State v. Adams

*299ELDRIDGE, J.,

dissenting.

I would affirm the judgments of the Court of Special Appeals and the Circuit Court for Prince George’s County. The majority opinion today, like the majority opinion in Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), mis-reads the pre-1980 opinions of this Court dealing with the Maryland constitutional provision making juries the judges of the law in criminal cases. Moreover, the majority opinion in the case at bar is replete with erroneous statements, unsupported assertions, and faulty analysis.

The principal issue before this Court is whether the respondent Adams is entitled to post-conviction relief even though, at his 1979 trial, there was no objection to the advisory nature of the trial judge’s jury instructions. Under our cases, if Stevenson v. State, supra, and Montgomery v. State, 292 Md. 84, 437 A.2d 654 (1981), represented a new constitutional ruling or set forth a new constitutional standard governing Maryland criminal proceedings, and were retroactive, Adams is entitled to a new trial.

An examination of this Court’s pre-Stevenson opinions, construing or applying the state constitutional mandate that juries are the judges of the law in criminal cases, demonstrates that Stevenson and Montgomery constituted a major departure from this Court’s previous opinions. The Stevenson and Montgomery interpretation of the constitutional provision making juries the judges of the law in criminal cases was a new interpretation, and it was fully retroactive. This Court’s opinions clearly entitled Adams to a new trial governed by the principles set forth in Stevenson and Montgomery.

I.

Before turning to the principal issue in this case, however, there is a preliminary matter which should be noted. As set forth in my dissenting opinion in Stevenson v. State, supra, 289 Md. at 189-204, 423 A.2d at 570-577, and my concurring *300opinion in Montgomery v. State, supra, 292 Md. at 96, 437 A.2d at 660 (1981), I continue to believe that the first paragraph of Article 23 of the Maryland Declaration of Rights, on its face, violates the Constitution of the United States.

The first paragraph of Article 23 mandates: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” (Emphasis added). The majority construes the phrase “all criminal cases” to mean only some criminal cases and the word “Law” to mean only a very small portion of the applicable law. This approach is in sharp contrast with the numerous opinions of this Court holding that constitutional or statutory language should not be distorted in order to reach a particular result. See, e.g., Bednar v. Provident, 402 Md. 532, 543-544, 937 A.2d 210, 216 (2007) (The word “any” in a statute “does not mean only ‘some’ ”); Bowen v. Annapolis, 402 Md. 587, 615, 937 A.2d 242, 250 (2007) (The “ ‘meaning of the [word] “any” does not imply limitation’ ”); Taylor v. NationsBank, N. A, 365 Md. 166, 181, 776 A.2d 645, 654 (2001) (This Court does not “engage in forced or subtle interpretation in an attempt to ... limit the [enactment’s] meaning”); Montrose Christian School v. Walsh, 363 Md. 565, 595, 770 A.2d 111, 129 (2001) (To substitute the word “primarily” for the word “purely” in an enactment, would “ ‘be to re-draft the [enactment] under the guise of construction,’ ” quoting Davis v. State, 294 Md. 370, 378, 451 A.2d 107, 111 (1982)).

As shown later in this opinion, prior to the Stevenson case in 1980, the state constitutional provision making the jury the judge of the law in a criminal case was largely construed as it read. Nevertheless, whether construed broadly in accordance with this Court’s opinions before 1980, or “construed” narrowly in accordance with the Stevenson re-draft, the Maryland constitutional provision violates the Due Process Clause of the Fourteenth Amendment and violates the Jury Trial Clause of the Sixth Amendment. The state constitutional provision is also inconsistent with the Equal Protection Clause of the Fourteenth Amendment.

*301As discussed in the Stevenson dissent, 289 Md. at 191, 423 A.2d at 571, “[a]n essential principle of ‘due process of law’ is the right to have a case tried and decided in accordance with the law of the jurisdiction.” A system which allows a jury in a criminal case to decide the applicable law generally, or even just “the law of the crime,” and tells the jury that the trial judge’s instructions on the law are “advisory” and that the jury is free to disregard the instructions, is flatly inconsistent with the right to be tried in accordance with the law of land. Furthermore, “the Sixth Amendment provision for trial by jury in criminal cases contemplates a jury which is the judge of the facts, receiving binding instructions on the law from the court.” Stevenson (dissenting opinion), 289 Md. at 193-194, 423 A.2d at 572. In addition, when one jury makes a determination as to what the law is, and another jury decides that the same law is totally different, even though the circumstances of both cases are the same, the defendants are not being accorded equal protection of the laws. As long as the trial judge’s instructions, including advisory instructions, are free from error, as long as the evidence is sufficient under the trial court’s and appellate court’s determination of the correct law, and if no erroneous rulings appear on the record, the different determinations of the “same law” by different juries will not be corrected.

The first paragraph of Article 23, either as written or as redrafted by the Stevenson majority and the majority today, simply cannot be reconciled with federal constitutional requirements.

II.

Another matter should be addressed before discussing the novelty and retroactivity of the Stevenson and Montgomery interpretation of the state constitutional provision making juries the judges of the law in criminal cases. That matter concerns the applicable body of “waiver” law.

The Circuit Court for Prince George’s County, the Court of Special Appeals (State v. Adams, 171 Md.App. 668, 682, 912 *302A.2d 16, 24-25 (2006)), and the parties have proceeded as if the waiver provisions of the Maryland Post Conviction Procedure Act, § 7-106(b) and (c) of the Criminal Procedure Article, are directly applicable to this action under the Post Conviction Procedure Act. They are not. Whether Adams is precluded from post conviction relief, because of the failure to challenge the advisory nature of the jury instructions at his 1979 trial, is governed by this Court’s case law and any applicable provisions of the Maryland Rules.1 That case law, however, reflects principles similar to those embodied in § 7-106(b) and (c) of the Post Conviction Procedure Act.

This Court, in Curtis v. State, 284 Md. 132, 149-150, 395 A.2d 464, 474 (1978), after reviewing the language and history of the Maryland Post Conviction Procedure Act, as well as cases applying the statute, held as follows:

“Consequently, we believe that the Legislature, when it spoke of ‘waiver’ in subsection (c) of Art. 27, § 645A [now § 7-106(b) and (c) of the Post Conviction Procedure Act], was using the term in a narrow sense. It intended that subsection (c), with its ‘intelligent and knowing’ standard, be applicable only in those circumstances where the waiver concept of Johnson v. Zerbst[, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ] and Fay v. Noia[, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) ] was applicable. Other situations are beyond the scope of subsection (c), to be governed by case law or any pertinent statutes or rules. Tactical decisions, when made by an authorized competent *303attorney, as well as legitimate procedural requirements, will normally bind a criminal defendant.”2

More recently, this was explained by Judge Karwacki for the Court in Hunt v. State, 345 Md. 122, 137-138, 691 A.2d 1255, 1262-1263, cert. denied, 521 U.S. 1131, 117 S.Ct. 2536, 138 L.Ed.2d 1036 (1997):

“Thus, the General Assembly contemplated, for purposes of subsection (c) of the Post Conviction Procedure Act, that *304waiver there described assumed the restrictive character to which the Supreme Court had ascribed it. This has necessarily led to a dual framework under which a post-conviction petitioner in Maryland may endeavor to assert certain, specific claims or rights not previously raised. That is to say, the nature of the right involved will determine whether the decision is governed by Art. 27, § 645A(c), or pertinent case law, statutes, or rules. On the one hand, if a defendant’s claim does encompass that narrow band of rights that courts have traditionally required an individual knowingly and intelligently relinquish or abandon in order to waive the right or claim, Walker v. State, 343 Md. 629, 642, 684 A.2d 429, 435 (1996), the failure to do so knowingly and intelligently will not preclude raising the matter on post-conviction review. Courts, however, do not apply the same standard of waiver to ‘the vast array of trial decisions, strategic and tactical, which must be made before and during trial.’ Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126, 135 (1976). . . .”

In Walker v. State, 343 Md. 629, 641-642, 684 A.2d 429, 435 (1996), the Court stated:

“The circuit court’s application of the definition of waiver in the Post Conviction Act’s subsection (c) may well have been correct if the waiver issue in this case were governed by subsection (c). The court, however, overlooked our interpretation of the statute as a whole, set forth in Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978), and reaffirmed on numerous occasions. See, e.g., Oken v. State, 343 Md. 256, 270-272, 681 A.2d 30, 37-39 (1996); McElroy v. State, 329 Md. 136, 140-142, 147-149, 617 A.2d 1068, 1070-1071, 1073-1075 (1993); Trimble v. State, 321 Md. 248, 259, 582 A.2d 794, 799 (1990); State v. Romulus, 315 Md. 526, 539-540, 555 A.2d 494, 500 (1989); Martinez v. State, 309 Md. 124, 141, 522 A.2d 950, 958-959 (1987); State v. Calhoun, 306 Md. 692, 702-704, 511 A.2d 461, 465-467 (1986), cert. denied, 480 U.S. 910, 107 S.Ct. 1339, 94 L.Ed.2d 528 (1987); State v. Tichnell, 306 Md. 428, 464, 509 A.2d 1179, 1197, cert. denied, 479 U.S. 995, 107 S.Ct. 598, 93 L.Ed.2d 598 (1986); Foster, *305Evans and Huffington v. State, 305 Md. 306, 315-316, 503 A.2d 1326, 1331, cert. denied, 478 U.S. 1010, 1023, 106 S.Ct. 3310, 3315, 92 L.Ed.2d 723, 745 (1986); Williams v. State, 292 Md. 201, 215-216, 438 A.2d 1301, 1308 (1981); State v. Magwood, 290 Md. 615, 622-623, 432 A.2d 446, 449-450 (1981).

