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The Strange Practice of Indicting in the Conjunctive:
The BLT has a story about a federal criminal case in which the Government forgot to indict in the conjunctive — that is, it forgot to turn "or" into "and." According to the story, DOJ is going to re-indict the case to avoid the error. It may be easier for DOJ to do that, but it's worth pointing out the silliness of the rule that indictments should be in the conjunctive. It's a holdover from early common law pleading, and it makes no sense for modern statutory crimes.

  For those unfamiliar with the rule, federal court precedent says that if a federal criminal statute makes it a crime to do "A, B, or C," the indictment should allege that the defendant did "A, B, and C." That is, the prosecutor should switch the "or" to "and", replacing the disjunctive with the conjunctive. Why do that? The cases say that the reason is to avoid uncertainty: If the indictment uses "or," then the defendant has no notice of what the government is charging. If the indictment uses "and," then there is no uncertainty. But here's the trick: The government only needs to prove one of the theories at trial, and the conviction will be upheld on appeal so long as only one of the theories has been proved.

  It doesn't take a rocket scientist to see this rule is foolish. Mechanically turning "or" to "and" doesn't actually provide any additional notice. And judges have been noting that this rule is nonsensical for a long, long time. Way back in 1757, Lord Mansfield attacked the rule as useless:
Upon indictments, it has been so determined, that an alternative charge is not good, as 'forged or caused to be forged'; though only one need be proved, if laid conjunctively, as 'forged and caused to be forged.' But I do not see the reason of it; the substance is exactly the same; the defendant must come prepared against both. And it makes no difference to him in any respect.
Rex v. Middlehurst, 1 Burr. 399, 98 English Reports 369 (1757). As another court wrote in 1945:
The difference between disjunctive and conjunctive pleading is mostly the difference between tweedledum and tweedledee, and modern jurisprudence, which appraises substance and not form as its essence, accords to such useless learning only a nodding acquaintance. What earthly difference is there between 'or' and 'and' in a count when the end result is that defendant in both instances must be prepared to meet both or all charges?
Commonwealth v. Schuler, 43 A.2d 646 (Pa. Super. 1945).

  The obvious question is, how did this rule come about? I spent some time trying to hunt this down in the summer of 2008, together with the help of a research assistant, Sai Jahann, and we were never able to come up with a firm answer. The rule had already been established by the time of the early authorities in English, and neither Sai nor I knew the Latin or Law French needed to read the earlier decisions that might have first announced or first justified the rule.

  As best I could tell from the early English cases, the origins of the rule were in early common law pleading rules in an era of common law crimes. Under those rules, each indictment had to allege a single crime. So an indictment couldn't allege that a defendant had committed murder or larceny or burglary; it had to give actual notice of the crime alleged. But in an era of common law crimes, the precise boundaries of how much notice was required was never entirely clear: If it was a crime to stab, punch, or kick someone, it wasn't entirely clear if that was one offense that could be committed three ways or three different offenses.

  Exactly how this led to the modern rule of "indict in the conjunctive, prove in the disjunctive" isn't precisely clear. But I found some early English cases in which a defendant had actually committed the offense in all of possible ways, and prosecutors just charged all of the means conjunctively in the indictment. The indictment thus changed the "or" to "and." This got around any possible pleading objections based on lack of notice, as the notice was very clear. But then you had some cases where the defendant would challenge the evidence as to all of the means; perhaps, if it was a crime to "stab, punch, or kick someone," the government had only proved punching and kicking but not stabbing. Courts responded, sensibly enough, that if the crime could be committed any of the different ways, the government had proved the offense if it had proved any of the different ways.

  My sense of what happened is that the warnings about notice turned into a general rule that served no real purpose. To be careful, prosecutors started just routinely changing "or" to "and," satisfying any possible objection as to uncertainty, while knowing that they could always just prove one of the means rather than all of them. This then became the accepted and recommended practice, even though the switch from "or" to "and" was purely a question of form. Strange but true — or at least as true as I was able to discern.
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