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People v. Cain

Supreme Court of Michigan

July 23, 2015

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
BRANDON LEWIS CAIN, Defendant-Appellee

Argued March 11, 2015.

Page 830

Brandon L. Cain was convicted in the Wayne Circuit Court of two counts of first-degree premeditated murder, MCL 750.316(1)(a); two counts of felony murder, MCL 750.316(1)(b); two counts of torture, MCL 750.85; two counts of unlawful imprisonment, MCL 750.349b; carrying a firearm during the commission of a felony, MCL 750.227b; and being a felon in possession of a firearm, MCL 750.224f. At the start of the trial, the court, Vonda R. Evans, J., stated to the jury, " I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict." The court clerk then proceeded to swear in the jury, but mistakenly read the oath given to prospective jurors before voir dire (that they would answer the questions concerning juror qualifications truthfully) rather than the juror's oath set forth in MCR 2.511(H)(1). There was no objection to the failure to administer the proper oath. Defendant raised the issue of failing to properly swear the jury for the first time on appeal, moving for peremptory reversal of his convictions. The Court of Appeals granted the motion in an unpublished order, entered May 2, 2014 (Docket No. 314342), concluding that the failure to properly swear the jury was a structural error requiring a new trial. The prosecution sought leave to appeal, which the Supreme Court granted. 497 Mich. 861, 852 N.W.2d 898 (2014) .

Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein. VIVIANO, J. (dissenting).

OPINION

Page 831

[498 Mich. 112] BEFORE THE ENTIRE BENCH

Stephen J. Markman, J.

This case presents a fundamental question that appellate courts often confront: whether to afford relief on the basis of a claim of error not raised in the trial court. As a general rule, appellate courts will not grant relief on belated claims of error unless the proponent establishes, among other things, that the unpreserved error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Defendant here, who raised for the first time on appeal a claim that the trial court gave the wrong juror's oath, has failed to meet this burden. Our review of the record reveals that the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out, the two primary purposes served by the juror's oath. Thus, we cannot say that the error here of failing to properly swear the jury seriously affected the fairness, integrity, or public reputation of the judicial proceedings. We therefore vacate the Court of Appeals' order holding to the contrary and reinstate defendant's convictions and sentences.

I. FACTS AND HISTORY

On February 28, 2012, Ashley Conaway and Abreeya Brown were abducted, tortured, and murdered. A month later, their bodies were found buried in a shallow grave, and defendant Brandon Cain and four others were charged in connection with the victims' deaths.[1] All five men were tried at a single trial with two separate juries, one for Cain and a codefendant [498 Mich. 113] and another for the remaining codefendants. After three days of jury voir dire, defendant's jury was selected. At the start of trial, the court instructed the jury, " I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict." The clerk proceeded to swear in the jury, but mistakenly read the oath given to prospective jurors before voir dire:

Page 832

The Clerk : You do solemnly swear or affirm that you will true answers make to such questions as may be put to you touching upon your qualifications to serve as jurors in the cause now pending before the Court [sic]?[2]

[ Jurors ]: (Collectively) I do.

There was no objection to the failure to administer the proper oath, although no one disputes that the oath given was incorrect.[3]

A lengthy trial followed, at the end of which the jury convicted defendant as charged. He was sentenced to mandatory terms of life in prison without parole for the murder convictions and various lesser term-of-years sentences for the remaining convictions. On appeal, defendant raised for the first time a challenge to the trial court's failure to properly swear the jury. Defendant's appellate counsel filed a motion for peremptory reversal of his convictions, which the Court of Appeals granted in an order, stating, " The failure to properly swear the jury is a structural error requiring a new trial. People v Allan, 299 Mich.App. 205; 829 N.W.2d 319 (2013)." People v Cain, unpublished order of the Court of Appeals, entered May 2, 2014 (Docket No. 314342). The Court remanded " for a new trial with a properly sworn jury." Id.

[498 Mich. 114] The prosecutor then sought an appeal in this Court, and we granted leave to appeal on the following question:

[W]hether the Court of Appeals erred in determining that the failure to properly swear the jury, even in the absence of a timely objection, is a structural error requiring a new trial. [ People v Cain, 497 Mich. 861; 852 N.W.2d 898 (2014).]

II. STANDARD OF REVIEW

Whether the failure to properly swear the jury, even in the absence of a timely objection, requires that the defendant be afforded a new trial is a question of law, and such questions are reviewed de novo. People v Chenault, 495 Mich. 142, 159; 845 N.W.2d 731 (2014).

III. ANALYSIS

A. UNPRESERVED ERRORS

Defendant did not object to the trial court's failure to properly swear the jury. His claim on appeal and the Court of Appeals' decision to afford relief therefore implicate the general and longstanding rule in Michigan that " issues that are not properly raised before a trial court cannot be raised on appeal absent compelling or extraordinary circumstances." People v Grant, 445 Mich. 535, 546; 520 N.W.2d 123 (1994). The essential justification for this rule is fairness, both to litigants, who are best equipped to respond to alleged errors at the time they occur, and to the public, which must bear the cost of new trials that could have been avoided with a timely objection. See People v Carines, 460 Mich. 750, 764-765; 597 N.W.2d 130 (1999) (" [A] contemporaneous objection provides the trial court 'an opportunity to correct the error, which could thereby obviate the necessity of further legal proceedings and [498 Mich. 115] would be by far the best time to address a defendant's constitutional and nonconstitutional rights.'" ), quoting Grant, 445 Mich. at 551. As this Court recently explained in People v Vaughn, 491 Mich. 642, 653-654; 821 N.W.2d 288 (2012): " This Court 'has long recognized the importance of preserving issues for appellate

Page 833

review.' As a result, '[t]his Court disfavors consideration of unpreserved claims of error,' even unpreserved claims of constitutional error." (Citations omitted; alteration in original.)

The United States Supreme Court has also long recognized the importance of preserving issues for appellate review. As it has explained:

If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; " anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal."
This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from " 'sandbagging'" the court--remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor. [ Puckett v United States, 556 U.S. 129, 134; 129 S.Ct. 1423; 173 L.Ed.2d 266 (2009) (citations omitted).]

