(concurring in result).
{23} I concur with the result reached by the Majority, although with somewhat different reasoning. I also wish to address the Dissenting Opinion. The Dissent passionately declares that “the [Mjajority puts New Mexico on the jurisprudential map as the only state in the union where a jury in a criminal ease does not have to be sworn,” and that the Majority is “without precedent in American jurisprudence.” While the Dissent seems to conclude that the jury was completely unsworn, I respectfully disagree. As the Majority notes, I believe that the jury was sufficiently sworn in this case. Although it is true that the jury was not formally sworn until after it rendered a verdict, the jury understood, throughout the trial, the essence and substance of the oath because of voir dire procedures, directives given by the judge, and jury instructions, thus meeting the constitutionally required minimum and withstanding fundamental error analysis. To comply with court rules, trial judges must, however, give the standard oath. Had Arellano objected in a timely fashion during the trial, he would have properly preserved his objection for review. If Arellano had properly preserved the error, and had the judge refused, at this point, to formally swear the jury or declare a mistrial, then this Court would analyze whether reversible error occurred. Such is not the case. This was not a completely unsworn jury, and as discussed below, there are at least three appellate courts which addressed comparable situations and, using a similar rationale, reached the same conclusion as I do here, affirming convictions because defendants did not properly preserve an objection to the late or incomplete swearing of juries.
Arellano failed to properly preserve the error by objecting in a timely manner
{24} To comply with UJI 14-123 NMRA 1998, trial judges ideally should give the standard oath to jurors at the beginning of the trial. Failure to do so is error which may justify reversal on appeal. See Santillanes v. State, 115 N.M. 215, 223, 849 P.2d 358, 366 (1993) (discussing whether a preserved “error was harmless or whether it so undermined the reliability of the conviction or prejudiced the defendant’s rights as to warrant a reversal of his conviction”). However, in order to properly preserve the error, Arellano’s attorney was required to object upon his discovery that the jury was not formally sworn. See Rule 12-216 NMRA 1998 (setting forth preservation requirements); State v. Sosa, 1997-NMSC-032, ¶¶ 23-24, 123 N.M. 564, 943 P.2d 1017 (stating that failure to properly preserve defect in jury instructions limits appellate review to fundamental error).
{25} While I believe that it is necessary to note that Arellano’s attorney requested that the jury be sworn at the time of jury selection, Arellano’s counsel did admit to later withholding from the trial court the fact that the jury had not been formally sworn as a strategical maneuver. Rather than concluding that this constitutes waiver on the part of Arellano, as the Majority does, I believe Arellano’s counsel failed to properly preserve the error.
Voir dire procedures, the judge’s directives, and jury instructions met the constitutional minium required by the formal oath and the error survives fundamental error analysis
{26} “There is no question that the right to trial by a fair and impartial jury is a fundamental right.” State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988). The standard jury oath is a part of the assurance to the right to a fair jury.
{27} The Court of Appeals held that, based on State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991), Arellano’s “failure to mention the oath in-this case does not change the fundamental structural error of the court below.” State v. Arellano, 1997-NMCA-047, ¶ 9, 123 N.M. 409, 940 P.2d 1204. Further, the Court of Appeals stated, without elaboration, that this failure to swear the jury is fundamental structural error, “error so fundamental that [it] cannot be waived.” Id. However, Osborne, like Escamilla, cautions that the doctrine of fundamental error applies only under exceptional circumstances, “if the question of guilt ‘is so doubtful that it would shock the conscience to permit the conviction to stand[.]’” Osborne, 111 N.M. at 662, 808 P.2d at 632 (quoting State v. Rogers, 80 N.M. 230, 232, 453 P.2d 593, 595 (1969)); see also Escamilla, 107 N.M. at 515, 760 P.2d at 1281 (“The doctrine of fundamental error is one to be applied only under exceptional circumstances and solely to prevent a miscarriage of justice.”).
