Proving personal use: the admissibility of evidence negating intent to distribute marijuana

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.