forfeiture rule in Wisconsin

2026See State v. Gee, 2019 WI App 31, ¶39 , 388 Wis. 2d 68 , 931 N.W.2d 287 (“[A]rguments raised for the first time on appeal are generally deemed forfeited.” (citation omitted)); see also State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (explaining that the forfeiture rule “gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection” and prevents “sandbagging” by “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).6 ¶59 The Pettits’ only argument addressing the circuit c

2026See State v. Gee, 2019 WI App 31, ¶39 , 388 Wis. 2d 68 , 931 N.W.2d 287 (“[A]rguments raised for the first time on appeal are generally deemed forfeited.” (citation omitted)); see also State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (explaining that the forfeiture rule “gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection” and prevents “sandbagging” by “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).6 ¶59 The Pettits’ only argument addressing the circuit c

2026Nevertheless, the forfeiture rule is not absolute, but is “a rule of judicial administration, and thus a reviewing court may disregard a forfeiture and address the merits of an unpreserved issue in an appropriate case.” State v. Counihan, 2020 WI 12, ¶27 , 390 Wis. 2d 172 , 938 N.W.2d 530 . ¶10 We decline to apply the forfeiture rule here and we address the merits of Josie’s claim.

2026Nevertheless, the forfeiture rule is not absolute, but is “a rule of judicial administration, and thus a reviewing court may disregard a forfeiture and address the merits of an unpreserved issue in an appropriate case.” State v. Counihan, 2020 WI 12, ¶27 , 390 Wis. 2d 172 , 938 N.W.2d 530 . ¶10 We decline to apply the forfeiture rule here and we address the merits of Josie’s claim.

2025The forfeiture rule “is not merely a technicality or a rule of convenience; it is an essential principle of the orderly administration of justice.” Huebner, 235 Wis. 2d 4 Although case law sometimes refers to this rule as “the waiver rule,” it is more accurately described as “the forfeiture rule.” See, e.g., State v. Huebner, 2000 WI 59 , ¶11 n.2, 235 Wis. 2d 486 , 611 N.W.2d 727 (“We recognize that labeling this rule the ‘waiver rule’ is imprecise.

2025The forfeiture rule “is not merely a technicality or a rule of convenience; it is an essential principle of the orderly administration of justice.” Huebner, 235 Wis. 2d 4 Although case law sometimes refers to this rule as “the waiver rule,” it is more accurately described as “the forfeiture rule.” See, e.g., State v. Huebner, 2000 WI 59 , ¶11 n.2, 235 Wis. 2d 486 , 611 N.W.2d 727 (“We recognize that labeling this rule the ‘waiver rule’ is imprecise.

2026See Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court”); State v. Rogers, 196 Wis. 2d 817, 828-29 , 539 N.W.2d 897 (Ct. App. 1995) (explaining that, to preserve its right to appeal, a party must do more than “signal its general interest in” making an argument; the forfeiture rule “requires that the appellant articulate each of its theories to the [circuit] court”). ¶68 Moreover, Nora fails to develop an argument in this

2026See Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court”); State v. Rogers, 196 Wis. 2d 817, 828-29 , 539 N.W.2d 897 (Ct. App. 1995) (explaining that, to preserve its right to appeal, a party must do more than “signal its general interest in” making an argument; the forfeiture rule “requires that the appellant articulate each of its theories to the [circuit] court”). ¶68 Moreover, Nora fails to develop an argument in this

2026See Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court”); State v. Rogers, 196 Wis. 2d 817, 828-29 , 539 N.W.2d 897 (Ct. App. 1995) (explaining that, to preserve its right to appeal, a party must do more than “signal its general interest in” making an argument; the forfeiture rule “requires that the appellant articulate each of its theories to the [circuit] court”). ¶68 Moreover, Nora fails to develop an argument in this

2026See Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“the forfeiture rule focuses on whether particular arguments have been preserved, not on whether general issues were raised before the circuit court”); State v. Rogers, 196 Wis. 2d 817, 828-29 , 539 N.W.2d 897 (Ct. App. 1995) (explaining that, to preserve its right to appeal, a party must do more than “signal its general interest in” making an argument; the forfeiture rule “requires that the appellant articulate each of its theories to the [circuit] court”). ¶68 Moreover, Nora fails to develop an argument in this