{28} The United States Supreme Court, in Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), stated that “[although most constitutional errors have been held amenable to harmless-error analysis,” some errors, such as complete deprivation of the right to counsel or trial by a biased judge, will invariably invalidate a conviction. For example, under a harmless-error analysis, the “Fifth Amendment violation of prosecutorial comment upon the defendant’s failure to testify would not require reversal of the conviction if the State could show ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). In Sullivan, the Court held that a jury instruction defining reasonable doubt in an unconstitutional manner deprived the defendant of his right to a jury and constituted structural error. Id. at 281-82, 113 S.Ct. 2078.
{29} While failure to give the standard oath was error, it was not fundamental error. This is not a case of exceptional circumstances, where the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand. Unlike the jury instruction at issue in Sullivan, the failure to give the standard oath did not deprive Arellano of his constitutional right to a jury or his right to a fair trial. Had the judge failed to follow voir dire procedures and failed to give adequate jury instructions and the formal oath, the jury would not be sufficiently informed of its duty, and fundamental error would require reversal.
{30} New Mexico, unlike many other states, does not require the oath by statute; rather, it is mandated by court rules. UJI 14-123 requires the jury to “swear or affirm that [it] will arrive at a verdict according to the evidence and the law as contained in the instructions of the court.” According to the committee commentary to UJI 14-123, “[t]his oath or affirmation or any other oath or affirmation which generally complies with the requirements of Rule 11-603 of the Rules of Evidence must be administered with other pretrial instructions.” (Emphasis added). Rule 11-603 NMRA 1998 requires that “[b]e-fore testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.”
{31} Prior to jury selection, the clerk of the court questioned the entire panel: “Do you, and each of you, solemnly swear or affirm that you will well and truly answer any and all questions propounded to you by the court or the lawyers under his direction touching upon your qualifications to serve as jurors in this case?” The judge instructed the chosen panel that the purpose of the jury selection process was to find “persons who will fairly and impartially try this case,” to ensure that jurors “form no opinions,” and to “keep an open mind” until all the evidence and instructions were complete. The judge further advised the jury to “pay close attention” and to “find and determine the facts in this case from the evidence.” Significantly, the judge emphasized that each juror’s “special responsibilities as jurors demands that throughout this trial, [he or she] exercise [his or her] judgment impartially and without regard to any biases or prejudices.” Jury instruction number nine informed each member of the jury that:
You are the sole judges of the facts in this ease. It is your duty to determine the facts from the evidence produced here in court. Your verdict should not be based on speculation, guess or conjecture. Neither sympathy nor prejudice should influence your verdict. You are to apply the law as stated in these instructions to the facts as you find them, and in this way decide the ease.
(Emphasis added).
{32} Collectively, UJI 14-123 and Rule 11-603 require that each member of the jury swear or affirm that he or she will arrive at a verdict according to the evidence and the law as contained in the instructions of the court administered in a form calculated to awaken his or her conscience and impress his or her mind with the duty to act with integrity. Here, the jury solemnly swore that it truthfully answered all questions propounded to it touching upon its qualifications to serve as jurors. The judge’s remarks and jury instructions emphasized the importance of the jury’s duties, awakening the jury’s conscience and impressing upon it the importance of its role in this process. All of these factors, most of which were present throughout the trial, taken together, satisfy the constitutional minimum normally requiring the standard oath: Arellano’s right to a fair and impartial jury.
{33} The Dissent emphasizes that the oath must be given prior to trial in order to safeguard defendants’ fundamental constitutional right to a trial by an impartial jury. The Dissent also espouses that the oath “mandates” that the jury pay attention to the evidence and witnesses at all times, particularly with regard to the witnesses’ demeanor and credibility. However, the Dissent, by citing with approval to Apodaca and State v. Godfrey, 136 Ariz. 471, 666 P.2d 1080 (Ariz. Ct.App.1983), also strongly supports the contrary notion that the oath may be given just prior to the jury’s deliberations upon the verdict without requiring reversal of a conviction in the absence of prejudice. In other words, although the Dissent accepts a Godfrey-type1 situation, the Dissent does not address how such a late oath, one given after the jury has left the courtroom but barely before deliberations have begun, fulfills the purposes and guarantees of a fair and impartial jury as they are understood by the Dissent to require that the jury attentively and without bias listen to evidence as it is being presented. Also on this point, another case relied upon by the Dissent does not seem to support the Dissent’s acceptance of a late swearing. See People v. Pribble, 72 Mich. App. 219, 249 N.W.2d 363, 366 (Mich.Ct.App. 1976) (“This duty is not just a final duty to render a verdict in accordance with the law, but the duty to act in accordance with the law at all stages of trial. The oath is administered to insure that the jurors pay attention to the evidence, observe the credibility and demeanor of the witnesses and conduct themselves at all times, as befits one holding such an important position. The oath is designed to protect the fundamental right of trial by an impartial jury.”).
