(dissenting).
{40} The right to a sworn jury in a criminal trial is fundamental to our system of justice. Without expressly rejecting our case law, and by ignoring our mandatory rule, the majority puts New Mexico on the jurisprudential map as the only state in the union where a jury in a criminal case does not have to be sworn before deliberations commence. Its willingness to uphold a conviction by an unsworn jury is without precedent in American jurisprudence. Even more disturbing is the majority’s decision to punish Defendant for his attorney’s questionable tactic without any evidence that he participated in or was aware of that tactic. Therefore, I dissent.
{41} The effect of today’s decision is to relegate a fundamental right to the status of a mere formality or technicality that can be ignored. As the Court of Appeals stated in State v. Apodaca, 105 N.M. 650, 654, 735 P.2d 1156, 1160 (Ct.App.1987), overruled on other grounds by State v. Garcia, 110 N.M. 419, 422, 796 P.2d 1115, 1118 (CtApp.1990), “[A] jury’s oath is not a mere formality....” With a remarkable degree of consensus, courts across the nation agree that swearing the jury is an integral, essential, fundamental component of a fair trial. See, e.g., State v. Godfrey, 136 Ariz. 471, 666 P.2d 1080, 1082 (Ariz.Ct.App.1983) (“[T]he juror’s oath is an essential element of the constitutional guarantee to a trial by an ‘impartial’ jury.”); People v. Pelton, 116 Cal.App.Supp. 789, 7 P.2d 205, 205 (Cal.App. Dep’t Super.Ct.1931) (“The jury must be impaneled and sworn to try a criminal case.”); State v. Martin, 198 Neb. 811, 255 N.W.2d 844, 848 (Neb.1977) (“[I]n criminal cases it is essential to the validity of the proceeding that the jury should be sworn.”); Commonwealth v. Banmiller, 393 Pa. 496, 143 A.2d 56, 57 (Pa.1958) (swearing of the jury is “fundamental in nature, and implicit in trial by jury”); 47 Am. Jur.2d Jury § 217 (1995) (“In criminal cases, it is essential to the validity of the proceeding that the jury be sworn....”)
{42} I am aware of no reported decision in any jurisdiction in the United States that has affirmed a conviction by an unsworn jury. To the contrary, all courts but ours treat a conviction by an unsworn jury as a nullity. See, e.g., Pelton, 7 P.2d at 205 (“A conviction by an unsworn jury is a nullity.”); Godfrey, 666 P.2d at 1082 (“[I]f the oath were not given at all we would have no hesitation in finding reversible error even absent any showing of actual prejudice.”); People v. Pribble, 72 Mich.App. 219, 249 N.W.2d 363, 366 (Mich.Ct.App.1977) (“[H]ad this trial proceeded to conclusion without a properly impaneled and sworn jury, any resulting conviction would have been invalid.”); Commonwealth v. Robinson, 317 Pa. 321, 176 A. 908, 909 (Pa.1935) (“[U]nless it affirmatively appears in a criminal case that the jury was sworn as to all defendants, the constitutional [right to trial by jury] is breached.”); Apodaca, 105 N.M. at 654, 735 P.2d at 1160 (“[A] complete failure to swear the jury cannot be waived and a conviction by an unsworn jury is generally held to be a nullity.” (emphasis added)).
{43} The purpose of the oath, especially in a criminal trial, is to awaken the conscience of the jury and impress upon the jurors the serious duty imposed upon them. See Rule 11-603 NMRA 1998. The oath is a “solemn promise on the part of each juror to do his [or her] duty according to the dictates of the law to see that justice is done.” Pribble, 249 N.W.2d at 366. It mandates “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.” Id. “Most importantly the oath serves as a safeguard of a criminal defendant’s fundamental constitutional right to a trial by an impartial jury.” Steele v. State, 446 N.E.2d 353, 354 (Ind.Ct.App.1983). In recognition of these principles, our Rules require administration of the oath prior to trial: “This oath or affirmation or any other oath or affirmation that generally complies with the requirements of Rule 11-603 of the Rules of Evidence must be administered with other pretrial instructions.” UJI 14-123 NMRA 1998 committee commentary (emphasis added).
