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; and
  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; or
  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; 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.

Client Reviews
"Mr. Steinberg provided my family with expert handling of my son's case. He took extra time understand the case, to consult with us during the pretrial proceedings, and to support him for a plea agreement. Mr. Steinberg is very knowledge about the law and very professional. He guided us in achieving the best possible outcome for my son. If I am ever in need of law services again, I will certainly have Mr. Steinberg handle my case. l also highly recommend his services to anyone that might be in need of an excellent defense attorney!" Tanya Witt
"I found myself in criminal trouble, that I wasn't guilty of and thanks to Mr. Steinberg's dedication and hard work, right before we we're looking at having to continue on to trial level Mr. Steinberg was able to use his vast knowledge of the law and his many respected years in the system to find a way to show my innocence. After a very unsure and somewhat difficult time for me, this very skilled and knowledgeable attorney was able to find the right path to take to reach a dismissal in my case. For that I can't tell you how much I appreciate his representation and his excellent understanding and helpful personality. He's a great man and an even better attorney but don't misunderstand him, he is an attorney not a therapist. Thanks H." Josh
"Working with Michael Steinberg was a wonderful experience. Truly people need to know that he is a expert in what he does. His personality is compassionate, intellectual, and down to earth. I glean that Michael is fun to be around. In the time I worked with him, it was a pleasure to be around him. As for my case, the outcome was amazing and couldn’t be better. He has made my life more manageable because of the outcome of my case. I’ve worked with other lawyers in the Denver area. He is superior to them all. If you’re in need of a lawyer and you come across Mr. Steinberg look no further he’s going to be the one you need. Thank you again Michael." Renee Taylor
Mr. Steinberg, It has been an honor working with you. I very much appreciated your style, demeanor, patience, and determination. I was well instructed in every step of the court process, and I felt that I received excellent guidance and timely information regarding my case. You have been extremely thoughtful with your time, and I was very impressed with your sensitivity in responding to my requests. Thank you. Anonymous