This is why the United States Supreme Court and this Court adopted the plain-error test in United States v [498 Mich. 116] Olano, 507 U.S. 725, 735-737; 113 S.Ct. 1770; 123 L.Ed.2d 508 (1993), and Carines, 460 Mich. at 763, respectively, and why Vaughn, 491 Mich. at 655, held that " [a]lthough the violation of the right to a public trial is among the limited class of constitutional violations that are structural in nature," a defendant is still not entitled to relief unless he or she can satisfy the four requirements set forth in Carines.

Appellate courts may grant relief for unpreserved errors if the proponent of the error can satisfy the " plain error" standard, which has four parts (the " Carines prongs" ). The first three Carines prongs require establishing that (1) an error occurred, (2) the error was " plain" -- i.e., clear or obvious, and (3) the error affected substantial rights-- i.e., the outcome of the lower court proceedings was affected. Carines, 460 Mich. at 763. If the first three elements are satisfied, the fourth Carines prong calls upon an appellate court to " exercise its discretion in deciding whether to reverse," and (4) relief is warranted only when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or " '" seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings" . . . .'" Id. (citation omitted; first alteration in original). While " [m]eeting all four prongs is difficult, 'as it should be,'" Puckett, 556 U.S. at 135, the plain-error test affords defendants sufficient protection because, as Vaughn, 491 Mich. at 655 n 42, explained:

[A]pplication of a plain-error analysis to unpreserved structural error does not deny that error " close consideration," . . . especially because the plain-error analysis . . . requires reviewing courts to consider carefully whether any forfeited error either resulted in the conviction of an [498 Mich. 117] actually innocent defendant or seriously affected the fairness, integrity, or

Page 834

public reputation of judicial proceedings. [Citations omitted.]

In the present case, the parties generally agree that the trial court's failure to properly swear the jury constitutes a plain error that satisfies the first and second Carines prongs.[4] The parties disagree, however, about the third and fourth

Page 835

Carines prongs. We need not [498 Mich. 118] resolve the parties' dispute over the third Carines prong because, even assuming defendant has established that element, we are not persuaded that the trial court's failure to properly swear the jury seriously [498 Mich. 119] affected the fairness, integrity, or public reputation of the judicial proceedings in this case and defendant does not even argue that he is actually innocent.

B. FOURTH CARINES PRONG

The fourth Carines prong embodies the general rule that an appellate court will not correct errors that a party failed to raise below. Reversal is required only in the most serious cases, those in which the error contributed to the conviction of an actually innocent person or otherwise undermined the fairness and integrity of the process to such a degree that an appellate court cannot countenance that error. See Olano, 507 U.S. at 736 (" [T]he discretion conferred by [the fourth prong of the plain-error standard] should be employed in those circumstances in which a miscarriage of justice would otherwise result." ) (quotation marks and citation omitted).

A recent example of this Court's application of the fourth Carines prong can be found in Vaughn. In Vaughn, this Court addressed an unpreserved claim that the trial court violated the defendant's Sixth Amendment right to a public trial when it closed the courtroom before jury voir dire. Agreeing with the defendant that his claim satisfied the first three prongs of the Carines test, we nonetheless concluded that reversal was not appropriate under the fourth Carines prong because the underlying purposes of the public-trial guarantee were alternatively maintained. Vaughn, 491 Mich. at 664-669. These goals, at least in the context of jury voir dire, included " ensuring a fair trial" and " reminding the prosecution and court of their responsibility to the accused and the importance of their functions[.]" Id. at 667. With these goals in mind, this Court reviewed the transcript of the proceedings [498 Mich. 120] and concluded " that both parties engaged in a vigorous voir dire process, that there were no objections to either party's peremptory challenges of potential jurors, and that each party expressed satisfaction with the ultimate jury chosen." Id. at 668. We also observed that the presence of the jury venire, which was derived from and representative of the public, helped to ensure that the proceedings were subject to a substantial degree of continued public review. Id. From our intensive review of the record, we could not conclude that the erroneous closure " seriously affected the fairness, integrity, or public reputation of judicial proceedings," id. at 668-669, and therefore declined to grant relief.[5] (Quotation marks and citation omitted.)

Page 836

[498 Mich. 121] As evidenced by Vaughn, the fourth Carines prong is meant to be applied on a case-specific and fact-intensive basis. See also Puckett, 556 U.S. at 142 (" [A] per se approach to plain-error review is flawed." ) (quotation marks and citation omitted). The operative inquiry is whether the trial court's error of failing to properly swear the jury in the particular case " seriously affected the fairness, integrity, or public reputation of judicial proceedings." Carines, 460 Mich. at 774. It is to that inquiry that we now turn.

C. APPLICATION

Consistently with Vaughn, we must first discern the purposes and goals of the juror's oath. The language of the juror's oath reads:

" Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God." [MCR 2.511(H)(1). See also MCL 768.14.]

The oath imposes on the jurors three duties: (1) to " justly decide the questions submitted," (2) to " render a true verdict," and (3) to do these things " only on the evidence introduced and in accordance with the instructions of the court." Of course, the oath is more than a mere laundry list of juratorial duties. Instead,

[t]he oath represents a solemn promise on the part of each juror to do his duty according to the dictates of the law to see that justice is done. This duty is not just a final duty to render a verdict in accordance with the law, but the duty to act in accordance with the law at all stages of trial. The oath is administered to insure that the jurors pay attention [498 Mich. 122] to the evidence, observe the credibility and demeanor of the witnesses and conduct themselves at all times as befits one holding such an important position. [ People v Pribble, 72 Mich.App. 219, 224; 249 N.W.2d 363 (1976).]

Our review of the record in this case reveals that the error of failing to properly swear the jury did not undermine the proceedings with respect to the broader pursuits and values that the oath seeks to advance.

