PEOPLE v CAIN

Docket No. 149259. Argued March 11, 2015 (Calendar No. 2). Decided July 23, 2015.

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unpublished order, entered May 2, 2014 (Docket No. 314342), concluding that the failure to 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 (2014).

In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justices KELLY, 

ZAHRA, and BERNSTEIN, the Supreme Court held:

Because 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, the 

error of failing to properly swear the jury in this case did not seriously affect the fairness, 

integrity, or public reputation of the judicial proceedings.

1. Because defendant did not object to the trial court’s failure to properly swear the jury

and therefore did not preserve the issue for appellate review, relief could be granted only if 

defendant (the person asserting that an error occurred) satisfied the four-pronged plain-error test 

set forth in People v Carines, 460 Mich 750 (1999), by showing (1) that an error occurred, (2)

that the error was plain, that is, clear or obvious, and (3) that the error affected substantial rights, 

that is, that the outcome of the lower court proceedings was affected. If these elements are 

satisfied, the fourth Carines prong requires the appellate court to exercise its discretion in 

deciding whether to reverse, and (4) relief is warranted only when the appellate court determines 

Michigan Supreme Court

Lansing, Michigan

Syllabus 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

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
that the plain, forfeited error resulted in the conviction of an actually innocent defendant or 

seriously affected the fairness, integrity, or public reputation of the judicial proceedings. 

2. The parties agreed that the failure to properly swear the jury constituted a plain error 

that satisfied the first and second Carines prongs, but disagreed about the third and fourth 

prongs. Even assuming that defendant had established the third prong, however, the trial court’s 

failure did not seriously affect the fairness, integrity, and public reputation of the judicial 

proceedings in this case and defendant did not even argue that he was actually innocent. The 

fourth Carines prong is meant to be applied on a case-specific and fact-intensive basis. The 

operative inquiry is whether the error of failing to properly swear the jury in the particular case 

seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

3. The oath found in MCR 2.511(H)(1) imposes three duties on jurors: (1) to justly decide 

the questions submitted to them, (2) to render a true verdict, and (3) to do those things only on 

the evidence introduced and in accordance with the instructions of the court. The oath represents 

a solemn promise on the part of each juror to do his or her duty according to the dictates of the 

law to see that justice is done. The oath is administered to ensure that the jurors pay attention to 

the evidence, observe the credibility and demeanor of the witnesses, and conduct themselves at 

all times as befits one holding an important position.

4. The error here did not undermine the broader pursuits and values that the oath seeks to 

advance, however. One of the primary purposes of the oath (imparting to the jury members their 

duties as jurors) was alternatively fulfilled in large part by the trial court’s instructions 

prescribing the particulars of the jurors’ duties. The court instructed the jurors (1) that it was 

their responsibility to decide the facts of the case solely on the basis of the evidence presented 

and the law as the court gave it to them, (2) that they should not consider any other information 

regarding the trial that was not presented in the courtroom, (3) that they should not discuss the 

case among themselves until deliberations began, and (4) that they should keep open minds

about the case, setting aside any bias and prejudice. The court also explained the concepts of the 

presumption of innocence and reasonable doubt. The court’s instructions encompassed in even 

greater detail duties equivalent to those prescribed in the oath.

5. Another virtue of the juror’s oath is the powerful symbolism and sense of duty it 

imbues the oath-taker with and casts on the proceedings. That virtue 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 instructed the jurors that they would be asked to stand and swear to perform their duty 

to try the case justly and reach a true verdict. The jurors then stood and the court clerk asked 

them to solemnly swear to answer the questions truthfully, to which the jurors collectively 

replied, “I do.” The trial court then thoroughly explained to the jurors their duties and 

responsibilities. Finally, at the end of trial, the court reminded the jurors that they had taken an 

oath to return a true and just verdict based only on the evidence and the court’s instructions on 

the law. Although these alternative efforts were not a perfect substitute for the oath required by 

MCR 2.511(H)(1), there was no reason to believe that the jurors did not understand the dignity 

and solemnity of the proceedings.
Court of Appeals’ order vacated, convictions and sentences reinstated, and case 

remanded to Court of Appeals for consideration of defendant’s remaining claims on appeal.

Justice VIVIANO, joined by Justice MCCORMACK, dissenting, stated that the juror’s oath 

plays an essential role in every criminal trial and that the majority’s holding rendered

meaningless the requirement that those who judge another person’s guilt or innocence do so 

under the solemn obligation and sanction of an oath or affirmation. Justice VIVIANO agreed that 

the issue was properly reviewed under the plain-error standard and that the error here was plain. 

After detailing the long history, significance, and meaning of what constitutes a trial by jury, 

Justice VIVIANO concluded that the Sixth Amendment necessarily requires a sworn jury and that 

the failure to swear the jury amounted to a literal deprivation of defendant’s Sixth Amendment 

right to a jury trial. Further, he would have held that an unsworn jury constitutes a structural 

error because the juror’s oath is woven into the very fabric of a trial and defies any attempt at 

quantifying the consequences of its absence as it relates to the jury’s verdict. As a result, it is not 

amenable to the prejudice inquiry under the third Carines prong. With respect to the fourth 

Carines prong, Justice VIVIANO observed that although the majority began its analysis with that 

prong, there is substantial overlap between the characteristics of structural errors (that they 

necessarily render a trial fundamentally unfair) and the standard under the fourth prong (that the 

error has a serious effect on the fairness, integrity, and public reputation of the proceedings). 

The fact that a 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 

have been seriously affected. Adopting this approach—one that recognizes that a structural error 

provides a rebuttable presumption that the fairness of the proceedings was seriously affected 

while allowing the prosecution to identify aspects of the trial showing that the fairness, integrity, 

and public reputation of the proceedings were not seriously affected despite the structural error—

would yield an approach to unpreserved structural errors (such as that in this case) that clarifies 

and better harmonizes the caselaw in this area. Employing this framework, Justice VIVIANO

would have held that the failure to swear the jury had a fundamental and serious effect on the 

integrity of the proceedings; the instances in the trial record that the majority cited to conclude 

otherwise (features present in every criminal case) did not mitigate the fundamental unfairness 

that results when a defendant is tried by an unsworn jury.

