New Mexico Supreme Court: Avoid “And/Or in Jury Instructions

The New Mexico Supreme Court has issued an opinion cautioning against the use of the term “and/or” in jury instructions, writing that “[t]he term and/or has proved singularly unsuited to formulating clear and effective jury instructions, to the degree that our trial courts would be well-served to avoid its use in jury instructions altogether.” In its opinion in State v. Taylor, S-1-SC-38818 (2024), the Court reached back nearly eighty years to cite the following proposition:

[T]he highly objectionable phrase “and/or” . . . has no place in pleadings, findings of fact, conclusions of law, judgments or decrees, and least of all in instructions to a jury. Instructions are intended to assist jurors in applying the law to the facts, and trial judges should put them in as simple language as possible, and not confuse them with this linguistic abomination. State v. Smith, 1947-NMSC-048, ¶¶ 7-8, 51 N.M. 328, 184 P.2d 301.

While the opinion went on to acknowledge that the use of “and/or” could at times be appropriate in complaints, responsive pleadings, and discovery, it was unequivocal in its condemnation of the term’s use in jury instructions. New Mexico practitioners would do well to heed the Court’s reminder in this regard.