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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.
Bama 1L:
[N]either Sai nor I knew the Latin or Law French needed to read the earlier decisions . . . .

On the arts &sciences side of campus, this sentence has a much more interesting conclusion.
9.25.2009 1:36pm
4thAm:
Don't you miss the problem of multiplicity/non-unanimous juries? If an indictment says the defendant did A or B (instead of A and B) there would be a possibility of six jurors finding sufficient proof only as to A and six others finding sufficient proof only as to B. This can be cured with a unanimity instruction, but the easiest solution is just to allege the crime in the conjunctive in the first place.
9.25.2009 1:43pm
Mark N. (www):
A rather illogical rule, in the formal sense, since it inverts the usual rule of logic that to rebut a conjunction, one need only rebut any one of the conjuncts; but to prove a conjunction, all elements must be proven.
9.25.2009 1:44pm
PatHMV (mail) (www):
I got chewed out by a supervisor once for charging in the disjunctive (he caught it before we filed, so of course I fixed it). Louisiana's Code of Criminal Procedure specifically requires it, so it's no use trying to persuade the judge about the reality, we'll have to take it up with the legislature:

Art. 480. Conjunctive charging

If an offense may be committed by doing one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, two or more of such acts, means, intents, or results may be charged conjunctively in a single count of an indictment, or set forth conjunctively in a bill of particulars, and proof of any one of the acts, means, intents, or results so charged or set forth will support a conviction.
9.25.2009 1:44pm
OrinKerr:
the easiest solution is just to allege the crime in the conjunctive in the first place.

I do not see how that solves anything. Can you elaborate?
9.25.2009 1:51pm
ShelbyC:
If you indict for A &B, does that mean that the grand jurors found PC for both A &B? But if you do it for A or B, maybe some found for A &not B, or vice versa?
9.25.2009 1:59pm
Snaphappy:
Why not just indict everyone for doing "one or more of the things made illegal in Title 18, U.S. Code"?
9.25.2009 2:20pm
Snaphappy:
I think 4thAm's point is thus:

Six of Lord Mansfield's jurors think the defendant is guilty of forging but innocent of causing to be forged. The other 6 think he is guilty of causing to be forged but innocent of forging. Is he guilty of count 1 of the indictment, "forging or causing to be forged"? 12 jurors vote yes.

On the other hand, if count 1 is in the conjunctive, 12 jurors vote no. On the separate question of whether he is guilty of forging, the jury is hung. On the separate question of whether he is guilty of causing to be forged, the jury is hung.

You can cure any problem with an adequate jury sheet, but if you acknowledge that, you must also acknowledge that there is some problem that needs to be cured.
9.25.2009 2:26pm
law student:

Why not just indict everyone for doing "one or more of the things made illegal in Title 18, U.S. Code"?


I think there is case law that the indictment can't just cite a statute, it has to allege some facts that give the defendant notice of what specifically he is being charged with. (Though I think there may be some ambiguity/variation in the case law as to how much specificity if any is required beyond retyping the charging language in the statute.) i.e. some of the case law on bills of particulars.

A related question: why do indictments allege all the possible ways of violating a statute anyway; why not just allege the way or way(s) for which there is PC? i.e., if it's a crime to "kick, punch, or stab" and there is only PC that the defendant kicked, and no indication that he punched or stabbed, why not just indict, "The defendant kicked..." rather than, "The defendant kicked, punched, AND stabbed" -or- "The defendant kicked, punched, OR stabbed"? Wouldn't that give the defendant the best notice? Or is the point not to bind the prosecution to a particular theory of the crime?
9.25.2009 2:42pm
4thAm:
Thank you Snaphappy.

The BLT story focuses on the right to have a grand jury (unanimously) find probable cause. But there is at least as big a problem with the petit jury.

If the crime is charged in the conjunctive, the petit jury will necessarily find proof of all possible means of committing a crime.

The more obvious duplicity/multiplicity problem is factual, not legal: The same count in an indictment alleges that the defendant violated the statute on two separate dates. Six jurors might agree as to only the first date, while the other six agree as to only the second date. Guilty verdict but non-unanimous jury. Perhaps it's easier to see, but this indictment poses the same problem as your disjunctive indictment.
9.25.2009 2:50pm
cjwynes (mail):
I don't know much about federal prosecution, but that's way different than practice in the state court here. That may be because we do complaints followed by informations, instead of indictments (do federal indictments serve as the charging documents for the entire process up until trial?.) If there are several alternative ways to commit a crime, such as forgery by making the writing and forgery by using the writing as genuine, I have to pick one of them to use in the complaint and if he's bound over by the magistrate judge then I have to use identical language in the felony information up in the circuit court. If I bind him over and then later want to change theories, the defendant could object to amending the information and force a remand to the magistrate and a new hearing.