2024See State v. Carprue, 2004 WI 111, ¶46 , 274 Wis. 2d 656 , 683 N.W.2d 31 (“A [party’s] failure to promptly raise concerns or object when [the party] believes a judge is committing error constitutes waiver.” 6); Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“[T]he ‘fundamental’ forfeiture inquiry is whether a legal argument or theory was raised 6 Although our case law sometimes refers to “the waiver rule,” see, e.g., State v. Huebner, 2000 WI 59 , ¶11 n.2, 235 Wis. 2d 486 , 611 N.W.2d 727 , “the forfeiture rule” is a more fitting label, see State v. Ndina, 2009 WI

2024See State v. Carprue, 2004 WI 111, ¶46 , 274 Wis. 2d 656 , 683 N.W.2d 31 (“A [party’s] failure to promptly raise concerns or object when [the party] believes a judge is committing error constitutes waiver.” 6); Townsend v. Massey, 2011 WI App 160, ¶25 , 338 Wis. 2d 114 , 808 N.W.2d 155 (“[T]he ‘fundamental’ forfeiture inquiry is whether a legal argument or theory was raised 6 Although our case law sometimes refers to “the waiver rule,” see, e.g., State v. Huebner, 2000 WI 59 , ¶11 n.2, 235 Wis. 2d 486 , 611 N.W.2d 727 , “the forfeiture rule” is a more fitting label, see State v. Ndina, 2009 WI

2020Id. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56 , 356 Wis. 2d 106 , 850 N.W.2d 207 ; State v. Huebner, 2000 WI 59, ¶11 , 235 Wis. 2d 486 , 611 N.W.2d 727 . ¶20 Some rights are so fundamental that they are not subject to the forfeiture rule.

2020Id. (footnotes omitted); see also State v. Pinno, 2014 WI 74, ¶56 , 356 Wis. 2d 106 , 850 N.W.2d 207 ; State v. Huebner, 2000 WI 59, ¶11 , 235 Wis. 2d 486 , 611 N.W.2d 727 . ¶20 Some rights are so fundamental that they are not subject to the forfeiture rule.

2025See State v. Counihan, 2020 WI 12, ¶27 , 390 Wis. 2d 172 , 938 N.W.2d 530 (“The forfeiture rule is a rule of judicial administration, and thus a reviewing court may disregard a forfeiture and address the merits of an unpreserved issue in an appropriate case.”). 11 No. 2022AP1671-CR Washington, 466 U.S. 668, 687 (1984).

2020See Strickland v. Washington, 466 U.S. 668 (1984). ¶23 Bearing in mind the purpose and effect of the forfeiture rule, we now turn to the issue of whether Coffee forfeited his ability to later challenge by postconviction motion the inaccurate information presented at his sentencing.

2026And ultimately, “the forfeiture rule is a rule of judicial administration, not a mandate.” State v. Coffee, 2020 WI 1, ¶21, 389 Wis. 2d 627, 937 N.W.2d 579.

2026And ultimately, “the forfeiture rule is a rule of judicial administration, not a mandate.” State v. Coffee, 2020 WI 1, ¶21, 389 Wis. 2d 627, 937 N.W.2d 579.

2023Additionally, “[i]ssues that are not preserved at the circuit court [level] … generally will not be considered on appeal.” Mikrut, 273 Wis. 2d 76, ¶15 . ¶26 Here, Catherine acknowledges that she made no contemporaneous objection during the recommitment hearing to the introduction of any allegedly inadmissible hearsay evidence.

2022See Mikrut, 273 Wis. 2d 76, ¶17 (forfeiture rule is one of “judicial administration” and “reviewing court has inherent authority to disregard” the rule).

