Tshibangu Kazadi v. State of Maryland, No. 11, September Term, 2019

VOIR DIRE – FUNDAMENTAL RIGHTS – PRESUMPTION OF INNOCENCE –

BURDEN OF PROOF – RIGHT NOT TO TESTIFY – STARE DECISIS –

SIGNIFICANT CHANGES IN LAW AND FACTS – DISCOVERY – CROSSEXAMINATION – IMMIGRATION STATUS – In 1964, fifty-five years ago, in 

Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 (1964), Court of Appeals held that 

voir dire questions concerning jury instructions were not appropriate. Thus, voir dire

questions concerning jurors’ ability and willingness to follow jury instructions on 

fundamental principles of presumption of innocence, burden of proof, and defendant’s right 

to remain silent were not permitted. Given opportunity to review this issue and upon 

thorough consideration of recent developments—most importantly, Court’s subsequent 

holdings in Stevenson v. State, 289 Md. 167, 179-80, 423 A.2d 558, 565 (1980) and 

Montgomery v. State, 292 Md. 84, 91, 437 A.2d 654, 658 (1981), that instructions as to 

law are binding and not advisory only—Court determined that holding in Twining is based 

on outdated reasoning and has been superseded by significant changes in law. 

As such, to extent that Court held in Twining that it is inappropriate to ask on voir dire

questions concerning presumption of innocence, burden of proof, and defendant’s right to 

remain silent, Court overruled that holding and concluded that, on request, during voir dire, 

trial court must ask whether any prospective jurors are unwilling or unable to comply with 

jury instructions on fundamental principles of presumption of innocence, burden of proof, 

and defendant’s right not to testify.

Court also held that, absent additional circumstances—such as allegations of quid pro quo

or leniency in immigration case—State’s witness’s status as undocumented immigrant, or 

person subject to deportation order, does not show character of witness for untruthfulness

or demonstrate motive to testify falsely. Without more, State’s witness’s status as 

undocumented immigrant, or person subject to deportation order, is not required to be 

disclosed by prosecutor during discovery and is not proper subject of cross-examination.
IN THE COURT OF APPEALS

OF MARYLAND

No. 11

September Term, 2019

______________________________________

TSHIBANGU KAZADI

v.

STATE OF MARYLAND

______________________________________

Barbera, C.J.

McDonald

Watts

Hotten

Getty

Booth

Wilner, Alan M. (Senior Judge, 

Specially Assigned),

JJ.

______________________________________

Opinion by Watts, J.

McDonald, Hotten, and Getty, JJ., dissent in 

part.

______________________________________

Filed: January 24, 2020

Circuit Court for Baltimore City

Case No. 116042016

Argued: October 7, 2019
This case presents another in a series of questions about the voir dire process in 

Maryland. In recent years, this Court has addressed matters concerning the proper form of 

voir dire questions and whether certain questions, when requested, are mandatory. See

Pearson v. State, 437 Md. 350, 354, 86 A.3d 1232, 1234 (2014); Collins v. State, 463 Md. 

372, 379, 205 A.3d 1012, 1015-16 (2019). In this case, we must decide whether, upon 

request, a trial court must ask voir dire questions concerning a prospective juror’s ability 

to follow jury instructions on the long-standing fundamental principles of the presumption 

of innocence, the burden of proof, and a defendant’s right to remain silent.

Fifty-five years ago, in Twining v. State, 234 Md. 97, 100, 198 A.2d 291, 293 

(1964), this Court held that a trial court need not ask during voir dire whether any 

prospective jurors would be unwilling to follow jury instructions on the presumption of 

innocence and the State’s burden of proof. In the decades between then and now, this Court 

has never before expressly addressed whether Twining remains good law.

In this case, for the first time, we are explicitly asked to reexamine Twining. And,

as another matter, we must also determine whether, during discovery, a prosecutor must 

disclose immigration-related information concerning a State’s witness who is an 

undocumented immigrant, and whether a defendant may cross-examine such a witness 

concerning his or her immigration status.

In the Circuit Court for Baltimore City, the State, Respondent, charged Tshibangu 

Kazadi, Petitioner, with first-degree murder, use of a firearm in the commission of a crime 

of violence or felony, and wearing, carrying, or transporting a handgun. Kazadi requested 

that the circuit court ask during voir dire whether any prospective jurors were unwilling or 
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unable to follow jury instructions on the presumption of innocence, the burden of proof, 

and the defendant’s right not to testify. The circuit court declined to do so. 

Before trial, Kazadi filed a motion to compel the State to disclose the Alien 

Registration Number,1immigration case number, and immigration-related paperwork of

one of the State’s witnesses, S.L., who, according to Kazadi, was an undocumented 

immigrant subject to a deportation order and who, along with her son, M.L.,2 were 

allegedly attempting to avoid complying with the deportation order. The State filed an 

opposition to the motion to compel and a motion in limine to preclude Kazadi from crossexamination about S.L.’s immigration status. The circuit court denied the motion to 

compel and granted the State’s motion in limine. 

After being convicted, Kazadi appealed, and the Court of Special Appeals affirmed. 

Kazadi filed a petition for a writ of certiorari, which this Court granted. 

Upon careful consideration of developments that have occurred in the fifty-five 

years since this Court decided Twining, 234 Md. 97, 198 A.2d 291—including this Court’s 

subsequent holdings that, other than with respect to the crime charged, jury instructions are 

binding, see Stevenson v. State, 289 Md. 167, 179-80, 423 A.2d 558, 565 (1980), and 

 

1An Alien Registration Number—also known as an Alien Number, A-Number, or 

A#—is “[a] unique seven-, eight-[,] or nine-digit number [that is] assigned to a noncitizen 

by the [United States] Department of Homeland Security.” United States Citizenship and 

Immigration Services, Glossary, https://www.uscis.gov/tools/glossary [https://perma.cc/

4J4A-NZKM].

2Like the Court of Special Appeals, we refer to S.L. and M.L. by their initials. The 

Court of Special Appeals referred to one of the witnesses as “S.L.H.”; we refer to her as 

“S.L.” because, after the circuit court asked her how she preferred to be addressed, she 

responded: “[S.L.]” 
- 3 -

Montgomery v. State, 292 Md. 84, 91, 437 A.2d 654, 658 (1981)—we determine that this 

Court’s holding as to voir dire questions in Twining is based on outdated reasoning and 

has been superseded by significant changes in the law. To the extent that this Court held 

in Twining that it is inappropriate to ask on voir dire questions concerning the presumption 

of innocence, the burden of proof, and a defendant’s right to remain silent, we overrule the

holding in Twining, and conclude that, on request, during voir dire, a trial court must ask 

whether any prospective jurors are unwilling or unable to comply with the jury instructions 

on the fundamental principles of presumption of innocence, the State’s burden of proof, 

and the defendant’s right not to testify.

We also hold that, absent additional circumstances—such as evidence of a quid pro 

quo arrangement or allegations of leniency in an immigration case—a State’s witness’s 

status as an undocumented immigrant, or the existence of a deportation order applicable to 

the witness, do not show the character of the witness for untruthfulness or demonstrate a 

motive to testify falsely. Without more, a State’s witness’s status as an undocumented 

immigrant, or any deportation order to which the witness is subject, are not required to be 

disclosed by a prosecutor during discovery, and are not proper subjects of crossexamination.

BACKGROUND

Voir Dire

On January 17, 2017, jury selection occurred. On that date, Kazadi’s counsel 

provided the circuit court with a document that was entitled “Defendant’s Proposed Voir 

Dire[,]” and that included the following questions:
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The Court will instruct you that the State has the burden of proving the 

Defendant guilty of the offenses charged beyond a reasonable doubt. Are 

there any of you who would be unable to follow and apply the Court’s 

instructions on reasonable doubt in this case?

Is there any member of the [] jury panel who would hesitate to render a 

verdict of not guilty if you had hunch that the Defendant had committed the 

alleged crime, but were not convinced of that fact beyond reasonable doubt?

The Court will instruct you that the Defendant is presumed of be innocent of 

the offenses charged throughout the trial unless and until the Defendant is 

proven guilty beyond a reasonable doubt. Is there any member of the jury 

panel who would be unable to give the Defendant the benefit of the 

presumption of innocence?

Under the law[,] the Defendant has an absolute right to remain silent and to 

refuse to testify. No adverse inference or inference of guilt[] may be drawn 

from the refusal to testify. Does any prospective juror believe that the 

Defendant has duty or responsibility to testify[,] or that the Defendant must 

be guilty merely because the Defendant may refuse to testify? 

(Numbers omitted). Kazadi’s counsel requested that the circuit court ask the four questions 

during voir dire. The circuit court declined, stating: “Those are covered adequately in the 

instruction portion of the case and I think are covered in other questions that [I] ask.”

During voir dire, after asking questions of the jury panel, the circuit court asked 

counsel whether there were any objections. Kazadi’s counsel stated that he wanted the 

circuit court to ask the questions in his proposed voir dire that the court had declined to 

give. The circuit court responded: “[Y]ou’ve preserved your objection[.]” 

Motion to Compel, Motion in Limine, and Motion to Suppress

On December 8, 2016, Kazadi filed a “Motion to Compel Discovery.” (Some 

capitalization omitted). In the motion to compel, Kazadi advised that one of the State’s 

witnesses, S.L., had provided a statement in which she said “that she was hesitant to come 
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forward with information because she was worried about an outstanding deportation 

order[.]” Kazadi’s counsel requested from the prosecutor, but was not provided, S.L.’s 

Alien Registration Number, “her immigration case number, and any paperwork [that] she 

ha[d] regarding her immigration status, including a copy of the deportation order[.]” 

Kazadi’s counsel met with S.L. and the prosecutor, who instructed S.L. not to disclose her 

Alien Registration Number or answer any questions about the deportation order. Kazadi 

contended that the deportation order gave S.L. and her son, M.L., a motive to testify against 

Kazadi, in that their testimony could make them eligible for relief from deportation. 

Kazadi argued that S.L.’s and M.L.’s alleged noncompliance with the deportation order 

demonstrated a character trait of untruthfulness. 

On December 22, 2016, the State filed an Opposition to Defendant’s Motion to 

Compel Discovery and State’s Motion In Limine. The State contended that it was not 

obligated to comply with the discovery requests for immigration-related information 

because the State had not promised S.L. that she would receive special treatment in 

exchange for her cooperation. The State argued that Kazadi had provided no evidence that 

S.L. was attempting to evade the deportation order. The State asserted that Kazadi’s 

“speculation should not serve as a basis for a fishing expedition into [S.L.’s] immigration 

status[.]” 

Addressing the motion in limine, the State requested that the circuit court preclude 

Kazadi from cross-examining S.L. about her immigration status. The State contended that 

information about a witness’s immigration status is admissible only where there is a 

connection between the witness’s immigration status and a motive to fabricate testimony. 
- 6 -

The State argued that S.L. had no such motive as she had no connection to the murder, 

apart from being a witness who decided to come forward with material information. 

On January 13, 2017, the circuit court issued a “Memorandum and Discovery 

Order[,]” denying the motion to compel and reserving on the motion in limine for a ruling 

by the circuit court judge who would preside over the trial. (Some capitalization omitted). 

The circuit court concluded that, without a showing by Kazadi of some “special 

relationship” between S.L. and the State as to immigration, or a promise, inducement, or 

benefit that the State extended concerning immigration, Kazadi failed to show a basis to 

compel disclosure of the requested information. The circuit court noted that Kazadi had 

not identified any promise or inducement that the State extended to S.L. or M.L. in 

connection with S.L.’s immigration status. The circuit court explained that, seemingly,

Kazadi wanted to attempt to confirm the information that S.L. had provided with some 

hope that it might develop into a credibility issue. 

Before the start of trial, the circuit court conducted a hearing on a motion to suppress 

any in-court identification of Kazadi by S.L. or M.L. At the hearing, S.L. and M.L. testified

through an interpreter. Neither S.L. nor M.L. testified concerning any immigration-related 

matters. S.L. testified that she did not expect any benefit in exchange for testifying, and 

that, apart from requesting and receiving moving expenses and rent for a new home, she 

had neither requested nor received any benefits from the Office of the State’s Attorney for 

Baltimore City. M.L. testified that he had not thought that he or his relatives would receive 

any benefit in exchange for speaking to law enforcement officers. 
- 7 -

After S.L. and M.L. testified, the circuit court denied the motion to suppress. Before 

the circuit court heard argument on the motion in limine, the following exchange occurred:

THE COURT: I’ve not heard anything from [S.L. and M.L.] indicating to me 

that there is an immigration issue that would have been factor in them 

testifying. But[,] obviously[,] if you have an argument to make on that 

point[,] I would love to hear it.

[KAZADI’S COUNSEL]: Okay. 

THE COURT: And let me tell you, I have significant concern about -- and 

we have no idea how this jury’s going to react -- there is some level of 

hostility in some circles in our society to people who are perceived as being 

here illegally. Whether that is valid or not valid, I don’t want to be in 

situation where we prejudice a jury by raising an issue [that] may not be 

germane to the case. Obviously[,] if it is germane to the case, if they’ve been 

promised to stay in the U.S. indefinitely while they were, you know, in 

exchange for testimony[,] that obviously is a very valid factor[,] and in which 

case the prejudice is something that would not be outweighed. But I’m open 

to hear whatever you may have to say about that. 

