Bunch v. State

In Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002), the Indiana Supreme Court not only recognized that the term "waiver" has been applied to several different concepts, but distinguished waiver as an affirmative defense under Trial Rule 8(C) from waiver as doctrine of judicial administration that forecloses an issue on appeal. More specifically: "we think the latter is more properly described as "procedural default" or "forfeiture," but we acknowledge that it is often referred to as "waiver." Indiana Trial Rule 8(C) requires parties to plead some affirmative defenses, including "waiver," or forfeit them. It also places the burden of proof at trial on the party required to plead the matter as an affirmative defense. In contrast to the "waiver" governed by Rule 8(C), there is also a doctrine of judicial administration whereby appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to preserve the issue." Id.