Exchange, 2012 WI 44; case activity

¶37 n. [11]:

In State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612, this court recognized that the terms “forfeiture” and “waiver” are often used interchangeably, but that the terms embody distinct legal concepts.  Forfeiture is the failure to make the timely assertion of a right, and waiver is the intentional relinquishment of a known right.  In the context of the failure to object to a jury instruction, the applicable concept is forfeiture.  Therefore, even though Wis. Stat. § 805.13(3) and some of the cases that interpret that statute refer to this concept as waiver, we use the term forfeiture throughout the opinion.

The court cites § 805.13(3) for the idea that failure to object to an instruction forfeits any objection, ¶¶38-39. This rule applies as well to criminal cases. Nonetheless, it is equally true that unobjected-to instructional issues may be reviewed under an “interest-of-justice” theory that “the erroneous jury instruction prevented the real controversy from being tried,” State v. Harp,161 Wis. 2d 773, 782, 469 N.W.2d 210 (Ct. App. 1991). (Not to mention, ineffective assistance of counsel.)

Bland, entirely uncontroversial stuff, to be sure. But the court goes on to describe the implications for sufficiency-review, in the following terms:

¶40  The court of appeals was presented with a similar situation in Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 873 n.7, 469 N.W.2d 224 (Ct. App. 1991).  In that case, the jury instruction was misleading, but the defendant failed to object to the misleading instruction.  Id.  When it later moved to change the jury’s answer, the court of appeals concluded that the defendant had waived the objection to the misleading instruction.  It stated: “Such a motion challenges the sufficiency of the evidence to sustain the answer . . . and it must be considered in the context of the instructions given to the jury.”  Id.

How, if at all is this doctrine to be applied in a criminal case? What happens when the evidence is insufficient under the instructions actually given, because the instructions erroneously require proof not necessary under the statute? That issue is currently before the court, in State v. Courtney C. Beamon, 2011 WI App 131, rev. granted 4/25/12, so we will find out soon enough.

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