delivered the opinion of the Court.
At common law, jurors were "prisoners of the court ... kept together without meat, drink, fire or candle till they [were] agreed.”
1
Fortunately for those chosen citizens, modern jury service is less onerous — how much so being the issue in this criminal cause. At the instance of the State, we here review the judgment of the Court of Special Appeals in
Magwood v. State,
At respondent’s trial in the Circuit Court for Montgomery County (Cahoon, J.), the judge called the attorneys to the bench after the jury had been instructed with regard to the law, but before it began deliberating. There, the following colloquy took place:
THE COURT: Would there be any disagreement if I advise the jury that they should proceed with their deliberations themselves and that if they conclude that they need a rest for dinner, that it can be made available to them, and if they conclude the dinner and are unable to arrive at a verdict tonight, that they can be recessed until tomorrow, and they would not be sequestered?
MR. LOHM [defense counsel]: I have no objection.
MR. BINSTOCK [assistant state’s attorney]: Well, I have no objection to the first part, but the second *617 part, I don’t want to encourage them to think that they can at 7:00 o’clock say they are going to come back tomorrow when it is more appropriate for a time later on when we determine they are unable to reach a verdict.
THE COURT: My problem with that ... is that these people were in the panel sometime after 3:00 o’clock, and they have had no opportunity to communicate with their homes or anything like that, and if they get in there and decide they are unable to arrive at a verdict today, and you know it is going to be protracted and prolonged, that if there is any question in their minds, I want them to know they can ask leave of the Court to rest tonight.
MR. LOHM: I agree with that.
MR. BINSTOCK: I have no objection under the circumstances.
Then, in open court in the presence of the accused, the judge informed the jurors that arrangements could be made for them to have dinner together at a nearby restaurant. The court continued:
I would [also] want you to know that if you believe that you are unable to arrive at a verdict tonight and wish to make a request of the Court, I will consider such a request for a recess overnight, and then you would have to return here tomorrow to finish your deliberations. [Emphasis added.]
Neither the accused nor his counsel objected to these remarks and the jury retired to begin deliberating at 6:55 p.m. When, at 9:50 p.m., the jurors informed the court that quick agreement was unlikely and they wished to be excused for the night, the judge so advised the parties in open court and announced that he intended to grant the request. Again, no objection was heard, although defense counsel did request an instruction that the jury not pursue any unresolved questions they may have by consulting sources at home. This was agreed to and, when the jurors returned to the courtroom, *618 the judge admonished them not to discuss the case during their overnight separation or to consult outside references. Neither the defendant nor his counsel posed an objection, and the jurors dispersed for the night. Upon reassembling the next morning, and after deliberating for a little more than an hour, the jury informed the court that it was in agreement on the first count, distributing cocaine, but "hung” as to the second count, conspiracy. As a consequence, the judge declared a mistrial on the conspiracy allegation and received the jury’s guilty verdict, again without objection, on the distribution charge. The Court of Special Appeals reversed this conviction and we granted certiorari.
. In its reported opinion, the intermediate appellate court concluded that,
absent an emergency, no jury in a criminal case may be separated, after the issue has been submitted to them, and before verdict, unless the record affirmatively shows that the accused has personally waived the right to require the jury to be sequestered during its deliberative process. [46 Md. App. at 678 ,420 A.2d at 1259 (footnote omitted).]
From this premise, the court held that since Magwood was not present at the bench conference where his counsel initially consented to the jury’s overnight separation interrupting deliberations, there was no personal waiver by the defendant of his right to require the jury to remain together during that period and reversal was required.
Id.
at 675,
Our analysis begins with the observation that the facts of this case make it unnecessary to decide whether a defendant
*619
is entitled to be present when the decision to allow the jury to separate is made, and, consequently, we here intimate no view with respect to this question.
See Hughes v. State,
In explaining why the asserted right to a sequestered jury can be waived by a defendant through his failure to object, we note that the term waiver "is ambiguous, susceptible to numerous meanings depending upon the particular context in which it is used.”
Curtis v. State,
It has been pointed out that 'courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intelligent relinquishment or abandonment of a known right or privilege. [Emphasis added.]
*621
On the other hand, in
Schneckloth v. Bustamonte,
[t]o impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, [supra], where the issue concerned whether the accused willingly stood trial without the benefit of counsel. Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system. [425 U.S. at 512 .]
