A judge`s discretion is considered the law of tyrants; it is still unknown; It`s different in different men; It is casual and depends on constitution, temperament and passion. At best, it`s often mood; At worst, it is for every vice, madness and passion that human nature is responsible. This includes both legal and practical consequences. Remember Newton`s third law of motion: „For every action there is an equal and opposite reaction.“ Consider whether the reaction to what will result from your decision promotes justice in the case, or whether it could result in irreparable harm that could have been avoided by choosing a different course of action or action. The term often appears as part of the „viewer`s discretion is recommended“ warning on television shows before the show begins. In this context, VDA implies that the content of the show may not be suitable for younger viewers. That is, too explicit in terms of nudity, violence, sexual content or language. From the book of Proverbs: „Like a golden jewel in the muzzle of a pig, so is a beautiful woman who is without discretion.“ [14] There is a kind of discretion permitted by express law without which justice cannot be exercised; For example, an old delinquent, a very intelligent and cunning man, whose talents make him dangerous to the community, induces a young man of weak intelligence to commit robbery with himself; Both can be punished for the crime. The law providing for such a case provided that the sentence must be proportionate to establish justice, and left this division to the discretion of the judge. It is obvious that without such discretion, justice could not be done, because one of these parties certainly deserves a much harsher sentence than the other. „A misuse of power is the failure to take into account the facts and the law relating to a particular matter; arbitrary or unreasonable deviation from precedent and established judicial practice. [8] In appeals against the exercise of judicial discretion, „abuse of authority“ is a standard of review whereby the Court of Appeal must determine that the lower court`s decision would „shock“ the conscience of a reasonable person in order to overturn the next decision. Discretion means acting on one`s own authority and discretion. In the law, discretion with respect to court decisions, for example, whether evidence is excluded in a trial is exercised by a judge.
Some see discretion negatively, while others see it positively. Discretion exists at all levels of enforcement and among many types of front-line bureaucrats. Discretion was described as „the art of adapting action to certain circumstances“ (Lord Scarman). Those in positions of power are for the most part able to exercise discretion over how they apply or will exercise that power. The ability to make decisions that represent a responsible decision and for which an understanding of what is legal, just or wise can be assumed. [1] As Dr. Harvey Cox said, „Not to decide is to decide.“ 6 It is not a question of avoiding or not dealing with an issue requiring a decision. Rather, it means that there are times when careful consideration of the issues leads to the conclusion that the best course of action in the legal system is not to act. In civil cases, judges and juries are also considered to have discretion with respect to damages.
Judges also have the discretion to approve or reject certain applications, such as a motion for continuation. Conversely, since judicial discretion involves situational considerations, its abuse can undermine the court`s authority and reputation, create a sense of outcome-oriented decision-making, and lead to gross injustice in cases of abuse. Stumpf, Felix, Inherent Powers of the Court ̧ The National Judicial College, Reno, NV (2008). Quotes cases and describes the discretion of judges both in substantive cases and, more frequently, in procedural proceedings. Prosecutors have wide discretion in criminal proceedings. You have the option to initiate and stop all prosecutions. They must weigh the rights of the accused, the feelings of the victim, and the ability of prisons to determine an appropriate sentence at their discretion. Prosecutors control pleadings and can therefore play the most discretionary role in criminal justice proceedings. If they believe that a person deserves to be in prison, they will go down that road, knowing that prisons are very overcrowded and that a person will be released earlier without serving his full sentence. [7] Judicial discretion is the power of the judiciary to make certain legal decisions at its discretion. Under the doctrine of separation of powers, judicial discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a judge to decide a case or case through a range of possible decisions.
DISCRETION, crim. The ability to know and distinguish right from wrong; between what is lawful and what is illegal. 2. The age at which children should have discretion is not determined with much precision. Below the age of seven, it seems that no circumstance of malicious discretion can be allowed to overturn the strong presumption of innocence raised by such a tender age. 1 Hale, P.C. 27, 8; Piece of 4 sheets. 23.
Between the ages of seven and fourteen, the child is prima facie without criminal intent, but this presumption diminishes with age and can be repelled even during this adolescence by positive evidence of malicious intent; For the tenderness of the years does not excuse a maturity in crime, which is the maxim in these cases, Malitia supplet aetatem. By the age of fourteen, the children would have acquired legal discretion. 1 Hale, P.C. 25. Pay attention to discretionary decisions you need to make late in the day on short notice. There are not many points that cannot wait until the next day when you have had the opportunity to fully consider the issue. Early in her legal career, especially after law school, Marilyn Zahm represented penniless clients for a legal SE. The phrase is also found in Act Five, Scene IV of Shakespeare`s play Henry IV, Part 1, which Falstaff spoke to Prince Hal when he took the first for dead. Falstaff, who had played dead on the battlefield to avoid being killed,[12] told Hal, „The best part of bravery is discretion; In the best part, I saved my life.
[13] The term crime is defined as an act prohibited or restricted by law and enforced by punishment. [4] But where the law stops and the discretion begins is in the implementation of those laws. Law enforcement officers, police officers, are responsible for enforcing these rules, but they often have the discretion to decide when to lay charges and make an arrest. For example, a traffic violation; The police officer can simply issue a warning. Indeed, discretion can be found at all stages of the criminal justice system. [5] The victim has the discretion to use self-defence and to report the crime when the opportunity arises. The dispatcher decides on the priority of the call, an answering machine has the discretion to take testimony and arrest potential suspects. The suspect/accused has the discretion to find a lawyer as to how they will argue and accept a plea. The prosecutor has the choice (at the discretion of the prosecutor) to pursue a case or drop the charges and propose oral arguments. The judge has discretion whenever an objection is raised or evidence is presented. The jury has discretion over the final verdict.
These examples are only a small sample of the criminal law decision-making chain. Not all recourse to discretion by law enforcement is negative. They often use it to simplify and eliminate the real criminals of the average citizen. [9] The judiciary, unlike the power of laws, has no existence. The courts are mere instruments of law and cannot want anything. If it says that they are exercising discretion, that is merely statutory discretion, discretion that must be exercised in assessing the legislated pathway; And if this is recognized, it is the duty of the court to follow it. The judiciary is never exercised to implement the will of the judge, but always with the aim of carrying out the will of the legislator; Or, in other words, according to the will of the law. [1] Thus, the public servant would then treat individuals differently. This may be an argument for or against police discretion. On the one hand, all people should be treated equally, regardless of race or economic status.
On the other hand, the officer and public safety are the most important tasks for an officer. If an official may find that a particular area requires a different approach to providing that security, he or she should make appropriate use of that discretion. [6] No, the power of a judge, public official or private party (under a power granted by contract, confidentiality or will) to make decisions on various matters based on his or her opinion within the framework of general legal guidelines.
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