CL 

DUSTIN JAMES BARRAL, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 6413n LED 

JUL 2 3 2015 

A IE K. LIl1DEM AN 

- 

131 Nev., Advance Opinion 52. 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Appeal from a judgment of conviction, pursuant to jury 

verdict, of two counts of sexual assault with a minor under 14 years of age. 

Eighth Judicial District Court, Clark County; Douglas Smith, Judge. 

Reversed and remanded. 

Las Vegas Defense Group, LLC, and Michael L. Becker and Michael V. 

Castillo, Las Vegas, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, Steven S. Owens, Chief Deputy District Attorney, and 

Michelle Y. Jobe, Deputy District Attorney, Clark County, 

for Respondent. 

BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ. 

OPINION 

By the Court, CHERRY, J.: 

In this opinion, we address whether a district court commits 

structural error when it fails to administer an oath to the jury panel, 

pursuant to NRS 16.030(5), prior to commencing voir dire. We hold that it 

does. 

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FACTS AND PROCEDURAL HISTORY 

Dustin Barral was charged with sexually assaulting a child. 

His case proceeded to a jury trial. At the beginning of voir dire, both the 

prosecution and defense explained to the potential jurors the importance 

of answering their questions honestly. After questioning the first 

potential juror, the following bench conference took place: 

MR. BECKER [for Barral]: My recollection may 

not be correct, but I think it's possible that the 

panel was not sworn in. 

THE COURT: They aren't. 

MR BECKER: Okay. 

THE COURT: I don't swear them in until the end. 

MR. BECKER: Okay. In other words, admonish 

[the jury] that they are to give truthful answers to 

all the questions— 

MS. FLECK [for the State]: Yeah[.] 

MR. CASTILLO [for Barral]: That's fine. 

THE COURT: —I won't swear them in. 

MR. BECKER: Okay. 

THE COURT: Because the ones who are sworn in; 

that's the panel. 

MR. BECKER: Right. 

MS. FLECK: But do we have to give them the 

oath that they have to tell the truth[?] 

THE COURT: No. 

MS. FLECK: Or no? 

THE COURT: No. 

MS. FLECK: Okay. 

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THE COURT: No. 

MS FLECK: Okay. 

The court then proceeded with voir dire. The district court clerk swore in 

the petit jury at the beginning of the second day of trial. After both 

parties rested and presented closing arguments, the jury deliberated for 

approximately three hours and returned guilty verdicts on both charges. 

Following a post-trial motion for acquittal that the court denied, Banal 

appealed. 

DISCUSSION 

Barral claims that the district court committed structural 

error requiring reversal when it failed to comply with NRS 16.030(5)' and 

administer the oath to the jury venire before voir dire. He argues that the 

court's error compromised his right to trial by an impartial jury because 

potential jurors may not have felt obligated to respond truthfully during 

1NRS 16.030(5) dictates: 

Before persons whose names have been drawn are 

examined as to their qualifications to serve as 

jurors, the judge or the judge's clerk shall 

administer an oath or affirmation to them in 

substantially the following form. 

Do you, and each of you, (solemnly 

swear, or affirm under the pains and 

penalties of perjury) that you will well and 

truly answer all questions put to you 

touching upon your qualifications to serve as 

jurors in the case now pending before this 

court (so help you God)? 

(Emphasis added.) Although this statute is articulated in the civil 

practice section of the Nevada Revised Statutes, it applies to criminal 

proceedings through NRS 175.021(1). 

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voir dire, as the court did not place them under oath. The State contends 

that the potential jurors understood that they were required to answer 

truthfully because the court and counsel for both sides repeatedly stressed 

to the venire the importance of answering their questions honestly. The 

State also argues that the court's error did not undermine the framework 

of the trial. 

Whether the district court's actions in this case constituted 

structural error is a question of law that we review de novo. See Neder v. 

United States, 527 U.S. 1, 7 (1999) ("[W] e have recognized a limited class 

of fundamental constitutional errors that defy analysis by harmless error 

standards. Errors of this type are so intrinsically harmful as to require 

automatic reversal (i.e., affect substantial rights) without regard to their 

effect on the outcome." (internal citations and quotation marks omitted)); 

see also NRCP 61 ("No error. ... in anything done or omitted by the 

court ... is ground for granting a new trial or for setting aside a 

verdict. , unless refusal to take such action appears to the court 

inconsistent with substantial justice."). 

NRS 16.030(5) 

MRS 16.030(5) does not give the district courts discretion: "the 

judge or the judge's clerk shall administer an oath or affirmation." Id. 

(emphasis added); see also NRS 0.025(1)(d) (stating that "Ismail imposes 

a duty to act"). Thus, we conclude that the district court violated NRS 

16.030(5) in the instant case when, according to its apparent general 

preference, it failed to administer the oath to the venire. Neither party 

disputes that the district court erred by violating MRS 16.030(5). 

However, a district court's error will not always entitle a convicted 

defendant to a new trial. The type of relief, if any, to which a criminal 

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defendant is entitled following a trial court's violation of NRS 16.030(5) is 

an issue of first impression for this court. 

Structural error 

Structural errors compromise "the framework of a trial." 

Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 148 (2012). Such 

errors mandate routine reversal because they are "'intrinsically harmful." 