©2015 State of Michigan
FILED July 23, 2015

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 149259

BRANDON LEWIS CAIN,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH 

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 

Michigan Supreme Court

Lansing, Michigan

OPINION 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
2

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 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:

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 

 1 Specifically, defendant was charged with 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.
3

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 NW2d 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.

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 

(2014).]

 2 Bracketed “sic” in original.

3 The text of the correct oath, which is provided in MCR 2.511(H)(1), is set forth in Part 

III(C) of this opinion. See also MCL 768.14.
4

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 NW2d 

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 NW2d 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 NW2d 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 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 NW2d 288 (2012): “This Court ‘has long recognized the importance of 

preserving issues for appellate review.’ As a result, ‘[t]his Court disfavors consideration 
5

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 US 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 Olano, 507 US 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”). 
6

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 

US 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 plainerror analysis . . . requires reviewing courts to consider carefully whether 

any forfeited error either resulted in the conviction of an actually innocent 

defendant or seriously affected the fairness, integrity, or 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 Carines prongs. We 

 4 Whereas the prosecutor concedes that failure to properly swear the jury constituted 

plain error in that the juror’s oath is plainly mandated under MCR 2.511(H)(1), 

defendant, as well as the dissent, couch defendant’s claim in the Sixth Amendment right 

to a jury trial. We need not decide at this time whether the error here was limited to a 

violation of a court rule, as the prosecutor argues, or was a structural constitutional error, 

as defendant argues, because it is undisputed that since this is an unpreserved error, 
7

 

defendant must satisfy the plain-error standard of Carines in either event. See Vaughn,

491 Mich at 666-667 (“[E]ven if defendant can show that the error satisfied the first three 

Carines requirements, we ‘must exercise . . . discretion’ and only grant defendant a new 

trial if the error ‘resulted in the conviction of an actually innocent defendant’ or seriously 

affected the fairness, integrity, or public reputation of judicial proceedings. Although 

denial of the right to a public trial is a structural error, it is still subject to this 

requirement.”), quoting Carines, 460 Mich at 763 (citation omitted); see also Johnson v 

United States, 520 US 461, 469; 117 S Ct 1544; 137 L Ed 2d 718 (1997) (“[W]e need not 

decide [whether the error is structural] because, even assuming that [it is], it does not 

meet the final requirement of [the plain-error test].”); United States v Turrietta, 696 F3d 

972, 976 n 9 (CA 10, 2012) (“Whether an error can be properly characterized as 

‘structural’ has nothing to do with plain error review . . . .”). Quoting Carines, 460 Mich 

at 774, defendant himself acknowledged in his brief in this Court that “it is ultimately 

unnecessary for this Court to parse the meaning of the words structural or non-structural, 

because for both types of error a Defendant must show that there was plain error . . . and 

‘. . . the error seriously affected the fairness, integrity, or public reputation of judicial 

proceedings.’ ” (Emphasis omitted.) This approach is consistent with the wellestablished principle that “we will not reach constitutional issues that are not necessary to 

resolve a case.” IBM v Dep’t of Treasury, 496 Mich 642, 662 n 67; 852 NW2d 865

(2014) (opinion by VIVIANO, J.) (quotation marks and citation omitted). 

Although we need not reach the issue of whether the error here was a structural 

constitutional error, we would be remiss in light of the dissent’s analysis not to point out 

the following: 

(a) The United States Supreme Court has “found an error to be ‘structural’ . . .

only in a very ‘limited class of cases’ ”-- complete denial of counsel, a biased trial judge, 

racial discrimination in the selection of a grand jury, denial of self-representation at trial, 

denial of a public trial, and defective reasonable-doubt instructions. Neder v United 

States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (citations omitted).

(b) “No federal court in the history of American jurisprudence has held the 

constitutional guarantee of trial by jury to necessarily include trial by sworn jury.” 

Turrietta, 696 F3d at 982.

(c) This Court has held that even actual juror misconduct, such as lying about 

one’s qualifications to serve as a juror, is not structural constitutional error, People v 

Miller, 482 Mich 540, 556; 759 NW2d 850 (2008), and at least one court has held that 

there is “no reason to treat a failure to administer the oath to the jury as more 

fundamental in nature—and thus ‘structural’—than the jurors’ actual performance of 

their duties in conformance with that oath, or the jurors’ eligibility or competence to be 
8

need not 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 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 US at 736 

(“[T]he discretion conferred by [the fourth prong of the plain-error standard] should be 

 

jurors,” State v Vogh, 179 Or App 585, 596; 41 P3d 585 (2002) (emphasis added).

(d) The dissent’s repeatedly expressed characterization of the oath as being 

literally “indispensable” is incompatible with its own recognition that a defendant 

deprived of this right is not entitled to relief unless the plain-error test is satisfied.

(e) The dissent’s theory that “the structural nature of the error presumptively 

establishes the fourth prong” is inconsistent with this Court’s recent holding in Vaughn, 

491 Mich at 654, 667, that even with regards to a structural error, “a defendant is not 

entitled to relief unless he can establish . . . that the error . . . seriously affected the 

fairness, integrity, or public reputation of judicial proceedings” and that “[w]hile ‘any 

error that is “structural” is likely to have an effect on the fairness, integrity or public 

reputation of judicial proceedings,’ the plain-error analysis requires us to ‘consider 

whether an error “seriously” affected those factors.’ ” Quoting Barrows v United States, 

15 A3d 673, 679-680 (DC, 2011).
9

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 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 
10

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.)

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 US 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.

