Cannabis and Evidence: Budding Trends in Trial Advocacy

For as long as there have been rules of evidence and courtrooms, there have been products that can impair litigants or witnesses—and products whose use carries the potential to trigger certain stigmas in the eyes of the finders of fact. Cannabis, which has been around longer than nearly every judicial system in the world and the subject of political and popular debate in the United States for the past century, may be the paradigmatic product at the moment.

The United States cannabis industry has developed within the context of conflicting and evolving federal and state laws, and businesses in the cannabis industry must navigate a wide array of legal challenges. These challenges extend to those businesses that provide services or otherwise interact with cannabis companies. And the stakes are high. The total economic impact from cannabis sales in 2023 is anticipated to top $100 billion in the United States alone, an increase of more than twelve percent from 2022.1 And by 2027? A whopping $160 billion.
All of this means that people dealing with cannabis issues tend to have lots of questions. And disputes. The cannabis industry is ripe for litigation. It may be a surprise that there has not been more cannabis litigation to date. The reasons, we suspect, stem from (1) a hesitance on the part of cannabis businesses (which often run afoul of black-letter federal law) to invoke the judicial system and (2) a lack of resources to prosecute or defend a lawsuit.

In many ways, the question of how and when the use of cannabis should be admissible at trial is an age-old question. But that does not mean that the answers to these questions are straightforward. The dramatic rise in state-legal cannabis regimes in the United States over the past two decades portends a similar, if lagging, rise in the instances in which courts in the United States are asked to opine how and when cannabis-related evidence should be admitted.
This Article begins by examining the evolving legalization of cannabis in the United States over the past few decades, both at the federal and state levels. The balance of the Article examines specific trial advocacy issues arising in the cannabis context. 

Republished with permission. The full article "Cannabis and Evidence: Budding Trends in Trial Advocacy" was published by the American Journal of Trial Advocacy on November 9, 2023.