Consequently, in an action under the Post Conviction Procedure Act, the nature of the issue presented will ordinarily determine the applicability of § 7-106(b) and (c). For example, waiver of a claim that trial counsel’s representation was so inadequate that the defendant was denied his constitutional right to the assistance of counsel requires an “intelligent and knowing waiver” by the defendant; accordingly, the waiver provisions of the Post Conviction Procedure Act are applicable. Curtis v. State, supra, 284 Md. at 150-151, 395 A.2d at 474-475, and cases there cited. On the other hand, waiver with respect to most issues does not require “intelligent and knowing” action by the defendant, and, with regard to those issues, the waiver provisions of the Post Conviction Procedure Act are not directly applicable. Some Post Conviction Procedure Act cases present both types of issues, i.e., issues governed by the Act’s waiver provisions and issues that are not strictly governed by the statutory provisions. See, e.g., Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997); Davis v. State, 285 Md. 19, 400 A.2d 406 (1979). It should also be noted, however, that some of this Court’s opinions have not always drawn an explicit distinction between the applicability of the Act’s waiver section and the circumstances when that section does not apply.

Ordinarily, as the majority points out, a challenge to a jury instruction is not covered by the waiver provision contained in § 7-106(b) of the Post Conviction Procedure Act; instead, the failure at trial to object to a jury instruction normally constitutes a waiver of any challenge to the instruction. See Walker v. State, supra, 343 Md. at 645-646, 684 A.2d at 437. For example, Davis v. State, supra, 285 Md. at 32-37, 400 A.2d at 412-414, involved a concededly erroneous jury instruction that *306relieved the prosecution of its burden of proving criminal agency beyond a reasonable doubt. Even though the reasonable doubt standard reflects a fundamental constitutional right, the Court in Davis held that, in light of Curtis, the waiver section of the Post Conviction Procedure Act “is not applicable to the advisory jury instruction here.” Davis, 285 Md. at 33, 400 A.2d at 413. See, e.g., State v. Rose, 345 Md. 238, 243-250, 691 A.2d 1314, 1316-1320 (1997) (The issue concerned a Post Conviction Procedure Act challenge to the “reasonable doubt” jury instruction at the defendant’s trial, which was not objected to, and the Court held that the error had been waived by the failure to object); Hunt v. State, supra, 345 Md. at 132-139, 149-152, 691 A.2d at 1260-1263, 1268-1269 (same).3

In cases not governed by § 7-106(b) of the Post Conviction Procedure Act, the provision in § 7-106(b)(1)(ii), excusing a waiver if “special circumstances” exist, does not directly apply. Moreover, the “plain error” concept under Maryland Rule 8-131(a), applicable in direct appeals from criminal judgments, does not technically apply in post conviction actions. Walker *307v. State, supra, 343 Md. at 647-648, 684 A.2d at 438. Nevertheless, our post conviction cases have excused waivers when circumstances have justified the application of a “plain error” concept. See, e.g., Hunt v. State, supra, 345 Md. at 139, 691 A.2d at 1263 (In a post conviction action, we stated that “the Court may review otherwise unpreserved issues under the discretion granted by Maryland Rule 8-131”); Oken v. State, supra, 343 Md. at 273, 681 A.2d at 38 (A post conviction action in which we held: “Under Maryland Rule 8-131, this Court retains discretion to excuse a waiver”); Walker v. State, supra, 343 Md. at 647-648, 684 A.2d at 438 (“[T]his Court has taken the position that a court, in a post conviction proceeding, can excuse a waiver based upon an earlier procedural default if the circumstances warrant such action”).4

*308There is one situation where the defendant’s failure to object to a jury instruction at trial, or failure otherwise to preserve an issue at trial, is not a waiver for purposes of a Maryland Post Conviction Procedure Act proceeding or other post-trial proceeding. That situation is set forth in § 7-106(c)(2) of the Post Conviction Procedure Act which states:

“(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:
(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and
(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.”

When this principle is applicable, a failure to preserve an issue at trial does not constitute a waiver, and, consequently, a court’s discretion to excuse a waiver is not involved. Moreover, under this Court’s opinions, the principle embodied in § 7-106(c)(2) not only applies to cases directly governed by § 7-106(b) of the Post Conviction Procedure Act, but applies to Post Conviction Procedure Act proceedings not governed by § 7-106(b), as well as other types of post-trial proceedings.

For example, State v. Colvin, 314 Md. 1, 24-26, 548 A.2d 506, 517-518 (1988), was a post conviction proceeding involving a challenge to the jury instructions and verdict form submitted to the jury in a capital case. Since waiver of jury instructions does not require knowing and intelligent action by the defendant, the Colvin Post Conviction Act proceeding was not directly governed by the waiver provision now in § 7-106(b) of the statute. The defendant Colvin had failed to object to the *309jury instructions and the verdict form at his trial. Subsequent to Colvin’s trial, the Supreme Court in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), held that similar instructions and a similar verdict form were constitutionally defective. This Court, in Colvin’s post conviction proceeding, held that Mills imposed a new standard and, because it affected the integrity of the fact-finding process, the new standard applied retroactively. The Court concluded (314 Md. at 25, 548 A.2d at 518): “Consequently, Colvin-El’s death sentence must be vacated” (emphasis added).5

*310In State v. Evans, 278 Md. 197, 199, 362 A.2d 629, 631 (1976), a homicide case, the defendant Evans at his trial did not object to a jury instruction “that the accused had the burden of ‘showing the elements which would reduce the crime to manslaughter or which would make the homicide justifiable and excusable.’” After Evans’s conviction of second degree murder and during the pendency of appellate proceedings, the United States Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), held, inter alia, that such a jury instruction violated due process principles. This Court in Evans, 278 Md. at 210, 362 A.2d at 637, held “that Mullaney, involving as it does the integrity of the fact-finding function, must be given full retroactive effect in view of our recent decision in Wiggins v. State, 275 Md. 689, 344 A.2d 80 (1975).” Even though the case was not covered by the Post Conviction Procedure Act, the Court, in an opinion by Chief Judge Murphy, utilized the Post Conviction Procedure Act in determining that the Court of Special Appeals’ reversal of the conviction was justified (278 Md. at 211, 362 A.2d at 637):

“Under the Post Conviction Procedure Act, ... no error is deemed to have been waived in a case where a decision of the Supreme Court subsequently imposes upon State criminal proceedings ‘a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.’ Undoubtedly, the court in Evans considered that the Mullaney errors were subject to collateral attack under this section in any event, and proceeded to recognize them on its own motion____”

Numerous other cases, applying the principle of the Evans case, have held that the failure to raise an issue at trial did not constitute a waiver when there was a relevant post-trial Supreme Court or Maryland Court of Appeals ruling changing the legal standard concerning the issue, or have held that the *311previous failure to raise the issue amounted to a waiver when the subsequent Supreme Court or Court of Appeals ruling did not change the legal standard. See, e.g., Hunt v. State, supra, 345 Md. at 151-152, 691 A.2d at 1269-1270 (Defendant’s previous failure to challenge the trial court’s “reasonable doubt” instruction constituted a waiver because the post-trial case relied upon by Hunt “did not alter existing case law”); Walker v. State, supra, 343 Md. at 637-640, 684 A.2d at 433-434 (The lack of an objection to the trial court’s instruction concerning an element of the offense charged was a waiver because the post-trial Court of Appeals opinion relied upon did not modify existing law); Oken v. State, supra, 343 Md. at 272-274, 681 A.2d at 37-38; Squire v. State, 280 Md. 132, 368 A.2d 1019 (1977) (Although the Supreme Court opinion changing the applicable legal standard regarding an issue was filed four days before the defendant’s trial, this Court held that the modification in the legal standard was a ground for excusing the failure to raise the issue). See also Franklin v. State, 319 Md. 116, 571 A.2d 1208 (1990); Hays and Wainwright v. State, 240 Md. 482, 214 A.2d 573 (1965).

The dispositive issues in the case at bar are whether the opinions in Stevenson and Montgomery substantially changed the prior interpretation of the constitutional provision that juries are the judges of the law in criminal cases and, if they did change the law, whether they are retroactive. Since both questions should be answered in the affirmative, the judgments below ought to be affirmed.6

*312III.

Stevenson v. State and Montgomery v. State clearly established a new legal standard. The majority opinion in Stevenson, 289 Md. at 178, 423 A.2d at 564, held that the jury’s “authority” under the first paragraph of Article 23 of the Maryland Declaration of Rights

“is limited to deciding ‘the law of the crime,’ Wheeler v. The State, 42 Md. 563, 570 (1875), or the ‘definition of the crime,’ as well as ‘the legal effect of the evidence before [the jury],’ Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889).” (Emphasis added).7

*313The Stevenson opinion, 289 Md. at 179, 423 A.2d at 565, went on to state that the pre-Stevenson “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 judge alone to decide.” The Stevenson majority held that, because of the jury’s very limited role in determining the law, Article 23 of the Declaration of Rights did not violate the United States Constitution.

In the case at bar, the majority reaffirms the Stevenson theory, namely that this Court’s opinions prior to Stevenson limited the jury’s role under the first paragraph of Article 23 to deciding the “law of the crime.” Underlying various arguments made by the majority today are the repeated assertions that the “holdings in Stevenson and Montgomery ... did not announce new law” (majority opinion at 257, 958 A.2d at 305), that Stevenson “ ‘merely clarified what has always been the law in Maryland’ ” (id. at 257, 958 A.2d at 305), that “Stevenson did not announce a new rule” (id. at 257, 958 A.2d at 306), that a pre-Stevenson objection by Adams to the advisory nature of the jury instructions would not have been “novel, under ... Maryland ... law” (id. at 274, 257, 958 A.2d at 316), that “Stevenson merely articulated what had been implied for decades in the holdings of the Court of Appeals ...” (id. at 274, 958 A.2d at 316), etc.

The above-quoted assertions by the Stevenson majority and the majority today are flatly erroneous. None of the preStevenson opinions of this Court, cited by either the Stevenson majority or the majority today, and no other pre-Stevenson opinions of this Court which have come to my attention, *314support the proposition that the jury’s right to decide the law in criminal cases is limited to the “law of the crime” and the “legal effect of the evidence.”8 What the Stevenson majority did, and what the present majority re-affirms, is to take the phrases “law of the crime” and “legal effect of the evidence” out of context from pre-Stevenson opinions, and then insert the phrase “limited to” or similar language which never appeared in the pr e-Stevenson opinions. No opinion of this Court prior to 1980 ever suggested or intimated that the constitutional provision was limited to the “law of the crime” and the “legal effect of the evidence.” On the contrary, this Court’s pr e-Stevenson opinions demonstrate that juries in criminal cases had a broad role in determining the law, with the only two exceptions being the constitutionality of a federal or Maryland statute and rulings on the admissibility of evidence. More specifically, cases in this Court prior to Stevenson took the position that “presumption of innocence” and “reasonable doubt” instructions were only “advisory.”