 5 That is emphatically not to say that we viewed the Sixth Amendment right to a public 

trial as “meaningless” in Vaughn, just as we are in no way suggesting in the present case, 

contrary to the dissent’s contention, that the right to a properly sworn jury is a 

“meaningless” right that can be “easily . . . dispensed with.” Each is a critical right that 

serves a critical function within our criminal justice system. However, not every

violation of every such right must result in an automatic reversal of a defendant’s 

conviction. See People v Beach, 429 Mich 450, 491; 418 NW2d 861 (1988) (“We 

require a fair trial, not a perfect trial.”); People v France, 436 Mich 138, 142, 161; 461 

NW2d 621 (1990) (noting that this Court abolished the “strict rule requiring reversal of a 

conviction in the event of communication with a deliberating jury outside the courtroom 

and the presence of counsel” because the “rule of automatic reversal does not serve the 

best interests of justice and, in many instances, it may very well serve to defeat justice”). 

Contrary to the dissent’s contention, we give considerable “meaning” to the oath by 

requiring that it be given, by recognizing that if it is not given a material error has 

occurred, and by assessing the need to reverse because of the error by comparing the 

purposes served by the oath with the alternative means by which those purposes have 

been furthered. We further give “meaning” to the oath by our recognition that alternative 

means of furthering the purposes of the oath are imperfect alternatives that require careful 

judicial review and analysis. That is, we give “meaning” to the oath by recognizing that 

it constitutes the ideal and by comparing any alternative means of conduct with that ideal.
11

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 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 NW2d 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 
12

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 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

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
13

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 inculcate in them a proper sense of their obligations did not 

understand the dignity and solemnity of the proceedings.6

 6 Although the oath that was administered in this case at the beginning of the trial was 

obviously an incorrect oath, it is noteworthy that MCR 2.511(H)(1) states:

The jury must be sworn by the clerk substantially as follows:

“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.” [Emphasis added.]

In addition, MCL 768.14 states: 

The following oath shall be administered to the jurors for the trial of 

all criminal cases: “You shall well and truly try, and true deliverance make, 
14

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

 

between the people of this state and the prisoner at bar, whom you shall 

have in charge, according to the evidence and the laws of this state; so help 

you God.”

Although we are in no way suggesting that the oath that was administered here was even 

“substantially” the oath required by MCR 2.511(H)(1) or the oath required by 

MCL 768.14, we would nevertheless be remiss not to note that the precise language of 

the oath set forth in MCR 2.511(H)(1) is not necessarily required. The dissent is correct 

that “[f]or as long as the institution we know as ‘trial by jury’ has existed, juries have 

been sworn.” See 5 Kurland & Lerner, The Founders’ Constitution (Chicago: University 

of Chicago Press, 1987), p 256 (“ ‘When the trial is called on, the jurors are to be 

sworn . . . .’ ”), quoting 4 Blackstone, Commentaries on the Laws of England, p *352; 1 

Few, In Defense of Trial by Jury (American Jury Trial Foundation, 1993), p 25 (“The 

preamble to a statute in the 15th year of the reign of Henry VI recites that ‘the trial of the 

life and death, lands and tenements, goods and chattels of every one of his subjects . . . 

touching matters of fact . . . is to be . . . made by the oaths . . . of 12 men duly summoned 

in his courts.”) (citation omitted); id. at 102 (“[T]he first ordinance adopted by the 

Plymouth Colony in 1623 was one declaring, among other things, that ‘all criminal facts’ 

should be tried ‘by the verdict of twelve honest men to be empaneled by authority, in the 

form of a jury upon their oaths.’ ”) (citation omitted); id. at 169 (stating that in 1774, the 

First Continental Congress adopted a resolution that stated “neither life, liberty nor 

property can be taken from the possessor, until twelve of his . . . countrymen . . . shall 

pass their sentence upon oath against him”). However, the dissent overlooks that the 

precise language of the oath used to swear the jury has never been a “fixed constant,” as 

is evidenced by the fact that our own court rule, MCR 2.511(H)(1), and statute, 

MCL 768.14, contain differently worded oaths. Relatedly, we believe that the dissent 

incorrectly characterizes this case as a “failure to swear the jury” case or a case in which 

the “defendant [was] tried by an unsworn jury.” Although the court clerk indisputably 

read the wrong oath to the jury, the jury was nevertheless sworn. They rose and solemnly 

swore to be truthful. Although the court rule and statute clearly required the jury to 

swear to something more than simply being truthful, we nevertheless believe that the 

dissent errs by giving no weight whatsoever to the imperfect oath-swearing process that 

did occur here. Although once again we acknowledge the substantial imperfections of 

the process, there was a very real oath-swearing that occurred, real in terms of both its 

substance and the dignity and solemnity of the process.
15

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.

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 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 F3d 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 
16

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 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 

US 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 US 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 

 7 As observed earlier, the dissent’s contention that “the structural nature of the error 

presumptively establishes the fourth prong, shifting the burden to the prosecution to show 

that, in fact, the fairness, integrity, and public reputation of the proceeding were not 

seriously affected,” is inconsistent with this Court’s recent holding in Vaughn, 491 Mich 

at 654, that even with regards to a structural error “a defendant is not entitled to relief 

unless he can establish . . . that the error . . . seriously affected the fairness, integrity, or 

public reputation of judicial proceedings.” Moreover, even under the dissent’s “shifted 

burden” or “rebuttable presumption” approach, we believe that the prosecutor has shown 

that the fairness, integrity, and public reputation of the proceedings were not seriously 

affected and therefore that defendant is not entitled to relief.
17

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 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 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 US 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 
18

reversal is not warranted. We therefore vacate the Court of Appeals’ order and reinstate 

defendant’s convictions and sentences. We remand this 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. 

Stephen J. Markman

Robert P. Young, Jr.

Mary Beth Kelly

Brian K. Zahra

Richard H. Bernstein
S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 149259

BRANDON LEWIS CAIN,

Defendant-Appellee.

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 Blackstone1

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 wellordered 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. 

