NCJ Number
44017
Journal
Michigan Law Review Volume: 75 Issue: 5 & 6 Dated: (APRIL-MAY 1977) Pages: 1214-1261
Date Published
1977
Length
48 pages
Annotation
THE CONCEPT OF FORFEITURE OF CONSTITUTIONAL DEFENSES BY PLEA OF GUILTY OR BY FAILURE TO ASSERT SUCH DEFENSES IN A TIMELY FASHION IS ANALYZED AND CONTRASTED WITH THE CONCEPT OF WAIVER.
Abstract
UNLIKE WAIVER, WHICH MUST BE 'KNOWING, INTELLIGENT, AND VOLUNTARY,' FORFEITURE OCCURS BY OPERATION OF LAW WITHOUT REGARD TO THE DEFENDANT'S STATE OF MIND. FORFEITURE RESULTS BY LAW WHEN A GUILTY PLEA IS ENTERED AND BY RULE WHEN A DEFENDANT FAILS TO ASSERT HIS CONSTITUTIONAL DEFENSES IN A TIMELY FASHION. EXAMINATION OF THE CONCEPT OF FORFEITURE WITHIN THE CONTEXT OF THE GUILTY PLEA SUGGESTS THAT THE DIFFERENCE BETWEEN FORFEITABLE AND NONFORFEITABLE RIGHTS IS THE DIFFERENCE BETWEEN RIGHTS THAT ARE OUTWEIGHED BY A CONFLICTING STATE INTEREST AND RIGHTS THAT ARE NOT IN CONFLICT WITH A CONTROLLING STATE INTEREST. AS IN ANALYSIS OF CONSTITUTIONAL RIGHTS IN OTHER CONTEXTS, THE NATURE OF THE INDIVIDUAL DEFENDANT'S INTERESTS AND THE NATURE AND MAGNITUDE OF THE STATE'S INTEREST MUST BE IDENTIFIED, AND A BALANCE MUST BE STRUCK BETWEEN THE TWO IN LIGHT OF ALTERNATIVES FOR ACHIEVING THEIR RESPECTIVE GOALS. SUCH AN ANALYTICAL MODEL MAKES IT POSSIBLE TO DETERMINE WHICH DEFENSES ARE OR ARE NOT FORFEITED BY A DEFENDANT WHO PLEADS GUILTY OR WHO FAILS TO ASSERT HIS DEFENSES IN ACCORDANCE WITH FEDERAL RULE OF CRIMINAL PROCEDURE 12(B)(2). THE FORFEITURE MODEL ALSO EXPLAINS WHICH DEFENSES ARE OR ARE NOT LOST WHEN A DEFENDANT WAIVES HIS DEFENSES, A RITUAL CONCLUDED TO BE OF NO LEGAL CONSEQUENCE. WAIVER IS PART OF THE BROADER PRINCIPLE OF FORFEITURE. IN BOTH INSTANCES, THE STATE MUST DEMONSTRATE THAT ITS INTEREST IN FORECLOSING A DEFENDANT'S CONSTITUTIONAL DEFENSES OUTWEIGHS THE DEFENDANT'S INTEREST IN ASSERTING THEM.