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In a recent unpublished opinion in United States v. Dietz, No. 38117 (A.F.Ct.Crim.App.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).