Disjunctive Allegations

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Disjunctive allegations are claims in a pleading that are joined by the disjunction “or,” rather than the conjunction “and.” In criminal law, is it common for prosecutors to make allegations in the conjunctive, even when a statute lists the alternative ways an offense may be committed in the disjunctive. For example, the Department of Justice’s Criminal Resource Manual instructs that when bringing charges on a statute which punishes, alternatively, “taking, carrying away, or concealing,” the indictment should replace the disjunctive “or” with the conjunctive “and.” Disjunctive allegations are disfavored on the grounds that they do not provide a defendant with enough certainty or notice of the charges being brought to mount a proper defense. In the past, courts often found disjunctive allegations to be defective for their lack of sufficient notice to the defendant. In criminal law, the practice of alleging in the conjunctive has persisted, even though the use of “or” is not strictly improper.  According to this law review article (which was cited in the advisory committee notes to Rule 8 of the Federal Rules of Civil Procedure), the rule against disjunctive allegations in civil lawsuits was relaxed by the early 20th century, as courts became more amenable to alternative pleadings formulated with the disjunctive “or.” 

[Last updated in July of 2021 by the Wex Definitions Team