Waiver & Forfeiture

Accusatory UCI

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Accusatory UCI can be affirmatively waived by the defense as part of a pretrial agreement, if the waiver originates from the accused. United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995); see generally United States v. Bartley, 47 M.J. 182 (C.A.A.F. 1997).

Adjudicative UCI

Adjudicative UCI is not forfeited if the defense fails to raise the issue at trial. United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001); United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999); United States v. Kirkpatrick, 33 M.J. 132 (C.M.A. 1991); United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991); United States v. Dykes, 38 M.J. 270 (C.M.A. 1993).

It is unclear whether an accused can affirmatively waive adjudicative UCI or whether doing so as part of a pretrial agreement would violate public policy. See United States v. Reynolds, 40 M.J. 198 (C.A.A.F. 1994) (no majority opinion, split on whether the defense could affirmatively waive an issue of superiority of rank in the deliberation room, which the defense did at trial).