Failure to swear in the jury; MCL 768.14; MCR 6.412(F) & 2.511(I)(1); People v. Allan; Effect of People v Cain on the holding in Allan; Plain-error review; People v Davis

The court held that the trial court’s failure to swear in the jury required reversal of defendant’s conviction and a new trial. The record indicated “the jury in this case did not receive or take any oath after its selection, and thus was not sworn in as required under MCL 768.14 and MCR 6.412(F)[.]” The court concluded that this “was error, and it was plain. But it was also forfeited, as defendant never objected to the absence of the oath.” Thus, his entitlement to relief depended “on the third and fourth prongs of plain-error review—whose analysis, in turn, depends on whether the error at issue was structural, as” he contended. The court “squarely addressed that question in Allan.” In that case, it found the error was structural and satisfied the third “‘prong without regard to the error’s effect on the outcome of defendant’s trial.’” Additionally, it found the fourth prong was satisfied. The court determined that Allan was on point here. In Cain, the Supreme Court abrogated Allan in part because it failed to “‘take a case-specific approach to the fourth prong.’” The court noted that the Supreme Court stressed this was “not ‘to diminish the value of the juror’s oath,’ but only to recognize that ‘[i]t is but one component—as important and as symbolic as it may be—in a larger process of fair and impartial adjudication,’ rendering Allan’s seemingly categorical approach to the fourth prong inappropriate. . . . Importantly, the Court in Cain only abrogated that portion of Allan’s analysis; it otherwise left the case intact and, while noting some potential doubt on the matter in response to the dissent, it expressly declined to reach whether the failure to swear in a jury was a structural error.” Since Cain, neither the court nor the “Supreme Court has revisited Allan’s published determination that the failure to swear in a jury is a structural error.” And the court found no case law indicating “that this determination no longer remains intact and binding on” it. As a result, “consistent with Allan,” it deemed the trial court’s failure here to swear in the jury a structural error. This meant “that the third prong of plain-error review is necessarily satisfied, and that the fourth such prong is presumptively satisfied.” The prosecution bore the burden “to rebut that fourth-prong presumption.” It did not make any such showing, or even try to do so – it “opted not to file a brief with this Court.” Reversed and remanded for a new trial.