Those who purport to see, in this Court’s pr e-Stevenson opinions, a very limited role for juries as judges of the law in criminal cases, remind me of the crowd (with the exception of one child) who purported to see and admire the Emperor’s new clothes, although they knew better, in the story by Hans Christian Andersen. No rational person examining this Court’s opinions prior to the date Stevenson was filed (December 17, 1980), can see more than two exceptions to the constitutional provision making juries the judges of the law in criminal cases.

*315A.

The constitutional provision, stating that juries are the judges of the law in criminal cases, was initially adopted as part of the Maryland Constitution of 1851. The first case discussing the provision, in dicta, was Franklin v. State, 12 Md. 236 (1858). The conviction in Franklin was reversed because of a defective indictment. Justice Bartol delivered the opinion of the Court (12 Md. at 249-250), which agreed in dicta with a concurring opinion by Chief Justice LeGrand (12 Md. at 246) that the constitutional provision making juries the “judges of the law” in criminal cases did not authorize the jury to decide “the constitutionality of an Act of Congress or of the State Legislature.”9 The Franklin opinion did not discuss or recognize any other exception to the constitutional provision that juries are the judges of the law in criminal trials.

The next opinion discussing the constitutional provision authorizing juries to decide the law in criminal cases was Wheeler v. State, supra, 42 Md. at 570. As earlier noted, supra n. 7, Wheeler and Beard v. State, supra, 71 Md. at 280, 17 A. at 1045, took the position that the jury’s authority did not extend to the trial judge’s rulings on the admissibility of evidence. This was the only exception to the constitutional provision mentioned by either opinion. In fact, Chief Judge Alvey for the Court in Beard, 71 Md. at 279-280, 17 A. at 1045, emphasized that, when a trial judge decided that it was appropriate to instruct the jury, “it has always been deemed necessary that he [or she] should be careful to put the instruction in an advisory form, so that the jury be left entirely free to find their verdict in accordance with their own judgment of the law, as well as the facts.”

*316Between 1858, when Franklin v. State, supra, was decided, until December 17, 1980, when Stevenson was decided, the opinions of this Court recognized no more than two exceptions to the constitutional mandate that juries were the judges of the law in criminal cases. Some of this Court’s opinions discussing the constitutional provision failed to mention any exception.10 A number of opinions recognized that a ruling on the constitutionality of an Act of Congress or of an Act of the Maryland General Assembly constituted an exception.11 Sev*317eral opinions by this Court indicated that a ruling on the admissibility of evidence was an exception to the constitutional provision, without mentioning any other exception.12 There appear to be only two pr e-Stevenson opinions of this Court which recognize both of the above-mentioned exceptions,13 and one opinion which stated that there is just “one exception” without specifying what the exception is.14

*318B.

Not only do the pr e-Stevenson opinions of this Court recognize just two exceptions to the constitutional mandate contained in the first paragraph of Article 23, but, as previously noted, the pr e-Stevenson opinions repeatedly indicate that the constitutional mandate is extremely broad. Thus in Dillon v. State, 277 Md. 571, 580, 357 A.2d 360, 366 (1976), Judge O’Donnell for the Court explained (emphasis in original):

“Under ‘our almost unique Constitutional provision any instructions on the law which the [trial] court may give’ are purely advisory and the jury must be so informed. Schanker v. State, 208 Md. 15, 21, 116 A.2d 363, 366 (1955). As observed in Jackson v. State, 180 Md. 658, 667, 26 A.2d 815, 819 (1942), ‘[t]he judge may tell [the jury] what he thinks the law is, but he must tell them it is merely advisory and they are not bound to follow it____’
“Our predecessors in Slansky v. State, 192 Md. 94, 63 A.2d 599 (1949), pointed out that a trial judge, in instructing in a criminal case, ‘should be careful to couch the instruction in an advisory form, so that the jury are left free to find their verdict in accordance with their own judgment of the law as well as the facts. When such an instruction is given, it goes to the jury simply as a means of enlightenment, and not, as in civil cases, as a binding rule for their government. Broll v. State, 45 Md. 356 [(1876)]; Swann v. State, 64 Md. 423,1 A. 872 [(1885)]; Dick v. State, 107 Md. 11, 68 A. 286, 576 [(1907)].’ ”

For a sampling of other opinions to the same effect, see, e.g., Bruce v. State, 218 Md. 87, 97, 145 A.2d 428, 433 (1958) (An “instruction on every essential question or point of law” is an *319“advisory” instruction) (emphasis added); Vogel v. State, 163 Md. 267, 274, 162 A. 705, 707 (1932) (“ ‘[I]t is too well settled in this State to require the production of authority that the judge may state his own views of the law to the jury, provided he also informs them that his utterance is advisory only, and that they are free to adopt their own independent judgment,’” quoting Dick v. State, 107 Md. 11, 19, 68 A. 286, 289 (1907)); Esterline v. State, 105 Md. 629, 636, 66 A. 269, 272 (1907) (“Such instructions as [the trial court] may give are merely advisory, and may be disregarded by the jury”) (emphasis in original); Beard v. State, supra, 71 Md. at 279-280, 17 A. 1044 (“Whenever, however, the judge has thought it proper to instruct, it has always been deemed necessary that he should be careful to put the instruction in an advisory form, so that the jury be left entirely free to find their verdict in accordance with their own judgment of the law, as well as the facts”) (emphasis added); Forwood v. State, 49 Md. 531, 537 (1878) (“[I]n criminal cases, [the jurors] being judges of law and of the facts, they were not bound by any instructions of the court, but were only to give such instruction such weight as in their judgment they saw proper”) (emphasis added); Bloomer v. The State, 48 Md. 521, 539 (1878) (“ ‘The jury then, being judges of law, as well as of fact in criminal cases, would not be bound by any instructions given by the court, but would be at perfect liberty to utterly disregard them and find a verdict in direct opposition to them’ ”) (emphasis added); Broll v. The State, 45 Md. 356, 359 (1876) (With regard to Ch. 316 of the Act of 1872, authorizing exceptions in criminal cases, the Court stated: “That Act can only apply to such rulings as the court may be called upon to make with regard to the admissibility of evidence during the trial. It is impossible that the Legislature contemplated giving the right to parties in criminal cases to have instructions upon the law and the legal effect of evidence, and exceptions to such rulings, in the face of the constitutional provision under which juries are at liberty to treat such instructions with utter disregard, and to find their verdict in direct opposition to them”).

*320C.

Moreover, the cases in this Court prior to 1980, all holding that juries in criminal cases had the authority to decide almost all legal issues, included cases involving constitutional rights. In 1979, the year before Stevenson was decided, this Court in Davis v. State, supra, 285 Md. at 24-31, 400 A.2d at 408-412, an action under the Post Conviction Procedure Act, considered a jury instruction which erroneously placed the burden of proof upon the defendant with respect to “alibi.” The Court held in Davis that the jury instruction violated the Due Process Clause of the Fourteenth Amendment but that the violation was waived by the defendant’s failure at his trial to object to the erroneous instruction.15 It is significant, however, that the Court’s opinion referred “to the advisory jury instruction here,” Davis, 285 Md. at 33, 400 A.2d at 413 (emphasis added).

In Bruce v. State, supra, 218 Md. at 97-98, 145 A.2d at 433-434, after stating that, “when requested in a criminal case,” the trial court should “give an advisory instruction on every essential question or point of law,” this Court decided that the trial “court properly advised the jury [that] the defendant is ‘presumed to be innocent until proven guilty beyond a reasonable doubt, and that presumption attends him throughout the trial until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty.’ ” (Emphasis added). .

Similarly, in Klein v. State, 151 Md. 484, 489, 135 A. 591, 593 (1926), this Court, upholding the criminal conviction, set forth with apparent approval part of the trial judge’s instructions as follows (emphasis added):

“It seems that the jury which heard the case had been engaged in the trial of civil cases, and after the jury was sworn, but before anything further was done, the court undertook to advise the jury of some of the differences *321between their duties in a criminal case and in a civil case in Maryland. He called their attention to the presumption of innocence which surrounds the accused in a criminal case, discussed the degree of proof needed for a conviction, gave an explanation of the doctrine of reasonable doubt, told them several times that they were the judges of both the law and the facts in a criminal case, and concluded with the statement that all he had told them was merely advisory and that the jury, being judges of both the law and the facts, were not bound by what he had said.”

The Klein opinion went on to reiterate that “juries in criminal cases are the judges of both the law and the facts, and hence the court cannot give them binding instructions in such cases.” 151 Md. at 489, 185 A. at 594.

The Court in Wilson v. State, 239 Md. 245, 210 A.2d 824 (1965), reversed a conviction and remanded the case for a new trial because the trial judge would not allow defense counsel to argue to the jury search and seizure law and the law of arrest. Judge Sybert for the Court explained (239 Md. at 254, 210 A.2d at 828):

“We think the judgment must be reversed because the trial judge erred when he prevented defense counsel from arguing to the jury the questions whether the appellant had voluntarily consented to the searches and seizures, or whether his apparent acquiescence had been induced by an unlawful arrest. Whether these were questions of law or of fact, or a combination of both, they were within the domain of the jury and counsel was entitled to discuss the facts relative thereto and inform the jury of the applicable law.
“Under our almost unique constitutional provision, the jury is the judge of the law as well as of the facts in criminal cases.”

A criminal conviction was reversed in Wilkerson v. State, 171 Md. 287, 188 A. 813 (1937), because the trial judge would not allow defense counsel to argue a principle of self-incrimination law to the jury. This Court stated (171 Md. at 289, 188 A. at 814):

*322“[Defense] counsel, during the course of his argument to the jury, made the statement that, ‘No presumption of guilt arose from the fact that traverser failed to take the witness stand,’ whereupon the State’s Attorney objected to the statement and was sustained by the court, who also remarked that it was ‘not proper for counsel to comment in any way on the failure of the defendant to take the witness stand.’ The court’s action, of course, prevented traverser’s counsel from stating to the jury the law applicable to the situation under consideration, notwithstanding ... the Maryland Constitution, which provides, ‘in the trial of all criminal cases, the jury shall be the Judges of Law, as well as of fact.’ ”

The Wilkerson opinion continued (171 Md. at 290, 188 A. at 814):

“Since, therefore, by constitutional provision the jurors are made the judges of law as well as of fact, it is difficult to understand how they are to know the law in any particular case if counsel are to be denied the privilege of stating it to them, for the court will take judicial knowledge of the fact that most jurors are laymen, and therefore do not possess knowledge of the law.”