 1 4 Blackstone, Commentaries on the Laws of England, p *350.
2

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 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 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 

 2 People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

3 Id. 

4 Id. 
3

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 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 

 5 Id. (quotation marks and citation omitted; first alteration in original).

6 The majority’s reference to the constitutional avoidance doctrine to justify skipping 

over the first three prongs of the plain error test in this case is misplaced. Ante at 7 n 4. 

As explained below, the fact that an error is constitutional and structural has an 

undeniable effect on the analysis under the fourth Carines prong. This important nuance 

in the legal analysis is lost by avoiding the first three prongs simply because the ultimate 

result might be the same. More importantly, when the constitutional analysis would yield 

a different, more favorable result for the defendant, as I find it does in this case, the 

constitutional avoidance doctrine has no application.

7 See MCR 2.511(H)(1); MCL 768.14.
4

constitutional in nature, as evidenced by his citation of the Court of Appeals’ decision in

People v Allan8 and his contention that the error in this case was structural. In Allan,

9 the 

Court of Appeals relied 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 

 8 People v Allan, 299 Mich App 205; 829 NW2d 319 (2013). 

9 Id. at 211, 213-215.

10 People v Pribble, 72 Mich App 219, 224; 249 NW2d 363 (1976).

11 In the one United States Supreme Court decision that even remotely dealt with the 

issue of unsworn jurors, Baldwin v Kansas, 129 US 52, 56; 9 S Ct 193; 32 L Ed 640 

(1889), the Court found that “no Federal question is presented . . . of which this court can 

take jurisdiction” because the defendant had failed to properly preserve the claim of error 

at trial, as required by a federal statute in effect at that time.

12 US Const, Am VI; see also Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 

2d 491(1968) (incorporating the Sixth Amendment right to jury trial against the states

under the Fourteenth Amendment); see also Const 1963, art 1, § 20.

13 Boumediene v Bush, 553 US 723, 843; 128 S Ct 2229; 171 L Ed 2d 41 (2008) (Scalia, 

J., dissenting), citing Crawford v Washington, 541 US 36, 54; 124 S Ct 1354; 158 L Ed 

2d 177 (2004). 
5

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 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, “[the 

 14 See, e.g., Gibbons v Ogden, 22 US (9 Wheat) 1, 188; 6 L Ed 23 (1824) (“[T]he

enlightened patriots who framed our constitution, and the people who adopted it, must be 

understood to have employed words in their natural sense, and to have intended what 

they have said.”).

15 Dist of Columbia v Heller, 554 US 570, 576; 128 S Ct 2783; 171 L Ed 2d 637 (2008)

(quotation marks and citation omitted).

16 Smith v Alabama, 124 US 465, 478; 8 S Ct 564; 31 L Ed 508 (1888).

17 Apprendi v New Jersey, 530 US 466, 477; 120 S Ct 2348; 147 L Ed 2d 435 (2000) 

(“[T]he historical foundation for our recognition of [the constitutional protections of the 

Sixth Amendment] extends down centuries into the common law.”); Gannett Co, Inc v 

DePasquale, 443 US 368, 385; 99 S Ct 2898; 61 L Ed 2d 608 (1979) (“The common-law 

right to a jury trial . . . is explicitly embodied in the Sixth . . . Amendment[].”).

18 Silving, The Oath: I, 68 Yale L J 1329, 1330 (1959) (“The familiar oath of the presentday courtroom has been traced to a pre-religious, indeed, pre-animistic period of 

culture.”); see also, generally, White, Oaths in Judicial Proceedings and Their Effect 

upon the Competency of Witnesses, 51 Am L Reg 373 (1903).
6

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 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 “jurée” and the Latin 

 19 Oaths in Judicial Proceedings, 51 Am L Reg at 386.

20 The Oath: I, 68 Yale L J at 1365; see also Thayer, “Law and Fact” in Jury Trials, 4 

Harv L Rev 147, 156-157 (1890) (describing the emergence of trial by jury and stating 

that “it was the jury’s oath, or rather their verdict, that ‘tried’ the case”).

21 3 Blackstone, p *365 (emphasis added; first italics in original).

22 The Oath: I, 68 Yale L J at 1361 (“Even that distinctive English feature—the jury 

trial—grew out of Germanic oath practices.”); 1 Pollock & Maitland, The History of 

English Law (2d ed) (Cambridge: Oxford University Press, 1968), bk I, ch VI, p 138

(“The essence of the jury . . . seems to be this : a body of neighbors is summoned by 

some public officer to give upon oath a true answer to some question.”) (emphasis 

added); Forsythe, History of Trial by Jury (2d ed) (Jersey City: Frederick D. Linn & 

Company, 1875), pp 6-7 (“One important feature of the institution is by no means 

peculiar to it. I mean the fact that it is a sworn tribunal—that its members decide under 

the solemn sanction of an oath.”).
7

word “jurare,” which mean “sworn,” “oath,” and “to swear,” respectively.23 The English 

ancestor of our “jury” was called “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 “jury” since then includes reference to swearing an oath.27 In other 

 23 The Oxford Dictionary of English Etymology (1974), p 500; Cassell’s Latin Dictionary

(1968), pp 331, 846 (rendering it as “iurare”); 1 Heath’s Standard French and English 

Dictionary: French—English (London: D.C. Heath & Company, 1963), p 478. And the 

more distant etymological associates of “jury” include “jurat,” which means “[a] person 

under oath,” 9 The Anglo-American Encyclopedia and Dictionary (New York: J. A. Hill 

& Company, 1904), p 2417, and “juratory,” which means “comprising an oath,” Samuel 

Johnson, A Dictionary of the English Language (1785).

24 Thayer, The Jury and Its Development, 5 Harv L Rev 249, 259 (1892).

25 2 Bouvier’s Law Dictionary (Rawle’s rev, 1897), p 56 (emphasis added).