2021Third, the forfeiture rule “encourages attorneys to diligently prepare for and conduct trials.” Id.; see Vollmer, 156 Wis. 2d at 11 . 8 Our supreme court has recognized that the previously used phrase, “waiver rule,” is “imprecise,” and it is “better to label” this as the “forfeiture rule” because “it refers to the forfeiture of a right by silence rather than the intentional relinquishment of a known right.” State v. Huebner, 2000 WI 59 , ¶11 n.2, 235 Wis. 2d 486 , 611 N.W.2d 727 . 16 No. 2020AP1931 ¶39 For those reasons, the arguments regarding forfeiture raised by Custom Homes that we addres

2020Third, the forfeiture rule “encourages attorneys to diligently prepare for and conduct trials.” Id.; see Vollmer, 156 Wis. 2d at 11 .

2025See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992). ¶21 We acknowledge that the District Attorney did not raise Foust’s common-law exception in the circuit court as a reason to deny Jackson access to the prosecutorial file; we nevertheless decline to apply the forfeiture rule in this case.

2025See State v. Pettit, 171 Wis. 2d 627, 646-47 , 492 N.W.2d 633 (Ct. App. 1992). ¶21 We acknowledge that the District Attorney did not raise Foust’s common-law exception in the circuit court as a reason to deny Jackson access to the prosecutorial file; we nevertheless decline to apply the forfeiture rule in this case.

2024See Gruber v. Village of N. Fond du Lac, 2003 WI App 217, ¶27 , 267 Wis. 2d 368 , 671 N.W.2d 692 (application of the forfeiture rule may be especially warranted when the forfeited argument might have been undermined by contrary evidence). ¶70 D.E.C.’s second fluphenazine-related objection is based entirely on one passage in STAHL’S ESSENTIAL PSYCHOPHARMACOLOGY PRESCRIBER’S GUIDE in which the authors suggest that psychiatrists might “consider” using “a mood-stabilizing anticonvulsant” to avoid prescribing a dose of fluphenazine “above normal dosing.” This passage was not shown to Dr. Kercher du

2024See Gruber v. Village of N. Fond du Lac, 2003 WI App 217, ¶27 , 267 Wis. 2d 368 , 671 N.W.2d 692 (application of the forfeiture rule may be especially warranted when the forfeited argument might have been undermined by contrary evidence). ¶70 D.E.C.’s second fluphenazine-related objection is based entirely on one passage in STAHL’S ESSENTIAL PSYCHOPHARMACOLOGY PRESCRIBER’S GUIDE in which the authors suggest that psychiatrists might “consider” using “a mood-stabilizing anticonvulsant” to avoid prescribing a dose of fluphenazine “above normal dosing.” This passage was not shown to Dr. Kercher du

2013Or as Justice Scalia has put it, the purpose of applying the forfeiture rule is to ensure that the trial remains "the main event," and not simply a "tryout on the road to appellate review." Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

2013Or as Justice Scalia has put it, the purpose of applying the forfeiture rule is to ensure that the trial remains "the main event," and not simply a "tryout on the road to appellate review." Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

2025These facts highlight the very reasons that the forfeiture rule exists: “to cultivate timely objections,” State v. Erickson, 227 Wis. 2d 758, 766 , 596 N.W.2d 749 (1999); to “promote[] both efficiency and fairness,” Huebner, 235 Wis. 2d 486, ¶11 ; and to “encourage[] litigation of all issues at one time, simplif[y] the appellate task, and discourage[] a flood of appeals,” State v. Caban, 210 Wis. 2d 597, 605 , 563 N.W.2d 501 (1997). ¶16 Because Kamm has forfeited the argument that she raises on appeal, I affirm.

2025These facts highlight the very reasons that the forfeiture rule exists: “to cultivate timely objections,” State v. Erickson, 227 Wis. 2d 758, 766 , 596 N.W.2d 749 (1999); to “promote[] both efficiency and fairness,” Huebner, 235 Wis. 2d 486, ¶11 ; and to “encourage[] litigation of all issues at one time, simplif[y] the appellate task, and discourage[] a flood of appeals,” State v. Caban, 210 Wis. 2d 597, 605 , 563 N.W.2d 501 (1997). ¶16 Because Kamm has forfeited the argument that she raises on appeal, I affirm.

