PEOPLE v CAIN

Docket No. 149259

. Argued March 11, 2015 (Calendar No. 2) . Decided July 2 3
, 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 unla wful 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

. D efendant raised the issue of fail ing to pro perly swear the jury for the first time o n appeal , moving for peremptory reversal of his convictions . T he Court of Appeals granted the motion in an unpublished order, entered May 2, 2014 (Docket No. 314342) , concluding that t he failure to properly swear t he jury was a structural error requiring a new trial. The prosecut ion sought leave to appeal, which the Supreme Court granted

. 497 Mich 861 (2014).
In an opinion by Justice M ARKMAN , joined by Chief Justice Y OUNG and Justices K ELLY , Z AHRA , and B ERNSTEIN , the Supreme Court held :

Because t he 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 d efendant did not object to the trial court’s failure to properly swear the jury and therefore did not preserv e the issue for appellate review
, relief could be grant ed only if defendant ( the person asserting that an error occurred) satisf ied the four

- pronged plain

- error test set forth in People v Carines , 460 Mich 750 (1999)
, by show ing (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 the se elements are satisfied, the fourth Carines prong requires the appellate court to exercise its discretion in deciding whether to reverse , and (4) r elief 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. Davisthat the plain, forfeited error resulted in the conviction of an actually innocent defendant or

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

2. T he parties agree d that the failure to pro perly swear the jury constituted a plain error that s atisfied the first and second Carines prongs , but disagree d about the third and fourth prongs. E ven 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 defend ant did not even argue that he was actually innocent. T he 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 questio ns 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 accor ding to the dictates of the law to see that justice is done. The oath is administered to e nsure 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. T he 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 fulfill ed in large part by the trial court’s instructions prescribing the particulars of the jurors ’ duties. T he 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 delibera tions began
, and (4) that they should keep open mind s 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 d etail 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 j uror 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 sw ear 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 t horoughly 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 l aw. 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 vacat ed, convictions and sentences reinstated
, and case remanded to Court of Appeals for consideration of defendant’s remaining claims on appeal

.
Justice V IVIANO , joined by Justice M C C ORMACK , dissenting, stated that t he juror’s oath plays an essential role in every criminal trial and that the majority’s holding render ed 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 V IVIANO agreed that the i ssue 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 V IVIANO concluded that the Sixth Amendment necessarily re quires 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 f ourth Carines prong, Justice V IVIANO observed that although the majority began its analysis with that prong, there is substantial overlap between the characteristics of structural errors ( that they necessarily rend er a trial fundamentally unfair ) and the s tandard under the fourth prong ( that the error has a serious effect on the fairness, integrity, and public reputation of the proceedin gs ). T he fa ct that a defendant has proved that a particular error is structural should also be sufficient to make the pre sumptive 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 show ing that the fairness, integrity, and public reputation of the proceedings were not seriously affected despite the structural error

— would yield an approach to unpreserv ed structural errors (such as that in this case) that clarifies and better harmonizes the caselaw in this area. Employing this framework, Justice V IVIANO would have held that the failure to swear the jury had a fundamental and serious effect on the integr ity 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 MichiganFILED July 2 3 , 201 5

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

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN
,
Plaintiff

- Appell ant ,

v No. 149259

BRANDON LEWIS CAIN
,
Defendant

- Appell ee

.

BEFORE THE ENTIRE BENCH

M ARKMAN , 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 raise d for the first time on appeal a claim that the trial court gave the wrong jur or’s

oath , has failed to meet this burden. O ur 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. Bernstein2 conscious of the gravity of the task before them and the manner in which that task was to

be carried out , t he t wo primary purposes served by the juror’s oath. Th us , 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 i n a shallow

grave , and d efendant Brandon Cain and four other s were charged in connection with the

victims’ deaths

. 1 All five men w ere tried at a single trial with two separate juries, one for
Cain and a codefendant and another for the remaining codefendan ts. 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 fi rearm du ring the commission of a felony, MCL 750.227b, and being a felon in possession of a firearm , MCL 750.224f.3 qua lifications 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 dispute s 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 t he Court of Appeals granted in a n 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 prosecut or 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 fail ure to properly s wear 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 questi ons are reviewed de novo. People v Chenault , 495 Mich 142, 159; 845 NW2d
731 (2014).