Kazadi’s counsel stated that law enforcement officers had interviewed S.L., who 

said that one of the reasons why she did not come forward sooner was that she was subject 

to a deportation order. The circuit court asked whether there was any evidence of “quid 

pro quo for immigration status.” Kazadi’s counsel responded that S.L.’s social worker told 

her that the Baltimore Police Department would not enforce the deportation order. The 

prosecutor and the circuit court observed that there had not been any testimony to that 

effect. The following exchanges occurred:

THE COURT: [U]nless you have something more concrete about her 

immigration status[,] I am really concerned about putting into the record 

possibly that [S.L.] is an illegal immigrant -- an undocumented alien, if you 

will[,] or that [M.L.] is[,] given the fact that there is, as I say, among circles 

in our society[,] strong bias, prejudice, in fact, even among people [whom] I 

know socially[,] against people who are undocumented aliens. And I don’t 

want to -- I think [that] it’s legitimate to pursue areas of legitimate inquiry 
- 8 -

on cross[-]examination. [Kazadi] has a right to that[,] and that’s your 

obligation. But[,] by the same token[,] I don’t want to get into areas that I 

think are going to shed more heat than light. This is one. So unless you can 

make a proffer to me, let’s say tomorrow[,] when [S.L.] comes on to testify[

at trial,] that you’ve got something that would constitute something -- quid 

pro quo on the immigration status[,] I’m uncomfortable with letting that in. 

I truly am. 

* * *

[KAZADI’S COUNSEL]: [T]here’s a difference between having a 

deportation order and being an illegal immigrant because there are many 

legal immigrants or legal visitors to this country who could be ordered 

deported. I mean, and then they become -- they kind of --

THE COURT: They become illegal if they overstay.

[KAZADI’S COUNSEL]: Far --

THE COURT: Well, even the, you know, you’re, again, I mean, the -- you’ve 

raised another aspect of this, okay. So[,] that may be true[,] but that doesn’t 

help much either because[,] why do you get deported? People who know --

who follow these things will know [that] one of the reasons [why] you get 

deported is you’re found guilty of a crime of some type. And you know that 

there’s significant limitations on the ability to use history of [prior] bad acts 

for impeachment. And we don’t know that anything that [S.L.] did, if there 

was something [that] she did, and we don’t know what she may have done, 

we don’t know that any of that has anything to do with honesty or a likelihood 

to lie on the stand. And there’s no evidence of the quid pro quo. So she’s 

being asked to leave because, you know, she was picked up for, you know, 

possession of heroin, let’s say. Yeah, that’s a bad thing, but that’s not an 

impeachable offense, basically. So that would also concern me a little bit, 

that, you know, I don’t want to -- I mean, I think you have a right, obviously, 

to question these witnesses as to what they saw[,] and when they saw it[,]

and the circumstances[,] and all that. And[,] if they have a motive to bias, I 

would -- sure. You know, if you were going to argue that it’s -- this is the 

result of neighborhood feud[,] and not a result of the witness of a crime, I 

mean, sure, that’s fine. But I really am uncomfortable with the notion that 

we’re going to put into the record the existence of deportation order[,] or the 

suggestion of a quid pro quo[,] without some stronger evidence that that is[,] 

in fact[,] the case because I think [that] there’s an impermissible level of 

prejudice that could result from her if that were to happen.
- 9 -

[KAZADI’S COUNSEL]: I guess I would have two responses. One, I think 

[that] the act of evading a deportation order is itself evidence of deceit[,] 

much like -- analogous to the way that the Court of Appeals has said drug 

dealers necessarily are surreptitious[,] and that’s --

THE COURT: Boy, I sure don’t buy the notion that a family who comes to 

America to try to make something of themselves[,] and get their kids in 

school[,] is equivalent to a drug dealer.

[KAZADI’S COUNSEL]: No, I -- that’s not --

THE COURT: I mean, I’m not saying it’s legal, but I’m saying, boy, it -- the 

one is really understandable[,] and the one really is a pox on the community.

[KAZADI’S COUNSEL]: Well, I would say [that] I’m -- it’s not just that 

they came here illegally. It’s that they were told to leave[,] and didn’t. And 

I think [that] that’s what makes it different.

THE COURT: Well, it may be under, you know, I mean, again, if there’s an 

appeal[,] and if they’re -- I mean, it just -- I just, you know, we’re not going 

to do an immigration trial here in this court as part of this criminal case. And 

again, as I said, think that this is one of those circumstances in which the 

equities think really militate against allowing that particular thing to become 

an issue in [this] case. Now, if it turns out that you can come up with 

something that makes it more than a speculation that there’s a quid pro quo, 

and obviously that’s legitimate. But[,] I’m not hearing it. And[,] unless you 

come up with something [that] you can show me out of the hearing of the 

jury to indicate that there is more to this than just a notion, I just think [that] 

it would be unfairly prejudicial to [S.L.] 

At the conclusion of the hearing, the circuit court granted the motion in limine, and stated: 

“As I said, if you discover something that is relevant and that is concrete, I am open to 

changing my mind. Based on what I know at this moment, however[, t]hat’s my ruling.” 

S.L.’s and M.L.’s Trial Testimony3 and Verdicts

On January 18, 2017, at trial, as a witness for the State, through an interpreter, S.L.

 

3Because the other State’s witnesses’ trial testimony is not relevant to the issues that 

are before this Court, we summarize only S.L.’s and M.L.’s trial testimony.
- 10 -

testified that, in August 2015, she and her son, M.L., lived in Baltimore City near Kazadi. 

On August 18, 2015, S.L. sent M.L. outside of their house to retrieve trashcans. While 

M.L. was outside, S.L. heard four or five gunshots. S.L. went outside and saw M.L.

running toward her. M.L. said that “the guy had killed someone.” S.L. saw Kazadi hide a

gun and run into his basement. S.L. looked in the alley and saw a man who had been shot. 

Kazadi’s mother and sister, who lived with him, came out of their house and spoke to S.L., 

who told them that she had seen Kazadi shoot the victim. Law enforcement officers came 

to S.L.’s house, but she did not speak with them because she was afraid. The prosecutor 

asked S.L. why she was afraid. S.L. responded: “Because they realized that we had said 

that [Kazadi] was the one [who] had killed [the victim].” For months, S.L. continued to 

live near Kazadi. On January 19, 2016, S.L. spoke to a detective, and identified Kazadi as 

the person who “killed the [victim]” in a photographic array. 

After S.L.’s direct-examination, at a bench conference, the prosecutor stated that 

there had been “no additional evidence . . . with regards to the immigration issue.” Kazadi’s 

counsel disagreed, contending that, although S.L. had testified that she did not come 

forward sooner because she was afraid of Kazadi, she had previously told law enforcement 

officers that she did not come forward sooner because of “fear of immigration[.]” The 

following exchanges occurred:

THE COURT: I ruled yesterday, and I really am concerned about this[.] I 

don’t want to get this jury upset with [S.L.] possibly being here without 

documents. And I just really am concerned about that. What I will allow 

you to do is ask [whether] she gave a different reason. So she said she was -

- what did she say? She was afraid of being deported.

[KAZADI’S COUNSEL]: Yes, because she has an outstanding --
- 11 -

[THE PROSECUTOR]: She said she[] was scared. And then[,] when they 

sort of flushed it out[,] that’s when the additional part of the documentation 

issue came out. But she had initially indicated that she was scared for her 

safety and the safety of her children. So that is consistent.

THE COURT: Mm-hmm.

[THE PROSECUTOR]: I obviously didn’t go any further because of the 

Court’s order.

THE COURT: No, I know. So[,] if you go in[,] you’re trying to prove what, 

that she’s lying? 

[KAZADI’S COUNSEL]: Right. Well, one, I don’t -- one, when she was 

given a chance to say why she was afraid, one, she didn’t say because she 

felt threatened. And, two, because she said something else. Because[,] right 

now[,] the jury thinks that [Kazadi]’s family was threatening her the entire 

time.

THE COURT: I know they certainly -- well, I don’t know if they thin[k] --

[KAZADI’S COUNSEL]: Or could[.] I don’t know if they think that. 

Correct.

THE COURT: I mean, yeah. I think[ that] she didn’t say that they were 

threatening her, what she said was[: “]I lived next door to the guy [whom] I 

was going to finger.[”] So they can assume that that probably is not a good 

thing to do. Not a safe thing to do. It’s a good thing to do.

Well[,] I don’t know how one does that and avoid[s] bringing up the 

fact that she possibly is undocumented. And I really am uncomfortable 

having that come out. I’m really absolutely uncomfortable, particularly 

when there’s no indication[,] and she specifically testified[, that] she got no 

quid pro quo, [and] you have no concrete evidence that there was a quid pro 

quo. And the inconsistency[,] I don’t think[,] is material[,] qui[te] honestly. 

I’m not going to permit it[,] and if I’m wrong[,] I’m wrong. But --

[KAZADI’S COUNSEL]: So I can’t get into it at all? Not even like[,] she 

gave a different reason?

THE COURT: I would allow that, but I want to keep a tight rein on this[,] as 

I said. And the reason is, quite honestly, there is an atmosphere of intolerance 

out there about people who are here in an undocumented capacity, who are 
- 12 -

illegal. And[,] some people[,] it doesn’t make a big difference to. I don’t 

honestly think it goes to credibility[,] particularly. And I don’t want to have 

a jury be prejudiced against [S.L.] Yeah, I’m going to allow you to ask if 

there’s an inconsistent reason. If you get into the question of immigration[,] 

then [the prosecutor] will object[,] and I will likely sustain it.

[THE PROSECUTOR]: Okay.

[KAZADI’S COUNSEL]: All right.

THE COURT: If you feel that there’s an inconsistent reason, you can ask[: 

“Y]ou didn’t blame it on the family[?”] I think that’s a legitimate issue for 

you to explore. I don’t have a problem with that.

[THE PROSECUTOR]: Your Honor, my concern is that [Kazadi’s c]ounsel 

will follow up with [--] is that other inconsistent reason [--] the fact that, you 

know, you have deportation order. You can’t unring that bell.

THE COURT: Well, you’re not going to do that.

[KAZADI’S COUNSEL]: I figured [that] I couldn’t do that.

THE COURT: Yeah, thank --

[KAZADI’S COUNSEL]: I mean, I would like to do that, but I’m assuming 

that the order was that I could not do that.

THE COURT: Yeah[.]

During S.L.’s cross-examination, the following exchanges occurred:

[KAZADI’S COUNSEL: W]hen you talked to [the police] in January, they 

asked you why you didn’t come forward initially.

[S.L.:] Because I was scared.

[KAZADI’S COUNSEL:] Okay. And I’m going to ask you this question very 

carefully. But[,] at the time[,] you didn’t tell the police that you were scared 

of [] Kazadi or his family[. Y]ou told them [that] you were scared of 

something else, correct?

[S.L.:] Yes.
- 13 -

* * *

[KAZADI’S COUNSEL:] The other thing that you’re scared of is not 

connected to [] Kazadi or his family?

[S.L.:] I said -- I said both. I said why I was worried.

* * *

[KAZADI’S COUNSEL:] You remember talking to the police and it being 

recorded in January, right? Now[,] I’m going to show you something that I 

had prepared about what you said. . . . [T]his is the part where you’re talking 

to the police about what you’re afraid of. . . . [Y]ou talk about the other thing, 

not [] Kazadi or his family, correct?

[S.L.:] I repeat again, I spoke about both. I was afraid of his family and 

something else.

[KAZADI’S COUNSEL:] Okay. I guess [--] why don’t you just read the 

next page. And[,] at that point[,] you still just continue to talk about 

something else[,] and not [] Kazadi or his family?

[S.L.:] Yes, I said that. 

As a witness for the State, through an interpreter, M.L. testified that, on August 18, 

2015, he retrieved trashcans that were behind his house. As M.L. was walking back to his 

house, he heard a gunshot. M.L. turned and saw Kazadi and another man in the alley. 

Kazadi was holding a revolver. The other man said: “[C]hill.” Kazadi shot the other man 

two or three times, then ran toward the back of his house. M.L. saw his mother, S.L., at 

the back door of their house and told her what he had seen. M.L. did not speak to law 

enforcement officers that night because he was “afraid” and “in shock.” Eventually, 

however, M.L. spoke to detectives, and identified Kazadi as the shooter in a photographic 

array. 

During M.L.’s cross-examination, Kazadi’s counsel requested a bench conference, 
- 14 -

which the circuit court granted. At the bench conference, Kazadi’s counsel stated that he 

wanted to ask “immigration-related questions,” but he was not going to do so “based on 

the Court’s earlier order.” The circuit court responded: “[T]he questions are ruled out as

far as the immigration question.” 

The State entered a nolle prosequi on the remaining charge of wearing, carrying, or 

transporting a handgun. The jury found Kazadi not guilty of first-degree murder, but guilty 

of second-degree murder and use of a handgun in the commission of a crime of violence. 

Opinion of the Court of Special Appeals

Kazadi appealed. On February 4, 2019, the Court of Special Appeals affirmed 

Kazadi’s convictions. See Kazadi v. State, 240 Md. App. 156, 162, 201 A.3d 618, 622

(2019). The Court of Special Appeals held that the circuit court did not abuse its discretion 

in declining to ask voir dire questions concerning jury instructions. See id. at 164, 201 

A.3d at 623. The Court of Special Appeals concluded “that Twining is still controlling” 

because, “[c]ontrary to [Kazadi]’s contention, the Court of Appeals has affirmed the 

continuing vitality of Twining[.]” Kazadi, 240 Md. App. at 168, 201 A.3d at 625. 

