THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
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VOLUME 2 - CHAPTER 10
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10.3 Swearing Or Impaneling the Jury

    10.3.1 Pre-Oath Instruction Emphasizing The Solemnity Of The Oath
    10.3.2 Swearing Of Jury: Oath Cannot Be Waived
    10.3.3 Swearing of Jury: Oath Should Be Given By Judge

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 2 - CHAPTER 10

    10.3.1    Pre-Oath Instruction Emphasizing The Solemnity Of The Oath

RATIONALE: It is essential that the jurors be impressed with the importance of their duty as reflected by the juror oath. Pro forma administration of the oath by a court clerk rather than the judge may reduce the jury's sense of duty.

POINTS AND AUTHORITIES: The jury oath is such a critical stage of the trial that failure to properly administer it may be reversible error per se. (See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 424.) Hence, special consideration to the oath is warranted to avoid it being viewed by the jurors a simply a pro forma matter:

    "In many courts the oath to the jurors has become a pro forma matter. Some judges ask the clerk or bailiff to administer the oath. This marks a departure from a time when the oath played a more important role in courtroom proceedings. Whatever the reason for the diminished stature of the oath, the fact remains that if the oath is carefully administered to prospective jurors or alternates, it may serve to awaken their consciences to the importance of the task assigned to them. Even if every biased juror will not come forward and admit a preconception, some may do so as a result of taking an oath administered by a judge who evinces concern about it." (ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS, comment to 1.01 (Alaska Bar Association, 1987).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

RESEARCH NOTES:

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See also Benchbook For U.S. District Court Judges [7.08.2.16 Oath To Jurors In Criminal Case].

SAMPLE INSTRUCTION:

    You are about to be called upon to take your oath as a juror.  I want to impress upon you the importance and seriousness of this oath.  Our jury system depends on your diligent efforts to follow the oath and upon your individual honesty and integrity.  By taking the oath you are affirming that:

    1.    Your answers to questions put to you concerning your qualifications to sit on this jury were complete and correct. 

    2.    You are truly impartial in this case. 

    3.    There is nothing to your knowledge that I or the parties should know about your ability to sit as a juror in this case. 

    If you have any concerns about your ability to take this oath please raise your hand and I will discuss it with you privately.

[Source: NCJIC.]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 2 - CHAPTER 10

    10.3.2    Swearing Of Jury: Oath Cannot Be Waived

PRACTICE NOTE: The juror oath or affirmation, and the solemn impartiality it intends to instill, is an essential feature of a trial by jury which cannot be waived. "The jurors must be sworn, or be allowed to affirm, for the particular case to be tried and, until that time, there is no lawful jury by which the defendant can be tried. If a separate trial is granted to one of two defendants after the jury is sworn, the jury must be resworn." [Footnotes omitted.] (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 424, pp. 744-45.) "[T]he failure entirely to administer an oath cannot be waived." (Ibid.)

RESEARCH NOTES:

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See also Benchbook For U.S. District Court Judges [7.08.2.16 Oath To Jurors In Criminal Case].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 2 - CHAPTER 10

    10.3.3    Swearing Of Jury: Oath Should Be Given By Judge

PRACTICE NOTE: The concepts of justice and impartiality are most visibly and symbolically present in the role and person of the judge. (See generally NCJIC 300.24 [Right To Presence Of Trial Judge].) Therefore, since the juror oath is intended to awaken that very sense of justice and impartiality, it should be administered personally by the judge. Delegating this task to a lesser court official may create the impression that the solemnity and integrity of the jury is also somehow less important. (See NCJIC 10.3.1 [Preoath Instruction Emphasizing The Solemnity Of The Oath].)

RESEARCH NOTES:

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See also Benchbook For U.S. District Court Judges [7.08.2.16 Oath To Jurors In Criminal Case].