Jon Katz at  Underdog has a post that would be pretty funny if it wasn’t so true.  One of the words used most frequently in the course of criminal proceedings is “waive”.  Defendant’s are asked if they “waive” counsel, “waive” a jury, “waive” their rights. 

Lawyers hear the word so often, and it has become such a basic word in our legal lexicon, that we fail to give it a second thought.  But for defendants, what does this word mean? 

While the use of legalisms is a systemic problem, often exacerbated by judges and prosecutors who lack a sense of what non-lawyers may comprehend because they have never had the breadth of experience that involves dealing with ordinary people in the way that criminal defense lawyers do, this one word, “waive” probably best captures the problem.  They get frustrated by defendants who can’t seem to grasp what’s painfully obvious to the judge.  The court asks a simple question, and these morons just don’t seem to get it.

People regularly wave hello to friends, wave good-bye to family, do the wave at football games.  What normal people do not regularly do is waive their rights.  This is one of those five-dollar words that works fine amongst lawyers, but is often meaningless for defendants.  They tend to agree with whatever the Court asks, because they want to seem agreeable.  They want to curry favor with, as opposed to upset, the judge.  And so they shake their heads “yes” and mutter something unintelligible, that ends up being the word “yes” in the transcript.

The problem becomes more comical, and more serious, with defendants who do not speak or comprehend English well.  Some have a limited ability with English, and prefer to appear without an interpreter.  Some have no ability to understand English, but don’t want to appear to be an “illegal alien” for fear that it will bias the court against them.  But the inability to fully speak and comprehend English makes the use of words like “waive” just ridiculous. 

They can’t waive anything, because they can’t understand what they are doing.  Waiver must be “knowing, voluntary and intelligent,” which has often been interpreted as meaning nothing more than assent came out of the defendant’s mouth and there was no gun to his head.  Not a metaphorical gun, as is usually the case, but a real gun.  Cold, hard, steel.  No gun, then it must be voluntary. 

And later, when somebody finally takes the time to explain to the defendant that what he did that day in court was give up his rights, the defendant puts on that sheepish face and declares, “but I didn’t know . . .”  And of course, he didn’t.  Sure, he could have.  All he needed to do was say, “But Judge, I do not understand the word you using.  Please explain it to me in simpler language.”  We all know how often that happens, and why defendants so rarely offer anything affirmative during their few minutes in front of the judge.

Much of what’s said in a courtroom goes over, or under, the heads of the people who are expected to understand it.  Waiver is certainly one of the biggies.  But next time the judge asks a defendant if he waives something, ask the judge if she wouldn’t mind substituting the words “give up” for “waive” and see how it flies.  If you think judges look at you funny now, just wait until you see the look you get when make this suggestion.  I bet it will be precious.