I’ve periodically written about why charges need to be alleged in the conjunctive (e.g., prejudicial to good order and discipline and likely to bring discredit upon the armed forces), not in the disjunctive (e.g., prejudicial to good order and discipline or likely to bring discredit upon the armed forces). For instance, in my analysis of United States v. Stewart, 71 M.J. 38 (C.A.A.F. Mar. 6, 2012) (CAAFlog case page) I wrote:

The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

The appeal of disjunctive pleadings is likely the fear that conjunctive pleadings force the prosecution to prove both sides of the conjunction – a fear that is mistaken and nonsensical.

In a recent unpublished opinion in United States v. Dietz, No. 38117 (A.F.Ct.Crim.App. Jul. 17, 2014) (link to slip op.), the AFCCA issues yet another reminder of this rule:

We agree with our colleagues in the other service courts that “pleadings and findings in the disjunctive may constitute error, but . . . [s]uch error is not uniformly fatal and, in the absence of material prejudice, may be waived.” United States v. Crane, ARMY 20080469, unpub. op. at 1 (Army Ct. Crim. App. 18 August 2009) (citing United States v. Gonzalez, 39 M.J. 742, 749 (N.M.C.M.R. 1994)). “While charging in the disjunctive is disfavored, under Article 134, [UCMJ,] it does not automatically render the specification fatally defective.” United States v. Miles, 71 M.J. 671, 673 (N.M. Ct. Crim. App. 2012), rev. denied, 72 M.J. 257 (Daily Journal 19 April 2013). In a guilty plea case, we review the specification with “maximum liberality.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citation and internal quotation marks omitted). “It has been exhaustively clarified that the phrase ‘prejudicial to good order and discipline or of a service-discrediting nature’ merely pleads two different theories of liability for a singular terminal element under which an accused can be found guilty of but one offense.” United States v. Chestnut, ARMY 20120612 (Army Ct. Crim. App. 31 October 2013) (unpub. op.) (citing United States v. Medina, 66 M.J. 21 (C.A.A.F. 2006)), rev. denied, 73 M.J. 294 (Daily Journal 24 April 2014).

Slip op. at 3. The court concludes:

We would nonetheless echo the admonition of the Army Court of Criminal Appeals:

We take this opportunity to strongly discourage disjunctive pleadings. Such pleadings serve no discernable purpose and unnecessarily create avoidable appellate issues. While statutory construction may offer alternate theories of criminal liability, pleadings should specify those theories, using the conjunctive . . . if more than one may apply. If concerned with exigencies of proof, trial counsel may plead in the conjunctive and fact-finders may find by exceptions. This eliminates any potential for ambiguity in pleadings or findings. Further, we urge trial judges to eliminate disjunctives by ordering the Government to amend the specification when, as here, it otherwise gives sufficient notice of the crime alleged and would not constitute a major change. Certainly, judges should ensure disjunctives are eliminated when entering findings or when members make findings on a specification.
Crane, unpub. op. at 2 (internal citations omitted).

Slip op. at 5 (omission in original).

13 Responses to “Another reminder that charging in the disjunctive is wrong”

  1. SFC V says:

    While this is the majority rule that doesn’t mean it isn’t a dumb rule that should be done away with. It is one of those rules that no one really knows how it came to be yet we’ve always done it that way. What difference does it make?
    I found this interesting post http://www.volokh.com/posts/1253899387.shtml

    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).

    I fail to see how pleading in the conjunctive but proving in the disjunctive is somehow required and pleading in the disjunctive and proving in the disjunctive is forbidden. In my estimation the disjunctive provides more notice to a defendant that the government need only prove one or the other and not both. I see it as a hypertechnical rule that serves no purpose.  Just because we’ve always done it that way doesn’t mean we should continue to do it that way. 
    The Texas Court of Criminal Appeals agrees: (Hunter v. State, 576 S.W.2d 395 (Tex. Cr. App. 1979))

    Our examination of the Texas authorities and those from other jurisdictions shows that the apparent reason for the rule is that it fails to give the defendant notice of the charges against him and is vague and uncertain. This stated reason, however, will not withstand critical analysis.
    The indictment in the instant case alleged that appellant “intentionally or knowingly” committed an aggravated assault. The defendant was put on notice that the State would attempt to prove either that he intentionally committed an aggravated assault or that he knowingly committed an aggravated assault. Under the statutes under which this indictment was drawn, the State was not required to prove both that appellant “intentionally and knowingly” committed the offense, but rather could prove that he “intentionally or knowingly” committed the offense. We fail to see how the defendant was not put on notice or was misled or harmed in any way. Nor, do we perceive how the indictment was uncertain or vague as contended by appellant.
    It appears to us that the prohibition on disjunctive pleading, in a case such as the instant one, is a hyper-technical rule such as might be found in a 19th Century pleading book. It has overtones of the old forms of action, such as trespass, case, debt, detinue, trover, etc. The prohibition of disjunctive pleading, such as that used in the instant case, has no place in the pleading of criminal cases in the 20th Century. This is not to say, however, that there may be some instances in which a particular disjunctive pleading would be so vague, uncertain, and indefinite, as to give no notice of the offense charged.
    Moreover, the use of the disjunctive word “or” in the instant case has far less tendency to mislead a defendant than the allegation in the instant indictment that the offense was committed “on or about the 2 day of February, 1977, ….” The use of the disjunctive word “or” between the words “intentionally” and “knowingly” at least lets the defendant know that the State will attempt to prove an intentional or knowing violation of the law.

