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February 2016

“And/or” in jury instructions leads to reversal of conviction

Here’s something you don’t see every day: a defendant convicted of robbery and aggravated assault wins his appeal because the trial court, in instructing the jury, repeatedly used the phrase and/or to describe the elements of the crimes. State v. Gonzalez, No. A-0768-13T2 (N.J. App. Div. Jan. 25, 2016). Even more remarkable: the defendant failed to object at trial to the use of and/or in the jury instructions. Nevertheless, the appellate court reversed, finding the jury instructions so unclear that the defendant was denied a fair trial:

[N]ot even the most generous and forgiving harmless-error philosophy can save this verdict. The instructions were inherently ambiguous because the judge failed to explain in clear English what the jurors were required to decide and, as a result, generated numerous ways in which the jury could have convicted without a shared vision of what defendant did, [citations omitted], or convicted defendant on some charges without finding all the elements were proven beyond a reasonable doubt. [Slip op. at 20.]

Pages 9–11 of the opinion contain a long paragraph full of citations to cases lambasting and/or. Among the descriptions of phrase (with citations) are these gems:

  • an expression that "has never been accredited in this state as good pleading or proper to form part of a judgment of record ....”
  • a “verbal monstrosiity, neither word nor phrase”
  • an “inexcusable barbarism[ ] ... sired by indolence”
  • a “mongrel expression ... an equivocal connective, being neither positively conjunctive nor positively disjunctive”
  • an “abominable invention”