II I

. 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 t he
general and longstanding rule in Michigan th at “ 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 th is rule is fairness, both to litigants
, who are best equipped to
respond to alleged errors at the time they occur , and to the public
, wh ich 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 c onstitutional 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 consideration5 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 circumscribe d. 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 er ror 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 contemporan eous

- 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 Ca rines 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 up on an appellate c ourt to

“ exercise its discretion in deciding whether to reverse
, ” and (4) r elief 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 13 5 , the plain

- error test affords defendants sufficient protection because, as
Vaughn , 491 Mich at 65 5 n 42, explained:
[A]pplication of a plain

- error analysis to unpreserved structural err or does not deny that error “close consideration,”

. . . especially because the plain

error analysis

. . . requires reviewing courts to consider carefully whether any forfeited error either resulted in the conviction of an actually innocent defendant or se riously affected the fairness, integrity, or public reputation of judicial proceedings. [Citations omitted.]

In th e 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. W e

4 Whereas the prosecutor concedes that failure to properly swear the jury constituted plain error in that the juror’s oa th 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 th e 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

- 6 67 (“[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 serious ly 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 a lso 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 St ates 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 thi s 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 fai rness, integrity, or public reputation of judicial proceedings.’ ” (Emphasis omitted.) This approach is consistent with the well

established principle that “ we will not reach constitutional issues that are not necessary to resolve a case. ” IBM v Dep ’ t o f Treasury , 496 Mich 642, 662 n 67 ; 852 NW2d 865 (2014) (opinion by V IVIANO , 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 ‘stru ctural’

. . . 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

- d oubt 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 be8 need not resolve the parties’ dispute over the third Carines prong because, even assum ing

defendant has establi shed 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

T he fourth Carines prong embodi es 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) T he 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 reput ation 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 exam ple 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 bef ore 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

i mportance 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 perempt ory 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 s ubject to a substantial deg ree of continued public review. Id. From our intensive
review of the record, we could not conclude that the erroneous closure “ seriously affected10 the fairness, integrity, or public rep utation of judi cial proceedings, ” id . at 668

- 669, and
therefore declined to grant relief

. 5 (Quotation marks and citation omitted.)
As evidenced by Vaughn , t he 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). T h e operative inquiry is whether the trial court’s error of failing to properly swear the jury in

t he 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 sugges ting 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 justic e 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 , 43 6 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 a utomatic 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 recognizi ng 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 “meani ng” 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 id eal and by comparing any alternative means of conduct with that ideal.11 C. APPLICATION

Consistent ly 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 wil l 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)

. S ee 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). ]

O ur r eview 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 jur y their duties as jurors

-- w as alternatively fulfilled in large p art by the trial court ’ s instructions prescribing the particulars of the jurors ’ dut ies

. Immediately before the
swearing of the oath, the trial court instructed the jurors, “I will now ask you to stand and1 2 swear to perform your duty to try the case justly and to reach a true verdict.” Following

the oath , t he court instructed the jurors that i t was their responsibility to decide the facts
of the case solely on the basis of the evidence presented and the law as the court g a ve it

to them , that they should no t consider any other information regarding the trial that was
not presented in the courtroom , that they should not discuss the case among thems elves
until deliberations begin
, and that t hey should keep an open mind about the case, setting

a side any bias an d prejudice

. The trial court also explained the concepts of the
presumption of innocence and reasonable doubt, instruct ing the jurors to return a verdict
of not guilty unless they unanimously decide d that the prosecut or 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.”

An d d uring the final instructions, the judge reiterated the previously described

instruct ions, 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

. T he juror’s oath i nvolves a conscious promise to adopt a
particular mindset

-- to approach matters fair ly and impartial ly

-- a nd its great virtue is the
powerful s ymboli sm and sense of duty it imbues the oath

- taker with and casts on the
proceedings. T hat virtue , however, was not lost in these proceedings

. E ach juror took a

solemn oath to answer questions truthfully during voir dire , and each stated that he or she13 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 s w ear 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 pu t
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 fur ther 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 followi ng 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 ensu re that the jury r emained fair and impartial throughout the proceedings.