See also Wilson v. State, supra, 239 Md. at 255-256, 210 A.2d at 829.

Another legal issue implicating federal constitutional rights was held to be for the jury prior to 1950. A 1950 state constitutional amendment added the following language to the provision making juries the judges of the law in criminal cases: “except that the Court may pass upon the sufficiency of the evidence.” Before 1950, this Court took the position that the sufficiency of the evidence was for the jury. It was held that not even the Court of Appeals could “pass upon ... the sufficiency of evidence to establish the crime charged.” Slansky v. State, 192 Md. 94, 109, 63 A.2d 599, 606 (1949). See Dick v. State, 107 Md. 11, 17, 68 A. 286, 288 (1907) (“[T]he motion to strike out the testimony of the State was in legal effect a demurrer to the evidence and an attempt to obtain an *323instruction from the Court to the jury to render a verdict for the defendant, and it is well settled that this cannot be done in Maryland, where the jury in criminal cases are the judges of the law, and of the ... legal sufficiency of the evidence, and the Court only determines the admissibility of the evidence.”) (emphasis added) See also Bloomer v. State, supra, 48 Md. at 539-540.16

The jury’s role as judge of the law in a criminal case also extended to statutory interpretation, with counsel being able “to read to the jury from a legal textbook,” or “to read from opinions of the Court of Appeals,” or “to refer to nisi prius decisions, directly relevant to the interpretation of a statute,” Dillon v. State, supra, 277 Md. at 581, 357 A.2d at 367. The “jury ‘as Judges of the Law,’ is free ‘to construe [a statute] and apply it according to their own judgments,’ ” Dillon, 277 Md. at 583, 357 A.2d at 368. See Vogel v. State, 163 Md. 267, 274, 162 A. 705, 707 (1932) (Neither the court nor the State’s Attorney can “ ‘deprive[ ] the jury of its constitutional power to construe and interpret the statute and apply it according to their own judgments’ ”).

In Dick v. State, supra, 107 Md. at 18, 68 A. at 289, one issue concerned the interpretation of a statute making an “agent” criminally liable for certain conduct. The State’s Attorney, in argument to the jurors, told them “ ‘that the construction of the statute, as to whether the defendant was an agent within the meaning of the statute was something *324they had nothing to do with, inasmuch as the Court had already determined that question in ruling upon the testimony’____” This Court reversed the criminal conviction because of the State’s Attorney’s argument, saying (107 Md. at 19, 68 A. at 289, emphasis in original):

“We think it was clearly improper, for the State’s Attorney to tell the jury that whether the defendant was an agent within the meaning of the statute was something with which they had nothing to do. It is manifest that if, as we have seen from our own decisions cited, the Court cannot pronounce and decide upon the legal effect of the evidence and can only bind and conclude the jury as to what evidence shall be considered by them, the State’s Attorney cannot undertake to declare to the jury that the Court had in fact, by admitting the testimony deprived the jury of its constitutional power to construe and interpret the statute and apply it according to their own judgments. It may be apparently anomalous when the Court in passing upon the admissibility of testimony has given its interpretation of the meaning of the statute, that the jury should still be free to adopt its own interpretation; but this is precisely the anomaly resulting from our system of administering the criminal law and which results whenever the Court instructs the jury in a criminal case, and the verdict which follows is not in accord with the view expressed by the Court; and it is too well settled in this State to require the production of authority, that the Judge may state his own views of the law to the jury, provided he also informs them that his utterance is advisory only, and that they are free to adopt their own independent judgment.”

Many other types of legal issues have been involved in this Court’s opinions regarding the constitutional provision making juries the judges of the law in criminal cases, and, prior to 1980, such issues have been deemed to fall within the province of the juries. See, e.g., Dillon v. State, supra, 277 Md. at 582-583, 357 A.2d at 367-368. (It was held to be appropriate, because of the jury’s constitutional role, to read to the jury the Declaration of Policy from the preamble to the Maryland *325Handgun Statute, even though the Declaration “forms no part of a statute”); Hardison v. State, 226 Md. 53, 61-62, 172 A.2d 407, 411-412 (1961) (The trial judge, when requested, should have given the jury an “advisory instruction” defining “who, in law, are, and who are not, accomplices” and informing them of “the necessity for the corroboration of an accomplice’s testimony,” although the instruction to the jury should be “in an advisory manner”); Brown v. State, 222 Md. 290, 302, 159 A.2d 844, 850 (1960) (“Because of our constitutional provision that the jurors are the judges of the law as well as the facts in criminal cases, the juries in Maryland, in such cases, are not bound by the instructions of the trial courts, the same being only advisory in nature. We, therefore, conclude that it is permissible for counsel in argument in criminal cases to refer to the opinions of the Court of Appeals, even if the opinion be in the same case in a former appeal, insofar as they relate to questions of law, alone”); Slansky v. State, supra, 192 Md. at 109-111, 63 A.2d at 606 (The validity of a Nevada divorce was for the jury in a bigamy case, and the jury was entitled to determine whether “the Nevada court lacked the power to liberate [the defendant] from amenability to the laws of Maryland governing domestic relations”); Beard v. State, supra, 71 Md. at 279-282, 17 A. at 1045-1046 (The legal definition of a “disorderly house” is a matter for the jury); Bloomer v. The State, supra, 48 Md. at 539-540 (The law as to what constitutes a conspiracy is a matter for the jury).

D.

The Stevenson opinion, 289 Md. at 179, 423 A.2d at 564, correctly pointed out that the admissibility of evidence was an “exception” to the provision making juries the judges of the law in criminal cases, citing, inter alia, Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979). The majority today, however, says (Opinion at 257-258, 958 A.2d at 306, emphasis added):

“The [Stevenson ] majority opinion highlighted, as an example, a then recent decision applying the long established principle that the jury serves only as a judge of the ‘law of the crime. See Lewis v. State, 285 Md. 705, 724, 404 A.2d *3261073, 1083 (1979) (holding that instructions on the voluntariness of confessions are binding, not merely advisory, on the jury, and the jury should be instructed as such).”

The Lewis opinion never mentioned the phrase “law of the crime.” The only “exception” recognized by Lewis was the long-recognized exception for the admissibility of evidence, and the admissibility issue in Lems concerned the admissibility of a confession. The pertinent portion of the Lewis opinion reads as follows (285 Md. at 723-724, 404 A.2d at 1083, emphasis added):

“Under ... the Constitution of Maryland, implemented by Maryland Rule 757 b, a jury in a criminal trial is instructed that it is the judge of the law as well as the facts, and that the court’s instructions are merely advisory. See Dillon v. State, 277 Md. 571, 357 A.2d 360 (1976). An exception to this principle is that determinations of the law governing the admissibility of evidence are within the sole domain of the trial judge, Brady v. Maryland, 373 U.S. 83, 89-90, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Maryland cases there discussed.
“Here, the defendant contends that by instructing the jury as to the law pertaining to the admissibility of confessions, and later telling them generally that the instructions are merely advisory, error was committed. In light of the instructions as a whole, we are not prepared to say that reversible error was committed. Nevertheless, we agree with the defendant that, since the jury’s consideration of the voluntariness of the confession involves a delegation to it to determine the propriety of admitting this evidence, Dempsey v. State, supra, 277 Md. at 143-150, [355 A.2d 455 (1976)], the instructions in this regard fall within the exception discussed in Brady and are consequently binding upon the jury. Henceforth in all criminal cases involving the jury’s consideration of the admissibility of a confession, including the instant case on retrial, appropriate instructions to this effect should be given to the jury.”

As indicated above, the conviction in Lewis was not reversed because of the “advisory” jury instruction. The Lewis convic*327tion was reversed, and a new trial awarded, because of violations of the common law rules concerning the trial of accessories. Lewis, 285 Md. at 713-717, 404 A.2d at 1077-1079 (“[O]ur reversal in this case rests upon the common law doctrine of accessoryship”). Furthermore, to reiterate, the Lewis opinion recognized only “an exception” to the constitutional provision that juries are the judges of the law in criminal cases, namely the “exception” for rulings on the admissibility of evidence.17

In support of its argument that the Stevenson opinion did not “make new law” in its interpretation of the Maryland constitutional provision mandating that juries are the judges of the law in criminal cases, the majority quotes the United States District Court for the District of Maryland in Jenkins v. Smith, 38 F.Supp.2d 417, 421 (D.Md.1999), motion to amend or alter judgment denied, 43 F.Supp.2d 556 (D.Md. 1999), aff'd sub nom. Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir.2000). Of course, the District Court in Jenkins was simply recounting how the Stevenson majority described the Stevenson opinion. What is significant, however, is that the Jenkins case is factually on point, that the United States District Court in a federal habeas corpus action granted Jenkins’s habeas corpus petition, that the District Court set aside Jenkins’s Maryland criminal conviction, that the District Court ordered Jenkins’s immediate release unless the State of Maryland elected to retry him, and that the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s judgment.