If there are more than one way to be guilty of a crime, nobody in our court system ever has to "come prepared against both". I'm pretty sure the defense bar would hoot and howl about that, even though discovery probably would make it obvious what theory we intended to prove.
9.25.2009 2:51pm
Steve:
Why not just indict everyone for doing "one or more of the things made illegal in Title 18, U.S. Code"?

I think it would be more consistent with the spirit of the rule to allege that everything in Title 18 was violated!
9.25.2009 3:05pm
4thAm:
I'm not sure about a rule saying the government has to charge in the conjunctive. I think the rule says simply that the government can't charge in the disjunctive.

An indictment under your hypothetical statute doesn't have to allege that a defendant did A, B, and C. It could simply allege that the defendant did A. Or it could allege that he did B. Or it could allege that he did C. It just can't allege that he did A, B, or C.

Take a closer look at the Ye indictment (the BLT article). It alleges that Ye "did unlawfully and knowingly forcibly assault, resist, oppose, impede, intimidate, or interfere" with two deputy U.S. marshals. It can be cured as Ye suggests--by changing "or" to "and." But it can just as easily be cured by simply dropping everything except "impede" (or any other means of violating the statute). That's the government's decision.

Come to think of it, I'm not sure why prosecutors charge in the conjunctive either; why not just pick the most logical means of violating the statute, and exclude the others? (Particularly where the statute can be violated in many different ways.)
9.25.2009 3:12pm
OrinKerr:
Snaphappy,

Your example doesn't work because you can't indict someone for violating "all of the things made illegal in Title 18, U.S. Code." In other words, yes, of course, the indictment has to provide sufficient notice. But the theory of the rule is that if you just switch "or" to "and," suddenly the "and" provides notice where "or" did not. But that is false: You're not providing any more information about what is alleged than if you kept "or" as "or."
9.25.2009 3:21pm
OrinKerr:
If the crime is charged in the conjunctive, the petit jury will necessarily find proof of all possible means of committing a crime.

Wrong: The law is clear going back to the 17th century or so that the petit jury only has to find proof of one possible means of committing the crime. That's what makes the rule so weird: It's purely a word switch, not a point about what substantively must be proved.
9.25.2009 3:23pm
PatHMV (mail) (www):
4thAm... because, particularly in situations like the Ye example, the statute writers were throwing in a bunch of words which have overlapping meanings and are often near-synonyms. English being as imperfect as it is, the precise definitions are often quite elusive. What's the difference between "impede," "oppose," and "interfere?" Does a defendant get to say "hey, no way, I may have opposed his entry, but I didn't impede it or interfere with it," if the prosecutor only charged him with "impede" or with "interfere"?
9.25.2009 3:24pm
Jay:
"The BLT story focuses on the right to have a grand jury (unanimously) find probable cause. But there is at least as big a problem with the petit jury."

There's no right to have the grand jury unanimously find probable cause. It's a majority vote.
9.25.2009 3:32pm
Christopher Hundt (www):

The law is clear going back to the 17th century or so that the petit jury only has to find proof of one possible means of committing the crime.


What about the grand jury? In the motion they wrote "there is no way to know if a sufficient number of grand jurors found probable cause to believe that any one of these specific alleged activities occurred."

I imagine the rule must be the same as for the petit jury, because why would you need probably cause for all the elements to indict if one of them is enough to convict? But the precedent I found speaks mostly about the trial.
9.25.2009 3:42pm
4thAm:
Pat:

Yes, the defendant gets to make that argument. But if the evidence really is strong on oppose but not on interfere, the prosecutor should have selected "oppose" in the indictment. This may be a bad example, because as you say, these particular terms are so similar. But that's not always the case.

Orin:

I agree that the jury has to find proof as to only one means. I'm just saying that the jury has to (or at least should have to) agree on which means that might be. A conjunctive indictment will guarantee that the jury has agreed on one means, because it requires unanimity as to all means. But a disjunctive indictment allows for the jurors to agree that the defendant did something illegal, yet disagree about what exactly that was.

Jay:

Sorry. Perhaps obviously, my work doesn't bring me before grand juries.
9.25.2009 4:01pm
ShelbyC:

There's no right to have the grand jury unanimously find probable cause. It's a majority vote.


