Waiver (Civil procedure)

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Waiver

The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished.

Zedner v. United States

The Speedy Trial Act of 1974, 18 USC 3161 et seq., generally requires a federal criminal trial to begin within 70 days after a defendant is charged or makes an initial appearance. In recognition of valid reasons why extra time may be needed, the Act includes a lengthy list of periods of delay that are excluded in computing the time within which trial must commence. To promote compliance, the Act requires dismissal of pending charges if a trial does not start on time and the defendant files a motion to dismiss prior to the start of trial or entry of a guilty plea. In Zedner v. United States, No.05-5992, 547 U.S. ____ (2006), the U.S. Supreme Court dismissed a criminal defendant's waiver "for all time" of his right to a speedy trial under the Act, as ineffective, because a defendant may not prospectively waive the application of the Act.

In March 1996, Jacob Zedner attempted to open an account at several financial institutions by depositing a counterfeit $10 million dollar bond issued by the fictitious "Ministry of Finance of U.S.A." Several mistakes in the bond caused each institution to refrain from opening an account for Zedner, and one alerted the United States Secret Service. Shortly thereafter, Zedner was arrested, and several more counterfeit bonds were found in his briefcase. A grand jury later indicted him on several counts of attempting to defraud a financial institution under 18 USC 1344, and one count of knowingly possessing counterfeit bonds, under 18 USC 472.

Zedner's attorney did not appear at the first status conference, and in accordance with the Speedy Trial Act, the district court excluded the time delay until a second scheduled conference under one of the Act's exclusionary exceptions. This was but the beginning of a convoluted series of delays and exclusionary orders issued by the court, based on a myriad of reasons. It was undisputed that Zedner and/or his counsel caused or contributed to many of the delays.

One of the enumerated exclusionary provisions under the Act is for "ends-of-justice" continuances under §3161(h)(8). This permits a district court to grant continuances and exclude the delay if it makes findings on the record that the ends of justice served by granting the continuance outweigh the public's and defendant's interests in a speedy trial. The district court granted two of these, citing on the record the complexity of the case as reason. However, at the November 8, 1996 status conference, Zedner requested yet a further adjournment until January 1997 (unopposed by the government), and the district court noted on the record its concerns. Then the court instructed Zedner and his attorney that if such a lengthy adjournment were granted, the court would have to take a waiver for all time. Defense counsel responded that defense would "waive for all time. That will not be a problem. That will not be an issue in this case." The record on appeal reflected that the court then attempted to explain to Zedner the operation of §3162(a)(2) of the Act, under which a defendant waives his right to move for dismissal based on a trial that does not start on time, unless he or she files a motion prior to trial or entry of a guilty plea. The Court then produced a pre-printed form, captioned "Waiver of Speedy Trial Rights," and both Zedner and defense counsel signed it.

Four years of proceedings, delays, competency hearings, and continuances followed, but no trial. Even though the district court admonished defense counsel for some of the delays, it made no mention of the Act and did not make any findings on the record to support exclusion of a 91-day period between January 31 and May 2, 1997 (the 1997 continuance).

In March 2001, Zedner filed a motion to dismiss the indictment, citing failure to comply with the Act. The district court denied the motion on the grounds of Zedner's waiver "for all time" and the complexity of the case. In April 2003, trial began, and Zedner was ultimately convicted and sentenced to prison.

The Second Circuit Court of Appeals affirmed the conviction. Although it acknowledged that a defendant's waiver of rights under the Act may be ineffective because of the public interest served by compliance with the Act, it found that an exception could be found for situations "when defendant's conduct causes or contributes to a period of delay." 401 F.3d at 43-44 (quoting United States v. Gambino, 59 F.3d 353). The appellate court also suggested that the district court's failure to place findings on the record for the 1997 continuance might be harmless, because the court could just as well have properly excluded that period under the "ends-of-justice" exception, given the case complexity and defense's request for additional preparatory time.

The U.S. Supreme Court granted certiorari on three related questions: whether the waiver was effective; whether Zedner was estopped from challenging the validity of the waiver; and whether the trial judge's failure to make the findings required to exclude a period of delay under §3161(h)(8) of the Act constituted harmless error. A nearly unanimous Court ultimately reversed and remanded.

The Court held that a defendant could not prospectively waive the application of the Act because the Act does not allow a defendant to opt out. Instead, it demands any continuance to fit within one of its specific exclusions. If a defendant could simply waive the Act's application in order to secure more time, no defendant would ever need to articulate reasons before the court to justify qualification for one of the enumerated exceptions.

Next, the Court held that Zedner was not estopped from challenging the excludability of the 1997 continuance. An estoppel based on Zedner's promise not to move for dismissal would entirely swallow the Act's no-waiver policy.

Finally, the Court held that when a district court makes no findings on the record to support a §3161(h)(8) continuance, harmless error review is not available or appropriate.

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WAIVER

The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished.

The term waiver is used in many legal contexts. A waiver is essentially a unilateral act of one person that results in the surrender of a legal right. The legal right may be constitutional, statutory, or contractual, but the key issue for a court reviewing a claim of waiver is whether the person voluntarily gave up the right. If voluntarily surrendered, it is considered an express waiver.

In criminal law the privilege against self-incrimination is guaranteed by the fifth amendment to the U.S. Constitution. The Supreme Court, in miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), held that the police must inform arrested persons that they need not answer questions and that they may have an attorney present during questioning. These requirements are known as the Miranda warning. A criminal defendant may waive the right to remain silent and make a confession, but the law enforcement officials must demonstrate to the court that the waiver was the product of a free and deliberate choice rather than a decision based on intimidation, coercion, or deception. They must also convince the court that the defendant was fully aware of the rights being abandoned and the consequences that would result from the abandonment. Based on the totality of these circumstances, a court may conclude that the defendant waived his Miranda rights.

A waiver may be shown by a person's actions. For example, a criminal defendant waives the privilege against self-incrimination merely by going on the witness stand. Such an action is called an implied waiver.

In insurance law waiver is used in numerous contexts. For example, under the doctrine of waiver, if the insurer has knowledge of facts that would bar its primary liability for a policy it has written but proceeds to treat the policy as being in force, it will not be allowed to plead such facts in court to avoid its primary liability.

A waiver of premium clause is a provision in an insurance policy that permits the waiver of premium payments upon the disability of the insured. Commonly such waivers take effect only after a certain time of disability.

Various waiver provisions are inserted into contracts. The parties may agree to surrender a substantive right granted by statute, such as a limitation on the amount of property that may be exempted from debt collection, or a procedural right that requires a certain number of days notice before an action can be taken.

cross-references

Custodial Interrogation.

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waiv·er / ˈwāvər/ • n. an act or instance of waiving a right or claim. ∎  a document recording such waiving of a right or claim.