Legal Definitions - discretion

Discretion is the power given to judges, public officials, or private parties to make decisions based on their own judgment and conscience within general legal principles. It is the ability to judge between right and wrong, which is enough to hold one responsible for their own actions in criminal and tort law.

For instance, a judge may have discretion over the amount of a fine, and a prosecutor may have discretion when prosecuting a criminal case. However, discretion is considered to be abused when the judicial action is arbitrary, fanciful, or unreasonable.

If a plaintiff or defendant believes that the trial court judge has abused their discretion, they can appeal the case. The appellate judge's job is to review whether the trial court judge has acted properly and correctly applied the law. If reasonable people could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

• A judge may have discretion over the sentence given to a convicted criminal. For example, they may choose to give a shorter sentence if the defendant has shown remorse and is unlikely to reoffend.
• A prosecutor may have discretion over whether to charge someone with a crime or not. For example, they may choose not to charge a first-time offender with a minor offense if they believe that a warning or community service would be more appropriate.

These examples illustrate how discretion allows judges and prosecutors to make decisions based on their own judgment and conscience within general legal principles. However, they must ensure that their decisions are not arbitrary, fanciful, or unreasonable.