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Away From Waiver: A Rationale For The Forfeiture Of Constitutional Rights In Criminal Procedure, Peter Westen

Michigan Law Review

Ten years ago, when I was a student in law school, I learned that it was difficult for a criminal defendant to lose completely his right to assert constitutional defenses. The only way he could relinquish his constitutional defenses, I was told, was by actually "waiving" them. Moreover, in order to establish that a defendant had waived his defenses, the state faced a rigorous test: it had to show, in the famous phrase, that his waiver was "knowing, intelligent, and voluntary." In other words, before the state could permanently prevent a defendant from asserting constitutional defenses, it had to show …