Jenkins, like the respondent Adams, was convicted of various criminal offenses by a jury in the Circuit Court for Prince *328George’s County. His trial took place in 1975. At Jenkins’s trial, like Adams’s trial, the judge instructed the jury with regard to several rights guaranteed by the Due Process Clause of the Fourteenth Amendment, including the requirement that guilt must be proved beyond a reasonable doubt. Again, like the trial judge in the Adams case, the trial judge in the Jenkins case repeatedly told the jury that the judge’s instructions were advisory and that the jury, as judge of the law, could disregard the instructions. As in the Adams case, the defendant Jenkins did not object to the advisory nature of the instructions and did not raise the issue on appeal. Nevertheless, both federal courts considered the merits of the question, and they held, inter alia, that Jenkins had been denied his federal constitutional rights and was entitled to relief. The United States Court of Appeals concluded (221 F.3d at 685-686):

“Here, the trial court clearly explained at the beginning of its charge to the jury that the jury was the sole judge of the law and that the instructions given by the court were advisory only. With each individual instruction, the court reminded the jury of the advisory nature of the instructions. We conclude that there is a reasonable likelihood that the jury interpreted these instructions as allowing it to ignore the ‘advice’ of the court that the jury should find proof beyond a reasonable doubt. Accordingly, we conclude that the advisory instructions violated Jenkins’ right to due process.
[A]n error in an instruction that relieves the State of its burden of proof beyond a reasonable doubt can never be harmless.”

The majority opinion in the instant case asserts that Jenkins is not “legally on point.” Nonetheless, Jenkins could not be more precise in its legal analysis that the advisory jury instructions deprived the accused of his constitutional rights and that the accused was entitled to relief. It is noteworthy *329that the Court of Special Appeals in the case at bar relied on, inter alia, the United State Court of Appeals’ decision in Jenkins. See State v. Adams, supra, 171 Md.App. at 698-704, 912 A.2d at 34-37.

Judge Harrell’s opinion for the Court advances other arguments for his theory that Stevenson was not a novel ruling and did not depart from earlier Court of Appeals cases. The arguments are not persuasive and can be briefly answered.

The majority opinion suggests that because Stevenson and Montgomery “were decided relatively contemporaneously with Adams’s trial,” an objection by Adams to the advisory nature of the judge’s instructions would not have been “novel” under Maryland law. (Opinion at 272-273, 958 A.2d at 315 n. 28, 273-274, 958 A.2d at 315-316). Not only was Adams’s trial more than a year before the Stevenson opinion, but his appeal and the denial of certiorari by this Court was prior to Stevenson. The opinion in Lewis v. State, supra, 285 Md. at 723-724, 404 A.2d at 1083, however, was filed about three months before Adams’s trial, and Lewis reiterated the requirement of the Maryland Constitution and the Maryland Rules that the “jury in a criminal trial ... is the judge of the law as well as the facts, and that the court’s instructions are merely advisory.” As previously discussed, the only “exception” recognized in Lewis concerned rulings on the admissibility of evidence. One would not reasonably expect a defense attorney, just three months after the Court of Appeals’ pronouncement in Lewis, to argue to a Maryland trial judge that the Court of Appeals was wrong in Lewis.

The majority opinion also argues that, because the requirements that the State prove guilt beyond a reasonable doubt and that the jury be properly instructed regarding the State’s burden, were “well established at the time of Adams’s trial,” Adams’s attorney presumably should have objected to the advisory nature of the instructions. (Opinion at 275, 958 A.2d at 317). I agree that these matters were well-established and that the trial judge, at the time of Adams’s trial, should have and did instruct the jury concerning the reasonable doubt standard and the State’s burden. Whether he should also *330have refrained from telling the jury that these instructions were “advisory,” is another matter. The Maryland Constitution, the cases in the Court of Appeals including the three most recent ones at the time (Lewis, Davis, and Dillon), and the Maryland Rules promulgated by this Court, all told the trial judge and the defense attorney in 1979 that the jury was the judge of the law and that all of the judge’s instructions applicable to Adams’s trial were “advisory.”18 It was not until 1980 that this Court gave Maryland trial judges a “license” to depart from the language of the Maryland Constitution and the Maryland Rules and limit the advisory nature of jury instructions to instructions concerning the “law of the crime.”

Judge Harrell’s opinion for the Court relies upon language in the Dillon opinion, 277 Md. at 581-582, 357 A.2d at 367, and an earlier Court of Special Appeals opinion, that the Maryland Constitution

“ ‘does not confer upon (jurors], however, untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.’ ”

There is a huge difference between which person or entity decides what the law is and how that person or entity should perform the function. Today, in Maryland criminal cases where the “law of the crime” is not an issue, as well as in civil cases, the trial judge is the person who decides what the law is. Nevertheless, in performing this function, the trial judge is similarly not authorized “to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or *331malevolence should dictate.” Dillon, supra, 277 Md. at 582-582, 357 A.2d at 367. As previously discussed, the Dillon opinion, filed in 1976, repeatedly emphasized that “ ‘any instructions on the law which the [trial] court may give’ are purely advisory and the jury must be so informed,” that the judge “ ‘must tell [the jurors] it [the instruction] is merely advisory and they are not bound to follow it,’ ” that “[t]hese principles, so well implanted, supplied the bases for Rule 756 b, which provides that ‘[t]he court shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court’s instructions are advisory only,’ ” that “ ‘the jury are left free to find their verdict in accordance with their own judgment of the law,’ ” etc. Dillon, 277 Md. at 580-581, 357 A.2d at 366.

The majority, in support of the argument that the Stevenson opinion was not novel and that it would have been “reasonable” for Adams’s attorney in 1979 to have “objected] at trial to the facially advisory nature of the instruction” (Opinion at 280, 958 A.2d at 320), relies on the fact that the “advisory instruction” required by the Maryland Constitution was “the subject of vigorous debates among notable members of the Maryland Bench and Bar for several decades prior to Adams’s trial.” (Id. at 274, 958 A.2d at 319). The fact that a legal principle has been the subject of vigorous debates does not mean that the principle is tenuous, or that it is not firmly embedded in our law, or that the established principle might not be followed by a trial judge. This is particularly true when the legal principle is compelled by the unambiguous language of the Maryland Constitution. Many critics of the state constitutional provision making juries the judges of the law in criminal cases may have been advocating a proper nonjudicial state constitutional amendment or a judicial holding that the state constitutional provision violated the federal constitution. There is no evidence that the critics were urging the Court of Appeals to re-draft the state constitutional provision.

Moreover, there are numerous legal principles which have been and are presently the subject of vigorous debates, and which have been criticized by notable members of the legal *332profession as well as other members of society. Nonetheless, few trial lawyers would undertake to persuade a trial judge to abandon such principles, at least absent some encouragement from a recent Court of Appeals’ opinion. For example, few if any other legal principles have been criticized as much as this Court’s continued adherence in negligence actions to the doctrine of contributory negligence and the Court’s refusal to adopt comparative negligence. See Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 456 A.2d 894 (1983). Furthermore, the doctrine of contributory negligence is a judge-made principle, and not one firmly embedded in the language of the Maryland Constitution. Should a “reasonable” lawyer in a tort trial, because the doctrine is heavily criticized, object to a contributory negligence instruction and request a comparative negligence instruction? Examples of other legal principles which are heavily criticized but which are firmly established in our law include the following: the tort immunity of local governments with regard to “governmental functions,” Austin v. City of Baltimore, 286 Md. 51, 405 A.2d 255 (1979); the parent-child. immunity rule, Frye v. Frye, 305 Md. 542, 505 A.2d 826 (1986); the refusal to recognize a cause of action for “educational malpractice,” Doe v. Bd. of Educ., Montgomery Co., 295 Md. 67, 453 A.2d 814 (1982); the continued adherence to the conflict of laws lex loci delicti principle, Hauch v. Connor, 295 Md. 120, 123-125, 453 A.2d 1207 (1983); the refusal to recognize so-called “dram shop” liability, Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); and many other legal principles.

Criticism of a legal principle does not mean that there is a likelihood that the principle will be changed. Criticism of the constitutional mandate that juries are the judges of the law in criminal cases did not mean in 1979 that the Court of Appeals’ decisions applying the constitutional provision were about to be overruled, or that a reasonable trial attorney in 1979 should have objected to the advisory nature of the trial judge’s jury instructions.

E.

As earlier discussed, the only pre-Stevenson substantive change in the constitutional mandate that juries are the judges *333of the law in criminal cases was the 1950 constitutional amendment authorizing the court to pass upon the sufficiency of the evidence.19 Between 1851 and 1980, there were also two procedural changes affecting the operation of the constitutional provision.

Following the 1950 constitutional amendment, this Court adopted a rule requiring a trial judge “when requested in a criminal case, to give an advisory instruction on every essential question or point of law supported by the evidence.” Bruce v. State, supra, 218 Md. at 97, 145 A.2d at 433 (emphasis added). Before the adoption of this rule, the giving of any advisory instructions had been within the trial judge’s discretion.

On January 1, 1950, our predecessors also adopted a rule “which expressly provides that the court’s giving of advisory instructions prior to the argument of the case shall not preclude counsel from arguing to the contrary.” Schanker v. State, supra, 208 Md. at 21-22, 116 A.2d at 367. See also Wilson v. State, supra, 239 Md. at 256-257, 210 A.2d at 830. Prior to this rule, when the trial judge exercised discretion to give advisory instructions and gave them before the attorneys’ closing arguments, there was a conflict among this Court’s opinions as to whether the attorneys could argue contrary to the judge’s advisory instructions. In this situation, even though the jury was entitled to disregard the advisory instructions, several cases held that counsel could not argue contrary to the instructions. See, e.g., Slansky v. State, supra, 192 Md. at 107, 63 A.2d at 604-605 (“But even though an advisory instruction in a criminal case is not binding on the jury, yet * * * [w]hen an advisory instruction has been given, the judge may prevent counsel from arguing contrary to the instruction”); Vogel v. State, supra, 163 Md. at 272, 276, 162 A. at 707-708 (“ ‘But whatever powers the Constitution may have conferred upon juries in criminal cases, it has conferred none *334upon counsel.’ * * * It is consistent with the right of the jury to exercise their independent judgment as to the law, in a criminal case, that they should be informed of legal theories of the prosecution or defense which may be at variance with the court’s advisory instruction. On the other hand, it seems hardly compatible with the relationship of members of the bar to the court ... to permit them to combat its formal rulings in their arguments to the jury. * * * When an advisory instruction is considered necessary by the court, but is deferred until the argument to the jury is completed, the problem of protecting the jury’s prerogative ... and of insuring proper respect for the authority of the court, is greatly simplified”); Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929); Kelly v. State, supra, 151 Md. at 98-99, 133 A. at 903; Bell, alias Kimball v. The State, 57 Md. 108, 120 (1881).