When one of the codefendant s 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 an d 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, la nds 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 Pl ymouth 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 th at 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 dis sent 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 b elieve 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 nevert heless 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 t o verify that the jurors would not be influenced by the codefendant’s guilty
plea , w ould retain an open mind
, and could continue to be fair and imparti al. 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 a vailed 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

co urse 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 t he 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. T he 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 ; t he jurors each stated under oath that they could be fair and impartial
, and
the trial court thoroughly instructed them on the particulars of their dut ies

. 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 in16 Vaughn by declining to grant relie f for the defendant ’ s deprivation of a public trial
because the objectives served by th at right were otherwise served , albeit imperfectly

. In
this case, the objectives served by the oath were also achieved by other means , albeit
imperfectly . Therefore
, w e cannot say that t he 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.)

.
T he 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, t his 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 reputati on 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, integri ty, 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 tria l 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 evid ence. 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

im properly sworn. I n 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 fai rness, 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 c onclude that his constitutional rights were upheld and18 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 defend ant ’ s remai ning 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 occurr ed in this case be avoided in the future

.

Stephen J. Markman Robert P. Young, Jr. Mary Beth Kelly Brian K. Zahra Richard H. BernsteinS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN
,
Plaintiff

- Appell ant ,

v No. 149259

BRANDON LEWIS CAIN
,
Defendant

- Appell ee

.

V IVIANO , J

. ( dissenting )

. [H] owever convenient [intrusions on the right to trial by jury] may appear at first

. . . let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.

— Sir William Blackstone 1

The issue in this case is whether the juror’s oath, which for centuries has been
thought of as the very essence of the jury
, may be dispensed with as nothing more than a

hollow in cantation. There are few, if any, social customs more fundamental to a well

ordered society than the act of swearing an oath. Oaths are invoked in the most sol emn

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 requiremen t

— in existence since

the ve ry 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 a n 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, a ppellate
courts may grant relief if the person asserting the error can satisfy four e lements ( 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 satis fied, 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 defend ant 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 fa ilure 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 tri ed by an unsworn jury

.
II. THE SIXTH AMENDMENT GUARANTEES A SWORN J URY

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 t rial 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 structur al 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 constituti onal 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 Allan 8 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 e xtended 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, “ I n all criminal prosecuti ons, 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 i s “ 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 (2 013)

. 9 Id

. at 2 11, 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 F ederal question is presented

. . . of which this court can take jurisdiction ” because the defendant had faile d 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 s tates 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) ( S calia
, 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 W hen
interpreting the C onstitution , 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 fo r the right to trial by jury because it is a basic fact of
our constitutional heritage that t he 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. O aths 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 U S (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; 17 1 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 recogniti on 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 embod ied in the Sixth

. . . Amendment[]. ” )

. 18 Silving, The Oath: I , 68 Yale L J 1329, 1330 (1959) ( “ The familiar oath of the present

day 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 oat h] became an integral part of the jury trial and by the earliest records both jurors and

witnesses were sworn. ” 19 Indeed, f rom 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

- e ighteenth c entury, 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 s ufficient 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 juror s , [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 word s “ juré ” and “ juré e ” and the Latin

19 Oaths in Judicial Proceedings
, 5 1 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
, 1 5 6

- 157 (1890) ( describ ing 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 (“T he 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 T he English

ancestor of our “ jury ” was called “ the jurata
, ” 24 which itself was defined as “ [a] jury of

twelve men sworn

. ” 25 Furthermore, a t 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), p p 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 I ts 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 C ompany 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; empha sis 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 S ee, 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, i t seems quite implausible that the F ramers, 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. T he term “ jury ” in the Sixth
Amendment naturally referred to a “ sworn ” jury; add ing the descriptor “ sworn ” w ould

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 A n early version of Article I, § 3 simply authorized the Senate to try all
impeachments

. 31 However, it was later revised to explici tly state that “ every m ember
shall be on oath[.] ” 32 E lucidat ing 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 conc ept 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 S ee Amar, Sixth Amendment First Principles , 84 Geo L J 641, 694 (1996) (stating that in the Framers ’ world, “ gre at weight was placed on oaths”). Indeed, t he very first statute enacted by Congress assembled under the Constitution was titled, “ An A ct to regulate the T ime and M anner of administering certain O aths .” 1 Cong Ch 1; 1 Stat 23.

