Forfeiture is not waiver
Ohio law distinguishes two ways of losing an issue. Waiver is the intentional relinquishment or abandonment of a known right; forfeiture, as the Supreme Court of Ohio put it in State v. Rogers, "is the failure to timely assert a right or object to an error." 2015-Ohio-2459, ¶ 20-21. The distinction matters. A waived error is generally gone. A forfeited error can still be reviewed, but only for plain error, and the party who stayed silent carries the burden of proving it. Id. at ¶ 22.
How issues are preserved at trial
- Evidence admitted. Evid.R. 103(A)(1) requires a timely objection or motion to strike that states the specific ground, unless the ground is apparent from context.
- Evidence excluded. Evid.R. 103(A)(2) requires that the substance of the evidence be made known by an offer of proof or be apparent from the context. No offer of proof is needed when evidence is excluded during cross-examination; otherwise, without a proffer or apparent context, the record may give the appellate court nothing to review.
- Definitive rulings. Under Evid.R. 103(A), once the court rules definitively on the record, before or at trial, the objection or offer need not be renewed. A ruling that is tentative or conditional does not qualify.
- Jury instructions. Civ.R. 51(A) bars assigning instructional error unless the party objected before the jury retired, "stating specifically the matter objected to and the grounds of the objection."
Plain error in criminal appeals
Crim.R. 52(B) permits an appellate court to notice "[p]lain errors or defects affecting substantial rights" that were not raised below. The test is demanding. Under Rogers, the accused must show an obvious deviation from a legal rule and "a reasonable probability that the error resulted in prejudice." 2015-Ohio-2459 at ¶ 22. Even then correction is discretionary: notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 97 (1978); Rogers at ¶ 23. Rogers applied these rules to an unraised allied offenses claim and held that the failure to raise it "forfeits all but plain error." Id. at ¶ 3.
Plain error in civil appeals
The Civil Rules contain no counterpart to Crim.R. 52(B), and civil plain error is narrower still. In Goldfuss v. Davidson, the court held that in civil appeals "the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." 79 Ohio St.3d 116 (1997), syllabus. Goldfuss reversed a court of appeals that had used plain error to undo a verdict built on an instruction the defense never challenged before deliberations.
Practice pointers
- Object specifically and on the record. A general objection may not preserve the specific ground argued on appeal.
- Proffer excluded evidence. Make the offer of proof before the witness leaves the stand.
- Get instruction objections on the record before the jury retires, with the grounds stated.
- On appeal, concede and argue. If an error was not preserved, say so and brief the plain error standard rather than hoping the panel will not notice. See standards of review and evidence and trial error.
Recent analysis
Civ.R. 65.1(G) Objections in Ohio Protection Order Appeals (2026)
A.A. v. S.P., 2026-Ohio-4205
A party who appeals a civil protection order without first filing the objections Civ.R. 65.1(G) requires does not lose appellate jurisdiction, but forfeits review of the alleged errors that could have been raised by objection, and plain-error review is not available as a substitute. Here, that meant no jurisdictional dismissal, but an affirmance of the protection order.
Preindictment Delay in Ohio After State v. Wilson: Luck Overruled (2026)
State v. Wilson, 2026-Ohio-3988
The Supreme Court of Ohio overruled State v. Luck and its progeny and adopted the United States Supreme Court's test: a defendant seeking dismissal for preindictment delay must prove both actual prejudice (missing evidence that would be favorable, material, and noncumulative) and that the delay was an intentional device to gain a tactical advantage for the State. The burden no longer shifts to the State to justify the delay, and a motion built on conclusory or speculative claims of lost evidence fails on the first prong.
Ohio Plain Error Requires Clear Current Law: State v. Bradley (2026)
State v. Bradley, 2026-Ohio-3771
The Supreme Court of Ohio held that an error is not plain under Crim.R. 52(B) unless it is clear under current law, and that the appellant must show the outcome would have been different, not that it may have been. An unrequested transferred self-defense instruction failed both tests, so the Seventh District's reversal was itself reversed.
Published for Ohio attorneys; not legal advice. Rules and statutes change, so confirm current text before relying on it.