In attempting to verbalize the dichotomy between the fundamental constitutional rights that can only be waived by the defendant personally and the vast majority of rights that are relinquished through inaction or by consent of counsel, the Supreme Court in
Schneckloth
declared that "[ajlmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant
*622
in order to preserve a fair trial.”
It is clear ... that whether one is precluded from asserting a constitutional right because of what may have occurred previously, even though the failure was not "intelligent and knowing,” depends upon the nature of the right and the surrounding circumstances. A defendant may forego a broad spectrum of rights which are deemed to fall within the category of tactical decisions by counsel or involve procedural defaults.
In the broadest sense of the word, any tactical decision by counsel, inaction by counsel, or procedural default, could be described as a "waiver.” For example, an attorney must make numerous decisions in the course of a trial. Whenever he makes one, choosing to take or forego a particular action, the alternate choice could be said to have been waived. However, with regard to constitutional rights in a criminal proceeding, in a much narrower sense the term "waiver” could be said to connote the intelligent and knowing relinquishment of certain basic constitutional rights under circumstances where the courts have held that only such intelligent and knowing action will bind the defendant. [284 Md. at 147-48 ,395 A.2d at 473 .]
It thus appears that whether a defendant must be personally apprised of a particular right before he can be deemed to have relinquished it depends upon how basic that right is to a fair trial. Most decisions as to trial tactics, strategy and procedural maneuvers rest with the defendant’s attorney, for, to require an intelligent and knowing waiver of every
*623
trial right of whatever kind would, in our view, adversely alter the role of the trial judge and counsel and disrupt the orderly workings of a criminal trial already designed to ensure justice for the accused.
Curtis v. State, supra,
The parties before this Court, seizing upon the apparently bifurcated approach to the doctrine of waiver, have taken predictably contrary positions as to the relative importance of the right to a sequestered jury during deliberations. The State urges that the assertion or relinquishment of this right to such an isolation of the jury is in the nature of a tactical
*624
trial decision, which may be waived by the express consent of counsel or the simple failure to note an objection. The defendant, on the other hand, seeks to bring the right at issue into the select group of "fundamental” rights which may only be waived by the accused himself, urging that the right to have a jury sequestered during its deliberative period is nothing less than the right to be tried by an impartial jury, free from outside influences. In resolving this matter in favor of the State, we point out that the ancient common law doctrine prohibiting jury separation is not generally thought to be such an integral part of the right to a jury trial that sequestration has constitutional status. Consequently, the federal courts, perceiving no constitutional issue, have relegated jury separation, whether before or during deliberations, to the discretion of the trial judge, and, absent "an affirmative showing of prejudice and abuse of discretion,” the decision will not be questioned.
Cardarella v. United States,
Recognizing that the issue of jury separation
per se
poses no State or federal constitutional problem, Magwood urges that the requirement of a personal waiver "does not turn on the constitutional status,
vel non,
of the right;” rather, the requirement of sequestration, his argument goes, is essential to maintain the integrity of the defendant’s right to a jury trial by ensuring that the deliberative process remains free from improper influence.
6
The protection against the evil of the jurors being influenced by outside contacts is ordinarily provided by an appropriate admonition from the judge and presumed adherence thereto by a jury impressed with their solemn duty.
See Hunter v. State,
Moreover, while the defendant views the sequestered jury during deliberations as one free of contamination, there are those who perceive some dangers to the integrity of the verdict when the jurors remain sequestered throughout a prolonged deliberative period. Protracted discussion with resulting fatigue, according to this view, may result in a verdict, but not necessarily a fair or accurate one. As the court in
United States v. Piancone, supra,
Trial lawyers traditionally have been concerned about whether verdicts have been influenced by such outside pressures as reluctance to stay away from the family home overnight, weariness, transportation problems, or the fear of walking alone on city streets in the late evening on the way to public transportation. A juror’s vote should be based on reasoned judgment — not because uneasiness or discomfort has prodded him to an early end to a case. Intellectual conviction, not physical endurance, should be the basis of a juror’s decision. As the court said in Tyler v. United States, [supra at 568] "there is much to be said for the view that jurors, even as judges, are more likely to perform their duty fairly and correctly when they are not subjected to extended periods of arbitrary and pointless personal confinement.”