The Court of Special Appeals held that the circuit court did not err or abuse its 

discretion in denying the motion to compel. See id. at 183, 201 A.3d at 634. The Court of 

Special Appeals determined that, “[a]bsent any evidence of an immigration-related quid 

pro quo indicating a bias or motive to testify falsely, [the motion to compel] amounted to 

a fishing expedition for information that would not be admissible to impeach [S.L.]” Id. at 

183, 201 A.3d at 634. The Court of Special Appeals noted that there was no link between 

the deportation order or S.L.’s and M.L.’s immigration status and their identification of
- 15 -

Kazadi as the killer. See id. at 183, 201 A.3d at 634. 

The Court of Special Appeals concluded that the circuit court did not abuse its 

discretion in precluding cross-examination of S.L. and M.L. about their immigration 

statuses. See id. at 188, 201 A.3d at 637. The Court of Special Appeals explained:

From the initial written pleadings, to the pretrial suppression hearing, to the 

trial, this record is devoid of any evidence that S.L.[] or M.L. received or 

expected an immigration-related benefit as a result of either their [pretrial] 

identification[s] of [Kazadi] or their testimony against him. . . . To the 

contrary, the prosecutor insisted [that] she had never discussed immigration 

status with S.L.[] At the suppression hearing before trial, S.L.[] testified that 

the only benefit [that] she received was relocation expenses, which were not 

tied to the family’s immigration status. She maintained that she did not 

expect any benefit for coming forward to identify [Kazadi] or testify against 

him. Her trial testimony was consistent on that point.

Absent any link between [S.L.’s and M.L.’s] immigration status and 

their credibility, the [circuit] court did not abuse its discretion in foreclosing 

cross-examination of S.L.[] and M.L. about immigration matters. 

Significantly, the [circuit] court’s ruling only disallowed cross-examination 

about immigration status, without preventing [Kazadi’s] counsel from asking 

whether S.L.[] hoped to receive any other benefit from her testimony, such 

as relocation expenses. Accordingly, [Kazadi]’s concern that S.L.[]’s 

testimony was influenced by her immigration status was simply speculative, 

and evidence of her immigration status – if relevant at all to her bias and 

partiality – would have had very little probative value.

As alternative grounds for affirming the [circuit] court’s decision to 

restrict cross-examination, we hold that the [circuit] court did not abuse its 

discretion in ruling, pursuant to [Maryland] Rule 5-403, that questioning 

S.L.[] and M.L. about their immigration status and/or the deportation order 

would unfairly prejudice the jury by introducing the possibility of invidious 

discrimination on the basis of alienage. As the [circuit] court emphasized, 

such evidence had a significant potential both to prejudice jurors against the 

[State’s] witnesses and to confuse jurors by injecting unrelated immigration 

issues involving mere bystanders into this murder trial against [Kazadi].

Id. at 186-87, 201 A.3d at 636-37 (cleaned up).

Petitions for a Writ of Certiorari

On March 12, 2019, on his own behalf, Kazadi petitioned for a writ of certiorari.
- 16 -

On March 26, 2019, on Kazadi’s behalf, his appellate counsel petitioned for a writ of 

certiorari, raising the following three issues:

1. Is a criminal defendant entitled, upon request, to voir dire questions 

aimed at identifying prospective jurors who are unable or unwilling to apply 

the principles that the State has the burden of proving the defendant guilty 

beyond a reasonable doubt, that the defendant is presumed innocent[,] that 

the defendant has the right to remain silent and refuse to testify[,] and that no 

adverse inference may be drawn from the defendant’s silence?

2. Where a critical State’s witness reveals pretrial that she and her minor 

son (also a witness) are subject to a deportation order, must the State provide 

in discovery the witness’s Alien [Registration] Number and a copy of the 

deportation order so that defense counsel may identify potential 

impeachment evidence as described in Maryland Rules 5-608[](b) and 5-

616[](a)[](4)?

3. Where defense counsel has a good-faith basis to believe that critical 

State’s witnesses are the subject of a deportation order, is defense counsel 

entitled to cross-examine those witnesses about their immigration issues 

pursuant to Maryland Rules 5-608[](b) and 5-616[](a)[](4), the Sixth 

Amendment to the United States Constitution[,] and Article 21 of the 

Maryland Declaration of Rights? 

(Footnote omitted). On April 25, 2019, on his own behalf, Kazadi supplemented the 

petition that he had filed. On May 14, 2019, this Court granted the petition that Kazadi’s 

appellate counsel had filed, and denied the petition and supplement that Kazadi had filed

on his own behalf. See Kazadi v. State, 463 Md. 637, 207 A.3d 1215 (2019).

DISCUSSION

I. Voir Dire

The Parties’ Contentions

Kazadi contends that, on request, a defendant is entitled to voir dire questions 

concerning prospective jurors’ willingness and ability to follow jury instructions on the 
- 17 -

presumption of innocence, the State’s burden of proof, and the defendant’s right not to 

testify. Kazadi argues that a prospective juror who is unwilling or unable to honor these 

fundamental rights has a bias or misconception that constitutes a specific cause for 

disqualification. Kazadi asserts that there is no valid reason why voir dire questions 

concerning these three fundamental principles should continue to be considered 

inappropriate in Maryland. Kazadi maintains that contrary to this Court’s holding in 

Twining, voir dire is the most appropriate time to question prospective jurors as to whether 

they would be able or willing to follow jury instructions regarding the State’s burden of 

proof, the presumption of innocence, and the defendant’s right to remain silent. Kazadi 

essentially maintains that Twining should be overruled.

The State responds that we should decline to overrule this Court’s holding in

Twining, under which trial courts are not required to ask voir dire questions concerning

jury instructions. The State contends that Kazadi has not shown that Twining is subject to 

an exception to the doctrine of stare decisis. The State argues that Twining was not clearly 

wrong and contrary to established principles because, in Twining, this Court followed the 

lead of the majority of courts in other jurisdictions. The State asserts that Twining has not 

been superseded by significant changes in the law or the facts because this Court recently 

reaffirmed its holding in State v. Logan, 394 Md. 378, 906 A.2d 374 (2006) and Stewart v. 

State, 399 Md. 146, 923 A.2d 44 (2007).

Standard of Review

“An appellate court reviews for abuse of discretion a trial court’s decision as to 

whether to ask a voir dire question.” Pearson, 437 Md. at 356, 86 A.3d at 1235 (citation 
- 18 -

omitted).

Maryland Case Law on Jury Instructions, Voir Dire, and Stare Decisis

Since 1851, the Constitution of Maryland has included the following language: “In 

the trial of all criminal cases, the jury shall be the judges of law as well as fact.” See

Stevenson, 289 Md. at 173 & n.3, 423 A.2d at 561 & n.3.

4

 For more than a century after 

1851, it was common practice for trial courts to instruct jurors that they were the judges of 

both the law and the facts, and that the jury instructions were “advisory only.” For 

example, in Vogel v. State, 163 Md. 267, 269, 162 A. 705, 705 (1932), a trial court 

instructed a jury: “Under the laws of Maryland[,] you are judge[s] of the law and of the 

evidence in a criminal case. Any instruction to you by the Court as to the law is, therefore, 

advisory only and not binding on you.” (Cleaned up).

In 1964, with “advisory only” jury instructions being the common practice, in 

Twining, 234 Md. at 100, 198 A.2d at 293, this Court held that a 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.” This 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

 

4This language was in Article X, Section 5 of the Constitution of Maryland of 1851; 

Article XII, Section 4 of the Constitution of Maryland of 1864; and, initially, Article XV, 

Section 5 of the Constitution of Maryland of 1867. See Stevenson, 289 Md. at 173 & n.3, 

423 A.2d at 561 & n.3. In 1978, this language was recodified in Article 23 of the 

Declaration of Rights within the Constitution of Maryland of 1867, see id. at 173 n.3, 423 

A.2d at 561 n.3, where it remains today.
- 19 -

disposed to follow or apply stated rules of law. See 50 C.J.S. Juries § 275(2). 

This would seem to be particularly true in Maryland, where the [jury]

instructions are only advisory.

Id. at 100, 198 A.2d at 293.

Sixteen years after deciding Twining, in Stevenson, 289 Md. at 169, 189, 423 A.2d 

at 559, 570, this Court held that, although on its face, the language “[i]n the trial of all 

criminal cases, the jury shall be the judges of law as well as fact”—which, by then, was in 

Article 23 of the Declaration of Rights—did not violate the Due Process Clause of the 

Fourteenth Amendment to the Constitution of the United States, case law demonstrated 

that Article 23 did not grant a jury “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.” Id. at 178, 423 A.2d at 564 (cleaned up). This Court observed: “Implicit 

in the decisions of this Court limiting the jury’s judicial role to the law of the crime is a 

recognition that all other legal issues are for the [trial court] alone to decide.” Id. at 179, 

423 A.2d at 565 (cleaned up). This Court cautioned that a trial court must make clear to a 

jury that, other than the law of the crime, “all 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 that

the [jury instruction]s on these matters are binding upon that body.” Id. at 180, 423 A.2d 

at 565.

The following year, in Montgomery, 292 Md. at 91, 437 A.2d at 658, this Court held 

that a trial court erred in instructing a jury that it “could pay no attention to instructions on 

the law [that] did not pertain to the elements of the crime[,] but which were standard 
- 20 -

instructions [that were] invoked to preserve the integrity of the judicial system and to assure 

the defendant a fair and impartial trial.” In Montgomery, id. at 90, 437 A.2d at 657, the 

trial court had stated: “I, therefore, instruct you in an advisory capacity that[,] in any 

criminal case you will sit on[,] the law places the burden on the State of Maryland to prove 

that a defendant is guilty beyond what we call a reasonable doubt.” (Ellipsis omitted). This 

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; 

and they cannot be the subject of debate by counsel before the jury. They are binding. 

They are the guidelines of due process to which every jury is required to adhere.” Id. at 

91, 437 A.2d at 658 (internal quotation marks omitted).

Before today, this Court mentioned Twining by name in only one case—Logan, 394 

Md. at 399-400, 906 A.2d at 386-87. In Logan, id. at 398, 906 A.2d at 386, this Court held 

that a trial court did not abuse its discretion in declining a defendant’s request to ask voir 

dire questions concerning the defense of not criminally responsible. One of the requested 

voir dire questions was: “If the defendant satisfies his burden in this regard, will any 

member of the jury be unable to find the defendant not criminally responsible?” Id. at 398, 

906 A.2d at 386. This Court determined that this voir dire question “amount[ed] to a 

solicitation of whether prospective jurors would follow the [jury] instructions. . . . This 

practice is generally disfavored in Maryland[.]” Id. at 398-99, 906 A.2d at 386 (citing 

Twining, 234 Md. at 100, 198 A.2d at 293). Another requested voir dire question was: 

“Does any juror anticipate having difficulty following the [jury] instructions on the defense 

of ‘not criminally responsible,’ particularly in view of the crimes charged in the 
- 21 -

indictment?” Logan, 394 Md. at 399, 906 A.2d at 387. This Court determined that this 

voir dire question was also unnecessary, explaining: “As we made clear in Twining, 234 

Md. at 100, 198 A.2d at 293, voir dire is not the appropriate time for the trial [court] to 

instruct the jury on the law [that is] applicable to the case.” Logan, 394 Md. at 399-400, 

906 A.2d at 387.

The following year, in Stewart v. State, 399 Md. 146, 165, 153, 923 A.2d 44, 55, 48 

(2007), relying on Logan, this Court held that a trial court did not abuse its discretion in 

declining to ask during voir dire whether any prospective jurors would treat the indictment 

as evidence of guilt, or whether any prospective jurors had “any quarrel with” the 

presumption of innocence and the burden of proof. This Court reasoned that the voir dire

questions “addressed matters of law, and[,] as such, were not the proper subject of voir 

dire.” Id. at 165, 923 A.2d at 55. This Court stated: “[Q]uestions asking whether 

prospective jurors would follow the [jury] instructions . . . are disfavored in Maryland[,] 

and a court does not abuse its discretion in refusing to ask them.” Id. at 162-63, 923 A.2d 

at 53-54 (citing Logan, 394 Md. at 399, 906 A.2d at 386).

In multiple cases, relying on Twining, 234 Md. at 100, 198 A.2d at 293, the Court 

of Special Appeals has held that trial courts did not abuse their discretion in declining to 

ask during voir dire whether the prospective jurors understood certain legal principles. As 

one example, in Scott v. State, 49 Md. App. 70, 74, 430 A.2d 615, 618 (1981), without 

specifying the voir dire questions at issue, the Court of Special Appeals held that a trial 

court did not abuse its discretion in declining to ask voir dire questions that were aimed at 

“whether the prospective jurors would apply proper legal principles.” And, in Baker v. 
- 22 -

State, 157 Md. App. 600, 618, 853 A.2d 796, 806 (2004) and Marquardt v. State, 164 Md. 

App. 95, 141, 144, 882 A.2d 900, 927, 929, cert. denied, 390 Md. 91, 887 A.2d 656 (2005),

the Court of Special Appeals observed: “[I]t is up to the Court of Appeals, not this Court, 

to decide, as [the defendant] suggest[ed], that the reasoning of Twining is ‘now 

outmoded.’”

