Weapons of War: The Variance Doctrine

In criminal procedure, "allegation" and "proof" carry distinct meanings. On the one hand, “allegations” are verbal or written statements setting out what the proponent expects to prove, while "proof", on the other hand, is the same as evidence; it is a means of ascertaining the truth respecting a matter of fact.

Notably, these terms wield contrasting effects that can decree the conviction or acquittal of an accused. By itself, “allegations” holds no considerable impact to the outcome of a criminal case as they are mere statements. They neither equate nor generate facts by themselves. They do not resemble any importance or threat whatsoever, until and unless these statements are proven in court.

The duty of the defense is to examine these allegations found in the information. An information is a very vital part of our justice system for many jurists describe it as “the battlefield in every criminal case”. While the courtroom may be the physical battleground, the information is the essential arena in criminal litigation. It is the battlefield that is most important, holding the fate of accused to either a conviction or acquittal. An information is the battlefield where the State and the accused clash on what an allegation will become.

Speaking metaphorically, the prosecution brandishes allegations as a weapons as soon as the information is filed. Yet, these weapons must be forged and sharpened by evidence that meet the quantum of proof in all criminal cases - beyond reasonable doubt. Documents, eyewitness accounts, expert testimonies, and object evidence all transform allegations into proof. Conjure enough and sufficient proof, and the prosecution can deal a mortal wound to the accused and draw a conviction. 

Conversely, the defense is the personal guardian of the accused. He or she must shield his or her client from the callous blows of a weapon that are wielded not for the purpose of justice but for the corrupted sake of persecution. The defense must stand its ground against the wave of evidence being charged by the prosecution, and not allow those that impinge the rights of the accused to slip in. Illegally obtained evidence, coerced confession, hearsay, biased profiling, unreliable eyewitnesses, and violations of the right to speedy trial are some of those poisons that the defense must be vigilant against. The less unscrupulous evidence that gets through the ranks of the defense, the less likely the accused gets an unjust conviction.

Once the information is filed the defense must arm himself with the Variance Doctrine as his main defensive arsenal against the prosecution's evidence. This doctrine operates on a simple premise: if the accusation in the information deviates from the facts proven during trial, the accused can be convicted if the offense charged in the information is necessarily included in the offense proved, and vice versa. The loophole in this rule is found in the reverse. If the offense proved is NOT necessarily included in the offense as charged and in the manner it was stated in the information then the accused CANNOT be convicted at all.

The Variance Doctrine unfolds its true prowess in case law. Over the years, numerous legal battles have been fought on the grounds of variance, shaping the contours of this doctrine and influencing the course of justice.

The landmark case of Burgos vs. Sandiganbayan (G.R. No. 123144, October 15, 2003) is a perfect elucidation. In this case, the information charged the accused for entering a contract with a company for the repair of survey instruments, and subsequently paying the said company using government funds despite their knowledge that the machineries were not actually repaired. During trial, what was proven by the prosecution is that the survey instruments were not repaired in accordance with the job specifications.

The Supreme Court ruled that an accused cannot be convicted by an offense unless it is clearly charged in the information. It is important that the information describe the act with sufficient certainty for the accused to be apprised of the nature and cause of the accusation against him. Here is how the Supreme Court elaborated the concept of the Variance Doctrine:

"From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the accused to vex the court and embarrass the administration of justice by setting up the technical defense that the crime set forth in the body of the information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. ….. The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor…. If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute."

This portion of the decision is an excellent illumination of the essence and characteristic that embody the Variance Doctrine. Basically, the Supreme Court says that the designation of the crime in the information matters less. At end of the cited paragraph, you would notice how the Supreme Court nonchalantly treats the technical description of the crime in this sentence: “If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute.”

The opening line was the highlight of the decision: “… in a very real sense, it is no concern to the accused what is the technical name of the crime of which he stands charged…” Verily, a person of common understanding gives little care to the technical name of the crime he was charged because it is inconsequential to his defense during trial. What the accused should be interested of is the acts he or she allegedly committed which is the reason why the accused. The basic purpose of an information is to inform the accused of what he did, and not the crime that was committed. Narrating the very acts or omissions allegedly performed by the accused is the substance of the constitutional protection to be informed of the nature and cause of the accusation against him.

For instance, the information cannot plainly state that the accused committed murder. That is merely a designation of the crime. Instead, the information must state the acts performed by the accused that make up the murder. Did the accused stab the victim? Did the accused shoot the victim with a gun? Did the accused poison the victim? Those are specific acts that makes an information valid and in accordance with the Constitution.

Once the specific acts and manner they were performed by the accused are established, the evidence adduced during trial must not deviate from the literal meaning of the acts stated in the information. The exact opposite happened in the Burgos case as the Court found that there is a stark variation between the offense charged versus the offense proved. The offense charged speaks of the payment by the accused of government funds to a contractor that did not repair the survey instruments, and that constituted the offense of Anti-Graft and Corrupt Practices.

Contrast that to what was proven by the prosecution during trial: the contractor did not repair the survey instruments based on the job specifications. The implication is that the survey instrument is still operational or functional despite not being repaired in accordance with the job specifications. Since the machineries are operational, the assumption is that there is no damage to the Government and, hence, no offense was committed. Deviation from the allegations creates an avenue for the court to rule the acquittal of the accused. 

Another compelling illustration arises from the more recent case of Limbo vs. People (G.R. No. 204568, April 26, 2023), where the Rules on Variance was applied to avert a misguided prosecution. In this case, the information charged the accused of unauthorized encashment of checks that were dishonored later on. However, the information varied from the facts proven as the prosecution did not adduce evidence to prove “encashment of the checks”, but instead it offered documents that only prove the crediting of the accused checks, purchasing manager’s checks, and instructing telegraphic transfer.

The Supreme Court rejected the prosecutor’s argument asserting that the term “encashment” may be interpreted to also include payment through manager’s check, and outgoing telegraphic transfer. Citing the Rules of Court, the Supreme Court reminded the prosecution that the acts or omissions complained of must be stated in “ordinary and concise language” and “in terms sufficient to enable a person of common understanding to know what offense is being charged”.

The prosecutor tried to justify the allegation of “encashment” of bounced checks to land a devastating blow against the accused. Like the Burgos case, the problem is that the evidence presented deviated from the allegation. Instead of proving “encashment”, other acts were proven that are not even synonymous with the term.

The Supreme Court noticed the variance and, therefore, rectified the misconception perceived by the lower courts. It further ruled that “… the real question in convicting the accused is not whether he or she committed a crime given in the law in some technical and specific name, but whether he or she performed the acts alleged in the information…”

The implication of this quoted sentence to me is that the conviction of the accused is not rested on evidence alone. It is not the eyewitness accounts, the corpus delicti, the incriminating documents, nor the smoking gun that exacts a judgment of conviction. All of them mean nothing in court without this crucial component. The true key in convicting the accused is consistency, the exact alignment between what was alleged and what was proved. Consistency is the very essence that makes the Variance Doctrine the great equalizer between the information and the evidence. 

To sum it all up, the Variance Doctrine, as interpreted and refined by judicial wisdom, acts more than just a shield by defense counsels in criminal cases; the rule acts as a sentinel against arbitrary convictions, ensuring the alignment between the offense charged and the offense proved. The doctrine upholds the principle of fairness and justice, and keeping the battleground in tune with the sanctity of the judicial process.