The pre-1950 cases, prohibiting a counsel’s jury argument contrary to the trial judge’s instructions, are significant because both the Stevenson majority and the majority today cite some of these cases in support of their argument that, prior to Stevenson, the jury’s function as judge of the law in a criminal case was quite limited. For example, the Stevenson opinion, 289 Md. at 178, 423 A.2d at 564, stated: “Thus, we have held that it is not within the province of the jury to decide whether a statute has been repealed, Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929). . . .” The Nolan opinion did not discuss or even cite the constitutional provision making juries the judges of the law in criminal cases. Instead, the portion of the Nolan opinion cited in Stevenson “was to the refusal of the court to allow counsel for the defendant to argue to the jury that section 247 of article 27 had been repealed.... ” Nolan, 157 Md. at 340, 146 A. at 271. Similarly, the majority opinion today cites (opinion at 256-57, 958 A.2d at 305) the portions of Vogel v. State, supra, 163 Md. at 272, 162 A. at 708, and Bell, alias Kimball v. The State, supra, 57 Md. at 120, which dealt with the limitation on counsel’s jury argument. Both opinions drew a sharp distinction between what counsel could argue *335and the jury’s prerogative to disregard the court’s instructions.

F.

Finally, there is strong practical evidence that, prior to Stevenson and Montgomery, the jury’s role in determining the law in Maryland criminal cases was very broad, and that the Stevenson and Montgomery opinions drastically changed the function of the jury in such cases. From the inception of the constitutional provision in 1851, until the Montgomery opinion filed 130 years later on December 4, 1981, it appears that no decision of this Court reversed a criminal conviction on the grounds that the trial judge’s instructions on particular matters should not have been “advisory” but should have been binding, or that the trial judge’s instructions gave too large a scope to the constitutional provision making the jury the judge of the law in a criminal case.

On the other hand, several cases in this Court reversed criminal convictions because rulings in the trial courts curtailed the constitutional right of the jurors to be judges of the law in criminal cases, including the jurors’ right to hear arguments on the law from counsel. See, e.g., Wilson v. State, supra, 239 Md. at 257, 210 A.2d at 830 (“Thus the denial of counsel’s right to state the applicable law [regarding searches and seizures] to the jury was plainly prejudicial”); Wilkerson v. State, supra, 171 Md. 287, 188 A. 813 (Conviction reversed because a legal issue involving self-incrimination law was for the jury); Dick v. State, supra, 107 Md. 11, 68 A. 286 (Conviction reversed on the ground that a statutory interpretation issue was for the jury and not the court).

As previously shown, for many years jurors in criminal cases were told that all of a trial judge’s instructions were advisory and that jurors could disregard them. The Rule in effect when Stevenson was decided, former Maryland Rule 757 b., mandated that “the court shall instruct the jury that they are the judges of the law and that the court’s instructions are advisory only.” Rule 757 contained no exceptions. Considering this sweeping instruction regularly given to jurors in criminal cases, if, prior to Stevenson, the jurors’ constitutional function as judges of the law were as narrow as the Stevenson *336and Montgomery majorities claimed, it would be inconceivable that no criminal conviction, for 130 years, was reversed by this Court on the ground that the trial court’s instruction with respect to a particular matter should have been binding.

Although the majority of this Court, from 1980 to the present, has been unwilling to acknowledge it, the truth is that Stevenson was a novel opinion which re-wrote what is now the first paragraph of Article 23 of the Maryland Declaration of Rights. The Stevenson opinion did so in an effort to salvage an invalid state constitutional provision.

IV.

The Stevenson and Montgomery opinions were intended by the Court in those cases to be fully retroactive; in addition, as a matter of settled Maryland law, Stevenson and Montgomery were fully retroactive.

This Court, in numerous opinions, has explained when a decision shall be applied only prospectively. The first criterion for “prospective only” application is that the decision overrules prior law and establishes a new legal standard or principle. In Houghton v. County Com’rs of Kent Co., 307 Md. 216, 220, 513 A.2d 291, 293 (1986), the Court stated (emphasis added):

“As both the Supreme Court and this Court have made clear, the question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law. If a decision does not declare' a new legal principle, no question of a ‘prospective only’ application arises; the decision applies retroactively in the same manner as most court decisions. United States v. Johnson, 457 U.S. 537, 548-549, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202 (1982); Chevron Oil Company v. Huson, supra, 404 U.S. at 106, 92 S.Ct. at 355; Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968); Potts v. State, 300 *337Md. 567, 577, 479 A.2d 1335 (1984); State v. Hicks, 285 Md. 310, 336-338, 403 A.2d 356 (1979). . . .”

We continued in Houghton, 307 Md. at 221, 513 A.2d at 293:

“Just recently, in Potts v. State, supra, 300 Md. at 577, 479 A.2d 1335, Chief Judge Murphy pointed out for this Court that ‘where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively.’
“Our holding in the case at bar, ... is not ‘novel’ and does not overrule any earlier cases in this Court.”

The Court in American Trucking Associations v. Goldstein, 312 Md. 583, 591, 541 A.2d 955, 958-959 (1988), further explained the initial question in determining whether a decision is to be given only prospective effect:

“In the overwhelming majority of cases, a judicial decision sets forth and applies the rule of law that existed both before and after the date of the decision. In this usual situation, ‘where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively.’ Potts v. State, 300 Md. 567, 577, 479 A.2d 1335 (1984). Thus, in the ordinary case, no issue of a ‘prospective only’ application arises. See, e.g., Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968); Houghton v. County Com’rs of Kent Co., 307 Md. 216, 220-221, 513 A.2d 291 (1986), and cases there cited.
“When, however, a court overrules a prior interpretation of a constitutional or statutory provision, and renders a new interpretation of the provision, the question arises as to whether the new ruling is to operate retroactively or prospectively only. Generally, in determining whether a new interpretation of a federal constitutional provision is to operate retrospectively, a court must assess the various factors set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and its progeny. See the discussions in Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (majority opinion), 732-741 (dissenting opinion), 275 *338Md. 689, 344 A.2d 80 (1975). See also L. Tribe, American Constitutional Law § 3-3, at 30-31 & n. 26 (2d ed.1988). We have essentially followed the teaching of Linkletter v. Walker, supra, in deciding whether a new interpretation of a Maryland constitutional provision, statute, or rule, should receive retrospective effect. See, e.g., State v. Hicks, 285 Md. 310, 336-338, 403 A.2d 356, 370-371 (1979).”

See, e.g., Attorney Grievance Commission v. Saridakis, 402 Md. 413, 427-428, 936 A.2d 886, 894-895 (2007) (Reiterating and applying the principles of American Trucking Associations v. Goldstein, supra); Polakoff v. Turner, 385 Md. 467, 487-489, 869 A.2d 837, 848-851 (2005) (Summarizing both the federal law and Maryland law regarding prospective-retroactive application, and re-affirming the principles of the American Trucking Associations case); Walker v. State, supra, 343 Md. at 637-640, 684 A.2d at 433-434 (Reviewing in detail the Maryland law concerning prospective-retroactive application); Jones v. State, 297 Md. 7, 24-25, 464 A.2d 977, 985-986 (1983); State v. Hicks, 285 Md. 310, 336, 403 A.2d 356, 370 (1979) (On Motion for Reconsideration) “[0]ur holdings in the instant case did overrule a prior interpretation of the same [statutory] language and did set forth a new interpretation of that language. Thus, the case is an appropriate one for considering whether such new interpretation should be given only prospective effect”).

It is clear that the majority of the Court in Stevenson and the majority of the Court in Montgomery intended that those two opinions be fully retroactive. This is because the majority in each case purported to believe that the two cases did not declare a new legal principle. “If a decision does not declare a new legal principle, ... the decision applies retroactively in the same manner as most court decisions.” Houghton v. County Com’rs of Kent Co., supra, 307 Md. at 220, 513 A.2d at 293. Even though the Court’s stated position in Stevenson and Montgomery was erroneous, it is noteworthy that § 7-106(c)(2)(ii) of the Post Conviction Procedure Act refers to a standard which “is intended to be applied retrospectively____” (Emphasis added).

*339Regardless of the Court’s intent in Stevenson and Montgomery, however, our cases firmly establish that Stevenson’s and Montgomery’s new interpretation of the Maryland Constitution was fully retroactive. Under well-established Maryland law, a new interpretation of a constitutional provision or a statute is fully retroactive if that interpretation affects the integrity of the fact-finding process. This Court in State v. Hicks, supra, 285 Md. at 336, 403 A.2d at 370, summarized (emphasis added):

“The principles governing the retroactivity of new rulings by courts in criminal cases ... were extensively dealt with by both the majority and dissenting opinions in Wiggins v. State, 275 Md. 689, 717, 344 A.2d 80, 95 (1975), and we shall not repeat in detail what was said in that case. Briefly, it was initially pointed out in Wiggins that retroactivity of application was required where the rule involved affects the integrity of the fact-finding process, or where it is a non-procedural rule that would render a trial constitutionally impermissible (e.g., a new double jeopardy ruling), or where it renders a certain type of punishment impermissible, 275 Md. at 701-707, 732-737, 344 A.2d 80. Under these criteria, it is clear that retroactivity of the new interpretation announced in the instant case is not required. It does not affect the integrity of the fact-finding process but is a sanction to compel compliance with the policy of prompt disposition of criminal cases.”

A trial court’s instructions to the jury concerning the controlling law, and the jury’s application of the law to the facts, clearly involve the integrity of the fact-finding process. In a situation where a new ruling related to the jury’s function, Judge Rodowsky for the Court in State v. Colvin, supra, 314 Md. at 24-25, 548 A.2d at 517-518, explained:

“In Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), the Supreme Court held that the potential for uncertainty in a jury’s interpretation of the sentencing form for capital cases specified by former Rule 772A violated the eighth amendment’s prohibition against cruel and unusual punishments.
*340“The Mills analysis affects ‘the very integrity of the fact-finding process’ with respect to finding an absence of mitigating factors. Therefore Mills applies retrospectively. See Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601, 614 (1965). Consequently, Colvin-El’s death sentence must be vacated.”