One of the primary purposes of the oath-- to impart to the members of the jury their duties as jurors-- was alternatively fulfilled in large part by the trial court's instructions prescribing the particulars of the jurors' duties. Immediately before the swearing of the oath, the trial court instructed the jurors, " I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict." Following the oath, the court instructed the jurors that it was their responsibility to decide the facts of

Page 837

the case solely on the basis of the evidence presented and the law as the court gave it to them, that they should not consider any other information regarding the trial that was not presented in the courtroom, that they should not discuss the case among themselves until deliberations begin, and that they should keep an open mind about the case, setting aside any bias and prejudice. The trial court also explained the concepts of the presumption of innocence and reasonable doubt, instructing the jurors to return a verdict of not guilty unless they unanimously decided that the prosecutor had proved each element of the offenses beyond a reasonable doubt. In addition, before giving the final instructions, the trial court told the jurors, " Remember that you have taken an oath to return a true and just verdict based only on the evidence and my instructions on the law." And during the final instructions, the judge reiterated the previously described [498 Mich. 123] instructions, including that the jury was to decide the case on the basis of the evidence presented during the trial and the law as the court gave it to them, setting aside all bias and prejudice. These instructions encompassed, in even greater detail, duties equivalent to those prescribed in the oath.

We recognize that the value of the oath as a whole is probably greater than the sum of its individual parts. The juror's oath involves a conscious promise to adopt a particular mindset-- to approach matters fairly and impartially-- and its great virtue is the powerful symbolism and sense of duty it imbues the oath-taker with and casts on the proceedings. That virtue, however, was not lost in these proceedings. Each juror took a solemn oath to answer questions truthfully during voir dire, and each stated that he or she could be fair and impartial. In addition, before the start of the trial, the trial court told the jurors, " I will now ask you to stand and swear to perform your duty to try the case justly and to reach a true verdict." The jurors then stood and the court clerk asked, " You do solemnly swear or affirm that you will true answers make to such questions as may be put to you touching upon your qualifications to serve as jurors in the cause now pending before the Court?" to which the jurors collectively replied, " I do." Then, as discussed earlier, the trial court thoroughly explained to the jurors their duties and responsibilities. Finally, at the end of trial, the court reminded the jurors, " Remember that you have taken an oath to return a true and just verdict based only on the evidence and my instructions on the law." Although this was not a perfect substitute for the oath required by MCR 2.511(H)(1), we have no reason to believe that the jurors in this case as a result of these alternative efforts to [498 Mich. 124] inculcate in them a proper sense of their obligations did not understand the dignity and solemnity of the proceedings.[6]

Page 838

[498 Mich. 125] Our review of the record also shows that the trial court was particularly vigilant in attempting to ensure that the jury remained fair and impartial throughout the proceedings. When one of the codefendants decided to plead guilty, the trial court conducted voir dire of each juror to verify that the jurors would not be influenced by the codefendant's guilty plea, would retain an open mind, and could continue to be fair and impartial. In this regard, the reasoning of the United States Court of Appeals for the Tenth Circuit for declining to grant relief for a similar error is particularly persuasive:

[A]ny threat to the integrity of the proceedings was mitigated by an otherwise fair and procedurally rigorous trial. The jury was fairly selected and clearly instructed, and the trial was open to the public and administered by an unbiased judge. Turrietta availed himself of his right to counsel and received an unfettered opportunity to put on evidence and make arguments in defense of his innocence.
[498 Mich. 126] Moreover, the record supports the government's contention that the jury understood the thrust of what the oath was designed to impart. The jurors were all sworn to tell the truth during voir dire and were on several occasions reminded by the court of their " sworn duty" to try the case truly and in accordance with the law. The admonition was reinforced over the course of the trial by a steady drumbeat of instructions stressing the importance of rendering a verdict in light of the burden of proof and based solely on the evidence

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presented. Between the instructions, the oath at voir dire, and the repeated references to the oath at trial, the jurors had plenty to remind them of the importance of their task. If . . . a juror was still unwilling to decide the case based on the law and evidence, it is doubtful the oath would have made a difference. [ Turrietta, 696 F.3d at 985.]

The same is true of the instant case. The record indicates that the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out; the jurors each stated under oath that they could be fair and impartial, and the trial court thoroughly instructed them on the particulars of their duties. Just as with the constitutional right to a public trial in Vaughn, we require the oath for a reason; however, if the larger purposes served by requiring the oath in the first place are achieved by alternative means, the only reason for reversal would be a preference for an error-free trial, a preference only rarely achieved in the judicial annals. We rejected that concept in Vaughn by declining to grant relief for the defendant's deprivation of a public trial because the objectives served by that right were otherwise served, albeit imperfectly. In this case, the objectives served by the oath were also achieved by other means, albeit imperfectly. Therefore, we cannot say that the absence of the oath seriously affected the fairness, integrity, or [498 Mich. 127] public reputation of the proceedings in this case.[7] Indeed, we believe that " it would be the reversal of a conviction such as this which would" " 'seriously affect[] the fairness, integrity and public reputation of judicial proceedings'" because " '[r]eversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.'" Johnson, 520 U.S. at 470 (citations omitted; emphasis added.).

The error of the Court of Appeals in arriving at the opposite conclusion stems from its failure to conduct a case-specific and fact-intensive inquiry under the fourth Carines prong. See Puckett, 556 U.S. at 142. It does not suffice under this prong to simply state that an error " require[s] a new trial." In truth, this error stems from the Allan decision, which, after concluding that the failure to swear the jury satisfied the first three Carines prongs, did not take a case-specific approach to the fourth prong. Rather, Allan reasoned:

[T]he trial court's failure to administer the oath to the jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings. Because the trial court did not administer the oath to the jury, the jury did not undertake the solemn promise to act in accordance with [498 Mich. 128] the law at all stages of defendant's trial. The trial court's failure to administer the oath to the jury in this case affected the integrity of the proceedings because it resulted in an invalid verdict under Michigan law. The absence of the oath deprived defendant

Page 840

of a means to ensure that the jury would decide the case honestly in accordance with the law and on the basis of the evidence. Administration of the oath was necessary to protect defendant's fundamental right to a trial by an impartial jury. [ Allan, 299 Mich.App. at 218 (citations omitted).]

The problem with Allan 's analysis is that it could apply to every case in which the jury is improperly sworn. In Allan, and in this case as well, courts should have engaged in a fact-intensive and case-specific inquiry under the fourth Carines prong to assess whether, in light of any " countervailing factors" on the record, Puckett, 556 U.S. at 143, leaving the error unremedied would constitute a miscarriage of justice, i.e., whether the fairness, integrity, or public reputation of the proceedings was seriously affected.

