Discretion

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discretion

n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: 1) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; 2) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; 3) a district attorney may have discretion to charge a crime as a misdemeanor (maximum term of one year) or felony; 4) a Governor may have discretion to grant a pardon; or 5) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.

DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
2. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.
3. There is a species of discretion which is authorized by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned, so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered, for one of these parties assuredly deserves a much more severe punishment than the other.

DISCRETION, crim. law. The ability to know and distinguish between good and evil; between what is lawful and what is unlawful.
2. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.

References in periodicals archive ?

When an agency clearly has at least some discretion to exercise, a subtler discretion gaming strategy is to build flexibility into the reach of the nondiscretion claim by obscuring the boundary between discretionary and nondiscretionary actions.

To be fair to infrastructure and resource management agencies, the beginning and end of their discretion often is not as neat and tidy as issuing a one-off permit to build a home.

Another gaming tactic evident from the discretion aversion case law is to carve up a particular regulatory action into more granular decision components and tag threshold determinations as nondiscretionary, thereby squeezing as much of the ESA and NEPA out of the regulatory program as possible while still retaining sufficient discretion to effectively control the regulated activity at will.

Norton, the BLM used a similar approach in disaggregating its review of pipeline rights of way, though the discretion was phased out rather than phased in.

Agencies running from agency discretion

Some jurisdictions define abuse of discretion as having a multilayered approach that analyzes fact and law issues separately and with different standards of review.

A trial court can abuse its discretion through the inaccurate resolution of factual issues or through the application of incorrect legal principles.

[A] district court necessarily "abuses its discretion" if it makes an error of law.

(190) They further explain that a trial court does not have discretion to interpret the rules of hearsay.

Say what? Confusion in the courts over what is the proper standard of review for hearsay rulings

Rejection on these grounds may involve issues of legal admissibility and exercise of both the reliability and unfairness discretions.

(131) The High Court took a strong stance against evidence obtained in such circumstances, holding that it should have been excluded in the exercise of both the unfairness and public policy discretions. (132) In a joint judgment, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ stated:

(136) To harass a suspect after that suspect has indicated a wish to exercise the right to remain silent constitutes a serious impropriety which should lead to rejection in the exercise of both the unfairness and public policy discretions. In determining whether to exclude a confession, it is submitted that the extent to which such further questioning is carried should be regarded as crucial.

[The exercise of judicial discretion to reject legally admissible confessional evidence involves balancing a number of considerations.