The doctrine of stare decisis frames the issue of whether this Court should overrule 

its holding as to voir dire in Twining. Under the doctrine of stare decisis—Latin for “to 

stand by things [that are] decided”—generally, “a court must follow earlier judicial 

decisions when the same points arise again in litigation.” Stare Decisis, Black’s Law 

Dictionary (11th ed. 2019). That said, “stare decisis is not absolute.” Meyer v. State, 445 

Md. 648, 669, 128 A.3d 147, 159 (2015) (cleaned up). Under two exceptions to stare 

decisis, an appellate court may overrule a case that either was “clearly wrong and contrary 

to established principles[, or] has been superseded by significant changes in the law or [the] 

facts.” Wallace v. State, 452 Md. 558, 582, 158 A.3d 521, 535 (2017) (cleaned up). The 

second exception to stare decisis applies “where changed conditions or increased 

knowledge have rendered the appellate court’s precedent unsound in the circumstances of 

modern life, a vestige of the past, and no longer suitable to the people.” Id. at 582, 158 

A.3d at 535 (cleaned up).

Other Jurisdictions’ Laws on Voir Dire Questions Concerning Fundamental Rights

Courts in other jurisdictions have addressed the question of whether, on request, 

during voir dire, a trial court must ask the prospective jurors whether they are willing and 

able to follow the jury instructions on the presumption of innocence, the burden of proof, 
- 23 -

and/or the defendant’s right not to testify.

In 2005, in Hayes v. Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005), the Supreme 

Court of Kentucky held that a trial court abused its discretion in refusing to allow the 

defendants’ “counsel to ascertain during voir dire whether any of the prospective jurors 

would hold against them the fact that they exercised their [] privilege not to testify[.]” The 

Court explained:

If any [prospective] jurors . . . had expressed [] a prejudice[ against 

defendants who do not testify], the trial court would have been required to 

strike those [prospective] jurors for cause. But how could defense counsel 

identify [prospective] jurors [who were] holding such prejudice if defense 

counsel is precluded from making the relevant inquiry on voir dire? By 

limiting the voir dire to exclude any inquiry into that issue . . . , the trial court 

prevented them from identifying any [prospective] jurors [who were] so 

prejudiced[,] and thereby precluded the exercise of possible challenges for 

cause[.]

Id. at 585.

In People v. Zehr, 469 N.E.2d 1062, 1063-64 (Ill. 1984), the Supreme Court of 

Illinois held that a trial court erred in declining to ask during voir dire whether the 

prospective jurors understood the presumption of innocence, the burden of proof, and the 

defendant’s right not to testify. The Court explained:

[E]ssential to the qualification of jurors in a criminal case is that they know 

that a defendant is presumed innocent, that he [or she] is not required to offer 

any evidence [o]n his [or her] own behalf, that he [or she] must be proved 

guilty beyond a reasonable doubt, and that his [or her] failure to testify [o]n 

his [or her] own behalf cannot be held against him[ or her]. If a juror has a 

prejudice against any of these basic guarantees, a[ jury] instruction [that is] 

given at the end of the trial will have little curative effect. It is also vital to 

the selection of a fair and impartial jury that a juror who finds that the State 

has failed to sustain its burden of proof of guilt beyond a reasonable doubt 

have no prejudices against returning a verdict of not guilty. . . . [E]ach of 

[the] questions [that the defendant requested] goes to the heart of a particular 
- 24 -

bias or prejudice which would deprive [the] defendant of his right to a fair 

and impartial jury[.]

Id. at 1064 (cleaned up).5

In State v. Cere, 480 A.2d 195, 198 (N.H. 1984), the Supreme Court of New 

Hampshire held that, “in all future criminal trials,” the following voir dire questions were 

required to be asked:

Do you believe that because the defendant has been charged with a crime, he 

(she) is probably guilty and therefore must present evidence to prove that he 

(she) is innocent?

If you have such a belief, would that belief prevent you from accepting from 

this court and applying to this case the correct formulation of law; that is, 

that a defendant is presumed innocent until proven guilty, that the State has 

the burden of proving guilt beyond a reasonable doubt, and that the defendant 

need present no evidence whatsoever on his own behalf?

The Court explained that multiple sources

indicate[d] a shockingly widespread ignorance of those valued precepts [that 

are] most central to our American system of criminal justice[—]a 

defendant’s presumption of innocence and the government’s burden of 

proving guilt beyond a reasonable doubt. In light of this apparently 

widespread misinformation about those precious protections [that are] 

afforded by our legal system, we are compelled to take action [] to ensure, as 

 

5After deciding Zehr, 469 N.E.2d 1062, the Supreme Court of Illinois adopted an 

amendment to an Illinois rule that codified the Court’s holding in Zehr. See IL R S CT 

Rule 431 cmt. Today, IL R S CT Rule 431(b) states in pertinent part:

The court shall ask each potential juror, individually or in a group, whether 

that juror understands and accepts the following principles: (1) that the 

defendant is presumed innocent of the charge(s) against him or her; (2) that 

before a defendant can be convicted the State must prove the defendant guilty 

beyond a reasonable doubt; (3) that the defendant is not required to offer any 

evidence on his or her own behalf; and (4) that if a defendant does not testify 

it cannot be held against him or her; however, no inquiry of a prospective 

juror shall be made into the defendant’s decision not to testify when the 

defendant objects.
- 25 -

much as possible, that those persons [who are] serving as jurors are aware of, 

understand, and can implement those constitutional requirements relating to 

the presumption of innocence and the burden of proof.

Id.

In State v. Hayes, 364 So.2d 923, 925, 924 (La. 1978), the Supreme Court of 

Louisiana held that a trial court erred in sustaining a prosecutor’s objection to the following 

question, which a defendant’s counsel asked during voir dire: “[D]o any of you feel that 

you want to hear [the defendant’s] side of the story?” Immediately before that, the 

defendant’s counsel had told the prospective jurors: “[T]he defendant is not required to 

take the witness stand in his own behalf[,] and we will tell you[,] and the [trial court] will 

tell you in the [jury instructions], that you can’t hold this against him.” Id. at 924. On 

appeal, the defendant contended “that the defendant’s right to silence is a difficult one for 

the jurors to understand because it goes against a natural desire to hear all sides of a story, 

and that some jurors might have difficulty according the presumption of innocence to the 

silent defendant.” Id. The Court explained that “unjustified restrictions on voir dire 

concerning the presumption of innocence [cannot be] cured by a general [jury] instruction 

that the jurors must follow the law as given to them by the [trial] court.” Id. (citation 

omitted).

In State v. Clement, 2 S.W.3d 156, 158-59 (Mo. Ct. App. 1999), the Missouri Court 

of Appeals held that a trial court erred in declining to ask during voir dire whether any 

prospective jurors would draw an adverse inference from the defendant’s decision not to 

testify. The Court observed that “one specific and critical area of bias and prejudice [that] 

a [defendant] has a right to uncover during [] voir dire [] is whether a prospective juror will 
- 26 -

be prejudiced based on [the] defendant’s [decision not] to testify.” Id. at 159. The Court 

explained: “[I]f a criminal defendant is to be able to effectively exercise his or her right not 

to be compelled to testify at trial, then he or she must be able to inquire of the [prospective 

juror]s whether they will draw an adverse inference if defendant [decides not] to testify.” 

Id. at 159-60 (citations omitted).

In State v. Lumumba, 601 A.2d 1178, 1189 (N.J. Super. App. Div. 1992), the 

Appellate Division of the Superior Court of New Jersey held that, during voir dire, “[a]t 

the least, the [prospective jurors] must be asked whether they understand the basic 

principles of presumption of innocence and [that] the indictment [is not evidence,] and 

whether they can abide by these principles.” The Court agreed with the defendant that, in 

that case, “voir dire did not result in an impartial jury because the trial court . . . did not 

probe [the prospective jurors] as to their understanding of basic principles [that are]

applicable to criminal trials and their ability to abide thereby.” Id. at 1187.

6

 

6

In State v. Moore, 585 A.2d 864, 877 (N.J. 1991), the Supreme Court of New Jersey 

held that, in that case, voir dire “was sufficiently probing to assure that [the] defendant 

received a fair trial by an impartial jury”; however, the Court “offer[ed] comments for 

guidance in future capital trials.” Addressing voir dire questions concerning the 

presumption of innocence and the burden of proof, the Court stated:

Would it not be anomalous in the extreme to allow extensive deathqualification of [prospective] jurors before trial to make sure that they can 

follow and apply the State’s system of capital punishment, yet not to allow 

defendants a brief, if not cursory, inquiry into [prospective] jurors’ attitudes 

about other fundamentals of the system, such as the presumption of 

innocence? Perhaps the general orientation of a [jury] panel [] will suffice 

to convey the essentials, with [prospective] jurors being asked if they have 

any reservations about their duties as jurors. In the alternative, [trial] courts 

can administer either a questionnaire or brief inquiry of [prospective] jurors 
- 27 -

In Jones v. State, 378 So.2d 797, 798 (Fla. Dist. Ct. App. 1979), a District Court of 

Appeal of Florida stated that, during voir dire,

counsel must be permitted to inquire of prospective jurors concerning their 

willingness and ability to accept the [jury instructions] in a criminal case 

concerning the presumption of innocence, the [S]tate’s burden of proof in 

respect to each element of the offense charged, and the defendant’s right not 

to testify, if the court has not first thoroughly examined the prospective jurors 

on those subjects.

Consistent with the above-discussed case law from other States, in United States v. 

Blount, 479 F.2d 650, 651 (6th Cir. 1973), the Sixth Circuit held that a trial court abused 

its discretion in declining to ask during voir dire whether the prospective jurors “could 

accept the proposition[s] of law that a defendant is presumed to be innocent, has no burden 

to establish his [or her] innocence, and is clothed throughout the trial with this 

presumption.” The Sixth Circuit explained: “Certainly, a challenge for cause would be 

sustained if a [prospective] juror expressed his [or her] incapacity to accept the proposition 

that a defendant is presumed to be innocent despite the fact that he [or she] has been 

accused in an indictment or information.” Id. Subsequently, in United States v. Hill, 738 

F.2d 152, 155, 153 (6th Cir. 1984), the Sixth Circuit held that a trial court abused its 

discretion in declining to ask during voir dire questions concerning the burden of proof and 

the presumption of innocence. The Sixth Circuit observed that, if the trial court had asked 

 

asking them if they can agree and accept the principles of law as the [trial] 

court will state them, including that a defendant is innocent until proven 

guilty and that the State has the defined burden of proving the defendant's 

guilt.

Id. at 882.
- 28 -

the prospective jurors “whether they could accord the defendants the presumption of 

innocence and the requirement of proof of guilt beyond reasonable doubt[, a] negative 

answer[,] or even a hesitant one[,] from any prospective juror would surely have produced 

a defense challenge” for cause. Id. at 153. 

Unlike the Sixth Circuit, other United States Courts of Appeals have determined 

that, during voir dire, a trial court need not comply with a request to ask the prospective 

jurors whether they are willing and able to follow jury instructions on the presumption of 

innocence, the burden of proof, and/or the defendant’s right not to testify. See United 

States v. Sherman, 551 F.3d 45, 48, 52 (1st Cir. 2008); United States v. Gillette, 383 F.2d 

843, 849 (2d Cir. 1967); Jacobs v. Redman, 616 F.2d 1251, 1255-56 (3d Cir. 1980); United 

States v. Robinson, 804 F.2d 280, 281 (4th Cir. 1986); United States v. Rodriguez, 993 

F.2d 1170, 1176-77 (5th Cir. 1993); United States v. Sababu, 891 F.2d 1308, 1325 (7th 

Cir. 1989); United States v. Cosby, 529 F.2d 143, 148 (8th Cir. 1976); United States v. 

Price, 577 F.2d 1356, 1366 (9th Cir. 1978); Grandsinger v. United States, 332 F.2d 80, 81 

(10th Cir. 1964); United States v. Miller, 758 F.2d 570, 573 (11th Cir. 1985) (per curiam).

Consistent with these federal cases, in People v. Lambo, 154 N.W.2d 583, 585, 584 

(Mich. Ct. App. 1967), the Court of Appeals of Michigan held that a trial court did not 

abuse its discretion in declining to ask during voir dire whether any prospective jurors 

would treat the defendant’s decision not to testify as evidence of guilt. The Court reasoned 

that certain voir dire questions that the trial court asked rendered unnecessary the one that 

the defendant requested, but acknowledged that, in other States, “[o]ne of the preferred 

methods is to have the [trial] court briefly outline the rules of law [that are] covered in the 
- 29 -

[v]oir dire requests, and then ask the [prospective] jurors if they would and could follow 

such instructions.” Id. at 585 (citation omitted). In Ganas v. State, 537 S.E.2d 758, 762 

(Ga. Ct. App. 2000), the Court of Appeals of Georgia held that a trial court did not “abuse 

its discretion in precluding questions concerning the burden of proof, reasonable doubt, 

and the presumption of innocence, for these are technical legal questions on which the 

[trial] court will instruct at the end of trial.” (Footnote omitted). In State v. Bitz, 460 P.2d 

374, 379, 378 (Idaho 1969), the Supreme Court of Idaho held that a trial court did not abuse 

its discretion in declining to ask during voir dire questions concerning the presumption of 

innocence, the burden of proof, and the right not to present evidence. The Court pointed 

out that “[t]he jury is bound by the [jury] instructions[.]” Id. at 379 (citation omitted). 