30 See US Const, a rt 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 i d

. at 552

- 553.9 [T]he Senate, when sitting as a court of impeachment, ‘ shall be on oath or affirmation ’ ; a provision w hich, 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 protect ion 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 passio ns, 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 s enators 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. Where as 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 s enat ors sitting as a court of
impeachment ; hence, the express i nclusion 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 o n t he Constitution o f t he United States (4 th 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 is10 degree of co nsensus, courts across the nation agree that swearing the jury is an integral,
essential, fundamental component of a fair trial. ” 36 The majority relies on United States v

Turrietta 37 for the proposition that no federal court has expressly recognized the Sixth
Amendment right to a sworn jury, but its myopic citation ignores the entirety of the

Turrietta court’s constitutional analysis. 38 I need not reproduce Turrietta ’s constitutional
discussion here, but it s 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 divin e 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 p ractice, 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 “funda mental 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 S E 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., dissent ing) (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 histor y, 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: t he [ right to
be tried by a ‘ jury ’ ]. ” 41 And a jury is not a jury until it is sworn

. Indeed, t o s eparate 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 co urt’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 no te 35 of this opinion; Turrietta , 696 F3d at 978

- 981; United States v Martin , 740 F2d 1352, 1358

- 13 59 (CA 6
, 1984) (questioning whether swearing of prospective jurors en masse was “consistent with the dignity and effectiveness which shoul d attend federal c ourt trials” and stating that “ the defendant should be accorded the assurance that the jurors have been sworn to try h is 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 cal led on to apply a constitutional phrase, like “trial by jury,” to factual situations approaching the outer12 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 accide nt”), the Court examined “the function that the particular feature performs and its relation to the purposes of the jury trial,” i d

. at 99

- 100. However, unlike jury size

— whose origins “rest on little more than mystical or superstitious insights” and which fluctuated over time, see i d

. 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 i s 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 appr oach.
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 th e 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 solem n 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 Amendmen t. 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 approac h, 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 ri ght 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 pr otect 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

I V. THE THIRD CARINES PRONG AND FAILURE TO SWEAR THE JURY A S 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, t he 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, applicab le to preserved claims of

error

— is a particular type of constitutional error that is not amenable to harmless error analysis. 48 T he concept of structural error is highly relevant under the third prong of the

Carines plain error standard because t he 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
, i t 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.

S tructural errors compris e 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 intrinsica lly 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, 73 4 ; 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 W hether an error i s “ 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 h ave little difficulty fitting the failure to properly swear the jury in to the

co nstellation of structural error s

. The oath is a foundational component of the

“ framework within which the trial proceeds. ” 57 It solemniz es 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 14 8, 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 deliberation s 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 influ ence of the oath on information

processing and judgment functions at a psychologica l 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 courtr oom.” ).

60 See Gonzalez

- Lopez , 548 US at 150 ( “ Harml ess

- 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. S taying 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, i n so far as this information could generally be available in evidentiary for m from the jurors themselves, the law precludes such17 The right to a sworn jury

— the jury guaranteed by the Constitution

— is a “ ‘ basic
protectio [ n ] ’ whose precise effect s 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 B ecause 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

T his Court has stated that our caselaw “ suggests ” that structural errors satisfy the

third Carines pr ong. 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 harmle ss 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 proces s).

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 thi rd 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 outcome

determinative prejudice.

V

. THE FOURTH CARINES PRONG AND SERIOUS E FFECT ON THE FAIRNESS, INTEGRITY
, OR PUBLIC REPU TATION OF JUDICIAL P ROCEEDINGS

I come now to where the majority began its analysis: the fourth Carines prong.

Once a defendant has established that a “ forfeited erro r 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 B ecause relief on plain error review is in the discretion
of the reviewing court, a defendant bears the burden of persuad ing the court that the error

“ seriously affect[ed] the fairness, integrity or public repu tation 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 a bout 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 c itations omitted) (alteration in original); see also Vaugh n , 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 AN D 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 t hat 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 insti nct. 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 (1 988) ( Blackmun , J., concurring in part and dissenting in part) (observing the “ confusion reflected in the Court of Appeals ’ applicat ion of the plain

- error standard”).

