New Jersey defines marijuana to be a “controlled dangerous substance,” or “cds.” Other New Jersey statutes define distributing a cds to be a crime. New Jersey's penalties for distributing are much more severe than its penalties for mere possession. Further, the penalties for merely possessing marijuana with intent to distribute are identical to New Jersey's penalties for the actual distribution. We discuss those penalties on our distribution page, elsewhere on this site.
As just suggested, in order to be exposed to these severe penalties for distributing marijuana, it is not necessary to have actually distributed it. Intent to distribute satisfies the requirements of the statute. Yet, intent is a state of mind. It cannot be seen. And, although law enforcement officers often claim to possess powers that they actually lack, few, if any, claim to be able to read minds. So, short of a defendant announcing his intent to distribute marijuana, how can the prosecutor ever obtain the proofs that he needs in order to obtain a conviction?
The answer to that question is that persons can be convicted of intent to do something, in this case, distribute marijuana, by what is called “circumstantial evidence.” Circumstantial evidence consists of one or more facts from which another fact may be inferred.
Many judges explain circumstantial evidence to jurors by asking them to consider the example of whether it snowed during the night. The judges offer these facts: A witness testifies that just before going to bed one night, she looked out the window. The ground was clear and dry. She awoke the next morning and looked out the window again. The sun was shining. Yet, now, the ground was covered with snow. She never actually saw snow falling during the night. Yet, from the absence of snow when she went to bed to presence of snow on the ground when she awoke, you may legitimately infer from her testimony (if you believe her) that snow did fall during the night. That is, you are relying upon circumstantial evidence. Circumstantial evidence is to be distinguished from “direct evidence.” By way of contrast, direct evidence would be testimony from the witness that she actually saw snow falling during the night.
New Jersey prosecutors similarly rely upon circumstantial evidence to try to persuade jurors that the marijuana that was possessed was possessed with intent to distribute. Examples of such circumstantial evidence abound:
- What quantity of marijuana is at issue? Was the quantity a small amount consistent with what one might use for individual consumption? Or was it a quantity large enough to make consumption by a single individual unlikely?
- Did the defendant also possess other objects typically associated with distribution? Examples of such objects would be scales, plastic baggies, or other containers;
- Were there conversations in which the defendant actually indicated his intent to distribute?
- Did the defendant possess large amounts of cash?
- Did the defendant possess ledger sheets, books of account, or other writings indicative of past or future distribution.
Prosecutors sometimes rely upon testimony of expert witnesses to give their interpretations of the circumstantial evidence to the jury. But skilled lawyers can often rebut those interpretations. One way of rebutting those interpretations is to attack the credibility of the person offering the facts upon which the expert witness is relying. We offer elsewhere transcript of a trial in which Marijuana Lawyers in New Jersey™ did this. (The substance involved in that trial was heroin, not marijuana.) Another way to rebut testimony of expert witnesses is to offer alternative explanations, consistent with innocence, for the circumstantial evidence.
Allan Marain and Norman Epting, Jr. are New Jersey marijuana lawyers. Each has great familiarity with the rules of evidence by which circumstantial evidence can be successfully challenged. Each has successfully defended numerous New Jersey defendants charged with possession of marijuana with intent to distribute. Each would welcome the opportunity to review the circumstances of your arrest, in a no-charge no-obligation conference. Call them!
Allan Marain |
Norman Epting, Jr.
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