Proving Personal Use: The Admissibility of Evidence Negating Intent to Distribute Marijuana

Stephen Mayer*

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a defendant’s possession of a state-issued medical marijuana license, (2) evidence that a state has legalized possession of marijuana for recreational purposes, and (3) evidence that a defendant suffers from a disease that marijuana arguably treats. Part I examines each of these three categories of personal use evidence and contends that district courts are likely to confront disputes over such evidence with increasing frequency. Part II analyzes objections to the admissibility of personal use evidence on direct examination, focusing primarily on Rules 402 and 403. Part III responds to those objections and argues that the evidence is probative of intent to distribute in federal marijuana-trafficking prosecutions.

* J.D., May 2014, University of Michigan Law School. I would like to thank Samuel Gross of Michigan Law School; Dennis Terez and Melissa Salinas of the Federal Public Defender’s Office for the Northern District of Ohio; Stephanie Goldfarb and Bibeane Metsch-Garcia of Michigan Law School’s Federal Appellate Litigation Clinic; and the Michigan Law Review Notes Office for its guidance and support.

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