Key Strategies for an Effective Voir Dire in a Cannabis Case

By Stephen Toland, Attorney / Head of Austin Office

The 2019 Texas law legalizing hemp, but not marijuana, has complicated cannabis-related prosecutions and has led to confusion as to which cannabis products are legal in Texas. Before the law changed, crime labs testing for marijuana simply checked for the presence of cannabinoids to designate something as cannabis, and therefore, illegal. With the new law, prosecutors must be prepared to present evidence on the level of THC, which requires different testing that is currently unavailable in state-run labs.  The change in what constitutes illegal cannabis also casts doubt over circumstantial evidence, like the substance’s smell or look.  To conduct an effective voir dire, defense counsel must be knowledgeable and comfortable discussing these newfound complications and the differences between cannabis-related products. Despite these changes, the goal remains the same: ask questions designed to uncover who should be removed from your jury.

Get Comfortable Talking About Cannabis

Most potential jurors’ knowledge about cannabis ends after expressing an opinion on whether it should be legalized. To be persuasive you will need to be seen as a subject matter expert on cannabis. Cannabis, which refers to the genus of flowering plants that includes marijuana and hemp, is not necessarily illegal. Marijuana is a type of cannabis grown specifically for its psychoactive effects, which come from its high concentration of THC. Hemp, on the other hand, is a type of cannabis that can be legally grown for textiles, food, and building materials with a much lower concentration of THC. Remember that you need to educate the jurors on these important distinctions because it is in the State’s interest to gloss over these differences.

Connect the Dots on Circumstantial Evidence

It is likely that your defense will include an attack on circumstantial evidence. Because cannabis itself is no longer illegal, it is important to ask questions that get the jurors talking about how the look and smell of cannabis do not mean a plant is illegal. After ensuring petit jurors understand that cannabis is not illegal, ask a series of questions around the circumstantial evidence of what we used to think of as marijuana. Make sure the jurors can share thoughts on how a plant may look and smell just like marijuana but not be illegal.

Destigmatize the Issues of Manufacturing, Personal Use, and Intent to Distribute

Many Texans remain unaware that HB 1325 legalized the possession and commercial cultivation of hemp, and that CBD products are derived from hemp. If your case involves the rules around commercial cultivation, personal use, and intent to distribute, begin your line of questions with an eye toward destigmatizing cannabis[1]related products and bringing them into the mainstream. Questions related to expected yields, the size of the plant, the plant varieties, and any processes adopted to ensure proper THC levels resonate better with jurors once they can relate these issues to everyday products. Have a list of products that contain CBD and get the jurors talking about the myriad of CBD-related products now commonly used. Perhaps ask how many CBD products the jury has used before arriving at the courthouse for your examination. Destigmatize and normalize these products and relate them back to the Texas Farm Bill in as many subtle ways as possible.

Jury Nullification

With most Texans favoring at least some form of marijuana legalization, you will need to be prepared for some jurors to offer strong opinions that may amount to jury nullification. While this sounds great in theory, you do not want to lose those potential jurors. Be up to date on recent case law related to rehabilitating a juror. Generally, a juror may say that they are starting out leaning in one direction and not be struck for cause, provided the rest of their answers demonstrate their ability to follow the law. The State will likely exercise a subsequent preemptory Stephen Toland is board certified in criminal law and heads the Austin office of FBFK law firm. Toland focuses on federal and state criminal defense, with an emphasis on federal white[1]collar defense and investigations. strike, but you stand the chance of keeping a valuable juror if they do not. An effective voir dire is crucial in cannabis cases. As cannabis laws evolve in our favor, we must up our game. If you take the time to thoroughly research the new law, educate the jury about the varieties of cannabis, and normalize the language around the new legal uses of cannabis, you will likely see more two-word verdicts

Stephen Toland is board certified in criminal law and heads the Austin office of FBFK law firm. Toland focuses on federal and state criminal defense, with an emphasis on federal white-collar defense and investigations.