At what point does it become fundamentally unfair to 'adjust the charges to the evidence'?

QUESTION(S) PRESENTED 1) At what point does it become fundamentally unfair to 'adjust the charges to the evidence’? In this instance, the State adjusted the charges, and by extension their position, almost two years after the trial ended. This not only denied the defendant the opportunity to react in an adversarial manner but also fails to correct any errant and or confusing statements made to the jury before deliberation. 2) Shouldn't the ‘belated conclusion’ be applied to all charges and decisions if they are allowed to be the basis of the SCOGA's decision? Shouldn't the 'Summary of Facts' be corrected and verified preceding a new review in accordance of Jackson v. Virginia now that a premise had changed? 3) What level of due diligence should be required by the prosecution to review and analyze the evidence before trial? Was due process denied when after two complete trials the State vacillated its position making it difficult, if not impossible, for the defense to strategize counter arguments. : \