{44} The oath must be given prior to jury deliberations. See, e.g., Apodaca, 105 N.M. at 654, 735 P.2d at 1160 (“[Wjhere the jury is sworn during trial, but prior to commencement of deliberations upon the verdict, the error does not warrant reversal in the absence of prejudice.” (emphasis added)); Godfrey, 666 P.2d at 1082 (affirming conviction where “jurors were sworn prior to their deliberations ” (emphasis added)). When members of the venire take the oath, then-status as jurors commences, collectively they become a jury, and double jeopardy attaches. See Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Prior thereto, they are only members of the venire and any conviction by them is a nullity. See Pelton, 7 P.2d at 205. '
{45} According to the majority,1 Defendant waived his right to a properly sworn jury. However, it is undisputed that his counsel requested that the jury be sworn when it was originally empaneled in Tierra Amarilla. The State objected, apparently preferring that the jury be sworn several days later in Santa Fe, and the empaneling judge agreed. When trial commenced with a different judge presiding, the jury was not sworn until after the verdict, and after Defendant’s counsel had alerted the trial court. Under these circumstances, Defendant did not waive his right to a sworn jury, but perhaps the State inadvertently invited this error.
{46} There is no evidence that Defendant knowingly and intelligently waived his right to a sworn jury.2 Cf. State v. Gilbert, 98 N.M. 530, 534, 650 P.2d 814, 818 (1982) (requiring voluntary, knowing, and intelligent relinquishment or abandonment before right to counsel is waived). The majority mistakenly points to Rule 16-104(B) NMRA 1998 as a basis for presuming Defendant was an active participant in his attorney’s trial tactic. This Rule only requires that a lawyer explain “general strategy and prospects of success” of litigation, not a trial tactic such as this one. Rule 104 comment (“[A] lawyer ordinarily cannot be expected to describe trial ... strategy in detail.”). More importantly, there is no evidence that any explanation of the tactic was ever given to the Defendant.
{47} Relying on Rule 16-102(D) NMRA 1998, the majority speculates that the Defendant approved the tactic of his attorney. However, this rule forbids an attorney from misleading the court or counseling a client to mislead the court. The comment to the rule does not require an attorney to “discuss the legal consequences” of misleading the court, since the attorney is specifically forbidden from engaging in such conduct. How any of this establishes that such communications occurred is unclear, and certainly is not established by the record.
{48} Finally, and speculatively, the majority finds it significant that the Defendant filed numerous pro se motions and therefore was a party to his attorney’s trial tactic. It neglects to state that the Defendant’s first lawyer urged him to stop this activity because they were “not good motions and ... [were] significantly impairing [his] defense.” Again, the filing of pro se motions is hardly evidence of a knowing and intelligent waiver of the fundamental right to be tried by a sworn jury. Cf. Gilbert, 98 N.M. at 534, 650 P.2d at 818.
{49} The majority places the burden on Defendant to prove that he did not waive his constitutional right to a sworn jury, and that the appropriate method for litigating this issue is by a habeas corpus proceeding, not by a direct appeal. (See Maj. op. at 296 n. 2.) However, our case law instructs that it will never be presumed that a criminal defendant waived a fundamental constitutional right. See, e.g., State v. Lewis, 104 N.M. 218, 221, 719 P.2d 445, 448 (Ct.App.1986) (Without “clear showing” of waiver of fundamental constitutional right, “the court on appeal will indulge in every reasonable presumption against the waiver of [the] right, and will not presume acquiescence in its loss.” (emphasis added)). To establish the waiver of a fundamental constitutional right, the State must carry a heavy burden of proving a knowing and intelligent relinquishment of that right. See State v. Boeglin, 100 N.M. 127, 133, 666 P.2d 1274, 1280 (Ct.App.1983) (“[T]he burden of proof to establish a waiver of a constitutional right rests upon the State.... [T]he record [must] indicate[ ] a defendant’s clear manifestation by words and actions of a voluntary choice.”); see also Lewis, 104 N.M. at 220, 719 P.2d at 447 (“The constitutional right to the assistance of counsel remains with an accused until it is affirmatively shown in the record that defendant’s right has been intelligently, understanding^ and competently waived by him.”). Furthermore, the trial court was duty-bound to empanel a sworn jury prior to jury deliberations, irrespective of counsel’s silence.3 See UJI 14-123 committee commentary (requiring administration of oath “with other pretrial instructions” (emphasis added)).
