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“Forfeiture” (Compared to “Waiver”) of Right to Public Trial

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding: (Generally:)

¶29      Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks and citation omitted).¶30      In other words, some rights are forfeited when they are not claimed at trial; a mere failure to object constitutes a forfeiture of the right on appellate review. The purpose of the “forfeiture” rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal. [5]

¶31      In contrast, some rights are not lost by a counsel’s or a litigant’s mere failure to register an objection at trial. These rights are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right. …

Issue/Holding: (The court leaves unresolved the question of whether failure to object to closure of the courtroom works “waiver” (requiring knowingly relinquishment) or “forfeiture” (resting on mere failure to object) of right to public trial:)

¶34      Thus the court of appeals decision leaves open the question whether the defendant’s failure to object at trial to closure on the ground of a violation of the Sixth Amendment constitutional right to public trial should be analyzed as a “waiver” or as a “forfeiture” of the defendant’s right to raise the issue on appellate review.¶35      The defendant and State dispute whether a “waiver” or “forfeiture” standard applies to a defendant’s assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant’s failure to object timely to a trial court’s alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the Sixth Amendment right to a public trial, there must be an intelligent relinquishment of the known right. [9] Other cases conclude that a defendant loses (forfeits) the Sixth Amendment right to a public trial when the defendant or defense counsel fails to assert a timely objection at trial to the court’s order of closure. [10]

¶38      … Here both parties failed to make objections in a timely manner, but they have fully briefed the important substantive issue. This court should, under these circumstances, reach the merits of the issue presented, namely whether the circuit court’s order violated the defendant’s right to a public trial, rather than address whether either or both of the parties waived or forfeited their right to make certain arguments on review.

The court of appeals held, 2007 WI App 268, ¶11, that “to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs”; the supreme court did not distinctly overrule that holding and it is therefore best to assume the necessity of contemporaneous objection to preserve the issue.

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