70 Olano
, 507 U S at 737 (emphasis added)

.20 But s tructural 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, t here 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 pr oceedings ” ). 73 A s a matter
of transitive logic, the fact that the defendant has prove d 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 be en 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 cita tion 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, Structur al 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 U S 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 i ncompatible with the requirement that a defendant identify specific
facts on the record showing that the error seriously affected the fairne ss , integrity, or
public reputation of the proceedings

. The only way to resolve this apparent incongruity

is to rec ognize 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 rep utation of the
proceed ing s were , in fact, not seriously affected despite the structural error. This

framework recogniz es the undeniable effect a structural error has on the inquiry under the

fourth Carines prong while still retaining the fact

- specific
, di scretionary characteristic s 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 de fendant 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, w e 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 proceedi ng 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 fourth22 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 p rong 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 case s in which a court affirms a conviction des pite a
structural error, the court conduct s 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 aspect s of the proceedings that
indicated that the fairness, integrity, and public reputation of the proc eedings were not, in
fact, seriously affected. 78 Likewise
, in Johnson v United States , the Supreme Court

address ed the fail ure 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 pertain ing to

the d isputed element was overwhelming and
, therefore, that the fairness, integrity, and
public reputation of the proceedings were not seriously a ffected. 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 th e notion

— inherent in the very o ccurrence 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

erro r, they rarely, if ever, discuss additional facts on the record independent ly 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 poi nts 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 Alla n 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

- 6 33; 122 S Ct 1781; 152 L Ed 2d 860 (2002) (employing sa me 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 defe ndant ’ 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 requir ed 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 require s 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 de fendant 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 Ramirez

Castillo , 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
, 5 08 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 f airness 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 Bu t 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, 14 2

- 143; 129 S Ct 14 23; 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 an d Lopez

- Meza was ‘overwhelming.’ The fourth Olano prong is satisfied and we exercise our discretion to remand for a new trial. ”) (citations omitted).

87 Bec ause 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 parti es 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 c ourt ’ s attention to

“ harboring error, ” a fact that will invariably so und 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 proceedin gs in a given case. Thus, defendants forfeit er rors at their peril.26 they do not. 88 But i t 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

hav e 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 betray s the plain error analysis to
disregard the preliminary conclusion that an error is structural when as sessing whether it
seriously affected the fairness, integrity, or public reputation of the proceedings.

B ecause, by definition, structural errors “ necessarily render a trial fundamentally

unfair
, ” 89 common sense dictate s 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 tha t , in fact, the fairness
, integrity
,
and public reputation of the proceedings w ere 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 fai rness 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

existe nce of a structural error.

B. APPLICATION OF THE FOURTH CARINES PRONG

T he 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, t he 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 reputa tion of the judicial
proceedings in this case. By approaching the question from the negative to conclude that

relief is not warrant ed , it is perfectly consistent with the approach I have outlined above.
I also agree with the majority that our decisi on i n 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 tempora ry , it was not complete

in that the veniremembers were present
, and both sides expressed satisfaction with the

end result of voir dire

. 90 N one of these considerations is present in this case. T he 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 di d 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 countervaili ng factors that the Court in Vaughn relied

on to hold that the fairness, integrity, and public reputation of the proceedings were no t
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 meani ngful
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. T he tr ial 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 thr oughout 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 provi des sufficient
support for the conclusion that the fairness, integrity, or public reputation of the
proceedings were not seriously affected in this case

.
P romising to be fair and impartial is only one component of the juror’s oath. Th e 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 “capabl e and willing to decide the case solely on the evidence before it.” 93 Although the trial court

and the attorn eys discussed these concepts during voir dire
, m y review of the record
shows that only three of the jurors who ultimately deliberated over defendan t’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 fairnes s, 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 recor d 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 pr ong 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 conscience s , 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 disagree ments with the law general ly

. The oath’s
complete absence diminishes the fairness, integrity, and public reputation of the
proceedings . U nless 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, render s the proceedings fundamentally unfair

. 95
Lacking in this case is a sufficient indication on the record that the jury was, from
the pe rspective 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

.31 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, s tatements 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 ca se

— 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 t o “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 assu me 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

.
V I

. CONCLUSION

Nothing in this opinion is inten d ed 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 tri al judge, who failed to perform one of the
more routine tasks required in the conduct of a trial. No r 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 diminish ing 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

.

“ Form al 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 A ppellate 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).