What has been described by Maryland’s highest court as “the State’s Attorney’s most awesome discretionary power” is the power to determine whether to prosecute a particular case. Many factors are considered in exercising this power. Probably the most important factor is whether there is sufficient evidence to prove the accused “guilty beyond a reasonable doubt.” There may be cases where the State’s Attorney believes personally a person is guilty, but the evidence is not legally sufficient to meet this standard of guilt. A simple example of this type of case is of a person who is found with illegal drugs in their possession, but those drugs were found as a result of an illegal search. Because the drugs were found illegally, the evidence cannot be used in court and the case must be dismissed. Other factors used to decide whether to prosecute include: Seriousness of the offense: There are times when not every case can be prosecuted because of a lack of prosecutors, judges, courtroom space, etc. For example, a murder case must be brought to trial today or it will be dismissed for lack of a speedy trial. On this same day, a minor assault, no- injury-to-victim case is also due to come to trial. Which case do you prosecute? Interest of justice: For example, a parent is charged with violating the law concerning access to firearms by minors. In this case, a small child found the firearm and accidentally killed himself. Should the State’s Attorney’s office proceed with the prosecution of the parent who, if found guilty, receives only a fine and no jail time as the penalty? Request of the victim: In some cases, the victim of a crime does not want to proceed with the case. It should be noted in any criminal case, the State of Maryland and the defendant are the parties in the case. The victim is only a witness. Therefore, a victim cannot actually decide to “drop” a case. The decision to prosecute or not is the State’s Attorney’s alone. It cannot be overruled by anyone – the Attorney General, the courts or the Governor.
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