Also known as: variance of charge and proof · variance · material variance
Written by attorneys · grounded in primary & secondary sources — see below
A discrepancy between the facts alleged in a charging instrument and the evidence presented at trial. The discrepancy must be disregarded when it does not affect substantial rights.
Vanessa Vinson was charged with distributing five kilograms of cocaine. At trial the prosecution proved only four kilograms changed hands. The court disregarded the variance because the smaller amount still supported the same offense and did not impair Vanessa's ability to prepare a defense.
Virgil Vaughn was charged with possessing an unregistered machine gun. Proof showed he knew the weapon fired automatically but the indictment omitted the knowledge allegation. The variance did not affect substantial rights because Virgil had full notice of the conduct at issue and suffered no prejudice at trial.
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Veronica Varela was indicted for stealing property on March 15. Evidence established the theft occurred on March 18. The court treated the date difference as a harmless variance because the proof established the same offense and Veronica was not misled in preparing her defense.
Victor Vargas was charged with a drug offense carrying a ten-year minimum. Proof at sentencing showed a slightly different drug mixture than alleged. The variance was disregarded because it did not alter the applicable guideline range or Victor's substantial rights.
Vivian Vaughn was charged with trespass by entering a store after hours. Evidence showed she remained after closing rather than entering. The court found the variance harmless because the core conduct was the same and Vivian received adequate notice of the accusation.
Valentina Vasquez was charged with escape from custody. Proof established both the initial departure and failure to return. The variance between the charge and the continuing-offense proof was disregarded because it did not affect Valentina's substantial rights or her opportunity to contest the elements.
Reversal is required only when the variance affects the defendant's substantial rights. A variance that leaves the defendant with adequate notice and does not impair the defense is disregarded under the harmless-error rule.
Supporting sources
An unpreserved variance is reviewed for plain error. The defendant must show an obvious error that affected substantial rights and seriously undermined the fairness of the proceedings before relief is granted.
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No. A date variance is harmless when the proof establishes the same offense and the defendant was not misled in preparing a defense or surprised at trial.
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