26 Samuel Johnson, A Dictionary of the English Language (1785) (emphasis added); see 

also Bailey, An Universal Etymological English Dictionary (20th ed, 1763) (defining 

“jury” as “[in Common Law] a Company of twenty-four or twelve Men, sworn to inquire

of the Matter of Fact, and declare the Truth upon such evidence as shall be given to them,

relating to the Matter of Fact”) (bracketing in original; emphasis added); Potts, A 

Compendious Law Dictionary (1803), p 406 (defining “jury” as “a certain number of 

persons sworn to enquire of and try some matter of fact, and to declare the truth upon 

such evidence as shall be laid before them”) (emphasis added).

27 See, e.g., Random House Webster’s College Dictionary (2001) (defining “jury” as “a 

group of persons sworn to render a verdict or true answer on a question or questions 

submitted to them, esp. such a group selected by law and sworn to examine the evidence

in a case and render a verdict to a court”) (emphasis added); The Oxford Dictionary of 

English Etymology (1974) (“[A] company of men sworn to give a verdict.”) (emphasis 

added); Black’s Law Dictionary (4th ed) (“A certain number of men, selected according

to law, and sworn (jurati) to inquire of certain matters of fact, and declare the truth upon 

evidence to be laid before them.”); Funk and Wagnalls Practical Standard Dictionary of 

the English Language (Chicago: J. G. Ferguson & Associates, 1945), p 628 (“A body of 

persons (usually twelve) legally qualified and summoned to serve on a judicial tribunal, 
8

words, the oath was, and has always been, a defining criterion of “jury.”28 In 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:

 

there sworn to try well and truly a cause and give a true verdict according to the 

evidence.”) (emphasis added).

28 Indeed, oaths are so integral to the concept of a jury that, in common parlance, one who 

refuses to take a required oath is deemed a “nonjuror.” See Merriam-Webster’s 

Collegiate Dictionary (2014). 

29 See Amar, Sixth Amendment First Principles, 84 Geo L J 641, 694 (1996) (stating that 

in the Framers’ world, “great weight was placed on oaths”). Indeed, the very first statute 

enacted by Congress assembled under the Constitution was titled, “An Act to regulate the 

Time and Manner of administering certain Oaths.” 1 Cong Ch 1; 1 Stat 23.

30 See US Const, art I, § 3, cl 6. 

31 2 Farrand, The Records of the Federal Convention of 1787 (1937 rev ed) (New Haven: 

Yale University Press, 1966), p 497. 

32 See id. at 552-553. 
9

[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, 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 

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, “[w]ith a remarkable 

 33 1 Story, Commentaries on the Constitution of the United States (4th ed) (Boston: Little, 

Brown, & Company, 1873), p 549 (originally published in 1833) (emphasis added).

34 Id. 

35 See, e.g., State v Barone, 329 Or 210, 226; 986 P2d 5 (1999) (“The jury oath is 
10

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 

Turrietta37 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 

 

designed to vindicate a defendant’s fundamental constitutional rights to a fair trial before 

an impartial jury.”); State v Godfrey, 136 Ariz 471, 473; 666 P2d 1080 (Ariz App, 1983) 

(“[T]he juror’s oath is an essential element of the constitutional guarantee to a trial by an 

‘impartial’ jury.”); Steele v State, 446 NE2d 353, 354 (Ind App, 1983) (“Most 

importantly the oath serves as a safeguard of a criminal defendant’s fundamental 

constitutional right to trial by an impartial jury.”); Commonwealth v Banmiller, 393 Pa 

496, 497; 143 A2d 56 (1958) (swearing of the jury is “fundamental in nature, and implicit 

in trial by jury”); Howard v State, 80 Tex Crim 588, 592; 192 SW 770 (1917) (“[The 

defendant tried by an unsworn jury] was deprived of a constitutional as well as a statutory 

right.”); Slaughter v State, 100 Ga 323, 330; 28 SE 159 (1897) (“[A] conviction by an 

unsworn jury is a mere nullity . . . .”); see also 47 Am Jur 2d, Jury, § 192, pp 803-804; 

50A CJS, Juries, § 520, p 689.

36 State v Arellano, 1998-NMSC-026, ¶ 41; 125 NM 709, 718; 965 P2d 293 (1998) 

(McKinnon, J., dissenting) (citing numerous examples).

37 United States v Turrietta, 396 F3d 972, 982 (CA 10, 2012).

38 See id. at 978-981.
11

afford the oath constitutional stature is a question we leave 

unanswered . . . .

[39]

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 

 39 Id. at 981 (citation omitted). Turrietta was ultimately decided on grounds 

distinguishable from the present case. The panel held that even if it was a constitutional 

error, it was not “plain” under the governing authority at the time. Id. at 983. Here, 

however, the error was plain in light of the Court of Appeals’ holding in Pribble. The 

Turrietta court also declined to grant relief under the fourth plain error prong because 

defense counsel had admitted that he knew about the error and waited until an 

unfavorable verdict to bring it to the court’s attention. Id. at 973-974. That was textbook 

“sandbagging,” which, as Turrietta observed, imperils the integrity of the judicial system 

just the same as the error itself. Id. at 985. There is no such evidence in this case.

40 See cases cited in note 35 of this opinion; Turrietta, 696 F3d at 978-981; United States 

v Martin, 740 F2d 1352, 1358-1359 (CA 6, 1984) (questioning whether swearing of 

prospective jurors en masse was “consistent with the dignity and effectiveness which 

should attend federal court trials” and stating that “the defendant should be accorded the 

assurance that the jurors have been sworn to try his case by observing them sworn”) 

(quotation marks and citation omitted).

41 See Maryland v Craig, 497 US 836, 862; 110 S Ct 3157; 111 L Ed 2d 666 (1990)

(Scalia, J., dissenting) (discussing the Sixth Amendment right of confrontation).

