A fatal defect in an indictment occurs when the indictment fails to allege an essential element of the crime charged. A fatal variance, by contrast, occurs when the facts brought out at trial don’t match up with those alleged in the indictment, and this difference occurs as to an essential element. Here are two illustrative examples. Example 1: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, personal property, such property having a value of $1,075.” In this example the larceny indictment is fatally defective because it fails to allege an essential element: The name of the person in lawful possession of the property. It doesn’t matter what the evidence at trial shows because the indictment can’t stand on its own two feet. Example 2: A larceny indictment alleges that the defendant “unlawfully, willfully, and feloniously did steal, take, and carry away a 14K gold wedding band, the personal property of Jessica Smith, such property having a value of $1,075.” At trial the evidence shows that the wedding band was in fact the property of and in the possession of Joan Melville. In this example, the indictment names the wrong person as having possession of the property. For this offense, that’s a fatal variance. Note that in this case the indictment is okay on its face (it doesn’t suffer from a fatal defect). The problem is that the evidence doesn’t match the allegation as to an essential element and thus there is a fatal variance. Aside from application, there is another important distinction between these concepts. Specifically, fatal defect is jurisdictional and fatal variance is not. Because fatal defect is jurisdictional, it can be raised at any time—before trial, after trial, or any time after conviction, even when the sentence has been fully served. Fatal variance on the other hand is not jurisdictional. That means that if it’s not raised at trial, it’s waived. There are many cases on point, including a recent one from the court of appeals. In State v. Mason, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), the defendant was convicted of armed robbery. He asserted on appeal that there was a fatal variance between the indictment and the evidence with respect to the victim’s name. The court concluded that by failing to assert fatal variance in a motion to dismiss, the defendant failed to preserve the issue for appellate review. What’s the take away for litigants? First, check the indictment before trial. This will help you identify fatal defects. For prosecutors, if you keep the charging language in mind as you prepare the case, it will also help you avoid a fatal variance. Second, for the defense, check the indictment after the State rests. If there’s a fatal variance, be sure to make a motion to dismiss on that basis, because, as the title of this post indicates, use it or lose it is the rule. For more information about all of these issues, see my paper here.
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