Evidence

Fact pattern

Jackson is being tried on federal drug charges. The elements of this crime are “for any person knowingly or intentionally … to … possess with intent to distribute … a controlled substance.” Distribute is defined by the statute to mean “the actual, constructive, or attempted transfer of a controlled substance.”

The federal prosecutor presented evidence that Jackson had been growing several dozen marijuana plants in a greenhouse on a rural farm property. Defense counsel did not cross-examine the witnesses who provided the evidence tying Jackson to the greenhouse full of marijuana plants. The federal prosecutor also presented evidence that Jackson had, on multiple occasions, given whole marijuana plants to at least two neighbors.

During the defense phase of the trial, Jackson took the stand and was prepared to testify that the marijuana plants were being sold for medicinal use, and that the active medicinal ingredient in marijuana – THC – was more effective from organically grown and harvested plants than from synthetically produced chemicals.

The prosecutor objected to the testimony on two grounds: (1) the testimony was irrelevant, and (2) Jackson was not qualified to provide an opinion, lay or expert.

At a hearing outside the presence of the jury, Jackson testified to having used marijuana for over 30 years, initially for recreational purposes, but increasingly as an analgesic to address pain from several old sports injuries as well as the nausea and misery from more recent chemotherapy treatments over the past two years. Jackson admitted to being a heavy user of marijuana because the pain from those old injuries was “frequently crippling.” Jackson testified to having tried four different prescription pain-relieving medications over the past 10 years, and comparing them to informal remedies, including marijuana. Jackson also testified to having experimented with marijuana grown in different ways, and that organic marijuana was the best.

On cross-examination, Jackson admitted to keeping no contemporaneous notes or records of the efficacy of the homegrown marijuana versus alternatives; failing to conduct blind samplings (i.e., samplings where Jackson did not know whether the sample was organic marijuana, conventionally grown marijuana, or an alternative); and, in fact, doing not much more than offering personal recollections.

Questions

1. If the prosecution objects to Jackson’s proffered testimony on relevance grounds, how should the district judge rule?
2. If the prosecution objects to Jackson’s proffered testimony on the grounds that it is an impermissible opinion, how should the district judge rule?