IV. CONCLUSION

The failure to provide the correct oath was an error, but not one that would result in manifest injustice if left unremedied here. We do nothing to diminish the value of the juror's oath to say that its absence in this case did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. It is but one component-- as important and as symbolic as it may be-- in a larger process of fair and impartial adjudication. Because the record before us indicates that defendant was actually ensured a fair and impartial jury, we conclude that his constitutional rights were upheld and reversal is not warranted. We therefore vacate the Court of Appeals' order and reinstate defendant's convictions and sentences. We remand this [498 Mich. 129] case to the Court of Appeals for consideration of defendant's remaining claims on appeal. Finally, we caution the trial court in this case, as well as other trial courts in this state, to take particular care that the error that occurred in this case be avoided in the future.

DISSENT

Viviano, J. ( dissenting ).

[H]owever convenient [intrusions on the right to trial by jury] may appear at first . . . let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.
--Sir William Blackstone[1]

The issue in this case is whether the juror's oath, which for centuries has been thought of as the very essence of the jury, may be dispensed with as nothing more than a hollow incantation. There are few, if any, social customs more fundamental to a well-ordered society than the act of swearing an oath. Oaths are invoked in the most solemn occasions in civic life, including when citizens are called to sit in judgment of their peers. Today, the Court holds that the failure to administer the juror's oath does not seriously affect the fairness, integrity, or public reputation of this criminal case. I cannot agree with this conclusion because it [498 Mich. 130] renders meaningless the requirement--in existence since the very origin of the jury trial--that those who judge another person's guilt or innocence do so under the solemn obligation

Page 841

and sanction of an oath or affirmation. The juror's oath plays an essential role in every criminal trial, one that cannot so easily be dispensed with by identifying trial features present in every criminal case, as the Court does today. For that reason, I respectfully dissent.

I. THE PLAIN ERROR STANDARD

Because defendant did not preserve his claim that the trial court failed to swear the jury, this issue is reviewed under the plain error standard.[2] Under this standard, appellate courts may grant relief if the person asserting the error can satisfy four elements (the Carines prongs): (1) an error occurred; (2) the error is " plain," that is, clear or obvious; and (3) the plain error affected substantial rights, that is, affected the outcome of the lower court proceedings.[3] If these three elements are satisfied, the fourth element calls on an appellate court to " exercise its discretion in deciding whether to reverse." [4] Relief is only warranted when the court determines that the plain, forfeited error resulted in the conviction of an actually innocent defendant or " seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings . . . ." [5]

As discussed below, I would hold that the failure to swear the jury amounted to a literal deprivation of [498 Mich. 131] defendant's Sixth Amendment right to a jury trial.[6] I would also hold that this error was plain. Finally, I would hold that an unsworn jury constitutes a structural error that is not amenable to the prejudice inquiry under the third Carines prong. These three premises establish that the failure to swear the jury has a fundamental and serious effect on the integrity of the proceedings; the features of the trial record that the majority cites to conclude otherwise do not mitigate the fundamental unfairness that results when a defendant is tried by an unsworn jury.

II. THE SIXTH AMENDMENT GUARANTEES A SWORN JURY

The first question--one that the majority does not address--is whether the trial court committed an error in failing to properly swear the jury. The prosecution concedes that the trial court erred by failing to give the oath required by court rule and statute.[7] However, the basis of defendant's argument is that the trial court's error was constitutional in nature, as evidenced by his citation of the Court of Appeals' decision in People v Allan [8] and his contention that the error in this case was structural. In Allan,[9] the Court of

Page 842

Appeals relied [498 Mich. 132] on an earlier Court of Appeals case, People v Pribble, which held that " [t]he oath is designed to protect the fundamental right of trial by an impartial jury." [10] Neither Pribble nor Allan provided an extended constitutional analysis, but they present an important issue not yet squarely addressed by this Court or the United States Supreme Court: whether the juror's oath is constitutionally required as part of the Sixth Amendment's guarantee to a trial by jury.[11]

The language of the Sixth Amendment reads, " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." [12] In interpreting the constitutional phrase " trial by jury," the guiding principle is " to give the text the meaning it was understood to have at the time of its adoption by the people." [13] The language of the Constitution is the primary indicator of that understanding.[14] When interpreting the Constitution, we presume that " its words and phrases were used in their normal and ordinary as distinguished from technical [498 Mich. 133] meaning." [15] Our interpretation of the constitutional text " is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." [16] This is especially so for the right to trial by jury because it is a basic fact of our constitutional heritage that the ratification of the Sixth Amendment marked the preservation of a long-cherished institution born of English common law.[17]

For as long as the institution we know as " trial by jury" has existed, juries have been sworn. Oaths were already a deeply embedded custom in civic society when the jury trial emerged as the accepted mode of criminal trial.[18] When that happened,

Page 843

" [the oath] became an integral part of the jury trial and by the earliest records both jurors and witnesses were sworn." [19] Indeed, from the inception of the jury trial, " [i]t was the power of the oath which decided the case . . . ." [20] By the time Sir William Blackstone wrote [498 Mich. 134] his Commentaries on the Laws of England in the mid-eighteenth century, the role of the oath had become so firmly ensconced in the concept of the jury that the body known as " the jury" did not exist until its members swore an oath:

When a sufficient number of persons impaneled, or talesmen, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence, and hence they are denominated the jury, jurata and jurors, [namely] juratores.[21]

The essence of the jury is, and always has been, the swearing of the oath.[22] This basic historical fact finds compelling support in the etymological roots of the word " jury," which can be traced back to the French words " juré " and " juré e " and the Latin word " jurare," which mean " sworn," " oath," and " to swear," respectively.[23] The English ancestor of our " jury" was called [498 Mich. 135] " the jurata," [24] which itself was defined as " [a] jury of twelve men sworn." [25] Furthermore, at the time our Constitution was written, " jury" was defined as " a company of men, as twenty-four, or twelve, sworn to deliver a truth upon such evidence as shall be delivered them touching the matter in question." [26] Nearly every definition of

Page 844

" jury" since then includes reference to swearing an oath.[27] In other words, the oath was, and has always been, a defining criterion of " jury." [28] In [498 Mich. 136] light of this deep etymological pedigree, it seems quite implausible that the Framers, who lived in a time in which society placed great emphasis on oaths,[29] intended anything other than a sworn jury when they drafted the Sixth Amendment. The term " jury" in the Sixth Amendment naturally referred to a " sworn" jury; adding the descriptor " sworn" would have seemed redundant.