Id. (quoting Cortinas v. State, 124 Nev. 1013, 1024, 195 P.3d 315, 322 

(2008)). The United States Supreme Court has repeatedly held that trial 

court errors which violate a defendant's Sixth Amendment right to an 

impartial jury are structural errors that create the probability of prejudice 

and preclude the need for showing actual prejudice to warrant relief. See 

Peters v. Kiff, 407 U.S. 493, 502 (1972) (stating that "even if there is no 

showing of actual bias in the tribunal, this Court has held that due process 

is denied by circumstances that create the likelihood or the appearance of 

bias," and citing, as examples, Mayberry v. Pennsylvania, 400 U.S. 455, 

465-66 (1971) (concluding that the same judge who was subject to a trial 

lawyer's insults that were "apt to strike at the most vulnerable and 

human qualities of a judge's temperament" was precluded from deciding 

the criminal contempt charges against the lawyer in order for "justice [to] 

satisfy the appearance of justice") (internal citations and quotations 

omitted from parenthetical)); Estes v. Texas, 381 U.S. 532, 545 (1965) 

(reversing a criminal conviction without a showing of the actual prejudice 

caused by the television broadcast of the trial proceedings because "[t]he 

conscious or unconscious effect that [broadcasting the trial] may have on 

[the proceedings] cannot be evaluated, but experience indicates that it is 

not only possible but highly probable"); Turner v. Louisiana, 379 U.S. 466, 

467-73 (1965) (reversing a criminal conviction without a showing of 

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prejudice because two of the sheriffs deputies (who were "key witnesses" 

at trial and testified regarding disputed facts) were responsible for the 

sequestered jury over the course of the trial and were continuously in the 

jurors' company, including transporting the jurors to restaurants for each 

meal, transporting the jurors to and from their lodgings, conversing with 

the jurors, and handling errands for the jurors); In re Murchison, 349 U.S. 

133, 133-34, 136 (1955) (holding that a judge who acted as a "one-man 

grand jury" could not try the case of two witnesses the judge charged with 

contempt because "[a] fair trial in a fair tribunal is a basic requirement of 

due process [and] requires [not only] an absence of actual bias [but the 

prevention of] even the probability of unfairness"); and Tumey v. Ohio, 273 

U.S. 510, 531, 535 (1927) (reversing a defendant's criminal conviction by a 

judge who was "paid for his service only when he convicts the defendant" 

because "[n]o matter what the evidence was against [the defendant], he 

had the right to have an impartial judge"). In Peters, the Court reasoned 

that due process demands not only the absence of bias but the appearance 

of bias as well: 

These principles [that fairness requires not only 

the absence of actual bias but also preventing even 

a possibility of bias] compel the conclusion that a 

State cannot, consistent with due process, subject 

a defendant to. . . trial by a jury that has been 

selected in an arbitrary and discriminatory 

manner, in violation of the Constitution and laws 

of the United States. Illegal and unconstitutional 

jury selection procedures cast doubt on the 

integrity of the whole judicial process. They create 

the appearance of bias in the decision of individual 

cases, and they increase the risk of actual bias as 

well. 

407 U.S. at 502-03. 

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The Peters Court considered whether the arbitrary exclusion 

of African Americans from the grand jury invalidated the indictment and 

subsequent conviction of a Caucasian criminal defendant. Id. at 496-97. 

Peters claimed that (1) the juries that indicted and convicted him were 

created through constitutional and statutorily prohibited means, (2) the 

consequence of this error on a single prosecution is indeterminable, and 

(3) any indictment or conviction returned by a jury selected in violation of 

the Constitution or federal law must be reversed. Id. at 496-97. The 

Supreme Court agreed with Peters and concluded that neither the 

indictment nor the conviction against him was valid due to illegal selection 

procedures used to seat the grand and petit juries. Id. at 501. 

The Peters Court was specifically concerned with protecting 

the integrity of the jury selection process through procedural safeguards. 

Id. at 501-03. The Court explained that our system of justice "has always 

endeavored to prevent even the probability of unfairness." Id. at 502 

(emphasis added) (quoting In re Murchison, 349 U.S. at 136). The Court 

further clarified that "[fit is in the nature of the practices here challenged 

that proof of actual harm, or lack of harm, is virtually impossible to 

adduce," because "there is no way to determine" the composition of the 

jury or the decision it would have rendered if the jury had been selected 

pursuant to constitutional mandates. Peters, 407 U.S. at 504 (emphasis 

added). 

Based on the Supreme Court's reasoning, see id. at 498-505, 

we are persuaded that a defendant in a criminal case is denied due process 

whenever jury selection procedures do not strictly comport with the laws 

intended to preserve the integrity of the judicial process. An indictment or 

a conviction resulting from an improperly selected jury must be reversed. 

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J. 

A fair tribunal is an elementary prerequisite to due process, so we will not 

condone any deviation from constitutionally or statutorily prescribed 

procedures for jury selection. Cf. id. at 501. Accordingly, we hold that a 

district court commits structural error when it fails to administer the oath 

to potential jurors pursuant to NRS 16.030(5). As we have concluded that 

failing to swear the potential jurors is a structural error, it is reversible 

per se; a defendant need not prove prejudice to obtain relief. 

Therefore, we reverse Barral's convictions for sexual assault of 

a minor under 14 years of age and remand this matter to the district court 

for a new trial. Because we reverse Barral's convictions on the grounds 

that the district court committed structural error in the jury selection 

process, we need not address the remaining issues in his appeal. 

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