See also Jones v. State, 314 Md. 111, 549 A.2d 17 (1988) (the Mills decision regarding “ ‘the procedure employed ... by a jury’ ” is retroactive); State v. Evans, supra, 278 Md. at 210, 362 A.2d at 637 (“[W]e hold that Mullaney [relating to the prosecution’s burden to prove beyond a reasonable doubt elements in homicide cases], involving as it does the integrity of the fact-finding function, must be given full retroactive effect in view of our recent decision in Wiggins v. State, 275 Md. 689, 344 A.2d 80 (1975)”).

In conclusion, Stevenson and Montgomery adopted a new interpretation of the state constitutional provision making juries the judges of the law in criminal cases. Under a uniform line of Maryland Court of Appeals cases, Stevenson and Montgomery are fully retroactive. Therefore, the judgments below should be affirmed.

Chief Judge BELL joins this dissenting opinion.

Judge BATTAGLIA joins this dissenting opinion with the exception of Part II.

. The majority opinion in the case at bar, for the most part, seems to agree that the waiver provisions of the Post Conviction Procedure Act, § 7-106(b) and (c) of the Criminal Procedure Article, are not directly applicable to this case. Nevertheless, the majority makes much ado over whether Adams’s argument based on § 7-106(c) is, procedurally, properly before the Court (majority opinion at 260, 958 A.2d at 307-08, n. 16). The majority asserts that an argument based on § 7-106 (presumably § 7-106(b)) is properly before us whereas Adams’s argument under § 7-106(c) is not. The majority also states that the Post Conviction Procedure Act, including § 7-106(b) and (c), "arguably provides the statutory framework for analysis of Adams’s current challenges to his convictions” (id. at 261, 958 at 308).

. When the Curtis case was decided, the waiver provisions of the Maryland Post Conviction Procedure Act were codified in Maryland Code (1957, 1976 Repl.Vol.), Art. 27, § 645A(c). By Ch. 10 of the Acts of 2001, the waiver provisions of the Maryland Post Conviction Procedure Act were re-codified as § 7-106(b) and (c) of the Criminal Procedure Article. As pointed out in the Revisor’s Note, the 2001 ’’ re-codification of the waiver provisions was "without substantive change.” Section 7-106(b) and (c) provides as follows:

"(b) Waiver of allegation of error. — (l)(i) Except as provided in sub-paragraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:
1. before trial;
2. at trial;
3. on direct appeal, whether or not the petitioner took an appeal;
4. in an application for leave to appeal a conviction based on a guilty plea;
5. in a habeas corpus or coram nobis proceeding began by the petitioner;
6. in a prior petition under this subtitle; or
7. in any other proceeding that the petitioner began.
(ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist.
2. The petitioner has the burden of proving that special circumstances exist.
"(c) Effect of judicial decision that Constitution imposes new standard. — (l) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived.
(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that:
(i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and
(ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.”

. The majority opinion in the present case takes the position that "fundamental constitutional rights” require a "knowing and intelligent waiver” by the defendant personally, whereas "[n]on-fundamental rights” do not require such a waiver. (Majority opinion at 262, 958 A.2d at 309). The majority states that an erroneous jury instruction on reasonable doubt is not a "fundamental right” and, therefore, it may be waived by a failure to object (Id. at 263, 958 A.2d at 309). In the middle of its discussion of this matter, however, the majority, somewhat inconsistently, quotes State v. Rose, 345 Md. 238, 248, 691 A.2d 1314, 1319 (1997), " ‘that, simply because an asserted right is derived from the Constitution ... or is regarded as a "fundamental” right, does not necessarily make the “intelligent and knowing” standard of waiver applicable.’ ” (Id. at 263, 958 A.22d at 309). The quotation from Rose correctly sets forth Maryland law. The majority’s fundamental/non-fundamental dichotomy is not correct. The standard is whether "a defendant's claim does encompass that narrow band of rights that courts have traditionally required [that] an individual knowingly and intelligently relinquish or abandon in order to waive the right or claim.” Hunt v. State, 345 Md. at 138, 691 A.2d at 1262. The inquiry is whether the right involved falls within that limited category of rights, with regard to which "courts traditionally have required that a person intelligently and knowingly relinquish or abandon ... before he or she *307is deemed to have waived the right.” Walker v. State, 343 Md. 629, 642, 684 A.2d 429, 435 (1996).

. The majority opinion, in discussing the principle that a court in a Post Conviction Procedure Act proceeding has discretion to excuse a waiver, asserts that the court may consider the prejudice to the State in light of the delay between the accused’s conviction and the filing of a post conviction action. The majority in effect says that, in a proceeding under the Maryland Post Conviction Procedure Act, laches is applicable in the exercise of discretion to excuse a waiver. For reasons hereafter set forth, there is no waiver in the present case, and, consequently, there is no waiver to excuse. Nevertheless, I do question the applicability of laches to a proceeding under the Maryland Post Conviction Procedure Act. The General Assembly has enacted numerous exceptions and limitations to the Post Conviction Procedure Act, many of which have been enacted recently. The General Assembly has not, however, enacted a laches provision. It is a sound principle that where an enactment contains numerous exceptions or limitations, courts should not insert additional ones. See the cases cited in footnote 16, infra.

With respect to both the federal habeas corpus statute and many post conviction or habeas corpus statutes in other states, laches is embodied in the statutes or in applicable rules. In this regard, the Maryland statute differs from those statutes and rules. Absent a statutory or rule provision, the concept of laches is inapplicable in a post conviction proceeding. See, e.g., Chessman v. Teets, 354 U.S. 156, 165, 77 S.Ct. 1127, 1132, 1 L.Ed.2d 1253, 1260 (1957) “[T]he overriding responsibility of this Court is to the Constitution of the United States, no matter how late it may be that a violation of the Constitution is found to exist”); Herman v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 227, 100 L.Ed. 126, 132 (1956) (After reviewing cases involving long periods of time between convictions and the filing of post conviction actions, including 18 years in one case, the Court stated: "The sound premise upon which these holdings rested is that men incarcerated in flagrant violation of their constitutional rights have a remedy”); United States v. *308Smith, 331 U.S. 469, 475, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610, 1614 (1947) (‘‘[Hjabeas corpus provides a remedy for jurisdictional and constitutional errors at the trial, without limit of time”).

. The majority opinion in the present case does not discuss this portion of the Colvin case. Instead, the majority discusses that part of Colvin dealing with the trial judge's instructions that the jury is the judge of the law. The majority states that Colvin is "directly on point,” and quotes a selected portion of the Colvin opinion stating that the defendant had waived any challenge to the jury instructions concerning the advisory nature of the judge’s instructions. (Majority opinion at 265, 958 A.2d at 311.) The full quotation from Colvin, however, shows that the jury instruction there was in accord with the Stevenson and Montgomery re-draft of the Maryland Constitutional provision. The Court stated in Colvin, 314 Md. at 22-23, 548 A.2d at 516-517, as follows:

"When submitting guilt or innocence to the jury, the trial court instructed that Art. 23 of the Maryland Declaration of Rights made the jury the judge of the law, and that as a result the court’s instructions were advisory only and not binding. In conformance with Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), however, the court went on to instruct that the juiy was to perform its role as a judge of the law only where there was a suggested conflict. Further, the court instructed that on the constitutional precepts such as burden of proof and need for unanimity, its instructions were binding and could not be disregarded. Colvin-El, citing Giaccio v. Pennsylvania, 382 U.S. 399, 403, 86 S.Ct. 518, 521, 15 L.Ed.2d 447, 450 (1966), contends that he was thereby deprived of due process because he was not tried in accordance with the law of the land and because the instruction was confusing. He also criticizes the reasonable doubt instruction.
"There were no exceptions taken to these instructions. On direct appeal when Colvin-El was represented by new counsel, the points were not presented. Under Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 645A(c), part of the Post Conviction Procedure Act, failure to make the allegations is presumed to have been done intelligently and knowingly. Nothing is presented here to rebut the presumption.
"To the extent that Colvin-El rests his ineffectiveness of counsel argument on the absence of any exceptions to these instructions, we find neither deficient representation nor prejudice in light of the instructions, taken as a whole.”

*310If the jury instruction at Adams's trial had been like the jury instruction discussed above, this case would probably not be here.

. The majority asserts (opinion at 260, 958 A.2d at 307-308, n. 16) that an argument under § 7-106(c) of the Post Conviction Procedure Act, dealing with a new procedural or substantive standard, "is not properly before this Court” because Adams "attempts to adopt” the argument from an amicus brief, and Maryland Rule 8-503(f) "only permits litigants to adopt the arguments of other parties to the litigation.”

This procedural argument is devoid of merit for several reasons. As previously discussed, § 7-106(b) and (c) are not directly applicable to this case. Even if § 7-106(c) were controlling, Rule 8-503(f) does not preclude the adoption of an argument from an amicus brief. The Rule simply does not address an amicus brief or whether a party may adopt an argument from an amicus brief. The majority cites no case holding that a party may not adopt an argument from an amicus brief.

*312Furthermore, § 7-106(c) of the Post Conviction Procedure Act is not a "stand alone” section of the statute dealing with a separate issue. Instead, it is an integral part of the waiver provision, delineating an exception to § 7-106(b).

Most importantly, the majority’s argument overlooks the facts that the State was the appellant in the Court of Special Appeals and is the petitioner in this Court. It was not incumbent upon Adams, as appellee and respondent, to raise any particular issues. Under Maryland Rule 8-131(b), the State’s certiorari petition determines the issues in this Court. The State’s petition raised the overall "waiver” question and specifically addressed § 7-106(c), arguing that the Court of Special Appeals’ opinion was "simply wrong” in relying upon § 7-106(c). (Petition for certiorari at 8, 11, 13 etseq.).

Moreover, the majority’s procedural argument is inconsistent with the settled " ‘principle that a judgment will ordinarily be affirmed on any ground adequately shown by the record, whether or not relied on by the trial court or raised by a party,’ ” Abrams v. Lamone, 398 Md. 146, 161 n. 19, 919 A.2d 1223, 1231 n. 19 (2007). See, e.g., Rush v. State, 403 Md. 68, 103, 939 A.2d 689, 709 (2008); YIVO Institute v. Zaleski, 386 Md. 654, 663, 874 A.2d 411 (2005); Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 68-69, 825 A.2d 388, 393 (2003); Robeson v. State, 285 Md. 498, 501-502, 403 A.2d 1221, 1223 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980).

