Object! Not objecting hurts the appeal

Waiver vs. Forfeiture in Military Appeals and the Operation of the Plain Error Rule

Objections at trial to evidence or testimony can prejudice your case if not made. In our decades of representing servicemembers at court-martial, we understand that there are times when defense counsel must and should object, and there are times when a military defense counsel can object, but shouldn’t. Some of the answers are black or white, but not always. Also, when it comes to an appeal, there are several ways a civilian military appeals lawyer can find a way around a failure to object, there may be what is called “plain error” or even ineffective assistance of counsel. What follows is our overview based on our years of experience and knowledge of what happens when a military defense counsel does not object to something at trial.

Military courts draw a sharp distinction between waiver and forfeiture, two doctrines that determine whether an accused has preserved an issue for appellate review. A party waives a right by intentionally relinquishing or abandoning it, whereas a party forfeits a right by failing to assert it in a timely manner. This distinction matters because forfeiture allows appellate courts to review errors under the plain error rule, but waiver typically forecloses review altogether.

I. Waiver: The Intentional Relinquishment of a Known Right

When an accused or defense counsel deliberately gives up a right during trial, they waive it. In United States v. Harcrow, the Court of Appeals for the Armed Forces (CAAF) reaffirmed that “waiver is different from forfeiture,” and described it as “the intentional relinquishment or abandonment of a known right.” 66 M.J. 154, 157 (C.A.A.F. 2008) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). One of the ways this happens is when the military defense counsel says on the record “I don’t object” or something specific like that.

The CAAF emphasized in United States v. Gladue that when the defense affirmatively waives an objection, “there is no error to correct on appeal.” 67 M.J. 311, 313 (C.A.A.F. 2009). For example, when defense counsel says “no objection” to evidence that would otherwise be inadmissible, they affirmatively waive the objection. As a result, the appellate court will not consider the issue—even under a plain error standard. See United States v. Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009).

Nevertheless, the CAAF requires a clear and intentional waiver. If the record does not show that the defense knowingly abandoned a right, the court may treat the inaction as a forfeiture. See United States v. Payne, 73 M.J. 19, 23 (C.A.A.F. 2014).

II. Forfeiture: Failing to Timely Assert a Right

A party forfeits an issue by remaining silent or failing to object when the law or rules require action. Unlike waiver, forfeiture does not eliminate the error. Instead, it triggers a more demanding standard of review. In United States v. Powell, the CAAF held that if the defense fails to object at trial, appellate courts may still review the issue for plain error. 49 M.J. 460, 463 (C.A.A.F. 1998).

This distinction protects the integrity of the court-martial system by giving appellate courts a tool to address substantial errors, even when the defense did not object. However, the defense carries the burden to meet the high bar of the plain error standard.

III. How the Plain Error Rule Operates

The plain error rule permits appellate courts to correct forfeited—but not waived—errors. To prevail, the appellant must show:

1. The trial court committed error;
2. The error was plain or obvious; and
3. The error materially prejudiced a substantial right.

See United States v. Tunstall, 72 M.J. 191, 193–94 (C.A.A.F. 2013) (applying Olano, 507 U.S. at 732–35).

A. Plainness

An error qualifies as “plain” when it is clear or obvious under current law. In United States v. Maynard, the CAAF rejected plain error relief because the law was unsettled. 66 M.J. 242, 244 (C.A.A.F. 2008). Courts generally will not find plain error when the legal question is novel or debatable.

B. Prejudice

The third prong—prejudice—often presents the highest hurdle. In United States v. Knapp, the CAAF required the appellant to show that the error “materially prejudiced the accused’s substantial rights.” 73 M.J. 33, 36 (C.A.A.F. 2014). This often means showing that the error affected the outcome or undermined public confidence in the proceeding.

IV. Practical Applications in Military Case Law

Military appellate courts regularly analyze whether counsel waived or forfeited claims. In United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), the court found waiver because defense counsel explicitly agreed to the instructions, precluding review. In contrast, in United States v. Gomez, 76 M.J. 76 (C.A.A.F. 2017), the court treated counsel’s failure to object to sentencing argument as forfeiture and reviewed the claim under the plain error doctrine. The court found error but denied relief due to lack of prejudice.

Similarly, in United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020), the CAAF underscored that silence alone does not constitute waiver unless the record shows that the defense clearly intended to abandon the right.

V. Conclusion

The distinction between waiver and forfeiture plays a vital role in appellate practice. When the defense waives an issue, they eliminate it from appellate review. When the defense forfeits an issue, they preserve the possibility of review—but only under the demanding plain error standard. Courts apply this rule to ensure fairness and integrity in military trials without rewarding inattention or gamesmanship. Understanding how these doctrines function helps litigators and judges maintain procedural rigor while correcting manifest injustice.

Key Military Cases:

United States v. Davis, 79 M.J. 329 (C.A.A.F. 2020)

United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008)

United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009)

United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009)

United States v. Powell, 49 M.J. 460 (C.A.A.F. 1998)

United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013)

United States v. Knapp, 73 M.J. 33 (C.A.A.F. 2014)

United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017)

United States v. Gomez, 76 M.J. 76 (C.A.A.F. 2017)