Waiver requires knowing and intentional abandonment, extinguishing the right entirely. Forfeiture results from failure to timely assert a right and may still permit plain error review.
The distinction determines whether any review remains available.
Alternative Names:
Waiver and Forfeiture, Intentional Relinquishment vs. Failure to Assert
Why it Matters?
The distinction is consequential because a forfeited issue may still receive plain error review while a waived one receives none, so characterizing a failure to object as forfeiture rather than waiver preserves the only remaining avenue. Affirmative statements accepting a ruling create waiver, while silence creates forfeiture. That difference is why responding to a court's invitation to object with no objection is worse than saying nothing.
Frequently Confused with
Related terms
Frequently asked questions
Why does the distinction matter?
What creates waiver rather than forfeiture?