That the Framers understood the word " jury" to necessarily include a requirement that the decision-making body swear an oath finds support in a contextual reading of the Constitution, particularly the provision granting the Senate the power to try all impeachments.[30] An early version of Article I, § 3 simply authorized the Senate to try all impeachments.[31] However, it was later revised to explicitly state that " every member shall be on oath[.]" [32] Elucidating the oath requirement in his Commentaries on the Constitution, Justice Joseph Story wrote:

[T]he Senate, when sitting as a court of impeachment, 'shall be on oath or affirmation'; a provision which, as it appeals to the conscience and integrity of the members by the same sanctions which apply to judges and jurors who sit in other trials, will commend itself to all persons who deem the highest trusts, rights, and duties worthy of the same protection and security, at least, as those of the humblest order. It would, indeed, be a monstrous anomaly, [498 Mich. 137] that the highest officers might be convicted of the worst crimes without any sanction being interposed against the exercise of the most vindictive passions, while the humblest individual has a right to demand an oath of fidelity from those who are his peers and his triors.[33]

This passage is striking for two reasons. First, Story's early account of the content

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of the Constitution sheds light on the common understanding of the constitutional right to jury trial at the time, namely that the accused " has a right to demand an oath of fidelity from those who are his peers and his triors." [34] Second, the fact that our Framers took care to ensure that senators swore an oath before serving in a juratorial capacity is strong textual evidence that the concept of jury trial enshrined in the Constitution necessarily presupposed a sworn jury. Whereas the absence of any mention of an " oath" in the Sixth Amendment is, of course, explained by the fact that it is inherent in the concept and definition of " jury," the same cannot be said for senators sitting as a court of impeachment; hence, the express inclusion of the oath requirement during the drafting process.

Finally, it bears mentioning that numerous courts have similarly concluded that the oath is part of the constitutional guarantee of trial by jury. [35] In fact, [498 Mich. 138] " [w]ith a remarkable degree of consensus, courts across the nation agree that swearing the jury is an integral, essential, fundamental component of a fair trial." [36] The majority relies on United States v Turrietta [37] for the proposition that no federal court has expressly recognized the Sixth Amendment right to a sworn jury, but its myopic citation ignores the entirety of the Turrietta court's constitutional analysis.[38] I need not reproduce Turrietta' s constitutional discussion here, but its summary of the constitutional analysis will suffice to show that it supports my conclusion:

In short, the oath is bound up with some of the great principles giving rise to the very concept of a jury trial. With its appeal to divine judgment and its enduring impression on the conscience of the juror, the oath has 'moved seamlessly' from medieval modes of decisionmaking into the modern courtroom. Its history, together with certain common sense assumptions about the way it works in practice, reveals a strong relationship to the jury's reliability as a fact finder. Whether the relationship is strong enough to afford the oath constitutional stature is a question we leave unanswered . . . .[39]

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[498 Mich. 139] My constitutional analysis--rooted in history, original meaning, and a contextual reading of the constitutional text--is entirely consistent with that of federal and state courts that have historically recognized, implicitly and explicitly, the critical role the oath plays in trial by jury.[40]

" Whatever else it may mean in addition, the defendant's constitutional right [to trial by jury] means, always and everywhere, at least what it explicitly says: the [right to be tried by a 'jury']." [41] And a jury is not a jury until it is sworn. Indeed, to separate the oath from " jury" in the Sixth Amendment would be to disembowel all historical pedigree, etymological heritage, and common law meaning from the word " jury." [42] For these [498 Mich. 140] reasons, I would

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hold that the Sixth Amendment [498 Mich. 141] necessarily guarantees the right to a sworn jury and that the trial court's failure to properly swear the jury deprived defendant of this constitutional protection.

III. THE CONSTITUTIONAL VIOLATION WAS " PLAIN"

Having established that the error of failing to swear the jury was of constitutional magnitude, I turn now to assess under the second Carines prong: whether the error was " plain, i.e., clear or obvious." [43] Nearly 40 years ago, in Pribble, the Court of Appeals held, " The oath is designed to protect the fundamental right of trial by an impartial jury." [44] Although it was unaccompanied by any of the relevant constitutional analysis above, Pribble' s holding that failure to swear the jury signals a constitutional deprivation was nonetheless binding precedent on the trial court at the time of defendant's trial. Therefore, the constitutional error was " plain, i.e., clear or obvious," and the second Carines prong is satisfied in this case.[45]

IV. THE THIRD CARINES PRONG AND FAILURE TO SWEAR THE JURY AS A STRUCTURAL ERROR

The third prong of the plain error standard requires a defendant to establish that the plain error affected his or her substantial rights, which typically means that it affected the outcome of the lower court proceedings. [46] However, the United States Supreme Court has noted that " certain errors, termed 'structural errors,' might 'affec[t] substantial rights' regardless of their [498 Mich. 142] actual impact on an appellant's trial." [47] Structural error--originally a concept of the harmless error standard, applicable to preserved claims of error--is a particular type of constitutional error that is not amenable to harmless error analysis.[48] The concept of structural error is highly relevant under the third prong of the Carines plain error standard because the harmless error standard and third Carines prong are both functionally " the same kind of inquiry." [49]

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Because both inquiries examine the effect of the error on the verdict reached in a particular case, it stands to reason that structural errors are likewise not amenable to analysis under the third Carines prong.[50] Defendant argues that failure to swear the jury is a structural error satisfying the third Carines prong. I agree.

