2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 1 - In General
§ 15-12-139. Oath in Criminal Case

In all criminal cases, the following oath shall be administered to the trial jury:

"You shall well and truly try the issue formed upon this bill of indictment (or accusation) between the State of Georgia and (name of accused), who is charged with (here state the crime or offense), and a true verdict give according to the evidence. So help you God."

The judge or clerk shall administer the oath to the jurors.

(Laws 1833, Cobb's 1851 Digest, p. 836; Code 1863, § 4536; Code 1868, § 4556; Code 1873, § 4650; Code 1882, § 4650; Penal Code 1895, § 979; Penal Code 1910, § 1005; Code 1933, § 59-709; Ga. L. 1978, p. 910, § 1; Ga. L. 2011, p. 59, § 1-54/HB 415.)

- Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

ANALYSIS

• General Consideration
• Method
• Timing
• Other

Former Penal Code 1895, § 979 (see now O.C.G.A. § 15-12-139) prescribed oath for jurors in criminal cases, while former Penal Code 1895, § 856 (see now O.C.G.A. § 15-12-138) applied to civil cases. Taylor v. State, 121 Ga. 348, 49 S.E. 303 (1904); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976).

Oath prescribed in this section is the only oath designed for jurors in criminal cases. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948).

Oath is presumed legal. Hammond v. Candler, 22 Ga. 281 (1857).

- If oath deviates from one prescribed, the defendant should object and acquiescences until after the verdict is a waiver of the objection. Smith v. State, 63 Ga. 168 (1879); Slaughter v. State, 100 Ga. 323, 28 S.E. 159 (1897).

- Failure to administer any oath cannot be waived. Slaughter v. State, 100 Ga. 323, 28 S.E. 159 (1897).

In a criminal case, a total failure to swear the jury to try the particular case is a matter which cannot, in any manner or under any circumstances, be waived. Culpepper v. State, 132 Ga. App. 733, 209 S.E.2d 18 (1974).

Conviction by an unsworn jury is a nullity and a defendant may not waive the failure to administer the oath even if the defendant failed to object. Keller v. State, 261 Ga. App. 769, 583 S.E.2d 591 (2003).

- Mere fact that record does not show whether or not the oath was administered is not sufficient to constitute reversible error. Copeland v. State, 139 Ga. App. 55, 227 S.E.2d 850 (1976).

When the record did not indicate whether the jury had been sworn or not, the matter had to be remanded for completion of the record on this point. Keller v. State, 261 Ga. App. 769, 583 S.E.2d 591 (2003).

On appeal from a stalking conviction, because the record failed to show that the oath was not administered to the jury, no reversible error existed, and the appeals court had to presume that the jury was sworn. Benton v. State, 286 Ga. App. 736, 649 S.E.2d 793 (2007), cert. denied, No. S07C1825, 2007 Ga. LEXIS 753 (Ga. 2007).

Although the defendant complained that the record did not reflect whether the jury was sworn pursuant to O.C.G.A. § 15-12-139, which required that the judge or clerk of court administer the oath to the trial jury in every criminal case, the Georgia courts had consistently held that the failure of the record to reflect whether the jury was sworn did not constitute reversible error. A fear that the oath may not have been given had to be met with the rule that, unless shown otherwise, the trial court was presumed to have followed the law. Bynum v. State, 300 Ga. App. 163, 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010).

Trial court properly concluded that the O.C.G.A. § 5-6-41(f) hearing was held and that the O.C.G.A. § 15-12-139 oath was properly administered when: (1) the defendant did not move to correct the record; (2) unless otherwise shown, the trial court was presumed to have followed the law; (3) although the defendant initially made that objection at the hearing on the motion for new trial, the defendant subsequently acquiesced in the trial court's hearing of the issue at that time, and was granted the opportunity for a second hearing, at which the defendant presented an additional witness; and (4) the trial court credited the prosecutor's distinct memory that the trial court did, in fact, swear the jury. Hill v. State, 291 Ga. 160, 728 S.E.2d 225 (2012).

- Absent any showing of actual prejudice, the Court of Appeals is not inclined to reverse a conviction because the voir dire was not conducted under oath if no objection was made below. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981).

- Retrial after a not guilty finding by an unsworn jury was not barred by the double jeopardy principles under both the U.S. and Georgia Constitutions as the jury lacked any authority to pass upon any of the issues at trial, and hence, could not make any determinations whatsoever as to the defendant's guilt or innocence. Spencer v. State, 281 Ga. 533, 640 S.E.2d 267, cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243 (2007).

Cited in Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931); Burke v. State, 76 Ga. App. 612, 47 S.E.2d 116 (1948); Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948); Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960); Garrett v. State, 120 Ga. App. 611, 171 S.E.2d 772 (1969); Smith v. State, 235 Ga. 852, 221 S.E.2d 601 (1976); Aldridge v. State, 153 Ga. App. 744, 266 S.E.2d 513 (1980); Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981); Pressley v. State, 158 Ga. App. 638, 281 S.E.2d 364 (1981); Ferguson v. State, 163 Ga. App. 171, 292 S.E.2d 87 (1982); Monteford v. State, 162 Ga. App. 491, 292 S.E.2d 93 (1982); Millis v. State, 196 Ga. App. 799, 397 S.E.2d 71 (1990); Calhoun v. Purvis, 206 Ga. App. 565, 425 S.E.2d 901 (1992).

Method

Evidence of oath's administration.

- Stipulation by defendant's counsel that the jury had been sworn in was part of the record and affirmatively showed that the oath was administered. Bevil v. State, 220 Ga. App. 1, 467 S.E.2d 586 (1996).

