(dissenting). I respectfully dissent. I would hold that when the substitution of judges occurs during the preliminary stages of the trial before any-evidence has been received, the defendant should be required to show how the substitution resulted in prejudice.
In the present case, Judge Balkwill presided over three days of jury selection. After the panel was selected and sworn, and over the objections of defendants, the case was transferred to Judge Jeannette. Judge Jeannette presided over the remainder of the trial. Defendant contends that the substitution deprived him of his constitútional rights to a trial by jury and to due process of law. I disagree.
In Freeman v United States, 227 F 732 (CA 2, 1915), one judge was substituted for another after all the government’s witnesses had testified. The Second Circuit Court of Appeals reversed the defendant’s conviction and established a general rule that prohibits the substitution of a judge during the course of a criminal trial after a jury has been sworn and evidence. adduced, but before the verdict. Id. The general rule is that it is error requiring reversal to substitute a judge to preside over the remainder of a trial in which evidence was adduced while the original judge was presiding. State v McClain, 194 La 605, 613-614; 194 So 563 (1940); Commonwealth v Thompson, 328 Pa 27, 29; 195 A 115 (1937); State v Johnson, 55 Wash 2d 594, 596; 349 P2d 227 (1960).
The theory behind the general rule is that the second or substituted judge, not being familiar *720with the prior testimony or evidence, is not in a position to give the accused a fair and impartial trial as contemplated under the law. McClain, supra at 614. The only judge competent to instruct the jury is the one who heard the testimony, observed the demeanor of the witnesses and had an opportunity to form an opinion with respect to their credibility, and knows something about the "atmosphere” of the case. Thompson, supra at 29. Another judge, without knowledge of such matters taking place during the trial and with no possibility of learning from the record all the attendant circumstances of the trial, is not qualified to properly charge the jury. Id.
At other stages of trial, a different rule exists. Id. at 30. In Thompson, an exception to the general rule was recognized for the substitution of a judge occurring during the selection of the jury. Id.; McClain, supra at 614. The examination of jurors during voir dire does not elicit any information that can be used in the trial of the case; rather, such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be properly performed by any judge. Thompson, supra at 31; McClain, supra at 614; Johnson, supra at 596.
The exception to the rule is premised on the ground that the selection of and the swearing in of the jurors is solely for the purpose of securing a competent and fair jury, and has nothing to do with the evidence tending to show guilt or innocence. McClain, supra at 614. A substitution of judges in the preliminary stages of a trial properly may be made before any evidence is received, the theory being that the rule against substitution is designed to ensure that the judge who hears the testimony concerning the facts also applies the law thereto. Jones v State, 57 Ala App 275, 277; 327 So *7212d 913 (1975), cert den 295 Ala 409 (1976); State v Rodriguez, 786 P2d 472, 473 (Colo App, 1989).
In my opinion, it is clear that the substitution of a judge after the jury has been sworn but before any evidence has been presented does not involve the problems to which the general rule is directed. The substitution of judges in the present case occurred after the jury was sworn, but before counsel’s opening statements, and before the introduction of any evidence or the taking of any testimony. The entire case, from the opening statements to the rendition of the verdict, was heard by Judge Jeannette. He heard all the testimony, and there is no claim by defendant that Judge Jeannette was somehow unfamiliar with the facts and circumstances of the case. Under these circumstances, I cannot see how defendant was prejudiced or how a miscarriage of justice resulted.
Defendant alleges that the reassignment from Judge Balkwill to Judge Jeannette interfered with his right to an impartial jury because he chose the jury in relation to the judge presiding during jury selection. Defense counsel objected to the substitution, arguing that, had he known Judge Jeannette would be presiding at trial, he would have made different decisions during the voir dire process. I do not believe that this rises to the level of prejudice or miscarriage of justice sufficient to warrant reversal. As noted in Thompson, "[t]he examination of jurors under voir dire does not elicit any information that can be used in the trial of the case; such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can be properly performed by any judge.” Thompson, supra at 31.
I would hold that, in the absence of a showing of prejudice by the defendant, the substitution of trial judges before opening arguments and the *722introduction of any evidence does not constitute error requiring reversal. I believe such a result is consistent with MCL 769.26; MSA 28.1096, which provides:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
I am of the opinion that the statute supports the conclusion that in circumstances such as those in the present case, a defendant must establish prejudice by the substitution of one judge for another when the substitution occurs before the opening statements of counsel and the introduction of evidence. In the present case, the substitution occurred before counsel made his opening statements, and the second judge, Judge Jeannette, presided over the remainder of the trial, heard all the testimony, and was familiar with the case.
I would conclude that defendant was in no way prejudiced by the substitution of judges following jury selection but before the opening statements of counsel and the presentation of evidence. The substitution did not result in a miscarriage of justice, and defendant’s substantial rights were not prejudiced.