Legal Definitions - fatal variance

Definition: A fatal variance is a difference or disparity between two statements or documents that should agree, especially in criminal procedure. It is a variance that either deprives the defendant of fair notice of the charges or exposes the defendant to the risk of double jeopardy. A fatal variance is grounds for reversing a conviction.

Examples:

• If a charging instrument alleges that the defendant committed a crime on a specific date, but the evidence presented at trial shows that the crime was committed on a different date, it would be a fatal variance.
• If a charging instrument alleges that the defendant committed a crime with a specific weapon, but the evidence presented at trial shows that a different weapon was used, it would be a fatal variance.

These examples illustrate how a fatal variance can occur in criminal cases when there is a difference between the allegations in the charging instrument and the proof presented at trial. Such a variance can be harmful to the defendant's right to a fair trial and can result in a reversal of the conviction.