{34} In State v. Saybolt, 461 N.W.2d 729, 737 (Minn.Ct.App.1990), the oath was not given until just prior to closing arguments, and while the appellate court stated that “[o]aths are not formalities” but “are sacred,” the court upheld the conviction. The defendant raised the issue of the unsworn jury in his motion for a new trial, but the court held that the defendant did not object in a timely manner, thus failing to preserve the error. Id. Unlike the Dissent, the court in Saybolt did not accept that the failure to administer the oath at the outset of trial could be cured by a mid-trial giving of an oath. Id. (“It is clear that had appellant objected to the late swearing in and asked for a mistrial at this point, the error would have been preserved and a new trial would be in order.”) (emphasis added). The court determined that failure to raise the issue at trial forfeits the defendant’s right to appeal on this issue, “unless failure to do so would perpetrate a substantial injustice in the sense that an innocent person may have been convicted.” Id. Thus, as I do, the court analyzed whether the late swearing constituted fundamental error because the objection was not timely:
Here, there is no showing that the late swearing in of the jury affected the trial in any manner. There is no claim of actual prejudice, and we find none. Although the late swearing in was error, we find no substantial injustice, no fundamental error, and no incurable prejudice to appellant. Therefore, appellant is precluded from now raising this issue because of his failure to object or move for a mistrial during the trial when the issue was ripe.
Id.
{35} A recent case from the Supreme Court of Alabama struggled with the same issue before us. See In re Deramus v. State, No. 1970596, 1998 WL 351582, 721 So.2d 242 (Ala. July 2, 1998). In Deramus, the defendant argued that his conviction was void because the clerk administered an oath2 to the jury venire but not to the petit jury that was selected and empaneled to hear his case as required by statute. Id. at *1, 721 So.2d at 243. As with the present case, the defendant was found guilty and then he moved for a new trial on the basis that the jury was not properly sworn. Id. The Court stated that:
Do you and each of you solemnly swear or affirm that you will well and truly answer all questions asked of you by the Court as to your general qualifications to serve as a juror and that you will well and truly try all issues and execute all writs of inquiry submitted to you and true verdicts render according to the law and evidence, so help you God?
Although the record does not establish that the oath was given a, second time to the petit jurors who were selected and empaneled to hear [defendant’s] case, the record clearly establishes that the oath the clerk gave to the jury venire, which contained all those persons who later served on the petit jury, tracks the language of [both the statute and the court rule].
Id. at *2, 721 So.2d at 244. The Court held that “in view of the administration of the previous oath tracking the language of the required oath, we do not view this case as a ‘no oath at all’ situation.” Id. Further, the Court held that the error would be reversible only if the defendant had objected during the trial, thereby properly preserving the alleged error for appellate review. Id.3
{36} Although the Alabama oath contains further references to the duties of the jury than the oath given in this case, I again stress the cumulative effect of the oath given here, remarks by the judge, and the jury instructions. While Alabama includes statutory provisions which direct the administration of the oath and procedure for appeal, New Mexico statutes contain no similar provisions, either requiring the oath, or requiring an objection to the procedure of the oath during the trial. However, the facts of Deramus and the reasoning of the Court remain relevant for purposes of understanding that the jury was sufficiently aware of their duty and of demonstrating the necessity of a timely objection by Arellano’s attorney.