42 Of course, not every question of constitutional interpretation will fall squarely within 

the text of a particular provision. Oftentimes, a court will be called on to apply a 

constitutional phrase, like “trial by jury,” to factual situations approaching the outer 
12

 

bounds of the language’s plain meaning. For instance, in Williams v Florida, 399 US 78; 

90 S Ct 1893; 26 L Ed 2d 446 (1970), the Supreme Court addressed whether the Sixth 

Amendment guaranteed a 12-person jury. After concluding that the text, as informed by 

its common law heritage, was insufficient to answer the question, see id. at 89 (the 12-

person size “appears to have been a historical accident”), the Court examined “the 

function that the particular feature performs and its relation to the purposes of the jury 

trial,” id. at 99-100. However, unlike jury size—whose origins “rest on little more than 

mystical or superstitious insights” and which fluctuated over time, see id. at 87-88—the 

juror’s oath represents a fixed constant in the development of the jury trial to the point 

that it inheres in the very word “jury.” When an error constitutes a literal deprivation of a 

constitutional right, it is generally unnecessary to “abstract[] from the right to its 

purposes . . . .” Craig, 497 US at 862 (Scalia, J., dissenting). The genetic relationship 

between the oath and the jury distinguishes it from the size of the jury and Williams’s

functional approach.

Even if Williams’s functional approach governed, I would have no difficulty 

concluding that the oath serves an indispensable function in service of the greater 

purposes of the constitutional right to a jury trial. To fulfill their role, jurors must “have 

the duty” to deliberate. Apodaca v Oregon, 406 US 404, 410-411; 92 S Ct 1628; 32 L Ed 

2d 184 (1972) (stating that the purpose of the jury trial is fulfilled “as long as [the jury] 

consists of a group of laymen representative of a cross section of the community who 

have the duty and the opportunity to deliberate, free from outside attempts at 

intimidation, on the question of a defendant’s guilt”) (emphasis added). And the oath 

imposes that duty. Without it, those acting as jurors serve without solemn obligation or 

sanction, and the essential purpose of the jury trial is left unfulfilled. 2 Story, 

Commentaries, p 541 (stating that the core function of trial by jury cannot be achieved 

but “by the firm and impartial verdict of a jury sworn to do right, and guided solely by 

legal evidence and a sense of duty”). Moreover, the oath’s directive to conscientiously 

deliberate and examine the evidence impartially counters the threats of complacency and 

overzealousness that are more apt to be found in a single, professional arbiter or 

prosecutor, the two evils the jury was intended to ward off. See Williams, 399 US at 100 

(the purpose of the jury is “to prevent oppression by the Government” by providing a 

defendant “an inestimable safeguard against the corrupt or overzealous prosecutor and 

against the compliant, biased, or eccentric judge”) (quotations omitted). Finally, the oath 

serves as the very benchmark for determining whether a defendant was afforded an 

impartial jury, as guaranteed by the Sixth Amendment. See Wainwright v Witt, 469 US 

412, 423; 105 S Ct 844; 83 L Ed 2d 841 (1985) (stating that an impartial jury consists of 

nothing more than “jurors who will conscientiously apply the law and find the facts”). In 

sum, under the Williams functional approach, the oath serves an indispensable role in the 

constitutional right to a jury trial.
13

reasons, I would hold that the Sixth Amendment 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 

 43 Carines, 460 Mich at 763. 

44 Pribble, 72 Mich App at 224. 

45 See United States v DeChristopher, 695 F3d 1082, 1091 (CA 10, 2012) (stating that an 

error is plain if there is binding circuit precedent on point); Carines, 460 Mich at 763.

46 Carines, 460 Mich at 763. 
14

Court has noted that “certain errors, termed ‘structural errors,’ might ‘affec[t] substantial 

rights’ regardless of their 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 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 in the trial 

 47 United States v Marcus, 560 US 258, 263; 130 S Ct 2159; 176 L Ed 2d 1012 (2010)

(alteration in original); see also People v Vaughn, 491 Mich 642, 666; 821 NW2d 288

(2012) (“[O]ur caselaw suggests that a plain structural error satisfies the third Carines

prong.”), citing People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000) (“Structural 

errors . . . are intrinsically harmful, without regard to their effect on the outcome . . . .”). 

48 Arizona v Fulminante, 499 US 279, 309-310; 111 S Ct 1246; 113 L Ed 2d 302 (1991). 

49 United States v Olano, 507 US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

50 Compare People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994) (“[T]he proper 

interpretation of the term ‘prejudice’ in the context of issue preservation for plain error 

may be equated with the longstanding state precedent of outcome determination.”), with 

Neder v United States, 527 US 1, 7; 119 S Ct 1827; 144 L Ed 2d 35 (1999) (“Errors of 

this type [structural errors] are so intrinsically harmful as to require automatic reversal 

(i.e., ‘affect substantial rights’) without regard to their effect on the outcome.”).
15

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

 51 United States v Gonzalez-Lopez, 548 US 140, 148; 126 S Ct 2557; 165 L Ed 2d 409 

(2006) (quotation marks and citation omitted) (alteration in original).

52 Id. at 149 n 4.

53 Id. at 148, 150 (quotation marks and citations omitted) (alteration in original).

54 Neder, 527 US at 8 (quotation marks and citations omitted). 

55 Id. at 8-9, quoting Rose v Clark, 478 US 570, 577-578; 106 S Ct 3101; 92 L Ed 2d 460 

(1986). 

56 Johnson v United States, 520 US 461, 468-469; 117 S Ct 1544; 137 L Ed 2d 718 

(1997) (stating that “[w]e have found structural errors only in a very limited class of 

cases” and listing cases).

57 Gonzalez-Lopez, 548 US at 148.
16

outset by calling on jurors to make an outward pronouncement that they “will justly 

decide” the case 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 assess as a general matter what tangible 

effect the absence of the oath has on verdicts. The influence of the oath on informationprocessing 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

 58 MCR 2.511(H)(1).

59 Milhizer, So Help Me Allah: An Historical and Prudential Analysis of Oaths as 

Applied to the Current Controversy of the Bible and Quran in Oath Practices in America, 

70 Ohio St L J 1, 4 (2009) (citation omitted); see also Farid, Oath and Affirmation in the 

Court: Thoughts on the Power of a Sworn Promise, 40 New Eng L Rev 555, 557 (2006) 

(“[T]hat the oath implicates the motivations it does, that it is in fact so compelling, is 

indicative of its distinctive stature in our legal system. Nothing, it seems, is as effective 

in helping to ascertain the truth in the courtroom.”).