2024See State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (discussing purposes of the forfeiture rule); State v. Kaczmarski, 2009 WI App 117, ¶7 , 320 Wis. 2d 811 , 722 N.W.2d 702 (“Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion.”). ¶38 We therefore conclude that, although the sentencing court did not determine that Henderson was eligible to participate in the substance abuse and challenge incarceration programs, it also did not determine that he was ineligible to participate in the programs.

2024See State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (discussing purposes of the forfeiture rule); State v. Kaczmarski, 2009 WI App 117, ¶7 , 320 Wis. 2d 811 , 722 N.W.2d 702 (“Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion.”). ¶38 We therefore conclude that, although the sentencing court did not determine that Henderson was eligible to participate in the substance abuse and challenge incarceration programs, it also did not determine that he was ineligible to participate in the programs.

2024See State v. Delgado, 2002 WI App 38, ¶12 , 250 Wis. 2d 689 , 641 N.W.2d 490 (holding that under the forfeiture rule, a specific, contemporaneous objection is required to preserve a claim of error for appeal). 13 No. 2021AP1517-CR Sec. 971.17(4)(d).

2024See State v. Delgado, 2002 WI App 38, ¶12 , 250 Wis. 2d 689 , 641 N.W.2d 490 (holding that under the forfeiture rule, a specific, contemporaneous objection is required to preserve a claim of error for appeal). 13 No. 2021AP1517-CR Sec. 971.17(4)(d).

2025Shadley v. Lloyds of London, 2009 WI App 165, ¶25 , 322 Wis. 2d 189 , 776 N.W.2d 838 (under the forfeiture rule, “issues not presented to the 11 To the extent that Springs actually means to make an argument about Twitchell’s failure to mitigate its damages, Springs has forfeited any such argument by failing to raise it with specificity in the circuit court.

2025Shadley v. Lloyds of London, 2009 WI App 165, ¶25 , 322 Wis. 2d 189 , 776 N.W.2d 838 (under the forfeiture rule, “issues not presented to the 11 To the extent that Springs actually means to make an argument about Twitchell’s failure to mitigate its damages, Springs has forfeited any such argument by failing to raise it with specificity in the circuit court.

2024State v. Mercado, 2021 WI 2, ¶32 , 395 Wis. 2d 296 , 953 N.W.2d 337 . ¶29 Because the forfeiture rule is designed to foster the fair, efficient, and orderly administration of justice, it should be applied only when its application would further these purposes.

2024State v. Mercado, 2021 WI 2, ¶32 , 395 Wis. 2d 296 , 953 N.W.2d 337 . ¶29 Because the forfeiture rule is designed to foster the fair, efficient, and orderly administration of justice, it should be applied only when its application would further these purposes.

2025These facts highlight the very reasons that the forfeiture rule exists: “to cultivate timely objections,” State v. Erickson, 227 Wis. 2d 758, 766 , 596 N.W.2d 749 (1999); to “promote[] both efficiency and fairness,” Huebner, 235 Wis. 2d 486, ¶11 ; and to “encourage[] litigation of all issues at one time, simplif[y] the appellate task, and discourage[] a flood of appeals,” State v. Caban, 210 Wis. 2d 597, 605 , 563 N.W.2d 501 (1997). ¶16 Because Kamm has forfeited the argument that she raises on appeal, I affirm.

2025These facts highlight the very reasons that the forfeiture rule exists: “to cultivate timely objections,” State v. Erickson, 227 Wis. 2d 758, 766 , 596 N.W.2d 749 (1999); to “promote[] both efficiency and fairness,” Huebner, 235 Wis. 2d 486, ¶11 ; and to “encourage[] litigation of all issues at one time, simplif[y] the appellate task, and discourage[] a flood of appeals,” State v. Caban, 210 Wis. 2d 597, 605 , 563 N.W.2d 501 (1997). ¶16 Because Kamm has forfeited the argument that she raises on appeal, I affirm.

