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fatal variance Archives

Surplusage in an Indictment Does Not Create a Fatal Variance

A fatal variance may occur in a criminal trial where the proof presented at trial differs materially and prejudicially from the specific allegations in the criminal indictment. Such a variance is said to be 'fatal' as it can kill the State's case (and result in dismissal of the charges). It is a violation of an accused person's right to be fairly informed of the criminal charges against him or her. However, for a variance between the indictment and proof to be fatal, it must be both material to the charge and prejudicial to the accused. In the recent Tennessee case of State v. Lewis, E2014-00918-CCA-R3-CD (Tenn.Crim.App. 2-25-2015), the Court of Criminal Appeals rejected an appellant's claim of fatal variance where the variance was with a non-material allegation.

Surplusage in an Indictment Does Not Create a Fatal Variance

A fatal variance may occur in a criminal trial where the proof presented at trial differs materially and prejudicially from the specific allegations in the criminal indictment. Such a variance is said to be 'fatal' as it can kill the State's case (and result in dismissal of the charges). It is a violation of an accused person's right to be fairly informed of the criminal charges against him or her. However, for a variance between the indictment and proof to be fatal, it must be both material to the charge and prejudicial to the accused. In the recent Tennessee case of State v. Lewis, E2014-00918-CCA-R3-CD (Tenn.Crim.App. 2-25-2015), the Court of Criminal Appeals rejected an appellant's claim of fatal variance where the variance was with a non-material allegation.

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