Structural errors comprise a small subset of constitutional errors that " affec[t] the framework within which the trial proceeds," rather than " simply an error [498 Mich. 143] in the trial process itself." [51] Whether an error is " structural" is a function of " the difficulty of assessing the effect of the error." [52] Whereas structural errors are framework-affecting errors whose consequences are " necessarily unquantifiable and indeterminate," " trial errors" happen during the presentation of the case and can be " quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt." [53] Structural errors " infect the entire trial process" and " necessarily render a trial fundamentally unfair." [54] They " deprive defendants of 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . .'" [55]

The number of constitutional errors labeled " structural" is quite limited.[56] However, I have little difficulty fitting the failure to properly swear the jury into the constellation of structural errors. The oath is a foundational component of the " framework within which the trial proceeds." [57] It solemnizes the proceedings at the outset by calling on jurors to make an outward pronouncement that they " will justly decide" the case [498 Mich. 144] and " render a true verdict" under the sacred appeal to one's conscience and integrity that follows from swearing an oath.[58] Its influence pervades the entire proceedings, governing the jury's evaluation of evidence during trial and deliberations on the question of guilt after the close of proofs. Further, although its historical pedigree as " a 'natural and universal custom'" is evidence of its undeniable influence on people's conduct,[59] it is difficult, if not impossible, to

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assess as a general matter what tangible effect the absence of the oath has on verdicts. The influence of the oath on information-processing and judgment functions at a psychological level. Thus, any generalized statements regarding its tangible effect on jurors' decision-making process and verdict would be purely speculative.[60]

[498 Mich. 145] The right to a sworn jury--the jury guaranteed by the Constitution--is a " 'basic protectio[n]' whose precise effects are unmeasurable, but without which a criminal trial cannot reliably serve its function." [61] As the Supreme Court stated in Sullivan v Louisiana, " The right to trial by jury reflects . . . 'a profound judgment about the way in which law should be enforced and justice administered.' The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as 'structural error.'" [62] Because the oath is woven into the very fabric of the trial and defies any attempt at quantifying the consequences of its absence as it relates to the jury's verdict, it is the quintessential structural error.[63]

This Court has stated that our caselaw " suggests" that structural errors satisfy the third Carines prong.[64] In my view, however, logic dictates that they should. If the third Carines prong is functionally " the same kind of inquiry" as harmless error analysis,[65] it stands to reason that errors that defy harmless error analysis are likewise not amenable to the prejudice inquiry required under the third Carines prong. In fact, the United States Supreme Court has described structural errors as those that " affect substantial rights" --the [498 Mich. 146] very standard under the third Carines prong.[66] I would make explicit

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what is " suggested" in our previous cases and hold that structural errors, like the failure to swear the jury in this case, satisfy the third prong without an additional showing of outcome-determinative prejudice.

V. THE FOURTH CARINES PRONG AND SERIOUS EFFECT ON THE FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF JUDICIAL PROCEEDINGS

I come now to where the majority began its analysis: the fourth Carines prong. Once a defendant has established that a " forfeited error is 'plain' and 'affect[s] substantial rights,'" an appellate court has discretionary authority to correct the error, but is under no obligation to do so.[67] Because relief on plain error review is in the discretion of the reviewing court, a defendant bears the burden of persuading the court that the error " seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." [68]

This area of the law is not a model of clarity, and little has been said on how exactly a defendant goes about carrying his or her burden under the fourth [498 Mich. 147] prong, especially when the error is structural.[69] Nevertheless, a basic unarticulated framework can be gleaned from the existing caselaw that, if adopted by a majority of the Court, would provide some order to the analysis in this area of the law.

A. STRUCTURAL ERRORS AND THE FOURTH CARINES PRONG

It is undisputed that " a plain error affecting substantial rights does not, without more, satisfy the [fourth Carines prong], for otherwise the discretion afforded by [the plain error test] would be illusory." [70] What this means in a typical case involving a garden-variety trial error is that a defendant will have to show more than simply that there is a reasonable probability that the forfeited error affected the outcome of the trial under the third Carines prong. He or she must also make the case for why the court should overlook the preservation requirement and grant relief. That requires the defendant to show that the error resulted in a wrongful conviction or seriously affected the fairness, integrity, or public reputation of the proceedings.

In the context of structural errors, however, the analysis under the third

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Carines prong is different. Structural errors satisfy the third prong because the type of inquiry that the third prong calls for is simply [498 Mich. 148] not possible when dealing with structural errors. But structural errors are structural, not just because their effect on the result is indeterminate, but also because they " necessarily render a trial fundamentally unfair" [71] and, by definition, mean that the " 'criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . .'" [72] As a result, there is substantial overlap between the characteristics of structural errors (i.e., they " necessarily render a trial fundamentally unfair" ) and the standard under the fourth Carines prong (" serious effect on the fairness, integrity, or public reputation of the proceedings" ).[73] As a matter of transitive logic, the fact that the defendant has proved that a particular error is structural should also be sufficient to make the presumptive case that the fairness, integrity, or public reputation of the proceedings has been seriously affected. In short, structural errors carry with them Olano' s something " more" that is required to establish the fourth prong.[74]

[498 Mich. 149] This recognition of how structural error analysis relates to the fourth Carines prong yields an approach to unpreserved structural errors that clarifies and better harmonizes the caselaw in this area, both in theory and in practice.[75] In theory, the existence of a structural error--whose effect on the trial is unquantifiable and indeterminate--is incompatible with the requirement that a defendant identify specific facts on the record showing that the error seriously affected the fairness, integrity, or public reputation of the proceedings. The only way to resolve this apparent incongruity is to recognize

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that a structural error provides a rebuttable presumption that the fairness of the proceedings was seriously affected, while still allowing the prosecution to identify aspects of the trial record that show that the fairness, integrity, or public reputation of the proceedings were, in fact, not seriously affected despite the structural error. This framework recognizes the undeniable effect a structural error has on the inquiry under the fourth Carines prong while still retaining the fact-specific, discretionary characteristics of that final prong.[76] It also recognizes the reality that in our [498 Mich. 150] adversarial system it is the prosecution that must offer parts of the record as mitigating the damage caused by a structural error, as occurred in this case.