- It is not error to administer oath to all jurors at once. Roberts v. State, 65 Ga. 430 (1880); Brown v. State, 141 Ga. 5, 80 S.E. 320 (1913).

- In a bifurcated proceeding for malice murder and possession of a firearm by a convicted felon, since the trial court administered the prescribed oath to the jury prior to trial of the murder charge, instructing the jury that the purpose of the oath was "to try the issues of this case," the possession charge was tried immediately following the return of the guilty verdict on the murder charge, and the trial court did not discharge the jury at any time during the proceedings, there was no error. Booker v. State, 257 Ga. 37, 354 S.E.2d 425 (1987).

- Record on appeal supported the finding that the trial court properly swore in the jury, and, thus, defendant's convictions could not be reversed on the ground that the jury was not properly sworn in. Keller v. State, 271 Ga. App. 79, 608 S.E.2d 697 (2004).

Reversal of the defendant's convictions was not required merely because the trial court did not swear in the jury until the jury had first given some preliminary instructions to the jury as the oath required by O.C.G.A. § 15-12-139 need only be administered to the jury prior to the presentation of any evidence. Thomas v. State, 282 Ga. App. 522, 639 S.E.2d 531 (2006).

At the close of the evidence, the trial court, realizing that the court had failed to administer the jury oath, administered the oath to the jurors and instructed the jurors that the oath applied to all of the proceedings. As the corrective measures taken by the trial court were sufficient to ensure a fair trial, and the defendant did not show prejudice, the error was harmless. Fedd v. State, 298 Ga. App. 508, 680 S.E.2d 453 (2009), cert. denied, No. S09C1776, 2009 Ga. LEXIS 793 (Ga. 2009).

Timing

Absent showing of actual prejudice, no reversible error in belated jury oath given after state presented case.

- In the absence of a showing of actual prejudice, there was no reversible error in giving a belated jury oath under O.C.G.A. § 15-12-139 after the state's case but prior to the jury's deliberations, although the better practice would be to give the oath as soon as the jury was empaneled. Adams v. State, 286 Ga. 496, 690 S.E.2d 171 (2010).

- It is not error to postpone swearing jurors until full panel is obtained. Roberts v. State, 65 Ga. 430 (1880); Brown v. State, 141 Ga. 5, 80 S.E. 320 (1913).

- Use of the word "shall" in former Code 1933, §§ 59-704.1 and 59-709 (see now O.C.G.A. §§ 15-12-132 and15-12-139) and the change in former Code 1933, § 59-709 to specify that the judge or clerk shall administer the oath to the jurors, indicated that the legislature intended that the judge was required to administer the oath to the jurors prior to voir dire examination. Ates v. State, 155 Ga. App. 97, 270 S.E.2d 455 (1980).

It was not reversible error when the trial court failed to administer the jury oath until after the first question was asked of the jury since the trial court then administered the oath and resumed questioning of the jury without repeating the first question; although this created an irregularity in the giving of the oath, there was not a total failure to administer the oath. Atkins v. State, 253 Ga. App. 169, 558 S.E.2d 755 (2002).

- Even though the oath was given during the prosecutor's opening statement, the court did not commit reversible error since no objection to the procedure was interposed and there was no showing of actual prejudice. Marshall v. State, 266 Ga. 304, 466 S.E.2d 567 (1996).

- Because the jury was not administered the petit oath prior to beginning deliberations and, indeed, was not sworn until the jury had almost rendered a verdict, the jury was "fatally infirm," the trial was a mere nullity, and the grant of the defendant's motion for a new trial was proper. State v. Desai, 337 Ga. App. 873, 789 S.E.2d 222 (2016).

For decisions holding that swearing of jury may be postponed until after selection, see Smith v. State, 63 Ga. 168 (1879); Gamble v. State, 141 Ga. App. 304, 233 S.E.2d 264 (1977).

- In a criminal case, there is a procedural requirement that a Batson motion (motion under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)) be made subsequent to the selection of jurors but prior to the trial jury being sworn pursuant to O.C.G.A. § 15-12-139. Strozier v. Clark, 206 Ga. App. 85, 424 S.E.2d 368 (1992).

Other

Substitution of indictment permissible.

- If on a prosecution for the offense of rape, after a plea of not guilty had been entered on an indictment, and after the voir dire questions had been propounded to a panel of 12 jurors, but before any of the jurors had been sworn in chief, the solicitor general (now district attorney) stated to the court that the clerk had handed to the solicitor general the wrong indictment, and that the solicitor general wished to withdraw the one on which such plea had been entered and to substitute a different indictment in which a different female was named as the "alleged victim," defendant's motion for mistrial was properly overruled, and the case taken to trial upon the substituted indictment. Fields v. State, 190 Ga. 642, 10 S.E.2d 33 (1940).

- Defendant's trial counsel was not ineffective in failing to request that the trial court give preliminary instructions regarding the presumption of innocence, reasonable doubt, or the burden of proof, because these doctrines were presented in the trial court's charge at the close of evidence, as required by O.C.G.A. § 5-5-24(b), allowing the jury to fulfill the jury's responsibilities under O.C.G.A. § 15-12-139. Decapite v. State, 312 Ga. App. 832, 720 S.E.2d 297 (2011).

- The United States of America did not prejudice a non-citizen defendant nor indicate that the jurors were pro-state; rather, a juror's willingness to recite the Pledge of Allegiance, with its reinforcement of the concepts of "liberty and justice for all," showed no bias, either for the state, or for one who was charged by the state with a crime, and, in fact, was more likely to remind a juror of his or her obligations in the pursuit of justice. Robles v. State, 277 Ga. 415, 589 S.E.2d 566 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, § 191 et seq.

- 50A C.J.S., Juries, § 520 et seq.