Circumstantial evidence must “exclude every reasonable hypothesis except that of guilt.”

Circumstantial evidence (CE) is distinguished from direct evidence, which is evidence that can prove a matter without needing deduction nor induction. As a Fairfax criminal lawyer, I know that CE “is competent and is entitled to as much weight as direct evidence provided that the [CE] is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Dowden v. Commonwealth of Virginia, 260 Va. 488, 2000. Consequently, with charges of possessing drugs with intent to distribute, merely possessing a large quantity of drugs without other adverse evidence — including but not limited to expert testimony ruling out personal use — should be argued to be insufficient to enable a conviction for drug dealing. Jones v. Commonwealth of Virginia, Record No. 0640-24-2 (Va. App. 2025) (unpublished) (for instance, addressing that the Court of Appeals in Wells v. Virginia reversed a marijuana possession with intent to distribute conviction where a “police officer testified that it was ‘unusual’ for a person to have that amount [4.2 ounces] of marijuana for personal use, but he did not say the amount was ‘totally inconsistent’ with personal use.”

Evasiveness can be circumstantial evidence of criminal activity

On the flip side, evasiveness can be circumstantial evidence of criminal activity, for instance going into hiding (as consciousness of culpability), hiding drugs (as consciousness of guilt of drug trafficking), and lying about how much alcohol a driver has consumed (for instance progressing from nothing to one drink to three alcoholic beverages) (as evidence of DUI / driving under the influence of / while impaired by alcohol). Cocaine trafficking defendant Todd Wendell Jones, Jr., had his appeal affirmed where, for instance, in that when “Jones saw the police SUV approaching, he walked quickly toward the store and reached in and around his waistband.” “The detective saw Jones reach his clenched right hand into a display of chips. Jones grabbed a bag of chips with his right hand as the detective detained him.
Detective Sinclair directed Detective Spence to look on the shelf from which Jones had grabbed the chips. Detective Spence found a small plastic baggie containing suspected crack cocaine. No other drugs or drug paraphernalia suggesting personal use were found in the store, on Jones’s person, or in his car.” Jones.

Virginia courts liberally allow “expert” testimony about intent to distribute controlled substances

Unfortunately for criminal defendants, Virginia courts at trial liberally permit “expert” testimony about intent to distribute drugs, as part of circumstantial evidence efforts by the prosecution / assistant commonwealth’s attorney. At Jones’s trial, a police detective “indicated that the quantity of the drugs possessed (12.8 grams of crack cocaine / cocaine base) was “definitely one of the bigger factors” in determining whether the drugs were for personal use or distribution. He also identified other factors to be considered, including the presence or absence of packaging, paraphernalia, cash, and firearms. Considering all the factors’ present in Jones’s case, Detective Watson opined that the amount of cocaine Jones possessed was inconsistent with personal use.” Jones. 

What should I do if charged with circumstantial evidence of a Virginia crime?

Whether your alleged jailable Virginia crime is based on circumstantial evidence, direct evidence or both, you should obtain a qualified criminal defense lawyer to pursue your best defense. When you talk with potential attorneys to defend you, you probably want to include asking about that lawyer’s trial experience and success, and fearlessness, readiness, and stamina to proceed to trial and to be fully prepared for trial. A lawyer should proceed to any settlement negotiations you want from a position of trial-ready strength, and should be fully ready to proceed to trial if your settlement goals are not achieved.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense every step of the way against Virginia felony, misdemeanor, drug and DUI prosecutions. Secure your free in-person initial confidential consultation with top-rated Virginia attorney Jon Katz by calling us at 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.