In practice, this formulation of the fourth prong analysis is nothing new. Rather, I believe it accurately describes how courts have been applying the plain error standard to structural errors all along. In cases in which a court affirms a conviction despite a structural error, the court conducts a fact-intensive, case-specific inquiry to conclude that the error did not seriously affect the fairness, integrity, and public reputation. Most notably, this is how the Court decided People v Vaughn.[77] In Vaughn, the Court acknowledged that the closure of the courtroom constituted structural error, but proceeded to examine the record to identify several aspects of the proceedings that indicated that the fairness, integrity, and public reputation of the proceedings were not, in fact, seriously affected.[78] Likewise, in Johnson v United States, the Supreme Court addressed the failure to instruct on an element of a charged offense and the defendant's argument that the error was structural.[79] After assuming [498 Mich. 151] that the third prong was satisfied, the Court reviewed the record before concluding that the evidence pertaining to the disputed element was overwhelming and, therefore, that the fairness, integrity, and public reputation of the proceedings were not seriously affected.[80]

These cases are entirely consistent with the approach laid out in this opinion, which presumes that the fairness of the trial proceedings is seriously affected, but allows the prosecution to identify elements in the record that mitigate or rebut the notion--inherent in the very occurrence of a structural error--that the error seriously affected the fairness, integrity, or public reputation of the proceedings.

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On the other hand, when courts reverse on the basis of an unpreserved structural error, they rarely, if ever, discuss additional facts on the record independently of the structural error analysis to establish that the fairness and integrity of the proceedings were seriously affected. Instead, the courts simply reiterate the same basic points made during the structural error analysis. The Court of Appeals decision at the center of this case, People v Allan,[81] is a prime example. In explaining why the structural error of failing to swear the jury satisfied the fourth Carines prong, the Allan panel reasoned:

[T]he trial court's failure to administer the oath to the jury seriously affected the fairness, integrity, and public reputation of the judicial proceedings. Because the trial court did not administer the oath to the jury, the jury did not undertake the solemn promise to act in accordance with the law at all stages of defendant's trial. The trial court's [498 Mich. 152] failure to administer the oath to the jury in this case affected the integrity of the proceedings because it resulted in an invalid verdict under Michigan law. The absence of the oath deprived defendant of a means to ensure that the jury would decide the case honestly in accordance with the law and on the basis of the evidence. Administration of the oath was necessary to protect defendant's fundamental right to a trial by an impartial jury.[82]

Allan is not alone. For instance, in United States v Floresca, the United States Court of Appeals for the Fourth Circuit approached the fourth prong analysis by stating:

To begin with, we note that we must once again leave unfulfilled the desire, born of reflex and not of contemplation, to inject a prejudice component into our analysis. Such a consideration may be appropriate and weigh in a defendant's favor in a case where he is required to demonstrate actual prejudice in order to satisfy the third prong--and succeeds in doing so. However, in a case like Floresca's, where the error amounts to a structural defect that renders irrelevant, ab initio, the question of prejudice, logic requires us to instead focus on the nature of the error itself.[83]

The court in Floresca ultimately exercised its discretion to reverse the defendant's convictions, and in doing so never identified any additional, specific facts on the record establishing the fourth prong. Instead, reasoning in the abstract about the effect the structural error has on proceedings generally, the panel simply concluded: " We do not hesitate to say that convicting a defendant of an unindicted crime affects the fairness, integrity, and public reputation of federal [498 Mich. 153] judicial proceedings in a manner most serious." [84]

Allan and cases like it illustrate one simple fact: structural errors, by their nature,

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seriously affect the fairness and integrity of the proceedings. It may not be so in every case, which is why courts must examine the record for " countervailing factors" to assess whether anything mitigates the serious unfairness typically brought on by a structural error.[85] But when review of the record turns up nothing, the end result of the analysis is simply a reiteration of the structural error analysis.[86]

To be clear, the foregoing does not mean that structural errors automatically, necessarily, or always satisfy the fourth Carines prong.[87] This Court has been [498 Mich. 154] clear that they do not.[88] But it is another question altogether how a defendant goes about satisfying the initial burden of persuading the court that the fairness and integrity of the proceedings have been seriously affected. Nothing in law or logic dictates that we must treat the third and fourth Carines prongs as separate silos. In fact, it betrays the plain error analysis to disregard the preliminary conclusion that an error is structural when assessing whether it seriously affected the fairness, integrity, or public reputation of the proceedings. Because, by definition, structural errors " necessarily render a trial fundamentally unfair," [89] common sense dictates that by establishing a structural error, a defendant makes a presumptive case for serious unfairness and lack of integrity in the proceedings.

But the case is just that: presumptive. The prosecution then has the opportunity, as it always has, to identify parts of the record showing that, in fact, the fairness, integrity, and public reputation of the proceedings were not seriously affected. In some cases, the court will find instances in the record that mitigate the [498 Mich. 155] unfairness and unreliability that presumptively flow from a structural error--after all, not all structural errors are created equal, and even the same structural error can be committed in a variety of different ways.

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In others, however, the record will turn up nothing of tangible benefit. But this does not mean that the fairness and integrity of the proceeding were not seriously affected--after all, that characteristic is inherent in in very nature of structural error. In that case, defendant will have satisfied the burden under the fourth Carines prong by proving the existence of a structural error.

B. APPLICATION OF THE FOURTH CARINES PRONG

The foregoing is entirely consistent with the basic mode of analysis in the majority opinion today. Agreeing with the points made by the prosecution on appeal, the majority identifies several aspects of the trial record that, in its view, show that the underlying purposes of the juror's oath were otherwise satisfied and, therefore, that the absence of the oath did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case. By approaching the question from the negative to conclude that relief is not warranted, it is perfectly consistent with the approach I have outlined above.

I also agree with the majority that our decision in Vaughn is instructive, though I believe it provides weak support for the majority's conclusion in this case. In Vaughn, the Court relied on three countervailing considerations to hold that the fourth Carines prong was not satisfied: the closure of the courtroom was temporary, it was not complete in that the veniremembers were present, and both sides expressed satisfaction [498 Mich. 156] with the end result of voir dire.[90] None of these considerations is present in this case. The error in this case infected the entire trial, from its inception through jury deliberations. Thus, unlike the structural error in Vaughn, focusing on the duration and extent of the error in this case provides no support for the conclusion that it did not seriously affect the fairness, integrity, or public reputation of the proceedings. Also, unlike in Vaughn, defendant has challenged the end result, i.e., the jury's verdict, on multiple grounds. In short, this case features none of the countervailing factors that the Court in Vaughn relied on to hold that the fairness, integrity, and public reputation of the proceedings were not seriously affected.