  2. Some Army Guy says:

    I concur with the good SFC V.  It’s an illogical rule.

  3. Charlie Gittins says:

    Well, in the Stewart case, mentioned by Zach, by pleading in the disjunctive, it was possible that a 2/3 concurrence could be reached on alternate offenses pleaded disjunctively — i.e., neither offense proved beyond a reasonable doubt to 2/3 of the panel, but guilty because 2/3 concurred on the issue of guilt but on alternative bases.  That is why we fought from the Article 32 on to make the Government elect a theory (both offenses ended up being identically defined by the judge) and when the judge refused, we moved for severance into two specifications, which was the only way we could know on what theory he was convicted in the event of conviction.  Since those offenses were identical and the members were instructed first to vote on Spec 1 and acquitted Stewie, the judge stepped on a landmine by letting the members vote on Spec 2, which was defined identically, resulting in the Double Jeopardy outcome.  If the G would have elected a theory instead of reflexively fighting the issue, they might have ended up with a conviction that could withstand appeal (despite all of the other problems with the case that were never addressed by CAAF, but they steadfastly refused to budge and they got what they deserved — an acquittal on the merits. 

  4. Zachary D Spilman says:

    Charlie Gittins makes the good point about what a disjunctive specification can do to deliberations at trial (some think theory A, others theory B, but no 2/3 majority agrees on any one theory, resulting in an acquittal, yet the panel votes to convict). An analogous situation arises in a federal proceeding where at least twelve members of a grand jury must vote to indict. If the charge is in the disjunctive, then it’s possible for the grand jury to return a true bill despite no twelve members agreeing on a particular theory.

    Moreover, the discussion to R.C.M. 307 acknowledges the propriety of charging conjunctively, not disjunctively:

    (iv) Duplicitousness. One specification should not allege more than one offense, either conjunctively (the accused “lost and destroyed”) or alternatively (the accused “lost or destroyed”). However, if two acts or a series of acts constitute one offense, they may be alleged conjunctively.

    (emphasis added).

  5. Zeke says:

    I think the more problematic result of disjunctive charging is not lack of notice prior to trial.  As has been pointed out, the defendant has notice that he will be required to defend against both theories of liability that have been disjunctively charged.  The problem that is most concerning, in my mind, is that a disjunctive charge can result in a disjunctive verdict.  With a disjunctive verdict, it is impossible to determine which theory of liability the finder of fact actually relied upon.  The way appellate courts have solved that problem in the past is just the way they resolved it in Dietz… For the conviction to stand, the evidence must be sufficient to establish guilt on each disjunctively charged theory, or the conviction must be reversed because, by including “or” in their verdict, the finder of fact left open the possibility that they convicted upon a theory for which there was insufficient evidence.  Disjunctive pleading is not a real problem, even if it is sloppy and imprecise.  But disjunctive verdicts inject ambiguity into the process at a point where it can rarely be endured.  In criminal verdicts, where the foundational principles of presumption of innocence and the burden being upon the government are at their height of importance, ambiguity must be resolved in the favor of the accused.  Otherwise, the system is not affording the accused the benefit of the doubt.

  6. SFC V says:

    There is no requirement that the government elect a theory.  The common law rule, adopted by the Supreme Court is that a general verdict is acceptable to a charge alleging alternate means as long as one of the theories is good. Griffin v. United States, 502 U.S. 46, 52 (1991).  The exceptions being if one of the theories is unconsitutional (i.e. violates the first amendment) or is illegal (i.e. violates the statute of limitations).

  7. SFC V says:

    Zeke Says
     For the conviction to stand, the evidence must be sufficient to establish guilt on each disjunctively charged theory, or the conviction must be reversed because, by including “or” in their verdict, the finder of fact left open the possibility that they convicted upon a theory for which there was insufficient evidence.

    This is the rule in KS and other states, it is often called super sufficiency, but this is not the rule the Supreme Court adopted. (see my post above) The common law rule is if one theory is good the whole thing stands.  I happen to think the former is better than the latter. Some courts agree and others do not.  It just makes sense that you shouldn’t allow a conviction to stand on a theory unsupported by any evidence.

    Zekes says:
    But disjunctive verdicts inject ambiguity into the process at a point where it can rarely be endured. In criminal verdicts, where the foundational principles of presumption of innocence and the burden being upon the government are at their height of importance, ambiguity must be resolved in the favor of the accused. Otherwise, the system is not affording the accused the benefit of the doubt.