Right, but the majority needs to find PC for the same facts, right? You can't have 26% finding A probable and not B, and 26% more finding B probable and not A, correct?

So a majority has to find PC for A &B, or just A, or just B, but they can't find for A or B, no?
9.25.2009 4:04pm
SeaDrive:
"And" means "and", but there are two "or"s.

The exclusive "or" means one or the other, but not both.
The inclusive "or" means one the other or both.

So using "or" invites ambiguity.
9.25.2009 4:15pm
judgebuster (mail):
The elements of each crime must be alleged in the conjunctive and the alleged alternative crimes alleged in the disjunctive.

The same holds for each additional charge in all additional indictments/informations.
9.25.2009 4:16pm
Jon Roland (mail) (www):
If I were sitting on a grand jury and got an indictment in the conjunctive, I would parse it myself, and return it only for the items we found had sufficient evidence, perhaps saying "A and C but not B" to make it clear. If I were sitting on a trial jury I would determine whether all of the items had to be proved to convict, or only some of them, in some combination, and if the judge insisted on the conjunctive of all, and all were not proved, I would vote to acquit.

But that's just me.
9.25.2009 4:21pm
David Schwartz (mail):
It would be a much more rational rule to indict with "or". It makes no sense to have an empty formalism that requires prosecutors to make allegations that they know are not true and that may even be literally impossible.
9.25.2009 4:28pm
ShelbyC:
Am I misunderstanding, or are folks suggesting that the indictment has to read "did unlawfully and knowingly forcibly assault, resist, oppose, impede, intimidate, and interfere" even if there is no reason to believe that the defendant assaulted? And that the grand jury should vote in favor of such an indictment event if there's no PC that the defendant assualted? I would imagine that a disjunctive indictment where 26% of the grand jurors believed that the defendant resisted but did not intimidate, and 26% more believed that the defendant intimidated but did not resist, would be defective, no?
9.25.2009 4:41pm
OrinKerr:
4th:
I agree that the jury has to find proof as to only one means. I'm just saying that the jury has to (or at least should have to) agree on which means that might be. A conjunctive indictment will guarantee that the jury has agreed on one means, because it requires unanimity as to all means. But a disjunctive indictment allows for the jurors to agree that the defendant did something illegal, yet disagree about what exactly that was.
But that is incorrect -- there is no requirement of unanimity as to all means. If a statute says it is a crime of government theft "to steal from the United States or from a state government or from a foreign government," the indictment will say that the defendant stole from "the United States and a state government and a foreign government" even though the evidence before the grand jury and the petit jury is only as to one of these things, not all of them.

Put another way, the grandy jury is asked to return a false indictment that does not actually say what the defendant did, and the theory is that this puts the defendant on notice. It makes no sense.
9.25.2009 4:41pm
Jon Roland (mail) (www):
OrinKerr:

the grand jury is asked to return a false indictment that does not actually say what the defendant did, and the theory is that this puts the defendant on notice. It makes no sense.

For once we agree. But we need to go on to propose a suitable remedy. A reform of judicial rules? How would it be worded?
9.25.2009 4:52pm
OrinKerr:
Jon,

If we agree, then I change my mind. ;-)

Seriously, the remedy is just to allow indictments in the disjunctive.
9.25.2009 5:15pm
ShelbyC:

Put another way, the grandy jury is asked to return a false indictment that does not actually say what the defendant did


And the grand jury is instructed that they should return an indictment that the defendant stole from the feds and the state, even if they only believe one or the other? What if there is evidence of both, and 26% of the jurors believe one, and 26% believe the other?
9.25.2009 5:22pm
troll_dc2 (mail):

Indeed, I have another 72 posts ready to go this afternoon on conjunctive indictments.


We're waiting.
9.25.2009 5:36pm
PatHMV (mail) (www):
Shelby, the substantive rule is intended, I think, to keep defendants from being able to quibble over technicalities that do not get to the root of whether or not the defendant himself stole. In your example, it does not matter whether the money he stole technically belonged to the feds or to the state, it was government money, and the defendant stole it. Determining whether it was specifically the feds' money or the state's money would be a waste of time.

Consider Medicaid. States put up a small percentage of funds, the feds match it many times over, and all that money goes into one big pot. When the defendant steals Medicaid funds from that big pot, has he stolen federal money or state money? It would be an unnecessary waste to establish that the defendant stole $4000, of which $1,000 was state funds and $3,000 were federal funds. The specific owner of the funds is not relevant, because the statute penalizes stealing from either of them.

