Posted by Orin Kerr:
The Strange Practice of Indicting in the Conjunctive:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253899387
[1]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, [2]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, and I was 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 I nor my research assistant
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.
References
1.
http://legaltimes.typepad.com/blt/2009/09/federal-prosecutor-superseding-indictment-will-fix-typo.html
2. http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00227.htm
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