Finally, the Court of Special Appeals’ decision in this case was, to a large extent, grounded on the principle that, after Adams’s trial, a new standard was imposed on Maryland criminal proceedings and the new standard affected Adams’s conviction. While Jenkins v. Hutchinson, 221 F.3d 679 (4th Cir.2000), may have played a major role in the Court of Special Appeals’ determination of a new standard, the principle applied is the same one embodied in § 7-106(c) and in opinions of this Court such as State v. Evans, 278 Md. 197, 362 A.2d 629 (1976).

. Contrary to the above quotation from Stevenson, neither the Wheeler case nor the Beard case held that the jury is "limited” to deciding these matters. Neither opinion used the word "limited.” Wheeler merely *313stated that the jury is entitled to decide the "law of the crime.” The only "exception” to the jury’s authority to decide the law in criminal cases, mentioned by the Court in Wheeler, related to the admissibility of evidence. The Beard, opinion, after pointing out that the jury is entitled to decide the legal effect of evidence, continued by stating that the trial judge "can only bind and conclude the jury as to what evidence” shall be admitted, 71 Md. at 280, 17 A. at 1045 (emphasis added). The opinions in both Wheeler and Beard took the position that the jury’s right to decide the law in criminal cases was broad, with the only exception being the rulings on admissibility of evidence.

. This Court has never explained what legal issues precisely fall within the phrases "law of the crime” and "legal effect of the evidence.” Literally, the phrases could encompass a broad range of legal issues. The Stevenson opinion, 289 Md. at 177-181, 423 A.2d at 563-566, largely defined its view regarding the scope of Article 23 by listing particular legal issues which fell outside of the jury’s authority. Stevenson and Montgomery implied, however, that the scope of Article 23 is very narrow. Whatever the phrases "law of the crime” and "legal effect of the evidence” may encompass, I shall assume that the scope of Article 23, as a result of the Stevenson re-draft, is narrow.

. The Constitution of 1851, for the first time in Maryland history, designated the judges of this Court as the "Chief Justice” and “Associate Justices.” This designation was repeated in the Constitution of 1864. In the Constitution of 1867, however, which is still in effect, the words "Justice” and “Associate” were abandoned, and the Judges of this Court were referred to simply as “Judges.” The only Maryland Judges who are constitutionally designated as “Associate Judges” are Judges of the Circuit Courts other than the Chief Judges of each circuit. See Article IV, § 21(c), of the Maryland Constitution.

. See Dillon v. State, 277 Md. 571, 357 A.2d 360 (1976); Hardison v. State, 226 Md. 53, 60-62, 172 A.2d 407, 411-412 (1961); Brown v. State, 222 Md. 290, 301-302, 159 A.2d 844, 850-851 (1960); Bruce v. State, 218 Md. 87, 97-98, 145 A.2d 428, 433-434 (1958); Wilkerson v. State, 171 Md. 287, 188 A. 813 (1937); Klein v. State, 151 Md. 484, 489-490, 135 A. 591 (1926); Swann v. State, 64 Md. 423, 1 A. 872 (1885); Bell, alias Kimball v. State, 57 Md. 108, 118-121 (1881); Forwood v. State, 49 Md. 531, 537 (1878).

. They include Franklin v. The State, 12 Md. 236, 249-250 (1858) (dicta); Esterline v. State, 105 Md. 629, 636-637, 66 A. 269 (1907); Slansky v. State, 192 Md. 94, 105, 63 A.2d 599, 603 (1949); Hopkins v. State, 193 Md. 489, 497-498, 69 A.2d 456, 459-460 (1949), appeal dismissed, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950); Hitchcock v. State, 213 Md. 273, 280-284, 131 A.2d 714, 718-719 (1957); Giles v. State, 229 Md. 370, 383, 183 A.2d 359, 365 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 (1963). See also Slymer v. State, 62 Md. 237, 241 (1884), a case relied on in the Stevenson opinion. Slymer did not discuss or cite the constitutional provision making juries the judges of the law in criminal cases, but the Slymer opinion did hold that the validity of an Act of the General Assembly was for the court to decide.

Today’s majority opinion, citing the Giles, Hitchcock and Franklin cases, states that "[qjuestions of law of a constitutional nature were always off limits to the juty.” (Opinion at 275, 958 A.2d at 317). This statement by the majority is inaccurate. The exception recognized by these cases was the constitutionality of a statute enacted by Congress or by the Maryland General Assembly. No pre-Stevenson case made an exception for other types of constitutional issues.

Hitchcock, written by Judge (later Chief Judge) Hammond for the Court, took the position, inter alia, that the voters’ ratifications of the Constitutions of 1864 and 1867, containing the same language that was construed in Franklin, in effect constitutionalized the dicta in Franklin. Judge Hammond explained (213 Md. at 283-284, 131 A.2d at 719):

“The very words that now appear, first appeared in the Constitution of 1851, and were proposed to the people and ratified by them as part of the Constitutions of 1864 and of 1867. On familiar principles, we think, that when the constitutional convention proposed and the *317people adopted what is now Art. XV, § 5 of the Constitution of 1867, [subsequently placed in Article 23 of the Declaration of Rights,] they must be deemed to have accepted and used the words as meaning what the Court of Appeals said in 1858 they meant. Where a constitutional provision has received a judicial construction and then is incorporated into a new or revised constitution, it will be presumed to have been re-adopted with the knowledge of the previous construction and to have been intended to have the meaning given it by that construction.”

In light of the principle set forth in the above quotation, it seems clear that the “constitutional" exception in Article 23 is limited to the constitutionality of Acts of Congress or of the Maryland General Assembly.

. Cases recognizing the admissibility of evidence as the only exception include Lewis v. State, 285 Md. 705, 723-724, 404 A.2d 1073, 1083 (1979); Jackson v. State, 180 Md. 658, 664, 26 A.2d 815, 818 (1942); Dick v. State, 107 Md. 11, 17-18, 68 A. 286, 288 (1907); Beard v. State, supra, 71 Md. at 280, 17 A. at 1045; Bloomer v. State, 48 Md. 521, 539 (1878); Broll v. State, 45 Md. 356, 360 (1876); Wheeler v. State, supra, 42 Md. at 570. In a sense, the admissibility of evidence is not really an "exception” to the jury being the judge of the law. The function of the jury in deciding what the law is occurs after the evidentiary portion of the trial. That function does not begin until the case is submitted to the jury. Rulings on the admissibility of evidence, however, are normally earlier, during the evidentiary portion of the trial.

The same analysis would be applicable to a court's ruling on a preliminary question of subject matter jurisdiction. See Kelly v. State, 151 Md. 87, 98-99, 133 A. 899 (1926) ("The right of the court to try a cause is wholly distinct from the law and facts necessary to the commission of a crime"). Subject matter jurisdiction was not called an “exception” in either the Kelly case or in any other pre-Stevenson opinion of this Court. Jurisdiction does not concern the relationship between the trial judge and the jury as to legal rulings. If a court lacks subject matter jurisdiction, its legal determinations will be a nullity whether they are made by a judge or a jury.

. Wilson v. State, 239 Md. 245, 254, 210 A.2d 824, 827 (1965); Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365.

. Schanker v. State, 208 Md. 15, 20-21, 116 A.2d 363, 366 (1955) (The "jury ... under ... the Constitution of Maryland (with one exception *318not here involved) is the judge of the law as well as of the facts in criminal cases----" * * * Furthermore, "[ujnder our almost unique constitutional provision any instructions on the law which the court may give (subject to one exception already mentioned) are purely advisory and the court must so inform the jury”).

. For a detailed discussion of the unconstitutional jury instruction in Davis, see State v. Grady, 276 Md. 178, 345 A.2d 436 (1975).

. The 1950 constitutional amendment enacted the only exception set forth in the language of the constitutional provision making jurors the judges of the law in criminal cases. Under normal principles followed by this Court, when an enactment expressly contains an exception or exceptions, courts do not imply other exceptions. See, e.g., BAA v. Acacia, 400 Md. 136, 152, 929 A.2d 1, 10 (2007) (When an enactment “expressly sets forth certain exceptions ..., this Court 'cannot disregard the mandate ... and insert an exception, where none has been made,’ ” quoting Schmeizl v. Schmeizl, 186 Md. 371, 375, 46 A.2d 619, 621 (1946)); Nasseri v. Geico, 390 Md. 188, 198, 888 A.2d 284, 290 (2005); Selig v. State Highway Administration, 383 Md. 655, 672, 861 A.2d 710, 720 (2004); Salamon v. Progressive Classic Insurance Co., 379 Md. 301, 311-315, 841 A.2d 858, 864-867 (2004); Perrero Constr. Co. v. Dennis Rourke Corp., 311 Md. 560, 575, 536 A.2d 1137, 1144 (1988).

. The Lewis opinion, in connection with Maryland law on the admissibility and voluntariness of confessions, referred to Dempsey v. State, 277 Md. 134, 355 A.2d 455 (1976). As discussed in Dempsey, 277 Md. at 143-150, 355 A.2d at 460-464, under Maryland law, both the trial judge and the jury have roles with regard to the admissibility and voluntariness of a confession. See also Jackson v. State, 180 Md. 658, 666, 26 A.2d 815, 819 (1942) ("In this case the jury had the same opportunity to pass on on the admissibility of the confessions, ... as had the court out of their presence”).

. Also in 1979, just months prior to Adams’s trial, this Court, in an opinion by Judge J. Dudley Digges, reversed a trial court because the trial judge "violated the mandate of these rules, an action that ... flies in the face of the established principle that the Maryland Rules are precise rubrics that are to be strictly followed .... ” King v. State Roads Comm’n, 284 Md. 368, 371-372, 396 A.2d 267, 269 (1979). Judge Digges ignored this “established principle” when he authored for the majority the Stevenson opinion in 1980.

. For a discussion of the constitutional amendment, see Wright v. State, 198 Md. 163, 169-170, 81 A.2d 602, 605 (1951); Shelton v. State, 198 Md. 405, 411-412, 84 A.2d 76 (1951).