In McCoy v. State, 361 A.2d 241, 243 (Del. 1976), the Supreme Court of Delaware 

held that a trial court did not abuse its discretion in declining to ask during voir dire about 

the prospective jurors’ “views relating to the presumption of innocence and burden of 

proof[.]” The Court reasoned: “[S]uch matters are best suited for preliminary instruction 

after the jury is drawn.” Id. In Cordero v. United States, 456 A.2d 837, 841 (D.C. 1983), 

the District of Columbia Court of Appeals held that a trial court did not “abuse its discretion 

in refusing to ask members of the jury panel whether they would be able to apply the law 

regarding presumption of innocence, reasonable doubt, and the government’s burden of 

proof.” The Court reasoned: “Once jurors are sworn, they are bound to render a verdict 

under the law as given by the [trial] court, and[,] accordingly, it is not necessary to inquire 

as to whether a [prospective] juror will refuse to do that which he [or she] swears or affirms

[that] he [or she] will do.” Id. (cleaned up). In State v. Dahlgren, 512 A.2d 906, 912-13, 
- 30 -

915 (Conn. 1986), the Supreme Court of Connecticut held that a trial court did not abuse 

its discretion in declining defendants’ request to ask during voir dire questions concerning 

the burden of proof and the presumption of innocence. The Court reasoned: “The jury is 

assumed to follow the law as instructed by the trial court.” Id. at 915.

In Commonwealth v. Rhoades, 401 N.E.2d 342, 349 (Mass. 1980), the Supreme 

Judicial Court of Massachusetts held that a trial court did not violate a defendant’s 

constitutional rights by declining to ask during voir dire questions concerning the 

presumption of innocence. The Court reasoned: “Questions [that are] not aimed at 

revealing racial bias or any similarly indurated and pervasive prejudice are not 

constitutionally required.” Id. (cleaned up). The Court noted that, on appeal, the defendant 

had not contended that the statute that governed voir dire required the trial court to comply 

with his request. See id. at 349 n.10.

Five years after the Supreme Judicial Court of Massachusetts decided Rhoades, 401 

N.E.2d 342, Massachusetts’s legislature amended that statute to add the following 

language:

In a criminal case[, voir dire] shall include questions [that are] designed to 

learn whether [a prospective] juror understands that a defendant is presumed 

innocent until proven guilty, that the commonwealth has the burden of 

proving guilt beyond a reasonable doubt, and that the defendant need not 

present evidence [o]n his [or her] behalf. If the [trial] court finds that such 

juror does not so understand, another shall be called in his [or her] stead.

1985 Mass. Laws 706-07 (Vol. I, Ch. 463). Today, substantively identical language 

remains in effect in Massachusetts. See Mass. Gen. Laws Ann. ch. 234A, § 67A.
- 31 -

Analysis

Here, upon consideration of significant developments that have occurred in the fiftyfive years since this Court decided Twining, 234 Md. 97, 198 A.2d 291—most importantly, 

this Court’s subsequent holdings that jury instructions as to the law are binding and not

advisory only, see Stevenson, 289 Md. at 179-80, 423 A.2d at 565, and Montgomery, 292 

Md. at 91, 437 A.2d at 658—we determine that this Court’s holding as to voir dire

questions concerning jury instructions in Twining, 234 Md. at 100, 198 A.2d at 293, is 

based on outdated reasoning and has been superseded by significant changes in the law. 

We overrule the holding in Twining, and conclude that, on request, during voir dire, a trial 

court must ask whether any prospective jurors are unwilling or unable to comply with the 

jury instructions on the long-standing fundamental principles of the presumption of 

innocence, the State’s burden of proof, and the defendant’s right not to testify.

Although proper in its time fifty-five years ago, today, this Court’s holding as to 

voir dire questions concerning jury instructions in Twining, 234 Md. at 100, 198 A.2d at 

293, is outdated and no longer good law. Twining does not offer much in the way of

analysis as to its holding, and what little reasoning Twining provides is not valid anymore. 

In Twining, id. at 100, 198 A.2d at 293, this Court identified three reasons for its holding 

that the trial court did not abuse its discretion in declining to ask whether the prospective 

jurors “would give the [defendant] the benefit of the presumption of innocence and the 

burden of proof.” First, the jury instructions “fully and fairly covered” the presumption of 

innocence and the burden of proof. Id. at 100, 198 A.2d at 293. Second, it was “generally 

recognized that it is inappropriate . . . to question [prospective jurors] as to whether or not 
- 32 -

they would be disposed to follow or apply stated rules of law.” Id. at 100, 198 A.2d at 293 

(citation omitted). Third, at the time, in Maryland, jury instructions were considered “only 

advisory.” Id. at 100, 198 A.2d at 293. All three of these reasons have been essentially 

vitiated in the decades since this Court decided Twining, including, most significantly, this 

Court has explicitly overruled the premise that jury instructions are advisory only.

In Twining, id. at 100, 198 A.2d at 293, this Court took the position that jury 

instructions on the presumption of innocence and the burden of proof obviate the need to 

ask during voir dire whether any prospective jurors would not honor those fundamental

rights. To be sure, our case law provides that “[j]urors are presumed to follow the [jury] 

instructions.” Newton v. State, 455 Md. 341, 360, 168 A.3d 1, 12 (2017) (cleaned up). 

That presumption, however, is itself based on another presumption—namely, that the 

jurors are willing and able to follow jury instructions. But, in the decades since this Court 

decided Twining, it has become apparent that not all jurors are willing and able to follow 

jury instructions on the presumption of innocence and the burden of proof. In the comment 

to Maryland Criminal Pattern Jury Instruction (2d ed. 2018)7 1:00 (Pretrial Introductory 

Instructions), the Maryland State Bar Association’s Standing Committee on Pattern Jury 

Instructions observed: “[S]tudies have shown that jurors routinely misunderstand or 

misapply” the presumption of innocence and the burden of proof. (Citing William S. 

 

7

“[T]he pattern jury instructions are drafted by a group of distinguished judges and 

lawyers who almost amount to a ‘Who’s Who’ of the Maryland [b]ench and [b]ar.” 

Johnson v. State, 223 Md. App. 128, 152, 115 A.3d 668, 682, cert. denied, 445 Md. 6, 122 

A.3d 975 (2015) (cleaned up). “This Court has advocated for the close adherence to [the] 

pattern [jury] instructions in a variety of cases, exhibiting our general support for their use.” 

Armacost v. Davis, 462 Md. 504, 544-45, 200 A.3d 859, 883 (2019) (cleaned up).
- 33 -

Laufer, The Rhetoric of Innocence, 70 Wash. L. Rev. 329, 366-67 (1995); Mitchell J. Frank 

& Dr. Dawn Broschard, The Silent Criminal Defendant and the Presumption of Innocence: 

In the Hands of Real Jurors, Is Either of Them Safe?, 10 Lewis & Clark L. Rev. 237, 250 

(2006)).

Both of the law review articles that the Committee relied upon referred to studies 

that show that multiple actual and mock jurors who were surveyed were unable or 

unwilling to follow jury instructions on the presumption of innocence and the burden of 

proof. According to Laufer:

Studies dating back to the early 1970s 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. For example, researchers found a 

fifty percent comprehension rate of reasonable doubt [jury] instructions in a 

study of the Florida Standard Jury Instructions. Less than a third of a sample 

of Michigan jurors understood that the [State] had the burden of proof. Other 

studies considering reasonable doubt rule [jury] instructions in a host of 

jurisdictions find comprehension error rates ranging between twenty percent 

and fifty percent.

Laufer, 70 Wash. L. Rev. at 365 (footnotes omitted). Similarly, Frank and Dr. Broschard 

discussed multiple studies of jurors’ comprehension of jury instructions, and stated of one 

of them: “One of the findings in this study is that the adage, ‘innocent until proven guilty,’ 

is untrue. For a majority of the jurors, the defendant is guilty until proven innocent.” Frank 

& Dr. Broschard, 10 Lewis & Clark L. Rev. at 248 (footnote omitted).

When this Court decided Twining in 1964, it did not have the benefit of the 

Committee’s observation or the above-discussed studies. In fact, at the time, there had not 

yet been any “[e]mpirical research on juror comprehension of instructions, [which] was 
- 34 -

initiated in the early 1970s.” Laufer, 70 Wash. L. Rev. at 364 n.161 (citations omitted). 

Tellingly, it was not until 1984 that the Supreme Court of New Hampshire observed that 

there was “a shockingly widespread ignorance of those valued precepts [that are] most 

central to our American system of criminal justice[—]a defendant’s presumption of 

innocence and the government’s burden of proving guilt beyond a reasonable doubt.” Cere, 

480 A.2d at 198.

Contrary to this Court’s prior reasoning in Twining, 234 Md. at 100, 198 A.2d at 

293, jury instructions on the presumption of innocence and the burden of proof are not an 

effective remedy for a prospective juror who is unwilling or unable to follow such jury 

instructions. The Supreme Court of Illinois has pointed out that, “[i]f a juror has a prejudice 

against any of these basic guarantees, a[ jury] instruction [that is] given at the end of the 

trial will have little curative effect.” Zehr, 469 N.E.2d at 1064. And, in the words of the 

Supreme Court of Louisiana, “unjustified restrictions on voir dire concerning the 

presumption of innocence [cannot be] cured by a general [jury] instruction that the jurors 

must follow the law as given to them by the [trial] court.” Hayes, 364 So.2d at 924. From 

our perspective, the problem is that, although jury instructions may inform a juror of a 

defendant’s fundamental rights, jury instructions cannot cure a juror’s inability to 

understand, or unwillingness to follow the instructions. For example, some jurors may be

unable to understand that a defendant has a right not to testify because they have “a natural 

desire to hear all sides of a story[,]” as well as an inclination to be suspicious of a defendant 

who does not testify. Id. And, some jurors may be adverse to the presumption of innocence 

because they believe that the circumstance that the defendant has been charged means that 
- 35 -

the defendant is likely guilty, and must offer evidence of innocence. See Cere, 480 A.2d 

at 198. Jury instructions cannot bring a prospective juror’s inability to understand, or 

adversity toward, fundamental rights to the attention of the trial court and the parties—only 

voir dire questions can. See Hayes, 175 S.W.3d at 585. Simply put, if a trial court seats a

prospective juror who is unwilling or unable to follow jury instructions on the presumption 

of innocence and the burden of proof, jury instructions, which are given at the end of trial 

will be too little, and too late to uncover the basis for disqualification.

8

In Twining, 234 Md. at 100, 198 A.2d at 293, in addition to pointing out that the 

trial court had instructed the jury concerning the presumption of innocence and the burden 

of proof, this Court stated that it was “generally recognized that it is inappropriate” to ask 

during voir dire whether any prospective jurors would be unwilling to follow jury 

instructions. (Citation omitted). In support of this proposition, this Court did not directly 

refer to any case law, and instead relied on Section 275(2) on page 1043 of Volume 50 of 

the 1947 edition of Corpus Juris Secundum.

9

 See Twining, 234 Md. at 100, 198 A.2d at 

 

8

Indeed, at oral argument, this Court asked the Assistant Attorney General how, in 

the absence of a voir dire question, a prospective juror’s unwillingness to follow jury 

instructions on the presumption of innocence and the burden of proof would come to light. 

The Assistant Attorney General suggested that the other eleven jurors could send a note to 

the trial court, pointing out the juror’s unwillingness to follow those jury instructions. 

9Corpus Juris Secundum—Latin for “Second Body of Law”—is the latest in a series 

of three legal encyclopedias. John Henry Merryman, The Authority of Authority: What the 

California Supreme Court Cited in 1950, 6 Stan. L. Rev. 613, 634 (1954). The first in the 

series was Cyclopedia of Law and Procedure, which was first published in 1901. See id.

The second in the series was Corpus Juris, which was first published in 1914. See id. at 

635. Finally, Corpus Juris Secundum was first published in 1936. See Merchants Ins. Co. 

v. Lilgeomont, Inc., 84 F.2d 685, 687 (5th Cir. 1936). The relevant edition of Corpus Juris 

Secundum was published in 1947, and the relevant language is on page 1043. See State v. 

Camarillo, 678 P.2d 102, 105 (Idaho Ct. App. 1984).
- 36 -

293. The provision stated in pertinent part that a trial “court may and should exclude [voir 

dire questions that] call for [a prospective juror’s] understanding of the meaning of legal 

terms and expressions.” People v. Jefferson, 191 P.2d 487, 489 (Cal. Dist. Ct. App. 1948) 

(citations omitted). Identical language appeared in Section XIIIG7c(I) on page 341 of

Volume 24 of the 1907 edition of Cyclopedia of Law and Procedure. See The Am. Law 

Book Co., Cyclopedia of Law and Procedure 341 (William Mack, ed., 1907), available at

https://www.google.com/books/edition/Cyclopedia_of_Law_and_Procedure/jV0EAQAA

IAAJ?hl=en&gbpv=1&pg=PA341&printsec=frontcover [https://perma.cc/2E3M-N98Y]. 

There, the footnote that follows the above sentence cites three cases, the most recent of 

which was decided in 1904. See id. at 341 n.48.10

The sources referenced above demonstrate that this Court’s statement in Twining, 

234 Md. at 100, 198 A.2d at 293—namely, that it was “generally recognized that it is 

inappropriate” to ask during voir dire whether any prospective jurors would be unwilling 

to follow jury instructions—was, even at the time, at best, tenuous. This Court’s citation 

of a 1947 secondary source, which used the same language as a 1907 predecessor, which 

relied on only a handful of cases, did not effectively establish that the proposition in 

question was ever “generally recognized”—much less that it was “generally recognized”

in 1964 when this Court decided Twining. Id. at 100, 198 A.2d at 293 (citation omitted).

