Legal Definitions - disjunctive allegations

Disjunctive allegations refer to claims made in a legal document, such as a complaint or an indictment, that connect different possibilities using the word "or" rather than "and." This means the party making the allegation is stating that one of several specified actions or conditions occurred, without definitively stating which one.

Historically, and particularly in criminal law, disjunctive allegations have been viewed with skepticism because they can make it difficult for the accused party to understand the precise nature of the claim against them. For instance, if a defendant is accused of doing "A or B," they might not know whether to prepare a defense against "A" or against "B," or both. This lack of specificity can hinder their ability to mount an effective defense.

In criminal cases, prosecutors often prefer to use "and" (conjunctive allegations) even when a statute lists alternative ways an offense can be committed using "or." This ensures the defendant receives clear notice of all potential accusations, even if the prosecution ultimately only needs to prove one of the listed acts. In civil lawsuits, however, courts have become more accepting of disjunctive allegations, allowing parties to plead alternative theories when the exact facts might not yet be fully known, with the expectation that discovery will clarify the specific claims.

Here are some examples illustrating disjunctive allegations:

• Criminal Law Context (Generally Disfavored):

  Imagine a state law that makes it illegal to "deface, damage, or destroy" a historical monument. If an indictment were to state, "The defendant did deface or damage or destroy the statue," this would be a disjunctive allegation. This phrasing is problematic because the defendant might not know whether they are accused of merely marking the statue (deface), causing minor harm (damage), or completely ruining it (destroy). Each of these actions could require a different defense strategy. To avoid this ambiguity and ensure proper notice, a prosecutor would typically charge that the defendant "did deface and damage and destroy the statue," covering all possibilities and providing the defendant with clear notice of the full scope of the accusation.

• Civil Law Context (Often Accepted):

  Consider a business dispute where a client (Plaintiff) sues a marketing agency (Defendant) for a failed advertising campaign. The Plaintiff's complaint might include a disjunctive allegation stating, "The Defendant breached the contract by failing to launch the campaign on the agreed-upon date or by launching a campaign that did not comply with the agreed-upon creative brief." In this civil scenario, such an allegation is generally acceptable. The Plaintiff knows that a breach occurred but might not yet have definitive proof of whether the failure was due to a missed deadline or a flawed campaign execution. The Defendant still has sufficient notice of the types of contractual failures alleged and can prepare a defense for either scenario, with further details expected to emerge during the discovery process.