Whether an otherwise silent trial record showing only that an attorney declined to object to the admission of evidence establishes forfeiture or waiver of later challenges to that evidence

QUESTION PRESENTED If an attorney mistakenly remains silent and fails to object to inadmissible evidence, a later challenge is forfeited and subject to review only for plain error. If, on the other hand, that same attorney knows of the grounds for the objection but decides not to object, any later challenge is waived and wholly unreviewable. Not all situations fall clearly into the “forfeited” or “waived” categories, however. Suppose that a mote active trial judge asks the attorney if there is any objection to the inadmissible evidence, and the attorney answers, “no.” That attorney has affirmatively declined the opportunity to object, but there is no evidence establishing that the attorney was aware of the grounds for the objection. Some jurisdictions find later challenges subject to plain error, while here, the Third Circuit found a later waived and thus unteviewable. The question presented is: Whether an otherwise silent trial record showing only that an attorney declined to object to the admission of evidence establishes forfeiture or waiver of later challenges to that evidence.