The court declined to do either. Defense counsel then moved for a mistrial, relying on State v. Barone, 329 Or. 210, 986 P.2d 5 (1999), cert den 528 U.S. 1086 (2000). The trial court denied that motion as untimely, and sentenced defendant.

Second, in multiple decisions since Miller , this court has continued to review the question of prejudice under ORS 132.560(3) as a question of law—including as recently as 2019. See State v. Taylor , 364 Or. 364, 378, 434 P.3d 331, cert. den. , ––– U.S. ––––, 140 S. Ct. 505, 205 L.Ed.2d 321 (2019) (explaining that "[w]e review for errors of law the trial court's determination that the joinder will not result in substantial prejudice"); see also State v. Barone , 329 Or. 210, 217, 986 P.2d 5 (1999), cert. den. , 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) (same); State v. Thompson , 328 Or. 248, 257, 971 P.2d 879, cert. den. , 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999) (same). For those reasons, we decline to reconsider the standard by which we review substantial prejudice under ORS 132.560(3).

We do not address defendant's argument under the Eighth Amendment, because he did not raise it below. See State v. Barone, 329 Or. 210, 243 n 23, 986 P.2d 5 (1999) (declining to address argument made for first time on review). We also conclude that the argument does not reflect error apparent on the face of the record, because it does not raise an error of law that is obvious.

Defendant responded to the state's motion by arguing that the premise of the state's argument—that Orren had a Fifth Amendment privilege to invoke—was false. Relying on State v. Barone , 329 Or. 210, 986 P.2d 5 (1999), defendant argued that because Orren had already entered a guilty plea, he was no longer in jeopardy and, therefore, did not retain his constitutional privilege against being compelled to testify. Moreover, defendant argued, Orren had specifically waived his constitutional privilege in the plea agreement.

” Id. Moreover, a defendant must explain “what specific prejudice arose from the joinder of [the] charges.” State v. Barone, 329 Or. 210, 217, 986 P.2d 5 (1999), cert. den.,528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) (decided in context of a previous version of the statute that referred only to “prejudice”). General arguments of prejudice that could be made in any case in which charges are joined are not sufficient to demonstrate substantial prejudice when the defendant fails to relate those arguments to the specific facts of the defendant's case.

State v. Levy, 156 Wash.2d 709, 732, 132 P.3d 1076 (2006); Lougin, 50 Wash.App. at 381, 749 P.2d 173 (“In general, a claim of privilege may be raised only against specific questions, and not as a blanket foreclosure of testimony.”). When a person has been convicted of a crime and there is no longer any possibility of appeal, the Fifth Amendment privilege no longer exists because there is no potential jeopardy for testifying. State v. Barone, 329 Or. 210, 231, 986 P.2d 5 (1999), cert. denied,528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000); 1 McCormick on Evidence § 121 at 527 (Kenneth S. Broun ed., 6th ed.2006) (absent some specific showing that collateral attack is likely to succeed, most courts treat finality of conviction as unqualifiedly removing the risk of incrimination). ¶ 23 It is the duty of the trial judge to determine if privileged information is sought.

I need not reproduce Turrietta's constitutional discussion here, but its summary of the constitutional analysis will suffice to show that it supports my conclusion: See, e.g., State v Barone, 329 Or 210, 226; 986 P2d 5 (1999) ("The jury oath is designed to vindicate a defendant's fundamental constitutional rights to a fair trial before an impartial jury."); State v Godfrey, 136 Ariz 471, 473; 666 P2d 1080 (Ariz App, 1983) ("[T]he juror's oath is an essential element of the constitutional guarantee to a trial by an 'impartial' jury."); Steele v State, 446 NE2d 353, 354 (Ind App, 1983) ("Most importantly the oath serves as a safeguard of a criminal defendant's fundamental constitutional right to trial by an impartial jury."); Commonwealth v Banmiller, 393 Pa 496, 497; 143 A2d 56 (1958) (swearing of the jury is "fundamental in nature, and implicit in trial by jury"); Howard v State, 80 Tex Crim 588, 592; 192 SW 770 (1917) ("[The defendant tried by an unsworn jury] was deprived of a constitutional as well as a statutory right."); Slaughter v State, 100 Ga 323, 330; 28 SE 159 (1897) ("[A] conviction by an unsworn jury is a mere nullity . . . ."); see also 47 Am Jur 2d, Jury, § 192, pp 803-804;

In particular, In State v. Barone, 329 Or. 210, 986 P.2d 5 (1999), cert. den., 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000), this court upheld the trial court's decision denying the defendant's motion to sever three homicides for which the defendant was indicted. However, the trial court in that case required that the prosecution “build a ‘fire wall’ between the three cases and to ‘present the cases totally separately.’ ” Id. at 216, 986 P.2d 5. Prosecutors in Barone made three separate opening and closing arguments; each case was presented separately.

" See also People v. Pelton, 116 Cal.App. Supp. 789, 792, 7 P.2d 205 (1931) (Where the jury was never sworn, the defendant was denied his right to "a legally constituted jury"); Spencer v. State, 281 Ga. 533, 534, 640 S.E.2d 267, 268 (2007), certiorari denied, ___ U.S. ___, 127 S.Ct. 2914, 168 L.Ed.2d 243 (2007) (An unsworn jury is not a "legally constituted" jury); Sides v. State, 693 N.E.2d 1310, 1312 (Ind. 1998) ("[T]he oath serves the dual function of impressing upon the jury the solemness of the trial and ensuring a defendant's right to an impartial jury"); Miller v. State, 122 Miss. 19, 37, 84 So. 161, 161 (1920) (Since the jury was not sworn before or during the evidentiary portion of the trial, the court held that "the appellant was denied his right of a fair trial by a legal jury"); State v. Mitchell, 199 Mo. 105, 108, 97 S.W. 561, 562 (1906) ("[T]he tribunal [cannot] be considered as lawfully constituted unless the jurors . . . take [the] oath"); State v. Barone, 329 Or. 210, 226, 986 P.2d 5, 17 (1999), certiorari denied, 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) ("The jury oath is designed to vindicate a defendant's fundamental constitutional rights to a fair trial before an impartial jury"); State v. Moore, 57 W.Va. 146, 148, 49 S.E. 1015, 1016 (1905) ("[A] person cannot be legally convicted unless . . . the jury which tried the case were sworn"). Consequently, the failure to administer the oath to the jurors in the case at bar was clearly error.

OEC 401 establishes a "very low threshold" for the admission of evidence. State v. Barone, 329 Or 210, 238, 986 P2d 5 (1999), cert den, 528 US 1086 (2000). Evidence is relevant "so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action."