This is not a situation where the state is claiming that John Doe assaulted Bill Jones on Sept. 5 and John Doe assaulted Tom Smith on Sept. 23, which are two separate potential crimes. Certainly there the jury must be unanimous on one or both of them, and a 50% split (half guilty on 9/5 and innocent on 9/23, other half guilty on 9/23 and innocent on 9/5) would be an acquittal.

But in the situations we've been describing, the law is essentially saying: "doing any of these things is illegal, and it doesn't matter whether you characterize it as assault, interfering, intimidating, or whatever, that's all against the law." If 50% believe that "assault" best characterizes his behavior and 50% believe that "intimidate" best describes his behavior, then 100% believe that he broke that particular statute on that particular date and time alleged in the indictment.
9.25.2009 5:36pm
Snaphappy:
So to clarify, you would eliminate the rule where it's clear that the disjunctive is used to describe the means of violating a statute, rather than separate crimes. Would you agree there is a problem if the indictment were allowed to say something like "Count 1: Defendant committed burglary or breaking and entering of Victim's home."
9.25.2009 5:41pm
troll_dc2 (mail):
Wouldn't "and/or" solve the problem better than simply replacing "and" with "or," given the ambiguity noted above with regard to the meaning of "or"?
9.25.2009 5:42pm
OrinKerr:
Snaphappy,

I agree that an indictment mustbe dismissed if it does not provide sufficient notice to the defendant as to what crime was alleged to have been committed. My only point is that changing "or" to "and" gives no additional notice whatsoever: whether or not it should be dismissed should have nothing to do with whether "or" is changed to "and."
9.25.2009 5:50pm
traveler496:
If I understand the original posting, two distinctly bizarre things happened, and have stuck to this day:

1) Lawyers(!) believed that changing the spelling of "or" without changing its meaning would somehow solve the (inherently meaning-based) lack of notice problem
2) The new spelling chosen was: a-n-d.

Wow. Wow.
9.25.2009 5:58pm
zippypinhead:
Fascinating... After all these years I finally learn for the first time from this thread that I'm not the only one flummoxed by this bizarre (and/or "Legal French") practice. When I was a young prosecutor and my brain still functioned (as opposed to just cutting and pasting legal boilerplate), I got tripped up on this particular drafting issue all the time, and nobody could ever explain why the mantra "indict in the conjunctive, convict in the disjunctive" made sense, or even met basic Constitutional requirements. I was always told that's the way it is, and I simply had to do it that way or life as we know it in our quadrant of the legal Galaxy would suddenly come to an end.
9.25.2009 5:59pm
Prosecutorial Indiscretion:
If I were sitting on a trial jury I would determine whether all of the items had to be proved to convict, or only some of them, in some combination, and if the judge insisted on the conjunctive of all, and all were not proved, I would vote to acquit.

Given that the judge will not insist on that unless only proof of the conjunctive would satisfy the elements of the offense, I don't think that's a concern. Judges have more than a little experience dealing with this issue given its ancient pedigree. They have rote instructions to explain to jurors that they can find the defendant guilty without finding the conjunctive so long as they're unanimous with respect to which part of the disjunctive underlies their guilty verdict.
9.25.2009 6:10pm
ShelbyC:

This is not a situation where the state is claiming that John Doe assaulted Bill Jones on Sept. 5 and John Doe assaulted Tom Smith on Sept. 23, which are two separate potential crimes. Certainly there the jury must be unanimous on one or both of them, and a 50% split (half guilty on 9/5 and innocent on 9/23, other half guilty on 9/23 and innocent on 9/5) would be an acquittal.


Gotcha, although it seems there may be room for that situation to happen if you use the disjunctive. If the situation it really as Orin says it is, though, where they say "and" but mean "or", on some theory that saying "and" gives better notice, that just seems too stoopid for me to wrap my head around.
9.25.2009 6:14pm
Sara:
I never had a problem with this. I always thought it made sense to say in the charging document you were going after him on all these grounds in the positive, not in the alternative.

So, there's your answer: we've been doing it all this time and it makes enough sense to a goodly number of us no to change it. :)
9.25.2009 6:56pm
4thAm:
Okay. So a statute says it is a crime of government theft "to steal from the United States or from a state government or from a foreign government." If it's obvious where the alleged theft took place, you have no problem. But what if the evidence shows that the defendant has stolen from the United States Government and a state government, and he has meaningful factual defenses as to both?

He could be charged in the conjunctive. That would remove the risk of a non-unanimous jury, but it would entail a lot of risk for the prosecutor.