And even if it could be established that the proposition in question was “generally 

 

10Similarly, in support of the proposition that “a juror is not necessarily disqualified 

merely because the juror . . . is unfamiliar with the meaning of legal terms and 

expressions[,]” the latest edition of Corpus Juris Secundum cites only one case, which was 

decided in 1910. See 50A C.J.S. Juries § 291 & n.3 (Oct. 15, 2019) (footnote omitted).
- 37 -

recognized” in 1964, id. at 100, 198 A.2d at 293 (citation omitted), that is not the case now. 

Courts are currently not in agreement on the issue. As explained above, the Sixth Circuit 

and several State courts have concluded that, during voir dire, a trial court must comply 

with a request to ask the prospective jurors whether they are willing and able to follow the 

jury instructions on the presumption of innocence, the burden of proof, and/or the 

defendant’s right not to testify. See Hill, 738 F.2d at 155, 153; Hayes, 175 S.W.3d at 586; 

Zehr, 469 N.E.2d at 1063-64; Cere, 480 A.2d at 198; Hayes, 364 So.2d at 925, 924; 

Clement, 2 S.W.3d at 158-59; Lumumba, 601 A.2d at 1189; Jones, 378 So.2d at 798. To 

be sure, many United States Courts of Appeals and courts in other States and the District 

of Columbia, have determined that, during voir dire, a trial court need not comply with a 

request to ask the prospective jurors whether they are willing and able to follow the jury 

instructions on the presumption of innocence, the burden of proof, and/or the right not to 

testify. The differences in the case law of the various jurisdictions demonstrates that it is 

not “generally recognized” that asking such questions is inappropriate, if it ever was. 

That said, that a voir dire question may or may not be permitted in a majority or 

minority of other jurisdictions is not dispositive of what the best course of action is for this 

Court to take in Maryland. From our perspective, the Sixth Circuit and the State courts

that permit or require the questions have the better part of the argument. Giving, upon 

request, voir dire questions concerning long-standing fundamental rights—i.e., the rights 

to be presumed innocent, not to testify, and not to be convicted except upon proof of guilt 

beyond a reasonable doubt—undoubtedly helps to safeguard a defendant’s right to be tried 

by a fair and impartial jury. See Zehr, 469 N.E.2d at 1064; Cere, 480 A.2d at 198; Clement, 
- 38 -

2 S.W.3d at 159-60; Lumumba, 601 A.2d at 1187. Voir dire questions concerning these 

fundamental rights are warranted because responses indicating an inability or 

unwillingness to follow jury instructions give rise to grounds for disqualification—i.e., a 

basis for meritorious motions to strike for cause the responding prospective jurors, that 

may not be discovered until it is too late, or may not be discovered at all. See Hayes, 175 

S.W.3d at 585; Zehr, 469 N.E.2d at 1064; Hill, 738 F.2d at 153. 

The cases holding to the contrary from courts in other jurisdictions are not 

persuasive. Several of these courts relied, exclusively or almost exclusively, on the 

reasoning that other jury instructions obviate the need for voir dire questions concerning 

fundamental matters. See Sherman, 551 F.3d at 52; Gillette, 383 F.2d at 849; Jacobs, 616 

F.2d at 1255-56; Robinson, 804 F.2d at 281; Sababu, 891 F.2d at 1325; Cosby, 529 F.2d 

at 148; Price, 577 F.2d at 1366; Grandsinger, 332 F.2d at 81; Miller, 758 F.2d at 573; 

Ganas, 537 S.E.2d at 762; Bitz, 460 P.2d at 378; McCoy, 361 A.2d at 243; Cordero, 456 

A.2d at 841; Dahlgren, 512 A.2d at 915. As explained above, giving jury instructions on

the presumption of innocence and the burden of proof is, by definition, not an effective 

remedy for a prospective juror who is unwilling or unable to follow such jury instructions.

In addition to being required in the Sixth Circuit and several other States, giving 

voir dire questions concerning certain fundamental rights is currently recommended by the 

Maryland State Bar Association. In the 2018 edition of the Model Jury Selection Questions 

for Criminal Trials, the Maryland State Bar Association’s Special Committee on Voir 
- 39 -

Dire11 recommended asking during voir dire whether any prospective jurors cannot honor

the presumption of innocence, and noted that, though “not required[,]” that voir dire

question is “widely used[.]” MJSQ MD-CLE 1, Question 29 & n.59 (citations omitted).

This circumstance is yet another indication that this Court’s pronouncement in Twining, 

234 Md. at 100, 198 A.2d at 293—that it was “generally recognized that it is inappropriate” 

to ask during voir dire whether any prospective jurors would be unwilling to follow jury 

instructions—is no longer accurate and that the current prohibition on asking the questions

on request is no longer warranted in Maryland courts.

Most significantly, in Twining, id. at 100, 198 A.2d at 293, immediately after stating 

that it was “generally recognized that it is inappropriate” to ask during voir dire whether 

any prospective jurors would be unwilling to follow jury instructions, this Court reasoned: 

“This would seem to be particularly true in Maryland, where [jury] instructions are only 

advisory.” This Court was referring to the circumstance that, at the time, in Maryland, it 

was common practice for trial courts to tell juries that the jury instructions were “advisory 

only and not binding[.]” Vogel, 163 Md. at 269, 162 A. at 705. In other words, in Twining, 

234 Md. at 100, 198 A.2d at 293, this Court took the position that there was no point in 

determining whether prospective jurors would follow jury instructions, given that jurors 

were free to disregard jury instructions anyway, i.e., jury instructions were advisory only.

 

11In Collins v. State, 452 Md. 614, 630, 632, 158 A.3d 553, 563, 564 (2017), this 

Court stated: “The [] Model Jury Selection Questions for Criminal Trials provides a 

flexible script with committee notes as a tool for [trial court]s. . . . We appreciate the good 

work of the Committee[,] and commend to bench and bar alike a review of the model 

questions in their entirety.” (Footnote omitted).
- 40 -

Importantly, this is no longer the case. In 1980, in Stevenson, 289 Md. at 178, 423 

A.2d at 564, this Court explained that the jury’s power to be “the judges of the law” “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.” (Cleaned up). This Court stated that a trial court 

must make clear to a jury that, other than the law of the crime, “all 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 that the [jury instruction]s on these matters are binding upon that body.” 

Id. at 180, 423 A.2d at 565. The following year, in Montgomery, 292 Md. at 91, 437 A.2d 

at 658, this Court unequivocally held that trial courts cannot tell juries that the jury 

instructions are advisory only. This Court declared that jury instructions on 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[, and] they are not advisory[.]” Id. at 91, 437 A.2d at 

658 (internal quotation marks omitted).

Consistent with Stevenson, 289 Md. at 180, 423 A.2d at 565, and Montgomery, 292 

Md. at 91, 437 A.2d at 658, today, jury instructions about the law are binding and trial 

courts advise juries as much. Maryland Criminal Pattern Jury Instruction 2:00 (Binding 

Nature of Instructions) provides:

Members of the jury, the time has come to explain the law that applies to this 

case. The instructions that I give about the law are binding upon you. In 

other words, you must apply the law as I explain it in arriving at your verdict. 

On the other hand, any comments that I may have made or may make about 

the facts are not binding upon you and are advisory only. You are the ones 

to decide the facts and apply the law to those facts.

That jury instructions are no longer advisory only invalidates the rationale that this Court 
- 41 -

offered for its holding in Twining, 234 Md. at 100, 198 A.2d at 293, that a trial court may 

decline a request to ask voir dire questions concerning the presumption of innocence and 

the burden of proof because the instructions are not binding, and unequivocally satisfies 

the exception to the doctrine of stare decisis. Accordingly, this Court’s holding in Twining

is no longer good law.12

Put simply, voir dire questions concerning the three long-standing fundamental 

rights at issue meet the criteria for voir dire questions that trial courts must ask on request. 

In Collins, 463 Md. at 376-77, 205 A.3d at 1014, this Court explained those criteria as 

follows:

[O]n request, a trial court must ask a voir dire question if and only if the voir 

dire question is reasonably likely to reveal specific cause for disqualification. 

There are two categories of specific cause for disqualification: (1) a statute 

disqualifies a prospective juror; or (2) a collateral matter is reasonably liable 

to have undue influence over a prospective juror. The latter category is 

comprised of biases that are directly related to the crime, the witnesses, or 

the defendant.

(Cleaned up). On request, a trial court must ask voir dire questions that are reasonably 

likely to reveal a cause for disqualification involving matters that are liable to have undue 

influence over a prospective juror. Such matters may be comprised of biases related to the 

crime or the defendant. Certainly, the belief that a defendant must testify or prove 

 

12Like Twining, its progeny—Logan, 394 Md. at 399-400, 906 A.2d at 386-87, and 

Stewart, 399 Md. at 162-63, 923 A.2d at 53-54—are no longer good law with respect to 

voir dire questions concerning fundamental rights. In both Logan and Stewart, this Court 

did not in any way analyze, as we do today, whether this Court’s reasoning in Twining has 

become outdated in light of significant developments that have occurred since this Court 

decided Twining. 
- 42 -

innocence, or an unwillingness or inability to comply with jury instructions on the 

presumption of innocence, burden of proof, or a defendant’s right not to testify, otherwise 

would constitute a bias related to the defendant. As a matter of fact, it is difficult to 

conceive of circumstances that could be more prejudicial to a defendant’s right to a fair 

trial.

All three of the fundamental principles at issue—the burden of proof, the 

presumption of innocence, and the right not to testify—have existed for more than two 

centuries. The Fifth Amendment to the Constitution of the United States, which was 

ratified in 1791, expressly enshrines the right not to testify, stating in relevant part: “No 

person shall be . . . compelled in any criminal case to be a witness against him[- or 

her]self[.]” Although the Constitution does not explicitly refer to the burden of proof or 

the presumption of innocence, both of those principles existed under the common law at 

least since around the time of the country’s founding. See In re Winship, 397 U.S. 358, 

361 (1970) (the burden of proof); Coffin v. United States, 156 U.S. 432, 455 (1895) (the 

presumption of innocence). In Lilienthal’s Tobacco v. United States, 97 U.S. 237, 266-67 

(1877), a criminal case that involved forfeiture of property, the Supreme Court recognized 

the burden of proof and the presumption of innocence, stating:

In criminal cases[,] the true rule is that the burden of proof never shifts; that[,] 

in all cases, before a conviction can be had, the jury must be satisfied from 

the evidence, beyond a reasonable doubt, of the affirmative of the issue 

presented in the accusation that the defendant is guilty in the manner and 

form as charged in the indictment.

* * *
- 43 -

Innocence is presumed in a criminal case until the contrary is proved; or, in 

other words, reasonable doubt of guilt is[,] in some cases[,] of the kind 

ground of acquittal, where, if the probative force of the presumption of 

innocence were excluded, there might be a conviction[.]

(Citations omitted).

Because these long-standing fundamental rights are critical to a fair jury trial in a 

criminal case, on request, a defendant should be entitled to voir dire questions that are 

aimed at uncovering a juror’s inability or unwillingness to honor these fundamental rights. 

By making such voir dire questions mandatory on request, we help ensure that a juror’s 

inability or unwillingness to follow instructions involving these three important 

fundamental rights will be discovered before trial, and that all defendants—not just ones 

whose trials are presided over by circuit court judges who chose to exercise the discretion

to grant requests to ask such voir dire questions—will have the opportunity to move to 

strike prospective jurors for cause on the ground of an unwillingness or inability to adhere 

to these fundamental rights.

Just as we do not disturb case law as to voir dire questions concerning jury 

instructions other than those on the presumption of innocence, the burden of proof, and the 

right not to testify, we continue to stand by the well-established principle that “Maryland 

employs limited voir dire—that is, in Maryland, voir dire’s sole purpose is to elicit specific 

cause for disqualification, not to aid counsel in the intelligent use of peremptory strikes.” 

Collins, 463 Md. at 404, 205 A.3d at 1030 (footnote omitted). We require voir dire

questions concerning the three fundamental rights at issue because they could elicit 

responses that would give rise to meritorious motions to strike the responding prospective 
- 44 -

jurors for cause—i.e., grounds for disqualification—not because such responses could aid 

counsel in the intelligent use of peremptory strikes.

We point out that a trial court is not required, on its own initiative, to ask voir dire

questions concerning fundamental rights. Instead, a trial court must ask such voir dire

questions only if a defendant requests them. This is consistent with prior cases in which 

this Court has required trial courts to grant requests to ask certain voir dire questions, as 

opposed to requiring trial courts to ask those voir dire questions sua sponte. See, e.g.,

Washington v. State, 425 Md. 306, 315, 40 A.3d 1017, 1022 (2012); Pearson, 437 Md. at 

354, 86 A.3d at 1234. Additionally, consistent with this Court’s case law, we provide 

Kazadi with the benefit of the holding in this case, and we determine that our holding 

applies to this case and any other cases that are pending on direct appeal when this opinion 

is filed, where the relevant question has been preserved for appellate review. See Hackney 

v. State, 459 Md. 108, 119, 184 A.3d 414, 421 (2018); State v. Daughtry, 419 Md. 35, 77 

n.26, 18 A.3d 60, 85 n.26 (2011).