2026See State v. Gee, 2019 WI App 31, ¶39 , 388 Wis. 2d 68 , 931 N.W.2d 287 (“[A]rguments raised for the first time on appeal are generally deemed forfeited.” (citation omitted)); see also State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (explaining that the forfeiture rule “gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection” and prevents “sandbagging” by “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).6 ¶59 The Pettits’ only argument addressing the circuit c

2026See State v. Gee, 2019 WI App 31, ¶39 , 388 Wis. 2d 68 , 931 N.W.2d 287 (“[A]rguments raised for the first time on appeal are generally deemed forfeited.” (citation omitted)); see also State v. Ndina, 2009 WI 21, ¶30 , 315 Wis. 2d 653 , 761 N.W.2d 612 (explaining that the forfeiture rule “gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection” and prevents “sandbagging” by “failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal”).6 ¶59 The Pettits’ only argument addressing the circuit c

2025See id., ¶26 (concluding that the defendant forfeited his objection to being tried by a six-person jury by failing to raise it at or before trial); id., ¶83 (Abrahamson, C.J., dissenting) (noting that “the defendant did raise his objection before the circuit court, in a motion for post-conviction relief”); see also State v. Saunders, 2011 WI App 156, ¶¶28-29 , 338 Wis. 2d 160 , 807 N.W.2d 679 (concluding that a defendant had forfeited his objection to an alleged sleeping juror, even though he raised the objection in a postconviction motion before the circuit court, by failing to object at the

2025See id., ¶26 (concluding that the defendant forfeited his objection to being tried by a six-person jury by failing to raise it at or before trial); id., ¶83 (Abrahamson, C.J., dissenting) (noting that “the defendant did raise his objection before the circuit court, in a motion for post-conviction relief”); see also State v. Saunders, 2011 WI App 156, ¶¶28-29 , 338 Wis. 2d 160 , 807 N.W.2d 679 (concluding that a defendant had forfeited his objection to an alleged sleeping juror, even though he raised the objection in a postconviction motion before the circuit court, by failing to object at the

2025See State v. Earl, 2009 WI App 99 , ¶18 n.8, 320 Wis. 2d 639 , 770 N.W.2d 755 (noting that “we may affirm on different grounds than those relied on by the trial court”); State v. Holt, 128 Wis. 2d 110, 124-25 , 382 N.W.2d 679 (Ct. App. 1985), superseded by statute on other grounds (holding that the forfeiture rule generally does not apply to alternative grounds for affirmance offered by the respondent). 8 Nos. 2023AP1388-CR 2023AP1389-CR threatened physical injury; and (2) that immediate entry into an area in which a person has a reasonable expectation of privacy was necessary in order to prov

2025See State v. Earl, 2009 WI App 99 , ¶18 n.8, 320 Wis. 2d 639 , 770 N.W.2d 755 (noting that “we may affirm on different grounds than those relied on by the trial court”); State v. Holt, 128 Wis. 2d 110, 124-25 , 382 N.W.2d 679 (Ct. App. 1985), superseded by statute on other grounds (holding that the forfeiture rule generally does not apply to alternative grounds for affirmance offered by the respondent). 8 Nos. 2023AP1388-CR 2023AP1389-CR threatened physical injury; and (2) that immediate entry into an area in which a person has a reasonable expectation of privacy was necessary in order to prov

2025This court will generally not consider issues raised by an appellant for the first time on appeal, so that we do not “blindside [circuit] courts with reversals based on theories which did not originate in their forum.” Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10, 11 , 261 Wis. 2d 769 , 661 N.W.2d 476 (citation omitted).

2025This court will generally not consider issues raised by an appellant for the first time on appeal, so that we do not “blindside [circuit] courts with reversals based on theories which did not originate in their forum.” Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10, 11 , 261 Wis. 2d 769 , 661 N.W.2d 476 (citation omitted).

2024“The general rule is that a guilty, no contest, or Alford plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18 , 294 Wis. 2d 62 , 716 N.W.2d 886 (footnote omitted; citation omitted). ¶18 As previously described, the prosecutor’s remarks that Scott identified in his motion were clearly taken directly from the factual allegations in the criminal complaint.

2024“The general rule is that a guilty, no contest, or Alford plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18 , 294 Wis. 2d 62 , 716 N.W.2d 886 (footnote omitted; citation omitted). ¶18 As previously described, the prosecutor’s remarks that Scott identified in his motion were clearly taken directly from the factual allegations in the criminal complaint.