May 19, 2019

Tenth Circuit: Failure to Swear in Jury Not Plain Error

The Tenth Circuit published its opinion in United States v. Turrietta on August 29, 2012.

Turrietta’s attorney knew the jury was not sworn in but deliberately failed to object until after the verdict convicting his client was in and the jury had been excused. The failure to contemporaneously object meant the court analyzed the unsworn jury issue for plain error. The court did not decide whether failure to give the oath violated the defendant’s Sixth Amendment right to a jury trial as alleged because even if it did, it was not plain error. There is “no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn.” Therefore, failure to give the oath could not be an “obvious” error.

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