A trial court is not required to use any particular language when complying with a 

request to ask during voir dire whether any prospective jurors are unwilling or unable to 

comply with the jury instructions on the presumption of innocence, the burden of proof, 

and the defendant’s right not to testify. The questions should concisely describe the 

fundamental right at stake and inquire as to a prospective juror’s willingness and ability to 
- 45 -

follow the trial court’s instruction as to that right. This is all that need occur.13 

For the above reasons, this Court’s holding in Twining, 234 Md. at 100, 198 A.2d 

at 293, is overruled. On request, during voir dire, a trial court must ask whether any 

prospective jurors are unwilling or unable to comply with the jury instructions on the 

presumption of innocence, the burden of proof, and the defendant’s right not to testify. We 

reverse the judgment of the Court of Special Appeals.

II. Immigration-Related Information14

The Parties’ Contentions

Kazadi contends that the circuit court erred in denying the motion to compel the 

State to disclose S.L.’s Alien Registration Number, immigration case number, and the 

deportation order to which S.L. and M.L. were subject, and that the circuit court erred in 

failing to allow his counsel to cross examine S.L. and M.L. concerning their immigration 

status. Kazadi argues that, without the requested information, it was impossible to 

determine S.L.’s or M.L.’s character for untruthfulness. Kazadi asserts that, although the 

State represented that it had not given S.L. any special treatment in exchange for her 

testimony, there may have been information that was related to the deportation order that 

 

13We note that the above example of voir dire questions do not run afoul of the 

prohibition on compound voir dire questions. A compound voir dire question “essentially 

combines two questions: one regarding whether the prospective juror” has a bias; “and, if 

so, one regarding whether [that bias] would make it difficult for the prospective juror to be 

fair and impartial.” Collins, 463 Md. at 377, 205 A.3d at 1014-15. The voir dire questions 

at issue do not call for a prospective juror to assess whether he or should could be fair and 

impartial. 

14Although our resolution of the issue as to voir dire necessitates a new trial, we 

address the issues as to immigration-related information because they are likely to recur at 

trial. 
- 46 -

bore on S.L.’s or M.L.’s bias, prejudice, interest, or motive. Kazadi maintains that other 

courts have concluded that unlawful entry into the United States or other violations of 

immigration laws are per se relevant to a witness’s character for untruthfulness. 

The State responds that the circuit court properly exercised its discretion in denying 

the motion to compel, and that the circuit court properly restricted Kazadi’s crossexamination of S.L. and M.L., because immigration status is not relevant to credibility. 

The State contends that none of the information that Kazadi requested fell within the scope 

of the State’s discovery obligations. The State argues that it was not obligated to procure 

immigration-related information from its witnesses or the federal government in an attempt 

to facilitate Kazadi’s speculative search for impeachment material. The State maintains 

that, because the prosecutor, S.L., and M.L. indicated that there was no quid pro quo in 

exchange for testimony against Kazadi, there was no reasonable likelihood that the 

requested information would lead to impeachment material. 

Standard of Review

An appellate court reviews without deference a trial court’s conclusion as to whether 

a discovery violation occurred. See Cole v. State, 378 Md. 42, 56, 835 A.2d 600, 607 

(2003). An appellate court reviews without deference a trial court’s restriction of crossexamination where that restriction is based on the trial court’s “understanding of the legal 

rules that may limit particular questions or areas of inquiry.” Peterson v. State, 444 Md. 

105, 124, 118 A.3d 925, 935 (2015).

Discovery and Impeachment

Maryland Rule 4-263 governs discovery in a criminal case in a circuit court. 
- 47 -

Maryland Rule 4-263(d)(6) states in pertinent part:

Without the necessity of a request, the State’s Attorney shall provide to the 

defense . . . [a]ll material or information in any form, whether or not 

admissible, that tends to impeach a State’s witness, including:

(A) evidence of prior conduct to show the character of the witness for 

untruthfulness pursuant to Rule 5-608(b); [and]

(B) a relationship between the State’s Attorney and the witness, 

including the nature and circumstances of any agreement, understanding, or 

representation that may constitute an inducement for the cooperation or 

testimony of the witness[.]

Maryland Rule 5-608(b) governs impeachment of a witness through conduct that 

did not result in a conviction, which is commonly known as “other crimes and prior bad 

acts[.]” Ford v. State, 462 Md. 3, 36, 197 A.3d 1090, 1109 (2018) (citation omitted). 

Maryland Rule 5-608(b) states in its entirety:

The court may permit any witness to be examined regarding the witness’s 

own prior conduct that did not result in a conviction but that the court finds 

probative of a character trait of untruthfulness. Upon objection, however, 

the court may permit the inquiry only if the questioner, outside the hearing 

of the jury, establishes a reasonable factual basis for asserting that the 

conduct of the witness occurred. The conduct may not be proved by extrinsic 

evidence.

Maryland Rule 5-616(a) governs the topics of questions that counsel may ask to 

impeach a witness. Maryland Rule 5-616(a)(4) states: “The credibility of a witness may 

be attacked through questions asked of the witness, including questions that are directed at 

. . . [p]roving that the witness is biased, prejudiced, interested in the outcome of the 

proceeding, or has a motive to testify falsely[.]”

Immigration Status

In Carrero-Vasquez v. State, 210 Md. App. 504, 519-20, 516, 63 A.3d 647, 657, 655 
- 48 -

(2013), the Court of Special Appeals held that a trial court erred in precluding a defendant 

from cross-examining a State’s witness about her immigration status. In that case, the 

defendant borrowed the witness’s vehicle, and law enforcement officers initiated a traffic 

stop, searched the vehicle, and found a stolen handgun. See id. at 508-09, 63 A.3d at 650. 

At trial, the defendant pursued the defense that the witness put the handgun in her vehicle. 

See id. at 513, 63 A.3d at 653. The witness denied doing so. See id. at 517, 63 A.3d at 

655. There was no forensic evidence that linked the defendant to the handgun, and the 

witness’s testimony was the only evidence that the defendant put the handgun in her 

vehicle. See id. at 513, 63 A.3d at 653. During the witness’s cross-examination, the 

witness acknowledged being an undocumented immigrant, and that being convicted of 

possessing a stolen handgun would be grounds for deportation. See id. at 516, 63 A.3d at 

654. Before a second trial in the case, the State filed a motion to preclude the defendant 

from cross-examining the witness about her immigration status, which the trial court 

granted. See id. at 516, 63 A.3d at 654-55. A jury found the defendant guilty of multiple 

crimes, and he appealed. See id. at 508, 63 A.3d at 650.

The Court of Special Appeals reversed and remanded for a new trial. See id. at 508, 

63 A.3d at 650. The Court explained that, due to the witness’s testimony at trial, there was 

a factual basis for cross-examining her about her immigration status at the second trial. See

id. at 527, 63 A.3d at 661. The Court concluded that the witness’s immigration status was 

not a collateral issue because fear of deportation may have been a “material reason[] why 

she may have been motivated to lie under oath[.]” Id. at 522, 63 A.3d at 658. 

In Ayala v. Lee, 215 Md. App. 457, 481, 81 A.3d 584, 599 (2013), the Court of 
- 49 -

Special Appeals held that plaintiffs “opened the door to questions about their immigration 

status when their answers to interrogatories differed substantively from documents they 

later submitted as evidence.” (Cleaned up). In that case, the plaintiffs, who were 

undocumented immigrants, sued the defendants in connection with a motor vehicle 

accident. See id. at 461-62, 463, 81 A.3d at 587, 588. In answers to interrogatories, the 

plaintiffs “indicated that they were legally permitted to work in the United States”; also, 

the plaintiffs provided copies of their federal tax returns, showing Social Security Numbers 

that were purportedly assigned to them. Id. at 481-82, 81 A.3d at 599. But, the plaintiffs 

“later submitted copies of applications for asylum that stated that they were neither United 

States citizens nor legal residents.” Id. at 482, 81 A.3d at 599. The plaintiffs filed a motion 

to exclude evidence of their immigration status, which the trial court denied. See id. at 

463, 81 A.3d at 588. A jury found in the defendants’ favor, and the plaintiffs appealed. 

See id. at 462, 81 A.3d at 587.

The Court of Special Appeals reversed and remanded for a new trial on the separate 

issue of damages. See id. at 466, 81 A.3d at 590. The Court of Special Appeals concluded 

that, at the new trial, if the plaintiffs chose to testify, “their credibility [could] be challenged 

with questions asking them about [the] apparently inconsistent statements” regarding their 

immigration status. Id. at 482, 81 A.3d at 599. That said, the Court of Special Appeals 

acknowledged:

Immigration status alone does not reflect upon an individual’s 

character[,] and is thus not admissible for impeachment purposes. See

Figeroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989) (“An individual’s 

status as an alien, legal or otherwise, however does not entitle the 

[government] to brand him a liar.”); Galaviz-Zamora[ v. Brady Farms, Inc.], 
- 50 -

230 F.R.D. [499,] 502 [(W.D. Mich. 2005)] (finding no connection between 

immigration status and witness credibility); Mischalski v. Ford Motor Co., 

935 F. Supp. 203, 207-08 (E.D.N.Y. 1996) (no support for “the conclusion 

that the status of being an illegal alien impugns one’s credibility”). 

Immigration violations that involve false statements, such as false 

employment papers, are more likely to be relevant, but are still subject to an 

intensive inquiry into the likelihood of prejudice, as discussed above. See

Serrano[ v. Underground Utils. Corp.], 970 A.2d [1054,] 1070 [(N.J. Super. 

App. Div. 2009)] (observing that the likelihood of evidence of “employmentrelated false statements” leading to “other witnesses who could offer 

negative opinions or reputation testimony about plaintiffs’ truthfulness” that 

would be admissible seems exceedingly low). Further, the relevance of an 

immigration-related false statement, standing on its own, is limited if the 

party against whom it is offered is not charged with an immigration-related[] 

crime. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241-42 (Tex. 2010) 

(The collateral matter of defendant’s immigration status was inadmissible 

impeachment evidence because it served only to “contradict [the defendant] 

on facts irrelevant to issues at trial”).

Ayala, 215 Md. App. at 480-81, 81 A.3d at 598-99 (emphasis added) (some alterations in 

original).

Analysis

Here, we conclude that, absent additional circumstances—such as allegations of 

quid pro quo or leniency in an immigration case giving rise to a motive to testify falsely or 

bias—a State’s witness’s status as an undocumented immigrant, or the existence of a 

deportation order to which the witness may be subject does not “show the character of the 

witness for untruthfulness[,]” Md. R. 4-263(d)(6)(A), is not “probative of a character trait 

of untruthfulness[,]” Md. R. 5-608(b), and does not show that the witness “has a motive to 

testify falsely[,]” Md. R. 5-616(a)(4). Without more, a State’s witness’s status as an 

undocumented immigrant, or any deportation order to which the person is subject, is not 

required to be disclosed by a prosecutor during discovery, and is not a proper subject of 
- 51 -

cross-examination.

To be discoverable under Maryland Rule 4-263(d)(6)(A), information must be 

relevant to a State’s witness’s credibility. Generally, a witness’s immigration status is not 

relevant to his or her credibility because, absent additional circumstances, a witness’s status 

as an undocumented immigrant, or the existence of a deportation order to which the witness 

may be subject, does not make the witness any more likely to falsely testify than any person

would be. We agree with the Court of Special Appeals and multiple other courts that 

“[i]mmigration status alone does not reflect upon an individual’s character[,] and is thus 

not admissible for impeachment purposes.” Ayala, 215 Md. App. at 480, 81 A.3d at 598 

(citations omitted). 

We do not adopt Kazadi’s contention that a prosecutor must disclose a deportation 

order to which a State’s witness is subject because the deportation order could reveal 

evidence of the use of “falsehoods to enter or remain in the country.” It is purely 

speculative to assert that a deportation order resulted from falsehoods or misrepresentations 

that were associated with illegal entry or overstaying.

Applying our conclusion to the facts of this case, we determine that the circuit court 

correctly denied the motion to compel the State to disclose S.L.’s Alien Registration 

Number, her immigration case number, and any paperwork concerning her immigration 

status, including a copy of the deportation order to which she was subject. Additionally, 

the circuit court was correct in precluding Kazadi’s counsel from cross-examining S.L. and 

M.L. about their immigration status, and about the deportation order to which S.L. was 

subject. There is no evidence of any quid pro quo or leniency in any immigration matter 
- 52 -

involving S.L. or M.L. There is no indication that any of the immigration-related 

information that Kazadi requested would “show the character of [S.L.] for 

untruthfulness[.]” Md. R. 4-263(d)(6)(A). Because there was no evidence that S.L.’s or 

M.L.’s immigration status, or the deportation order, reflected on their credibility, disclosure 

of the requested documents was not required and cross-examination regarding the same 

was not permitted. On remand, absent any additional information, as was the case at the

first trial, the circuit court should not require disclosure of the requested documents and 

should preclude such cross-examination.

