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The Argument For Variance As Between The Charges And The Evidence 

Variance Can Stop A DA In His?Her Tracks — How?  – Double Jeopardy

Introduction – This web page helps to explain the legal concept of variance – and why it is a critical weapon in the arsenal of the Colorado criminal defense attorney. What if the DA proves the wrong crime – or fails to prove the crime charged?

What is the Doctrine of Variance?

Colorado Criminal Variance Law

A variance occurs when the charge contained in the charging instrument differs from the charge of which a defendant is convicted.

There are two types of variances:

(1) simple variance, which ” occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged” in the charging instrument;


(2) constructive amendment, which changes an essential element of the charged offense and thereby alters the substance of the charging instrument.

Unlike simple variances, constructive amendments effectively subject a defendant to the risk of conviction for an offense that was not originally charged in the charging instrument.

Consequently, constructive amendments are per se reversible error, whereas simple variances are not reversible unless they prejudice a defendant’s substantive rights.

Lesser Included Offenses – The First Issue For The Colorado Criminal Defense Lawyer

The question here, then, is whether there is a esser included offense;

(1) to the one that was charged but not proved

(2) for which sufficient evidence exists to sustain the conviction.

Comparing The Crime Charged To The Evidence Produced At Trial

In Colorado, a ” statutory elements” test is used to determine whether an offense stands in a lesser included relationship to another offense.

Under that test, ” if proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included…. If, however, each offense necessarily ‘ requires proof of at least one additional fact which the other does not,’ the strict elements test is not satisfied,” and the offenses do not stand in a greater-lesser included relationship to one another.

What Is The Remedy For A Violation Of The Variance Principle?

The Remedy

When the prosecution fails to present proof of the offense charged, double jeopardy prevents the prosecution from availing itself of a second opportunity to try the accused on that charge.

Double jeopardy ” protects against a second prosecution for the same offense after acquittal.

 If the evidence is insufficient to support the conviction, the retrial of the defendant on the same charge would constitute a violation of the constitutional guarantee against double jeopardy.

If a conviction is reversed on appeal because of an insufficiency of the evidence, no retrial may occur.

One Bite Of The Apple

Where, however, there is insufficient evidence to sustain a conviction for a particular offense, but the evidence is sufficient to uphold a conviction on a lesser included offense, the appropriate remedy is to remand the case to the trial court with directions to enter judgment and sentence on the lesser included offense.

Conclusion And Review of Variance vs. Insufficiency of the Evidence

A variance is a procedural discrepancy between the pleadings and the proof.

This discrepancy can be of two types, a failure of proof or a variance. A failure of proof typically arises in the following situations:

(1) An allegation of one crime and proof of another., a charge of larceny and proof of embezzlement;


(2) An allegation of one degree of a statutory crime and proof of another degree of that crime. a charge of first degree burglary of a dwelling house and proof of burglary of a warehouse;

(3) A failure to prove an essential element of the crime alleged-e.g., a charge of rape but no proof of penetration, or a charge of burglary but no proof of a breaking and entry.

On the other hand a variance typically arises when the state, in attempting to prove the crime alleged, proves a fact which varies in some degree from the statement of fact in the allegation-e.g., a charge of larceny from John Doe and proof of larceny from Richard Roe, or a charge of assault and battery with a stone and proof of assault and battery with a stick.

Technically the latter situation is the only one which is a variance. In other words, a variance can only arise where there has been a discrepancy between the charge of a particular statutory crime and the proof of that same crime as to a fact descriptive of the offense.

The first three situations are properly termed a failure of proof, or what could be termed a “total” failure of proof. In situations 1 and 2 there is proof of a different statutory crime, or degree of crime, than was averred in the accusatory pleading. A conviction in either case would be grounds for reversal.

Likewise, situation 3 is a failure of proof, but here there is a failure to prove any crime whatever. A conviction in such a case would not be sustained by sufficient evidence and would be contrary to law.

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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