The better practive would be to split it up. In Count One, he should be charged with theft "from the United States Government." And in Count Two, he should be charged with theft "from a state government."

Or, if you prefer to charge him in the disjunctive, so be it. But you'd still better split this up into two counts, and make clear with the factual allegations that the first count alleges a theft of federal money while the second alleges a theft of state money.

But you can't simply allege in a single count that he stole federal and state money, because you run the risk of a conviction by a non-unanimous jury.

The same logic applies to the Ye indictment. Maybe the prosecution wants to show that Ye "interfered" with the marshals by blocking a door, and that he "intimidated" them in some other way. To block a door doesn't necessarily entail intimidation. And to intimidate doesn't necessarily entail interference. So with a single disjunctive allegation, the jury might not be unanimous. To solve the problem, the prosecution can either charge in the conjunctive, split the allegations into two separate counts, or write a very clear unanimity instruction.
9.25.2009 7:03pm
PersonFromPorlock:
Out of curiousity, if a constitutional amendment making English America's official language were ratified, how much legalese would be rendered invalid overnight?
9.25.2009 7:20pm
tehlojix:
Mark N.:

On the other hand, the following schema is true under every interpretation of its letters:

(a&b)&~a -> b
9.25.2009 8:20pm
Rich Rostrom (mail):
I can think of another problem: what if an offense consists of two actions, each of which is legal by itself? In such a case the conjunctive "and" would be applicable to conviction as well as indictment.

I can't think of such an offense, but IANAL. Wait: "breaking and entering" comes close. "Breaking" and "entering" are both crimes, but not under those names: "damage to property" and "trespass".

If an indictment charged someone with "breaking and entering and arson", how would it be punctuated?
9.25.2009 8:24pm
Bama 1L:
Wait: "breaking and entering" comes close.

No, the "breaking" in this phrase is "breaking the close," from the ancient writ of trespass quare clausum fregit. The "close" is the notional barrier around someone's real property. I could "break (the close) and enter" if I climbed through an open window, stepped through an open door, or even crossed a property line and ended up somewhere I did not have right or privilege to be. Nothing has to be broken, in the sense of physically damaged. So it truly is redundant--we might as well say "trespassing and trespassing."
9.25.2009 8:44pm
ChrisTS (mail):

I agree with Sea Drive (this MAY be a first).

David Schwartz (mail):

It would be a much more rational rule to indict with "or". It makes no sense to have an empty formalism that requires prosecutors to make allegations that they know are not true and that may even be literally impossible.
But in the situations we've been describing, the law is essentially saying: "doing any of these things is illegal, and it doesn't matter whether you characterize it as assault, interfering, intimidating, or whatever, that's all against the law." If 50% believe that "assault" best characterizes his behavior and 50% believe that "intimidate" best describes his behavior, then 100% believe that he broke that particular statute on that particular date and time alleged in the indictment.

IANAL (love that), but I do think there is a problem about 'notice' if all the indictment claims is 'you did one or more of these things.'
While I think that allowing the disjunction is the easiest fix, I suspect that the heart of the problem is in the definition of offenses. That is, I think the problem is, dare I say, not admitting complexity in the framing of a law. One long, complex, sentence may gather all one wants to gather under a type of offense, but perhaps it would be better to have distinct offenses.
If we want the laws to be understandable to the average Joe, I don't think 'corrective' jury instruction is the way to go. Of course, what I am suggesting means 'more laws,' which may be discomfiting to those who [also] want simple laws.
9.25.2009 8:49pm
ChrisTS (mail):
By the way, so nice to have an OP about legal-like stuff.
9.25.2009 8:50pm
ex-DA:
I recall once being forced to amend a bill of information because the defense lawyer raised this issue; I wondered, 'what the hell possible purpose does this serve?' Thanks for the post, it's a shame you were never able to track down the source.
9.25.2009 9:38pm
Cornellian (mail):
I'm a Lord Mansfield fan from way back. If he were around today I'd want him on the Supreme Court, or at least the 9th Circuit.
9.25.2009 9:41pm
David Schwartz (mail):
But you can't simply allege in a single count that he stole federal and state money, because you run the risk of a conviction by a non-unanimous jury.
So what? Why is that a problem?

Suppose the statute makes it a crime to obtain money by "threat of the use of deadly or non-deadly force". Why do you think the jury must be unanimous on whether the force threatened was deadly or not?

Statutes contain 'or' clauses in this way precisely to indicate that it need *not* be proven whether the force was deadly or non-deadly.
9.26.2009 9:19am

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