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 [...]
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