      This rule, as you imply doesn’t solve anything because we still allow disjunctive proof.

  8. Zeke says:

    @ SFC V – with regard to your first sentence: whether the government is required to elect a theory is separate from the he question of whether the finder of fact should have do so.  U.S. v. Griffin does indeed stand for the proposition that, in Federal civilian trials,  a general verdict will stand so long as at least one disjunctively instructed theory is factually sufficient.  My argument for why Griffin is inapplicable to the military jurisdiction is not likely to convince anyone, but here it is anyway:  
    Griffin was decided based on the premise that Federal juries are particularly well suited to resolve factual sufficiency questions, and thus are trusted to have relied on the correct factual basis for their verdict and to not have relied on a basis which was not proven.

    When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence.
    Griffin v. U.S., 502 U.S. 46, 59 (1991)

    The Supreme Court confidence in juries’ ability to analyze evidence persists only so long as they are of sufficient size to engage in meaningful deliberations, preferably when they are required to be unanimous, and when they are comprised of an adequate cross-section of the community.  See BALLEW V. GEORGIA, 435 U.S. 223 (1978) AND BURCH V. LOUISIANA, 441 U.S. 130 (1979).
    Courts-martial panels do not share those same characteristics and therefore are not worthy of the same confidence.  Without that same level of confidence, the rationale underlying the Griffin decision unravels.  Military verdicts aren’t required to be unanimous, they aren’t required to be reached by a panel that is representative of the community and therefore imbued with the wisdom of the crowd, they aren’t required to be reached by a panel large enough to ensure a full exchange of ideas and a full recollection of the evidence, they aren’t required to be reached by a panel free of the inherent influence of rank among members and the specter of UCI.  We can’t trust military panels to analyze the evidence appropriately for all of these reasons.  That’s why we have convening authority clemency and military service courts of appeal with the unprecedented power to review verdicts for factual sufficiency.  That’s also why Griffin is inapplicable to the military jurisdiction.

  9. stewie says:

    Zeke, the only part of the argument you make that’s persuasive IMO is the unanimous part. Civilian juries are no more wise than panels, and the other issues you raise aren’t persuasive to me either because there are analogues in civilian juries (you don’t think there’s people on panels who dominate? That there isn’t undue influence?).
    However, the lack of unanimity leads to the “disjointed” verdict being an issue because you need a certain percentage of folks to agree. A unanimous verdict has 100% agreeing all of the time on something (although I’ll note for all we know each of the 12 convicts on a separate theory theoretically). But if you have to have 66% to convict, the problem described above arises.

  10. SFC V says:

    CAAF has applied it to the military.  United States v. Rodriguez, 66 M.J. 201, 203-04 (CAAF 2008); United States v. Brown, 65 M.J. 356, 359 (CAAF 2007).
    But I do get your argument of why it might be different for the military. 

  11. brian lc says:

    I’ll add my 5 cents, although I fear I may be detracting from one of best pages (read comment rant-free) on CAAFlog in a while.
    I am curious as to whether people believe that disjunctive pleading affects the CCAs ability to conduct a factual sufficiency review.  I’m familiar with the line of cases addressing excepting out “divers” and the problems that creates. If the accused is charged with “shooting Smith or stabbing Smith”  what exactly is the CCA to review?  Did the panel find the accused shot Smith, stabbed Smith, or both?

  12. Zeke says:

    brian lc – I absolutely concur that disjunctive verdicts can frustrate the ability of the CCA to review the case.  The way that problem has been resolved by the CCAs in the past is to affirm only if every single disjunctively charged theory is supported by sufficient evidence to establish guilt beyond a reasonable doubt.  Dietz is a departure from that practice because the AFCCA instead lined through the unproven theory and presumed that the trial court relied upon the “correct” theory in rendering its verdict.  This begs the question off whether the accused’s guilt was established by the court-martial or by the CCA.

  13. Christian Deichert says:

    Here’s the problem with charging disjunctively in a nutshell.  Scenario: you’re driving to a location for the first time.  You reach a T-intersection and don’t know which way to go.  You call a friend and ask, “Should I turn right or left?” They answer, “Yes,” and then they hang up before I can ask them which one.  Which way do you go? 
    If I charge disjunctively, I’m asking a panel, “Was this prejudicial to good order and discipline, or of a nature to bring discredit upon the armed forces of the United States?”  Maybe I wanted to know if it was one, or the other, or both, but that’s not what I’m not asking them — I’m asking them to pick one or the other.  So if they only say “yes,” how do I know which one had the concurrence of at least two thirds of the panel?  Maybe half thought it was service discrediting and half thought it was prejudicial to good order and discipline.  If that’s the case, that’s not enough to convict based on the way I charged it.
    Whereas, if I ask whether an act was both prejudicial to good order and discipline AND of a nature to bring discredit on the armed forces of the United States, a panel can say, “Yes, we agree,” or “Well, we think it was PGOD, but not service discrediting,” or vice versa.  Either way, though, I know what they intended because I asked the question correctly.