Thankfully, the marijuana criminal trial is becoming an increasingly rare beast. Possession of small amounts of the drug for personal use is now legal in four states and the District of Columbia, while more than two dozen other states allow medical cannabis.

But in many places, marijuana possession, sale, manufacture, and shipping remain crimes. That means getting caught can involve arrest, bail, criminal charges, and in some cases, trial.

So what is a marijuana trial like? What happens if you’re found guilty? And what happens if you’re acquitted?

Marijuana and GavelFirst, it should be noted that most such charges end in guilty pleas, not trials. More than 90 percent of all criminal cases are resolved through plea bargains. If the courts allowed every case to go to trial, the system would collapse under the weight of those millions of prosecutions.

But trial is always possible, especially if defendants believe they’re innocent. Getting to this point can take some resistance, as defense attorneys often encourage all their clients to plead in exchange for lighter sentences. And once you get there, there are lots of rules, many of which are not in your favor.

Prosecutor issues criminal charge

The process starts with a criminal charge, typically issued by the prosecutor. In felony cases, defendants may typically demand a grand jury indictment, though this rule varies from state to state. The federal government is required by the U.S. Constitution to use a grand jury for all felony charges.

Pretrial hearings

Next, there are pretrial hearings. The most important is arraignment, at which a plea is entered. This typically coincides with a bail hearing, after which the defendant is typically released without bail or upon payment of a smaller share of the full bail amount. Failure to appear at future hearings, including trial, could result in the defendant losing the full amount.

Depending on the severity of the charges, the quality of the defense attorneys, and the nature of the evidence, pretrial proceedings could be wrapped up quickly, or they could drag on for months. They often involve the admissibility of testimony and other evidence.

Admission of evidence

To admit evidence, an attorney must demonstrate that it is relevant to the case, that it wouldn’t be highly prejudicial to present it to a jury, and that there are reasons to believe it is reliable. The lowest legal standard for admission of evidence is that there must be more than a 50 percent likelihood it will illuminate a critical fact involved in the case.

Seating of the jury

JuryPretrial proceedings also include the seating of a jury. This process is known as “voir dire,” during which lawyers work to exclude potential jurors they believe are likely to rule against their clients. Typically there are 12 jurors in each criminal trial, but this varies between jurisdictions.

Opening statements

Once the jury is seated, the trial begins. First, the prosecution makes its opening statement, followed by the defense. The prosecution goes first because it bears the burden of proof in the trial – a standard famously known as “beyond a reasonable doubt.” This means that if prosecutors build a strong drug case and defense attorneys can’t poke sufficient holes in it, the defendant must be convicted.

Presentation of evidence

The bulk of most trials is given to the presentation of evidence: witness testimony, forensics, documentary proof. This is followed by closing statements. Because the prosecution bears the burden of proof, the defense has no obligation to present evidence. In rare cases, defense lawyers simply make opening and closing statements. But this is a particularly risky strategy in any criminal case.

Jury reach verdict

If the evidence is relevant and establishes guilt beyond a reasonable doubt, jurors must convict; otherwise they must acquit. If they cannot reach either conclusion, a mistrial will be declared by the judge.

If this happens, prosecutors usually will be allowed to pursue a new trial, though they often decline to do so. If the trial ends in a conviction, the defendant may appeal it to higher courts, along with any sentence imposed by the judge after trial. If it ends in acquittal, the prosecution cannot appeal the verdict.

This is because of the constitutional ban on “double jeopardy,” or retrial for the same crime following a verdict of guilty or not guilty. Only mistrials may lead to a subsequent trial.

Sentencing is the final phase of a criminal trial resulting in a conviction. In some cases, mandatory minimum sentencing laws may dictate a minimum jail or prison sentence. But in other cases, the sentence is left to the discretion of judges.

Possible sentences for marijuana offenses include incarceration, fines, and probation. Critically, each conviction will also result in a permanent criminal record – a punishment that could make it impossible to find housing, work, or government benefits. That, for many defendants, is the worst penalty of all.

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