60 See Gonzalez-Lopez, 548 US at 150 (“Harmless-error analysis in such a context would 

be a speculative inquiry into what might have occurred in an alternate universe.”). 

Though this does not appear to have deterred scholars from researching this concept. See 

St. Eve, Burns & Zuckerman, More From the #Jury Box: The Latest on Juries and Social 

Media, 12 Duke L & Tech Rev 64, 89-90 (2014) (“It is thus not surprising that many 

jurors in the informal survey referenced their oaths as the reason they did not 

communicate about the case on social media. Staying true to their oath was personal—a 

source of ‘pride’ for one, a ‘civic duty’ for another, and a matter of ‘respect’ for several 

others.”) (citation omitted). In any event, in so far as this information could generally be

available in evidentiary form from the jurors themselves, the law precludes such 
17

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 

 

inquiries. People v Budzyn, 456 Mich 77, 91; 566 NW2d 229 (1997) (stating that jurors 

may not impeach their own verdict by subsequent allegations of misconduct relating to 

the jury’s deliberative process).

61 Sullivan v Louisiana, 508 US 275, 281; 113 S Ct 2078; 124 L Ed 2d 182 (1993), 

quoting Rose, 478 US at 577 (alteration in original).

62 Sullivan, 508 US at 281-282 (citation omitted).

63 See Gonzalez-Lopez, 548 US at 150.

64 Vaughn, 491 Mich at 666 (“Accordingly, our caselaw suggests that a plain structural 

error satisfies the third Carines prong.”).

65 Olano, 507 US at 734.
18

Supreme Court has described structural errors as those that “affect substantial rights”—

the very standard under the third Carines prong.66 I would make explicit 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 outcomedeterminative 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 prong, 

 66 See Neder, 527 US at 7 (“Errors of this type [structural errors] are so intrinsically 

harmful as to require automatic reversal (i.e., ‘affect substantial rights’) without regard to 

their effect on the outcome.”); Marcus, 560 US at 263.

67 Olano, 507 US at 735 (alteration in original).

68 United States v Vonn, 535 US 55, 63; 122 S Ct 1043; 152 L Ed 2d 90 (2002) (quotation 

marks and citations omitted) (alteration in original); see also Vaughn, 491 Mich at 666. 

Contrary to the majority, there is nothing “incompatible” with holding that the juror’s 

oath is an indispensable feature of the right to trial by jury and requiring a defendant to 

show plain error. Ante at 8 n 4. The majority’s assertion conflates two distinct stages in 

the appellate decision-making process: determining whether an error occurred and 

determining whether the error warrants relief.
19

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 Carines

prong is different. Structural errors satisfy the third prong because the type of inquiry 

that the third prong calls for is simply not possible when dealing with structural errors. 

 69 I am not the first to recognize that this area of the law is in need of some clarity. See 

Marcus, 560 US at 270-271 (Stevens, J., dissenting) (“This Court’s ever more intensive 

efforts to rationalize plain-error review may have been born of a worthy instinct. But 

they have trapped the appellate courts in an analytic maze that, I have increasingly come 

to believe, is more liable to frustrate than to facilitate sound decision-making.”); United 

States v Robinson, 485 US 25, 36; 108 S Ct 864; 99 L Ed 2d 23 (1988) (Blackmun, J., 

concurring in part and dissenting in part) (observing the “confusion reflected in the Court 

of Appeals’ application of the plain-error standard”).

70 Olano, 507 US at 737 (emphasis added). 
20

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

 71 Neder, 527 US at 8 (quotation marks and citation omitted). 

72 Id. at 8-9, quoting Rose, 478 US at 577-578; see also United States v Dominguez 

Benitez, 542 US 74, 81; 124 S Ct 2333; 159 L Ed 2d 157 (2004) (characterizing structural 

errors as those that “undermin[e] the fairness of a criminal proceeding as a whole”). 

73 See Berger, Moving Toward Law: Refocusing the Federal Courts’ Plain Error 

Doctrine in Criminal Cases, 67 U Miami L Rev 521, 544 (2013) (“[T]he third and fourth 

prongs of the Olano inquiry both require the same kind of judgment—an evaluation of 

whether the error had sufficiently serious consequences to merit reversal—but the fourth 

prong merely requires a higher level of seriousness.”); Graham, Abuse of Discretion, 

Reversible Error, Harmless Error, Plain Error, Structural Error; A New Paradigm for 

Criminal Cases, 43 Crim L Bull, 955, 971 (2007) (“In short, prong three and prong four 

are, in spite of the protestations in Olano to the contrary, in practice coterminous.”).

74 Olano, 507 US at 737 (“[A] plain error affecting substantial rights does not, without 

more, satisfy the [fourth prong], for otherwise the discretion afforded by [the plain error 

test] would be illusory.”) (emphasis added).
21

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 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 adversarial system it is the 

 75 It is also creates some symmetry with the hierarchy of how we treat preserved errors. 

In that realm, we require the defendant to prove harmfulness unless it is a constitutional

claim, in which case we require the prosecution to establish harmlessness. See Carines, 

460 Mich at 774. And when it is structural constitutional error, we grant automatic 

reversal. Duncan, 462 Mich at 51. If my thesis is correct, a similar hierarchy exists for 

unpreserved errors, requiring the proponent of an error to establish that relief is warranted 

under the fourth Carines prong for all errors except constitutional, structural errors. In 

those cases, the structural nature of the error presumptively establishes the fourth prong, 

shifting the burden to the prosecution to show that, in fact, the fairness, integrity, and 

public reputation of the proceeding were not seriously affected. 

