The Federal Rules of Criminal Procedure phrase the sanction provision somewhat differently, but retain the disjunctive form: "[T]he court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or . . . shall declare a mistrial if required by the interest of justice." Fed. R. Crim. P. 26.2(e).Note: You may download the Grammar eBook Build Your Vocabulary and get all 406 vocabulary words.
The government seizes upon the disjunctive form of this language to argue that a district court may never impose both the sanction of a mistrial and the sanction of suppressing the testimony of the witness when a Jencks Act violation occurs.
—United States v. McKoy U.S. Court of Appeals for the Ninth Circuit, March 4, 1996