Consequently, given the non-constitutional nature of the specific right at issue, we fail to see why, particularly where the usual cautionary instruction is furnished the panel, the right to a sequestered jury during the deliberative period (if its exists) should be elevated to an exalted status requiring that it be relinquished only through a knowing waiver by the accused.
An examination of two of our prior decisions bolsters this conclusion. In
Kennard v. State,
[defendant objected to the return of the verdict as soon as he learned of the separation, and before the verdict was returned, and he thereafter made it the basis of a motion in arrest of judgment. Conceding that the motion in arrest was not appropriate, the written objection of the defendant, taken in connection with the certificate of the trial judge, was sufficient to present the question. [177 Md. at 558 ,10 A.2d at 714 .]
We agree with the State that if the right to a sequestered jury during deliberations was considered in
Kennard
to be of that ilk which requires a personal waiver by the accused, then this Court undoubtedly would have so indicated. Rather, the focus in
Kennard
was on whether the defendant had been prejudiced by the jury separation, and not on the magnitude of the right to a sequestered jury during deliberations. As we noted in a subsequent decision, "[t]his Court [in
Kennard}
viewed the matter as a question of prejudice
vel non,
and not as a matter of denial of a fundamental right....” That decision,
Midgett v. State,
[Separation of the jury during deliberation of its verdict and separation during the course of the trial are not logically distinguishable. If jurors are apt to be influenced by outside contacts during periods when they are separated while deliberating, they are equally apt to be influenced by those contacts during the trial. The protection against such evil ordinarily is provided by an admonition from the judge and by an adherence to the admonition by conscientious jurors. [ United States v. D'Antonio, supra at 672.]
Consequently, we hold that the right to a sequestered jury during the deliberative stage of trial, which for purposes of this decision we have assumed exists, is not so fundamental that it can only be waived by the defendant personally; at least where, as here, the defendant is present, either the consent of counsel to the separation after submission of the case to the jury or counsel’s failure to pose timely objection to the dispersal normally will constitute a waiver of any such right. This view is in accord with the substantial majority of jurisdictions which have considered the question.
E.g.,
*629
Smith v. State,
Judgment of the Court of Special Appeals reversed and cause remanded to that court with instructions to affirm the judgment embodying the conviction and sentence of the Circuit Court for Montgomery County.
Costs to be paid by respondent.
Notes
. 2 Hale’s Pleas of the Crown, p. 296. Lord Chief Justice Hale continued: "If they agreed not before the departure of the justices of gaol — delivery into another county the sheriff must send them along in carts, and the judge may take and record their verdict in a foreign county.” Id.
. Both parties acknowledge that this right can be waived, and we agree, for there are few, if any instances where a criminal defendant is prohibited from surrendering his rights, be they constitutional or otherwise, see Logan v. State,
. Courts around the nation are split on the issue of whether the judge possesses discretion to allow separation of a criminal cause jury after the case has been submitted to it for decision. See Annot.,
. The jurors sworn to try a criminal action may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers.
Respondent Magwood urges that section 8-304, by permitting jury separation prior to submission, implicitly forbids the separation at any time afterwards. This view is not without support. See People v. Chain,
. Certain protections that ensure a fair trial, such as the right to counsel, attach at the pretrial stage. Those guaranties, however, "are similarly designed to protect the fairness of the trial itself.” Schneckloth v. Bustamonte,
. This Court, through its rule making power, in particular cases has either reflected or supplemented the federal and State constitutional requirements, or created additional situations in which a knowing waiver is required. See, e.g., Maryland Rules 723 (right to counsel), 724 (right to presence), 731 (guilty and nolo contendere pleas), and 735 (jury trial).
. The original aim of the common law rule was set forth by this Court in Kennard v. State,
The purpose of the rule was first to prevent contamination of the jury by extraneous communications and improper influences, and second to coerce a verdict by withholding from the jurors their accustomed comforts and conveniences with the idea of making their confinement so unpleasant and irksome that they would be willing to end it as soon as possible.
Magwood agrees with the State that the coercive aspect of the doctrine is an anachronism which should be rejected by modern courts. Nevertheless, asserts the accused, the rule remains fundamentally important to the extent that it safeguards the integrity of the jury.
