I concur in the result of the majority opinion, and join in part in the opinion.1
I
The majority adverts to a distinction between constitutional error and nonconstitutional error, and to a distinction between preserved and unpreserved error, now dubbed forfeited error, and then expounds on the recent decision of the United States Supreme Court in United States v Olano, 507 US —; 113 S Ct 1770; 123 L Ed 2d 508, 519-520 (1993), concerning unpreserved, forfeited, so-called "plain” nonconstitutional error, and where the Court said that, while the government has the burden of showing that preserved error was not prejudicial, the defendant has the burden of showing that unpreserved or forfeited error claimed to have been plain was both plain and prejudicial.
Justice Kennedy in a separate concurring opinion expressed his belief that had there been a specific objection, to allowing alternate jurors to be present during the jury’s deliberation, it would have been "most difficult for the government to. show the absence of prejudice.” Justice Stevens, *555with whom Justices White and Blackmun concurred, said that he could not agree that "errors may be deemed to 'affect substantial rights’ only when they have a prejudicial impact on a particular defendant.”2
Justice Stevens also observed:
The Courts of Appeals are, however, allowed a wide measure of discretion in the supervision of litigation in their respective Circuits. [Citations omitted.] Certainly, the Courts of Appeals are better positioned than we are to evaluate the need for firm enforcement of a procedural rule designed to protect the integrity of jury deliberations, and to weigh the interest in such enforcement against other relevant consideration. Because I am not persuaded that the Court of Appeals here abused its broad discretion, I would affirm its judgment. [Id., 123 L Ed 2d 527.]
Michigan does not have a counterpart to FR Crim P 52(b), although the concept of plain error has been adverted to in a few opinions of this *556Court.3 Olano, decided a year ago, was not adverted to in the briefs of counsel. The United States Courts of Appeals are just beginning to expound on this recent decision of the United States Supreme Court.4
There is no need in the instant case to incorporate Olano into Michigan jurisprudence. This case can be adequately resolved on the basis set forth in part hi of the majority opinion, which, as set forth in the last full paragraph of part hi, shows that even if there was error, it may not have been clear or obvious, and that whether the burden is on the prosecution, because the error is deemed to have been preserved, or on the defendant, because it was not preserved, the instructional omission in the instant case was harmless.
II
The adoption of the views expressed by the majority in Olano concerning the meaning of the federal plain error rule ignores the significant difference between the federal judicial power and the judicial power confided to this Court. As set forth in Olano, 123 L Ed 2d 517-518, the federal plain error rule provides "the Court of Appeals a limited power to correct errors that were forfeited because not timely raised in the District Court,” and "the authority created” by that rule "is circumscribed.” (Emphasis added.) The federar rule was adopted by or pursuant to the authority of the *557Congress. It is well established that the "Congress is free to grant or withhold the judicial power . . . .” Wright, Law of Federal Courts (4th ed), § 10, p 38.
In contrast with the federal constitution, the Michigan Constitution confides the judicial power to this Court,5 and it is beyond the power of the Legislature to define, limit, or control the exercise of that power.
Because this Court’s judicial power is plenary, it is not confined by a court rule, and certainly not by a statute. I would follow the approach suggested by Justice Stevens, and recognize in the Court of Appeals a "wide measure of discretion in the supervision of litigation . . . .” 123 L Ed 2d 527. This Court, which does not hesitate to enter peremptory orders of reversal, can correct any excessive recognition of plain error by the Court of Appeals.
Cavanagh, C.J., concurred with Levin, J.Specifically, I join in the introductory paragraph, in part i, in so much of subpart a of part n as precedes the concluding paragraph of subpart A, and agree generally with the concluding paragraph, beginning with the words "[although our review,” of part in of the majority opinion.
Justice Stevens explained:
At least some defects bearing on the jury’s deliberative function are subject to reversal regardless of whether prejudice can be shown, not only because it is so difficult to measure their effects on a jury’s decision, but also because such defects "undermine the structural integrity of the criminal tribunal itself.” Vasquez v Hillery, 474 US 254, 263-264; 106 S Ct 617; 88 L Ed 2d 598 (1986) (racial discrimination in selection of grand jury); see also Gray v Mississippi, 481 US 648, 668; 107 S Ct 2045; 95 L Ed 2d 622 (1987); id. at 669 (Powell, J., concurring) (improper exclusion of juror opposed to death penalty). Whether or not they harm the defendant, errors that call into question the integrity of the jury’s deliberations may harm the system as a whole. In that sense, they may be said to "seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v Atkinson, 297 US 157, 160; 56 S Ct 391; 80 L Ed 555 (1936), making them candidates for reversal under Rule 52. See United States v Young, 470 US 1, 15; 105 S Ct 1038; 84 L Ed 2d 1 (1985) (citing Atkinson, supra). [Id., 123 L Ed 2d 525-526.]
Washburn v Lucas, 373 Mich 610, 625-626; 130 NW2d 406 (1964); Moskalik v Dunn, 392 Mich 583, 592; 221 NW2d 313 (1974); Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702, n 4; 227 NW2d 543 (1975); Napier v Jacobs, 429 Mich 222, 233, n 2; 414 NW2d 862 (1987). See also People v Bushard, 444 Mich 384, 400; 508 NW2d 745 (1993) (Levin, J.); see also MRE 103(d).
United States v Colon-Pagan, 1 F3d 80 (CA 1, 1993); United States v Montanye, 996 F2d 190 (CA 8, 1993).
The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Const 1963, art 6, § 1.]