¶15 (dissenting) — The majority confuses and conflates two independent and separate principles: constitutional waiver and failure to preserve error. Compounding this, the majority applies the wrong standard of review and concludes this “waived” and “unpreserved” error is harmless. Majority at 872, 876. The Court of Appeals correctly concluded Kenneth Slert’s constitutional right to presence was violated and not harmless, and should be affirmed.
¶16 As the majority correctly recognizes, the Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to be present at all “critical stages” of a criminal proceeding. Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (“Our cases recognize that the right to personal presence at all critical stages of the trial ... [is a] fundamental right [ ] of each criminal defendant.”). Likewise, article I, section 22 of the Washington Constitution confers the accused with the right to “appear and defend in person” during criminal prosecutions. Collectively, these provisions protect a defendant’s right to be present during critical stages of trial. The majority correctly recognizes the constitutional nature of the error here, yet fails to follow our *881cases analyzing this exact error. More troubling is the majority’s apparent recognition of our prior case holdings, without explanation or analysis of what new rule, if any, is being crafted.
¶17 In State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), we analyzed both the Fourteenth Amendment due process right under the United States Constitution and the article I, section 22 right to presence under the Washington Constitution. Irby highlighted at least one difference between the federal and state constitutions: “Unlike the United States Constitution, article I, section 22 of the Washington Constitution provides an explicit guaranty of the right to be present.” Irby, 170 Wn.2d at 884. The Irby court recognized that “[a]s early as 1914,” the state constitution granted the accused the right to appear and defend themselves at every stage of the trial where the defendant’s substantial rights may be implicated. Irby, 170 Wn.2d at 885. We held:
Jury selection is unquestionably a “stage of the trial” at which a defendant’s “substantial rights may be affected,” and for that reason we do not hesitate in holding that Irby’s absence from a portion of jury selection violated his right to “appear and defend in person” under article I, section 22 as well as the due process clause of the Fourteenth Amendment.
Irby, 170 Wn.2d at 885.
¶18 In this case, a portion of jury selection was conducted in chambers, without the defendant’s presence, violating his constitutional rights, and as the Court of Appeals concluded, a new trial is required. The majority confuses the applicable standard of review.
¶19 Our cases establish that constitutional rights require a knowing, voluntary, and intelligent waiver.5 See State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996) *882(analyzing a defendant’s waiver of his right to testify); State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994) (analyzing a defendant’s waiver of his right to a jury); State v. Wheeler, 108 Wn.2d 230, 237-38, 737 P.2d 1005 (1987) (analyzing a defendant’s waiver of his right to remain silent); City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984) (“A waiver of counsel must be knowing, voluntary, and intelligent, as with any waiver of constitutional rights.” (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972))). Nowhere in this record is evidence supporting a constitutional waiver. The majority then focuses on cases requiring any error to be “preserved” by objections at trial.
¶20 The majority cites Elmore in support of its analysis. Majority at 876 (citing State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 289 (1999)). Elmore involved a challenge to the propriety of the prosecutor’s in-court questioning during voir dire, where no objections were raised. Elmore correctly characterized the issue as procedural in nature, not constitutional, correctly concluding the lack of objection precluded review. Elmore provides no support here.
¶21 Next, State v. Jones,6 cited and relied on by the majority, does not hold otherwise. In that case, we held the defendant’s right to a public trial, factually, was not violated where during a recess, a random drawing of jurors was conducted. Although the right to presence was discussed, that discussion was in the context of the court having already concluded no constitutional closure occurred. Since Jones did not involve a constitutional claim, the analysis of preservation of error correctly applied the nonconstitu-tional analysis. Jones cannot be read as establishing a new rule applicable outside its context. Such a new rule would require overruling cases and establishing and applying *883the applicable constitutional analysis—something that cannot be found anywhere in the Jones opinion.7
¶22 Then, the majority apparently embraces a new constitutional harmless error rule, without acknowledgment. In Irby, we held it was the State’s burden to prove the violation to the defendant’s constitutional rights was harmless beyond a reasonable doubt. The Irby court found that the State could not meet this burden “because the State has not and cannot show that three of the jurors who were excused in Irby’s absence, namely, jurors 7, 17, and 23, had no chance to sit on Irby’s jury.” Irby, 170 Wn.2d at 886.
¶23 Based on Irby, the Court of Appeals here held that the State could not prove beyond a reasonable doubt that the violation to Slert’s right to be present was harmless. The court keyed in on the fact that not only was there no record to review, but also some of the excused jurors could have been impaneled on Slert’s jury. Stated inversely, the State could not prove there was no chance that some of the excused jurors would have sat on the jury. Based on this, the Court of Appeals correctly held that the error could not be harmless beyond a reasonable doubt.
¶24 The majority here claims that “circumstantial” evidence tells us the completed juror questionnaires plainly meant the jurors must have “had disqualifying opinions or feelings about the case.” Majority at 879. This is impossible to know, obviously, because no record exists to support the majority’s conjecture.
¶25 The majority’s conclusion is based on speculation, not the record’s evidence. The Court of Appeals should be affirmed.
Owens, Stephens, and Gordon McCloud, JJ., concur with Johnson, J.In note 3, the majority asserts that we do not demand a full colloquy with the bench to assure that waivers are knowing, voluntary, and intelligent. The majority misses the point: the requirement is that constitutional rights require a knowing, voluntary, and intelligent waiver, not that it be conducted on the record with a full colloquy.
State v. Jones, 185 Wn.2d 412, 372 P.3d 755 (2016).
The majority seems to embrace a preservation of error standard our cases have rejected. See State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012) (article I, section 22 public trial analysis).