JUDGMENT OF THE COURT OF SPECIAL 

APPEALS REVERSED. CASE REMANDED TO 

THAT COURT WITH INSTRUCTIONS TO 

REVERSE THE JUDGMENTS OF THE CIRCUIT 

COURT FOR BALTIMORE CITY AND REMAND 

TO THAT COURT FOR A NEW TRIAL. MAYOR 

AND CITY COUNCIL OF BALTIMORE TO PAY 

COSTS IN THIS COURT AND IN THE COURT 

OF SPECIAL APPEALS.
TSHIBANGU KAZADI * IN THE

Petitioner * COURT OF APPEALS

v. * OF MARYLAND

STATE OF MARYLAND * No. 11

Respondent * September Term, 2019

O R D E R

Upon further consideration of Tshibangu Kazadi v. State, No. 11, Sept. Term, 2019, 

2020 WL 398840 (Md. Jan. 24, 2020), it is this 2nd day of March, 2020,

ORDERED, by the Court of Appeals of Maryland, a majority of the Court

concurring, that the last two sentences of the first full paragraph on page 44 of the opinion

are replaced with the following sentence:

Additionally, consistent with this Court’s case law, we provide Kazadi with 

the benefit of the holding in this case, and we determine that our holding

applies to this case and any other cases that are pending on direct appeal 

when this opinion is filed, where the relevant question has been preserved 

for appellate review. See Hackney v. State, 459 Md. 108, 119, 184 A.3d 414, 

421 (2018); State v. Daughtry, 419 Md. 35, 77 n.26, 18 A.3d 60, 85 n.26 

(2011).

 /s/ Mary Ellen Barbera

 Chief Judge
IN THE COURT OF APPEALS

OF MARYLAND

No. 11

September Term, 2019

______________________________________

TSHIBANGU KAZADI

v.

STATE OF MARYLAND

______________________________________

Barbera, C.J.

McDonald

Watts

Hotten

Getty

Booth

Wilner, Alan M. (Senior Judge, 

Specially Assigned),

JJ.

______________________________________

Opinion by McDonald, J., dissenting in part, 

which Hotten and Getty, JJ., join.

______________________________________

Filed: January 24, 2020

Circuit Court for Baltimore City

Case No. 116042016

Argued: October 7, 2019
In this case, a jury selected in compliance with the well-established voir dire process 

in Maryland convicted Mr. Kazadi of the murder of Brandon Smith. The Majority Opinion 

reverses Mr. Kazadi’s murder conviction because, in its view, the trial judge abused his 

discretion by not asking prospective jurors about certain legal principles governing 

criminal trials that would be covered in the court’s jury instructions at the end of the trial.

1

 

As the Majority Opinion appears to concede, the new rule established in this case not only 

departs from Maryland precedent, but is contrary to the rule in the majority of state courts 

and, except for the Sixth Circuit, all federal courts that have addressed the issue. See

Majority slip op. at 28-30. 

I would decide this issue differently. It is well-established that, under Maryland 

law, the scope of inquiry during voir dire to assess the eligibility of jurors is committed to 

the “sound discretion” of the trial judge. Stewart v. State, 399 Md. 146, 160 (2007). 

Accordingly, as the Majority Opinion correctly states, an appellate court reviews a trial 

court’s decision as to what questions to ask during jury selection under an abuse of 

discretion standard. Majority slip op. at 17. In my view, it is perfectly acceptable if a trial 

judge chooses, in the exercise of that discretion, to include voir dire questions directed to 

concepts like reasonable doubt and the presumption of innocence. That is essentially the 

approach set out in Maryland State Bar Association, Model Jury Selection Questions for 

Maryland Criminal & Civil Trials (2018), at p. 30. However, I do not agree that the trial 

 

1 Many trial judges also instruct the jury on those principles as part of the court’s 

introductory remarks at the outset of the trial. See 1 David E. Aaronson, Maryland Criminal 

Jury Instructions and Commentary, §1.01 (2018 ed.).
2

judge’s discretion should be constrained by making those questions a mandatory topic of 

voir dire. It is only another short step to also making mandatory voir dire questions

concerning the elements of the offenses that the jury will consider, key defenses, and other 

topics that will be covered in the trial court’s instructions. It could reasonably be argued 

that a voir dire question about “reasonable doubt” in the abstract cannot yield an intelligible 

response if it is not tethered to some specific statement of what must be shown beyond a 

reasonable doubt.

There is a certain irony in the Majority Opinion. It endorses the idea that there is 

only “limited voir dire” in Maryland – i.e., that the purpose of voir dire in a Maryland trial 

court is solely to identify prospective jurors who should be struck for cause and “not to aid 

counsel in the intelligent use of peremptory strikes.” Majority slip op. at 43. However, the 

new mandatory voir dire questions established by the Majority Opinion are not required 

by those jurisdictions, such as the federal courts, that allow a broader voir dire process

addressed to the exercise of peremptory strikes as well as strikes for cause.

In addition, certain qualifications to the new rule adopted by the Majority Opinion 

reveal that the new mandatory voir dire questions may not be as critical as the Majority 

Opinion suggests. For example, the Majority Opinion does not contemplate that trial 

judges will always ask these questions, but rather only if requested to do so by a defendant. 

Majority slip op. at 44. Moreover, while Mr. Kazadi’s conviction is being reversed for the 

failure to ask such questions, other convicted defendants whose contemporaneous trials did 

not include such voir dire questions during jury selection are afforded no relief. Id. 
3

Clearly, the Majority Opinion is comfortable that these questions are not indispensable to 

selecting a fair-minded impartial jury, either in the future or in the past.

To reverse a trial court decision for abuse of discretion requires, according to a 

description frequently quoted by Maryland courts, that “[t]he decision under consideration 

has to be well removed from any center mark imagined by the reviewing court and beyond 

the fringe of what that court deems minimally acceptable,” not whether the appellate court

would have made a different decision. North v. North, 102 Md. App. 1, 14 (1994) 

(emphasis added). It seems very odd to say that a trial judge who conducted the jury 

selection process by following Maryland appellate precedent, not to mention the prevailing 

rule in other jurisdictions, acted in a way “well removed from any center mark” and 

“beyond the fringe.” 

In the end, it seems that reversal of a murder conviction that would otherwise be 

affirmed, in which the trial judge conducted voir dire in compliance with the existing law, 

and in which there is no indication that the jury was other than fair and impartial, is an 

unwieldy and unnecessary way to modify the voir dire process in Maryland state courts. 

If we believe that it is a good idea to mandate new questions for voir dire, we should do so

by a rule that would apply to all like cases simultaneously rather than by reversal of one

murder conviction.2

 

2 When the Majority Opinion was originally issued, it applied its holding only to 

Mr. Kazadi’s case. It has subsequently been revised to apply to other cases pending on 

direct review. If one accepts the rationale of the Majority Opinion, that is a fairer result, 

as it treats like cases alike. In my view, however, it also demonstrates the questionable 

reasoning of the Majority Opinion – which now effectively holds that an unknown number 
4

Judge Hotten and Judge Getty have authorized me to state that they join in this 

opinion.

 

of trial judges each abused his or her discretion and committed reversible error when they 

each failed to anticipate that this Court would adopt, by adjudication, new mandatory voir 

dire questions not required by most other jurisdictions.
IN THE COURT OF APPEALS

OF MARYLAND

No. 11

September Term, 2019

______________________________________

TSHIBANGU KAZADI

v.

STATE OF MARYLAND

______________________________________

Barbera, C.J.

McDonald

Watts

Hotten

Getty

Booth

Wilner, Alan M. (Senior Judge, 

Specially Assigned),

JJ.

______________________________________

Opinion by Getty, J., dissenting in part,

which McDonald and Hotten, JJ., join.

______________________________________

Filed: January 24, 2020

Circuit Court for Baltimore City

Case No. 116042016

Argued: October 7, 2019
I respectfully dissent from the Majority’s conclusion that voir dire questions 

concerning a jury’s willingness to follow a trial court’s subsequent instructions on the law 

are mandatory. I join Judge McDonald’s dissent and write separately to further explain my 

disagreement with the Majority’s interpretation of Twining v. State, 234 Md. 97 (1964). I 

would hold that questions regarding a jury’s willingness to follow basic legal principles 

during voir dire are not mandatory and a trial court does not abuse its discretion in declining 

to ask such questions. The Majority misconstrues this Court’s basis for our holding in 

Twining and fails to demonstrate how that holding is “clearly wrong and contrary to 

established principles[, or] has been superseded by significant changes in the law or [the] 

facts.” Majority Slip. Op. at 22 (quoting Wallace v. State, 452 Md. 558, 582 (2017)). In 

my view, the circuit court did not abuse its discretion by declining to ask Mr. Kazadi’s 

requested voir dire questions because Twining and its progeny remain good law.

In Twining, this Court considered whether a trial court’s refusal to grant two 

requested jury instructions constituted an abuse of discretion. 234 Md. at 99–100. The

latter refusal is relevant to the instant case. Id. at 100. Specifically, Twining sought to 

inquire whether prospective jurors would “give the accused the benefit of the presumption 

of innocence and the burden of proof.” Id. We found no abuse of discretion and dispensed 

of the issue in a single paragraph:

The [second] question sought to be propounded [by the trial court] related to 

whether the [jury] would give the accused the benefit of the presumption of 

innocence and the burden of proof. We find no abuse of discretion here. The 

rules of law 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 at this stage of the case, or to question 

the jury as to whether or not they would be disposed to follow or apply stated 
2

rules of law. See 50 C.J.S.Juries § 275(2). This would seem to be 

particularly true in Maryland, where the courts’ instructions are only 

advisory. . . .

Twining, 234 Md. at 100 (emphasis added).

The Majority reads this paragraph to state three reasons for the Court’s holding. 

Majority Slip. Op. at 31–32. I only discern two reasons. First, Twining’s proposed voir 

dire questions were “fully and fairly covered” in the subsequent jury instructions. Second, 

it is “inappropriate” to question the jury about legal principles during voir dire. The 

Twining Court did not, as the Majority concludes, rely on the advisory nature of jury 

instructions as a basis for its holding. That language amounts only to dicta. Instead, we 

referenced the lack of binding jury instructions because it only fortified our decision on the 

first two bases. Twining, 234 Md. at 100 (“This would seem to be particularly true in 

Maryland. . . .”) (emphasis added).

As described comprehensively in the majority opinion, a court’s instructions on the 

law only became binding upon a jury in the early 1980s. Majority Slip. Op. at 40. See

Stevenson v. State, 289 Md. 167, 180 (1980); Montgomery v. State, 292 Md. 84, 91 (1981). 

In the decades after this Court decided Twining, and since jury instructions became binding, 

we have reaffirmed the notion espoused in Twining that it is improper to question jurors on 

principles of law during voir dire. In State v. Logan, the issue concerned whether a trial 

court had properly refused voir dire questions about a juror’s willingness to accept a 

defense of not criminally responsible. 394 Md. 378, 384 (2006). This Court concluded 

that one proposed question “amount[ed] to a solicitation of whether prospective jurors 
3

would follow the court’s instructions on the law,”1and found no abuse of discretion in the 

trial court’s refusal to ask it. Id. at 398–99. We concluded that asking jurors if they would 

follow the court’s instructions on the law, during voir dire, is “generally disfavored in 

Maryland. . . .” Id. at 399 (quoting Twining, 234 Md. at 100). The Logan Court similarly 

found no abuse of discretion with regard to another proposed voir dire question.2 We 

explicitly relied on Twining for the proposition that “voir dire is not the appropriate time 

for the trial judge to instruct the jury on the law applicable to the case.” Id. at 400. (Citation 

omitted).

Yet again in Stewart v. State, we noted that “questions asking whether prospective 

jurors would follow the court’s instructions on the law are disfavored in Maryland and a 

court does not abuse its discretion in refusing to ask them.” 399 Md. 146, 162–63 (2007) 

(citing Logan, 394 Md. at 399). To now rely on the fact that jury instructions are binding 

as a “significant change[] in the law” is improper. The Majority offers no persuasive 

argument as to how our post-1981 decisions in Logan and Stewart can now be overruled 

without violating fundamental principles of stare decisis.

I would not overrule Twining. I agree with the Majority to the extent that the 

language the Court used in Twining–“[i]t is generally recognized that it is inappropriate to 

instruct on the law at this stage of the case, or to question the jury as to whether or not they 

 

1

“[I]f the defendant satisfies his burden in this regard, will any member of the jury 

be unable to find the defendant not criminally responsible?” Logan, 394 Md. at 398.

2

“[D]oes any juror anticipate having difficulty following the Court’s instructions 

on the defense of ‘not criminally responsible,’ particularly in view of the crimes charged 

in the indictment?” Logan, 394 Md. at 399.
4

would be disposed to follow or apply stated rules of law”–is now antiquated. However, 

while I agree that such language is outdated, I maintain that the proposed voir dire

questions regarding a juror’s willingness to follow purely legal principles should not be 

mandatory at defense counsel’s request given the circuit court’s broad discretion. See

Stewart v. State, 399 Md. 146, 160 (2007) (“The manner of conducting voir dire and the 

scope of inquiry in determining the eligibility of jurors is left to the sound discretion of the 

judge.”). Therefore, I would affirm the judgment of the Court of Special Appeals.

I would hold that the circuit court did not abuse its discretion in refusing to ask Mr. 

Kazadi’s requested questions. The Majority’s opinion paves the way toward creating a 

patchwork of mandatory voir dire questions. I believe this will serve to only complicate 

the voir dire process, confuse trial judges in the exercise of their broad discretion, and lead 

courts astray from the purpose of limited voir dire, which is to solely identify jurors who 

should be struck for cause, “not to aid counsel in the intelligent use of peremptory strikes.” 

Majority Slip. Op. at 44.

Judge McDonald and Judge Hotten have authorized me to state that they join in this 

opinion.
The correction notice(s) for this opinion(s) can be found here: 

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/11a19cn.pdf

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/11a19cn2.pdf