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Maryland Court of Appeals Announces, When Requested, Trial Courts Must Ask During Voir Dire Whether Jurors Will Follow Court’s Instructions on Presumption of Innocence, Burden of Proof, and Right Not to Testify

by Douglas Ankney

On January 24, 2020, the Court of Appeals of Maryland announced that henceforth trial courts, when requested, must ask potential jurors during voir dire if any of them are unwilling or unable to follow the court’s instructions on the presumption of innocence, the burden of proof, and the right not to testify. In so doing, the Court of Appeals expressly overruled Twining v. State, 198 A.2d 291 (Md. 1964), which held that courts need not ask such questions of potential jurors.

Prior to jury selection for Tshibangu Kazadi’s murder trial, the defense asked the trial court to ask potential jurors the following questions during voir dire: (1) “Are there any of you who would be unable to follow and apply the Court’s instructions on reasonable doubt in this case?”; (2) “Is there a member of the jury panel who would hesitate to render a verdict of not guilty if you had [sic] hunch that the Defendant had committed the alleged crime, but were not convinced of that fact beyond a reasonable doubt?”; (3) “Is there any member of the jury panel who would be unable to give the Defendant the benefit of the presumption of innocence?”; and (4) “Does any prospective juror believe that the Defendant has a duty or responsibility to testify, or that the Defendant must be guilty merely because the Defendant may refuse to testify?”

The judge refused to ask the questions, stating, “Those are covered adequately in the instruction portion of the case and I think are covered in other questions that [I] ask.” Kazadi was convicted. On appeal, he argued, inter alia, that the trial court abused its discretion when it declined to ask the questions. The Court of Special Appeals, relying on Twining, affirmed. The Court of Appeals then granted Kazadi’s petition for a writ of certiorari.

Reviewing for abuse of discretion, the Court observe that “[s]ince 1851, the Constitution of Maryland has stated: ‘In the trial of all criminal cases, the jury shall be the judges of law as well as fact.’” For over 100 years afterward, trial courts commonly instructed juries that the jurors themselves were the judges of the law and the facts, and that jury instructions given by the court were “advisory only.” Vogel v. State, 162 A. 705 (Md. 1932). 

It was within this background that Twining was decided. In Twining, the Court held that the “trial court did not abuse its discretion in declining a defendant’s request to ask during voir dire whether the prospective jurors ‘would give the [defendant] the benefit of the presumption of innocence and the burden of proof.’” The Twining Court reasoned: “The rules of law [that were] stated in the proposed questions were fully and fairly covered in subsequent instructions to the jury. It is generally recognized that it is inappropriate to instruct on the law [during voir dire], or to question the [prospective jurors] as to whether or not they would be disposed to follow or apply stated rules of law.... This would seem particularly true in Maryland, where the [jury] instructions are only advisory.” 

But there had been substantial changes in the law since Twining was decided, as well as a significant increase in the Court’s understanding of the minds of jurors. For instance, 16 years after Twining was decided, the Court held that juries did not have “the power to decide all matters that may be correctly included under the generic label ‘law.’ Rather, [a jury’s] authority is limited to deciding the law of the crime, or the definition of the crime, as well as the legal effect of the evidence before the jury.” Stevenson v. State, 423 A.2d 558 (Md. 1980). “[A]ll other aspects of law (e.g., the burden of proof, the requirement of unanimity, the validity of a statute) are beyond the jury’s pale, and … the [jury instructions] on these matters are binding upon that body.” Id.

A year later, in Montgomery v. State, 437 A.2d 654 (Md. 1981), the “Court observed that fundamental rights, such as the presumption of innocence, the burden of proof, and the right not to testify, ‘are not the law of the crime; they are not advisory .... They are binding. They are the guidelines of due process to which every jury is required to adhere.”

Additionally, it could no longer be said, as the Twining Court did, that it “is generally recognized that it is inappropriate to instruct on the law [during voir dire], or to question the [prospective jurors] as to whether or not they would be disposed to follow or apply stated rules of law.” Kentucky, Illinois, New Hampshire, Louisiana, Missouri, New Jersey, Florida, and the U.S. Court of Appeals for the Sixth Circuit have all held that prospective jurors may be asked during voir dire whether they are unable or unwilling to follow the court’s instructions regarding the prosecution’s duty to prove guilt beyond a reasonable doubt, the defendant’s presumption of innocence, and the fact that the jury cannot hold it against a defendant for not testifying or “telling his side of the story.” [See Court opinion for listing of supporting citations from those other jurisdictions.] 

Furthermore, when Twining was decided, no empirical studies had been done to evaluate jurors’ abilities to comprehend a court’s instructions or their willingness to follow them. But beginning in the 1970s, studies “have consistently revealed comprehension levels at or below fifty percent for samples of actual and mock jurors for a wide range of [jury] instructions[.] including [jury] instructions on the reasonable doubt rule.... Less than a third ... understood the burden of proof. Other studies ... [found] comprehension error rates ranging between twenty percent and fifty percent.” The Rhetoric of Innocence, 70 Wash. L. Rev. 329 (1995).

Based on these changes in the law and the increase in the knowledge of jurors’ minds in following instructions, the Court concluded that the reasoning of Twining is no longer valid.

While the doctrine of stare decisis requires a court to follow earlier judicial decisions on the same points raised again in later litigation, the doctrine is not absolute. Meyer v. State, 128 A.3d 147 (Md. 2015). When, as in the case at bar, changes in conditions or increases in knowledge have made the precedent “unsound in the circumstances of modern life, a vestige of the past, and no longer suitable to the people,” a reviewing court may overrule the precedent. Wallace v. State, 158 A.3d 521 (Md. 2017). On that reasoning, the Court overruled Twining.

However, the Court recognized that all federal circuits except the Sixth, as well as courts in other states, continue to abide by the rule that trial courts do not have to honor a defendant’s request that the questions at issue be asked during voir dire. Nevertheless, the Court concluded that voir dire questions concerning longstanding fundamental rights, such as the right to be presumed innocent, not to testify, and not be found guilty until proven beyond a reasonable doubt, helps to “safeguard a defendant’s right to be tried by a fair and impartial jury.” Voir dire is the most appropriate place to ask these questions to uncover any possible bias, and it’s an abuse of discretion for a trial court to refuse to ask them, the Count explained.

In Maryland, the sole purpose for voir dire of the jury is to uncover bias and not to aid attorneys in exercising peremptory strikes. Collins v. State, 205 A.3d 1012 (Md. 2019). The Court also emphasized that defendants must request these questions be asked, and the trial courts are under no obligation to raise them sua sponte. The Court also explicitly stated “our holding exclusively applies to this case and future trials, and this opinion should not be construed as giving rise to any grounds for relief in cases in which voir dire occurred before today....” 

Accordingly, the Court of Appeals reversed the judgment of the Court of Special Appeals and remanded to that court with instructions to remand to the circuit court for a new trial. See: Kazadi v. State, 2020 Md. LEXIS 15 (2020). 

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Kazadi v. State



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