Deramus, 1998 WL 351582, at *1, 721 So.2d at 243.
{37} At least one other state supreme court displayed reasoning similar to the Majority in this ease. In State v. Mayfield, 235 S.C. 11, 109 S.E.2d 716 (S.C.1959), the Supreme Court of South Carolina affirmed the defendant’s conviction and noted that:
Appellant’s statement that the jury was not sworn stands alone, and is, in our opinion, insufficient to overcome the contrary presumption. But if indeed the jury was not sworn, that was a fact known to appellant during the trial and which he should then and there have called to the attention of the trial judge. His contention, made for the first time more than eight years afterwards, comes too late. One may not take his chance of a favorable verdict and, after an unfavorable one, raise an objection that should have been made before the verdict was rendered.
Id. at 723-24 (emphasis added). This language in Mayfield supports the Majority, even though Mayfield differs in that the defendant was pro se and the state provided affidavits of three of the jurors, all to the effect that the was jury was actually sworn in defendant’s presence. Id. at 723.
{38} The jury in this case understood its duty to pay attention to the evidence and to weigh the evidence fairly in the rendering of its verdict. There is only the broad assertion that the oath contained in UJI 14-123, which requires the jury to “swear or affirm that [it] will arrive at a verdict according to the evidence and the law as contained in the instructions of the court,” transforms the jury. The specific oath within UJI 14-123, while important, is part of many safeguards which assure that criminal defendants receive a fair trial. If Arellano had properly preserved the error for review by objecting during the course of the trial, and the trial judge refused to cure the error by administering the standard oath, this Court would then address whether the error is reversible. Nevertheless, under a fundamental error analysis, I am confident that the jury verdict in this ease “would surely not have been different absent the constitutional error.” Sullivan, 508 U.S. at 280, 113 S.Ct. 2078.
Conclusion
{39} As the Dissent also notes, the committee commentary to UJI 14-123 contemplates that any other oath that meets particular requirements will suffice. Rule 11-603 also does not adhere to rigid notions of which particular oath must be given, as it states that the oath be “administered in a form calculated” for a particular purpose. The oath given to the jury during voir dire, statements by the judge to the jury, and the jury instructions, taken as a whole, suffice as an oath or affirmation which awakens the juror’s conscience and impresses his or her mind with the duty to arrive at a verdict according to the evidence and the law, thus satisfying a constitutional minimum. Failure to give the formal oath was an irregularity, and as such, potentially constituted reversible error, but was not fundamental structural error. Arellano failed to properly preserve this error, and consequently is entitled to appellate review only on the issue of fundamental error. Thus, because the jury was sufficiently impressed with the purpose of the oath and because Arellano was not prejudiced by the technical failure to give the standard oath, I agree that the Court of Appeals should be reversed, and Arellano’s conviction should be affirmed.
. I also note that, although relied upon by the Dissent, Godfrey is somewhat similar to the present case. The court stated that:
In this case, the jury was advised of the necessity of taking notes during trial in the court's preliminary instruction and was requested to carefully listen to the evidence by counsel in opening arguments. In addition, defense counsel did not call to the court’s attention that the jury had not been sworn, or suggest that the instructions by the court following the trial were not complete and adequate. Although the jurors left the courtroom to confer in the jury room, it appears that they were recalled within minutes to be sworn. Under these facts, we hold that the failure to administer the oath prior to trial was a technical violation of Rule 18.6(b) and does not constitute reversible error.
Id. at 1081-82 (emphasis added). Although the court goes on to state that "if the oath were not given at all we would have no hesitation in finding reversible error even absent any showing of actual prejudice,” the fact that defense counsel apparently was aware that the jury was unsworn and did not bring this to the court's attention served as a factor in the appellate court's determination to uphold swearing the jury at such a late stage.
. The oath given was as follows:
. An Alabama statute requires that no criminal case shall be reversed by any defect in the administration of the jury oath unless an objection was made during the progress of the trial. Deramus, 1998 WL 351582, at *2, 721 So.2d at 244.