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300.2 Due Process: Notice

    300.2.1 Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right to Effective Assistance of Counsel
    300.2.2 Due Process/Notice: New Law Or Legislation
    300.2.3 Due Process/Notice: Changing The Rules In The Middle Of The Game
    300.2.4 Due Process/Notice: Variance Between Information And Proof At Trial
    300.2.5 Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

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PRACTICE NOTE: The right of an accused to be tried and convicted of only those crimes and upon those theories charged in the indictment is fundamental and nonwaivable. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 2:15 [Charging The Jury-Theories Not Contained In Indictment] (West, 1999); see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 4-93 [Murder In The Second Degree By Felony Murder-In The Commission Of Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996), comments [citing Cole v. Arkansas (1948) 333 US 196, 200 [68 SCt 514; 92 LEd2d 644] ["Due-process requires that any such felony be charged in the information or indictment"].)

    A prejudicial material variance between the charging document and the proof at trial requires a new trial. (See generally BNA Criminal Practice Manual (Pike & Fisher Inc. 1999) § 31.401[11] [Amendment and Variance]; Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 76:1; see also U.S. v. Barr (3rd Cir. 1992) 963 F2d 641, 648 ["We must vacate a conviction if there is a variance between the indictment and the proof at trial, to the prejudice of the defendant’s substantial rights"].) "A variance is material if it prejudices the defendant’s substantial rights, either by surprising the defendant at trial or by placing the defendant at risk of double jeopardy." (U.S. v. Robinson (5th Cir. 1992) 974 F2d 575, 578.)

    Hence, instructions on a theory of liability of which defendant was not given notice violate due process. (Givens v. Housewright (9th Cir. 1986) 786 F2d 1378, 1381; Sheppard v. Rees (9th Cir. 1989) 909 F2d 1234, 1236-37; U.S. v. Sloan (10th Cir. 1987) 811 F2d 1359, 1363 [a jury instruction that quoted the language of a kidnapping statute and included means of committing the offense that were not charged in the indictment, violated the Due Process Clause of the 5th Amendment]; State v. Hicks (NM 1976) 555 P2d 689, 692 [notice must be in the indictment or information or otherwise furnished to the defendant in sufficient time to enable him to prepare his defense]; McCrary v. State (GA 1984) 314 SE2d 662, 665-66 [felony murder should not be charged where indictment alleges only malice murder, unless indictment also alleges facts showing how murder was committed sufficient to put defendant on notice of the underlying felony].)

    In addition to violating due process notice principles (5th and 14th Amendments), instruction upon an uncharged theory violates the 6th Amendment which "guarantees a criminal defendant a fundamental right to be clearly informed of the nature and the cause of the accusation against him." (Nevius v. Sumner (9th Cir. 1988) 852 F2d 463, 471; see also Russell v. United States (1962) 369 US 749, 766 [82 SCt 1038; 8 LEd2d 240].)

    Also implicated is the right to effective assistance of counsel (6th and 14th Amendments). (People v. Bishop (CA 1996) 44 CA4th 220, 231 [51 CR2d 629] ["to effectuate the constitutional rights to counsel and due process of law, an accused must be informed of the crimes with which he is charged in order to have a reasonable opportunity to prepare a defense and respond to the charges"].)

    Preliminary Hearing Is Touchstone Of Due Process: In terms of notice it is normally the preliminary hearing that controls. "[T]he time, place, and circumstances of charged offenses are left to the preliminary hearing transcript' which represents the touchstone of due process.' [Citations.]" [Emphasis added.] (Ibid.; see also People v. Lucas (CA 1997) 55 CA4th 721, 737 [64 CR2d 282]; People v. Jeff (CA 1988) 204 CA3d 309, 342 [251 CR 135]; see generally Hamling v. U.S. (1974) 418 US 87, 117-20 [94 SCt 2887; 41 LEd2d 590].)

    See NCJIC 300.2.5 [Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice].

RESEARCH NOTES:

See Capital Punishment Handbook [4.1 a. General Due Process Concerns: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.3 a. Notice Of Death Sentence Possibility: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.7 a. Sentencer Reliance On Undisclosed Information: General Principles And Authorities].

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    See NCJIC 300.14.3 [Due Process/Notice: New Law Or Legislation].

See Capital Punishment Handbook [4.1 a. General Due Process Concerns: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.3 a. Notice Of Death Sentence Possibility: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.7 a. Sentencer Reliance On Undisclosed Information: General Principles And Authorities].

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    See NCJIC 300.14.4 [Changing The Rules In The Middle Of The Game].

See Capital Punishment Handbook [4.1 a. General Due Process Concerns: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.3 a. Notice Of Death Sentence Possibility: General Principles And Authorities].

See also Capital Punishment Handbook [4.1.7 a. Sentencer Reliance On Undisclosed Information: General Principles And Authorities].

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PRACTICE NOTE:   Jones v. Smith (9th Cir. 2000) 231 F3d 1227, in dictum, stated that after Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362], a due process violation must be found when the prosecutor presents facts regarding penalty which were not alleged in the charging document. (See also Stirone v. U.S. (1960) 361 US 212, 218-19 [80 SCt 270; 4 LEd2d 252] [where defendant is convicted of a crime, and where information or indictment fails to charge defendant with essential element of that crime, a constructive amendment has occurred, and reversal is warranted].)

USE NOTE: Before trial, counsel should review the information to make sure it doesn't contain any charges that weren't either (a) in the complaint, or (b) supported by the evidence at the preliminary hearing.  Due process principles should prohibit such new charges from turning up in the information. (See e.g., People v. Jones (CA 1990) 51 C3d 294, 311-312 [270 CR 611].) Between that and ensuring there are no instructions on uncharged offenses, the defense attorney best protects the defendant from being convicted of an uncharged offense, in derogation of the state and federal Due Process Clauses.

    During trial, counsel should make sure that no essential elements of the crime or enhancements to punishment are presented to the jury that were not listed in the information.

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    300.2.5    Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice

PRACTICE NOTE:   Some courts suggest that a variance between pleading and proof must be prejudicial to require relief.  (See NCJIC 300.2.1 [Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel].)  However, in U.S. v. Syme (3rd Cir. 2002) 276 F3d 131, 154 the court held that the variance created a presumption of prejudice: "Like a denial of the right of allocution, a constructive amendment also violates a basic right of criminal defendants the grand jury guarantee of the Fifth Amendment....Similar to the plight of a defendant who is denied the right of allocution, it is very difficult for a defendant to prove prejudice resulting from most constructive amendments to an indictment, ... therefore, we will apply in the plain error context a rebuttable presumption that constructive amendments are prejudicial...."  (Syme, 276 F3d at 154.)

    However, the federal courts of appeals appear to be divided on the issue of whether a constructive amendment of an indictment is the type of error that requires reversal where the defendant does not demonstrate prejudice and did not object at trial. (Ibid.)