{50} Relying on Bouldin v. Cox, 76 N.M. 93, 98, 412 P.2d 392, 395 (1966), the majority asserts that the waiver issue should be raised in a habeas corpus proceeding rather than on direct appeal. In Bouldin, after being advised of his right to counsel, the defendant declared three times in open court that he did not want counsel. See id. On this basis, the trial court found that he had waived his right to counsel. See id. Finding substantial evidence to support the waiver, we denied habeas corpus relief.
{51} Bouldin does not require that the right to counsel issue be litigated in a habeas proceeding. Ironically, in Apodaca, which is cited or relied upon repeatedly by the majority, the sworn jury issue was raised on direct appeal, as it is here on a writ of certiorari. 105 N.M. at 651, 735 P.2d at 1157. Further, unlike Bouldin, where the defendant’s own words established a clear waiver, the only basis here for finding a waiver was counsel’s trial tactic.
{52} The effect of today’s ruling is to deprive Defendant of a fair trial because of his counsel’s conduct and to ignore Apodaca’s admonition that “a complete failure to swear the jury [before deliberations] cannot be waived ...” 105 N.M. at 654, 735 P.2d at 1160. Arguably, counsel may have violated his obligation to perform competently by not insisting that the jury be sworn at the commencement of trial or at least prior to deliberations. Rule 16-101 NMRA 1998 (competence). He may also have violated his obligation of candor toward the court. Rule 16-303(A) NMRA 1998 (candor toward the tribunal). Indeed, he may be subject to sanctions under our Disciplinary Rules. But in the absence of evidence that Defendant knowingly participated in this tactical decision, there is no constitutional or legal justification to deny him a properly sworn jury.
{53} The issue of the propriety of defense counsel’s conduct is separate from the question of whether an unsworn jury’s “verdict” is valid. His tactical decision does not alter the fact that no oath was administered prior to deliberations, as required by our Rule 14-123, the reasoning of Apodaca, 105 N.M. at 654, 735 P.2d at 1160, and every other decided case in the United States.
{54} There will seldom be evidence that the client has participated in trial tactics of counsel. But the answer to this void is not a radical departure from due process. The price for adhering to principle and the established law here is the cost of a new trial, but this cost is minuscule when compared to the deprivation of one of Defendant’s fundamental rights. We must not affirm a conviction at any price, but instead be vigilant in the defense of our constitutional rights, one of them being the right to a fair trial. By attributing the tactics and strategy of his counsel to the Defendant the majority has deprived the Defendant of due process of law.
{55} Therefore, I respectfully DISSENT.
MINZNER, J., concurs.. The argument of the concurrence that the Defendant failed to timely object is but another way of saying that Defendant waived his right to object on appeal because he did not “preserve” the error. In addition, both the majority and the concurrence strongly rely on counsel's failure to timely alert the trial court of the error. For these reasons, any reference to "the majority” includes the Special Concurrence.
. With respect to the concurrence's similar preservation argument, we point out that any timely objection would have resulted in the jury’s being sworn. Bringing the error to the court's attention before deliberations would certainly result in the court's swearing the jury. Thus, as a practical matter, there would be no "error” for review on appeal. Where the violation of a right is virtually immune from review, the right is illusory-
. The trial court recognized this duty: "This court accepts the responsibility for the jury not being sworn in.”