Moreover, I disagree with the majority that the aspects of the record it identifies are sufficient to show that the fairness, integrity, and public reputation of the proceedings were not seriously affected. The majority holds that one of the primary purposes of the oath--to convey to the jury members their responsibility as jurors--was satisfied by the trial court's preliminary instructions. The majority's reliance on the trial court's instructions is misplaced and actually serves to illustrate just how fundamental the oath is to the fairness and integrity of the proceedings. The instructions are meaningful substitutes only if we presume that jurors follow their instructions. The law does make such a presumption, but only because jurors have taken an oath to do so.[91] When the oath is not given, like in this case, that presumption cannot obtain. The trial court's [498 Mich. 157] instructions here prove nothing

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because their efficacy is based on an oath that was never taken.

The other trial feature that, according to the majority, compensated for the oath's absence was the fact that the potential jurors stated under oath during voir dire that they could be fair and impartial. Again, I agree with the majority's general method of assessing the record. But having previously determined that the error in this case was structural, I start from the premise that the absence of the juror's oath rendered the proceedings fundamentally unfair. From this perspective, I disagree that statements given under oath regarding a juror's ability to be fair and impartial provides sufficient support for the conclusion that the fairness, integrity, or public reputation of the proceedings were not seriously affected in this case.

Promising to be fair and impartial is only one component of the juror's oath. The juror's oath also calls on prospective jurors to render a " true verdict" and to decide the case based solely on the evidence introduced at trial and the law as it is given to them by the trial court.[92] Indeed, the trier of fact guaranteed by the Constitution is one " capable and willing to decide the case solely on the evidence before it." [93] Although the trial court and the attorneys discussed these concepts during voir dire, my review of the record shows that only three of the jurors who ultimately deliberated over defendant's guilt were asked and answered questions about whether they could consider only the evidence presented in court and the law as it was given [498 Mich. 158] to them by the court. The remaining nine jurors gave no indication of their willingness and ability to decide the case based solely on the evidence and law as it was given to them. Thus, a review of the record for evidence that the jurors were willing and able to assume each obligation of the juror's oath--a consideration I agree is relevant to whether the fairness, integrity, or public reputation of the proceedings was seriously affected--shows that it was lacking in this case.

Admittedly, the inquiry under the fourth Carines prong is difficult. But where I differ from the majority is in my assessment of the record as it relates to the negative consequences flowing from the structural error in this case. The right to a sworn jury is a " 'basic protectio[n]' . . . without which a criminal trial cannot reliably serve its function[.]" [94] As it relates to the fourth prong analysis, the oath shapes the fairness, integrity, and public reputation of the proceedings in two significant ways. First, it enhances the fairness of the proceedings by assuring the defendant that his or her fate will be decided by jurors who, on their consciences, will decide the case fairly in accordance with the law and evidence. Likewise, it enhances the integrity and reputation of the proceedings by assuring the public that jurors will follow and apply the law as it is given to them, even if they harbor personal disagreements with the law generally. The oath's complete absence diminishes the fairness, integrity, and public reputation of the proceedings. Unless there are other indicia on the record to show that these assurances were otherwise made, reversal is required under the fourth Carines prong because failure to swear the jury, as a

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structural error, renders the proceedings fundamentally unfair.[95]

[498 Mich. 159] Lacking in this case is a sufficient indication on the record that the jury was, from the perspective of the defendant and the public, a reliable vehicle by which to judge defendant's guilt or innocence. I agree with the majority that the record in a given case could, nonetheless, contain evidence that the jurors, in fact, undertook and followed the obligations that would be imposed by the oath. However, statements by jurors touching on only one aspect of the juror's oath, though given under oath, are insufficient to show that the failure to swear the jury did not seriously affect the fairness, integrity, or public reputation of the proceedings.

Nor is it sufficient to say, " Although the court clerk indisputably read the wrong oath to the jury, the jury was nevertheless sworn." [96] The oath given in this case--the voir dire oath--is an " assertory oath" that called on the jurors to " attest[] to some factual matter" (i.e., their qualifications as jurors).[97] The oath that was omitted--the juror's oath--is, by contrast, a " promissory oath" that obliges the swearer to " observe a specified course of conduct in the future" (i.e., to decide the case fairly and in accordance with the law and evidence).[98] I disagree that the jury members in this case were " sworn" in any meaningful sense pertaining to their duties as jurors because the oath they took did not invoke any of the promises contained in the juror's oath. A jury becomes a jury when its members take the juror's oath --not just any old oath.[99] A criminal defendant has the right to assurance that those selected to [498 Mich. 160] decide his or her fate fairly in accordance with the law and evidence will carry out that task under the solemn obligation of an oath.

In this case, a majority of defendant's jury did not otherwise expressly assume the solemn obligations imposed by the juror's oath. Without this additional support in the record, I am persuaded that the trial court's failure to administer the juror's oath, which deprived defendant of the jury guaranteed to him by the Constitution, seriously affected the fairness, integrity, and public reputation of the proceedings in this case. I would therefore hold that reversal is warranted under the fourth Carines prong.

VI. CONCLUSION

Nothing in this opinion is intended to, or should, diminish the hard work and dedication of those who served as jurors in this case, and who, by all outward appearances, conducted themselves in an appropriate manner throughout the trial. Rather, the origin of this error lies with the trial judge, who failed to perform one of the more routine tasks required in the conduct of a trial. Nor do I take lightly the social costs to the victims' families and others involved in the trial or the public expense associated with a new trial. However, I cannot ignore the cost to society of diminishing the importance of the juror's oath and the harmful consequences that will follow from the subtle undermining of the right trial by jury reflected in today's majority opinion. " Formal requirements are often scorned when they stand in the way of

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expediency. This Court, however, has an obligation to take a longer view." [100]

[498 Mich. 161] Appellate courts may no longer be " impregnable citadels of technicality," [101] but swearing the jury is no technicality; it goes to the heart of trial by jury and is a key component to a fundamentally fair trial. For that reason, I respectfully dissent.


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