76 It is also consistent with the observations made by the United States Court of Appeals 

for the Ninth Circuit that “structural error is particularly likely to satisfy Olano’s fourth 
22

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 that the third prong was 

 

prong.” United States v Recio, 371 F3d 1093, 1103 n 7 (CA 9, 2004); see also United 

States v Rodriguez, 406 F3d 1261, 1266 (CA 11, 2005) (Carnes, J., concurring in denial 

of rehearing en banc) (“So far as can be discovered, no court has ever actually held that 

an error is structural but fails to meet the fourth prong of the plain error test.”).

77 Vaughn, 491 Mich 642.

78 Id. at 668-669. The majority is wrong to claim that my approach to plain error review 

of structural errors is inconsistent with Vaughn. Ante at 8 n 4. After recognizing the 

presence of a structural error, Vaughn proceeded to identify features of the trial 

proceedings showing that despite the structural error, the fairness, integrity, and public 

reputation of the proceedings were not seriously affected. Vaughn, 491 Mich at 668-669. 

This is entirely consistent with the framework set forth in this opinion.

79 Johnson, 520 US at 467-468.
23

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.

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 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 

 80 Id. at 470; see also United States v Cotton, 535 US 625, 632-633; 122 S Ct 1781; 152 L 

Ed 2d 860 (2002) (employing same method).

81 Allan, 299 Mich App 205.
24

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 judicial proceedings in a manner most 

serious.”84

 82 Id. at 218 (citations omitted).

83 United States v Floresca, 38 F3d 706, 713 (CA 4, 1994).

84 Id. at 714. For other examples of the Allan approach, see United States v RamirezCastillo, 748 F3d 205, 217 (CA 4, 2014) (“In the instant case, we will exercise our 

discretion to notice the plain error because failure to do so would seriously affect the 

fairness, integrity, or public reputation of the judiciary. The Sixth Amendment’s jury 

trial guarantee, which includes, ‘as its most important element, the right to have the jury, 

rather than the judge, reach the requisite finding of “guilty,” ’is fundamental. Sullivan,

508 U.S. at 277, 113 S.Ct. 2078.”); Recio, 371 F3d at 1103.
25

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

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 clear that 

 85 See Puckett v United States, 556 US 129, 142-143; 129 S Ct 1423; 173 L Ed 2d 266 

(2009) (“It is true enough that when the Government reneges on a plea deal, the integrity 

of the system may be called into question, but there may well be countervailing factors in 

particular cases.”).

86 See, e.g., Recio, 371 F3d at 1103 (“As noted above, a finding by this court that there is 

sufficient evidence for a rational jury to conclude that the appellants joined the 

conspiracy post-seizure would deny appellants their right to have a jury decide this 

question. Having carefully reviewed the record, we also cannot say that the evidence 

against Jimenez Recio and Lopez-Meza was ‘overwhelming.’ The fourth Olano prong is 

satisfied and we exercise our discretion to remand for a new trial.”) (citations omitted).

87 Because unpreserved structural errors do not automatically require reversal, nothing in 

this distillation does violence to the interest of issue preservation. Cf. Rahn v Hawkins, 

464 F3d 813, 820 (CA 8, 2006) (“[W]e do not wish to create incentives for parties to 

delay pointing out manifest errors to a district court. Were we to reverse, parties would 

have an incentive to ‘sandbag’ a trial court, knowing that they could obtain a new trial if 

things did not go their way on the merits.”). This articulation of the plain error standard 

does not tolerate, let alone encourage, sandbagging, nor does it eliminate any incentive to 

object to structural errors. The prosecution is free to direct the court’s attention to 

“harboring error,” a fact that will invariably sound the death knell for a defendant’s case 

for reversal. Moreover, courts will still independently assess the record to determine 

whether or not the structural error, in fact, seriously affected the fairness integrity or 

public reputation of the proceedings in a given case. Thus, defendants forfeit errors at 

their peril.
26

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 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. 

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, 

 88 Vaughn, 491 Mich at 666-667 (“Although denial of the right to a public trial is a 

structural error, it is still subject to this requirement.”).

89 Neder, 527 US at 8 (quotation marks and citation omitted). 
27

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 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,

 90 Vaughn, 491 Mich at 667.
28

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 

instructions here prove nothing 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 

 91 United States v Powell, 469 US 57, 66; 105 S Ct 471; 83 L Ed 2d 461 (1984) (“Jurors, 

of course, take an oath to follow the law as charged, and they are expected to follow it.”); 

United States v Padilla, 639 F3d 892, 897 (CA 9, 2011) (“The significance of the sworn 

jury is well established. When a jury is sworn, it is entrusted with the obligation to apply 

the law, and we in turn presume that juries follow instructions given to them throughout 

the course of the trial.”). 
29

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 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 

 92 MCR 2.511(H)(1).

93 McDonough Power Equip, Inc v Greenwood, 464 US 548, 554; 104 S Ct 845; 78 L Ed 

2d 663 (1984) (quotation marks and citation omitted).
30

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 structural error, renders the proceedings fundamentally unfair.

95

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 

 94 Sullivan, 508 US at 281, quoting Rose, 478 US at 577.

95 Neder, 527 US at 8.
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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 

 96 Ante at 14 n 6.

97 See Black’s Law Dictionary (9th ed), p 1176.

98 Id.

99 For example, we would not say that the jurors were “sworn” if the they took the 

bailiff’s oath, MCL 768.16, the interpreter’s oath, MCL 393.506(1), or the presidential 

oath of office, US Const, art II, § 1, cl 8.
32

right to assurance that those selected to 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 expediency. This 

Court, however, has an obligation to take a longer view.”100

 100 Neder, 527 US at 40 (Scalia, J., concurring in part and dissenting in part).
33

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.

David F. Viviano

Bridget M. McCormack

 101 Traynor, The Riddle of Harmless Error (Columbus: Ohio State University Press, 

1970), p 14 (quotation marks and citation omitted).