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- "The Art of suiting action to particular circumstances" (Lord Scarman)
- 'the quality of being discreet' (Concise Oxford Dictionary)
- The one who is going to decide.
Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power.
The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. see Websters Third New International Dictionary (unabridged)
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In the legal system, discretion is often defined as the ability to choose where, how and with what severity to act. A person chooses to utilize his or her options and decides which to use, whether this is arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between.
The term "Crime is defined as an action that is by law, banned or restricted and enforced via Punishment. But, where law ends and discretion begins lies in implementing those laws. The enforcers, police officers, are tasked with enforcing these regulations, but they often have the discretion of when to file charges and arrest. For example, a traffic violation, the police officer may simply issue a warning. In fact discretion can be found in all stages of the criminal justice system. The victim, has the discretion to use self defense and to report the crime given the opportunity. The Dispatch officer decides the priority of the call, an officer responding has discretion to take statements from witnesses as well as detain potential suspects. The suspect/the accused has the discretion to obtain a lawyer, how they will plead and to accept a plea bargain. The prosecutor has the choice to prosecute a case or drop the charges as well as suggesting plea bargains. The judge has discretion every time an objection is raised or evidence is given. The jury has discretion over the final verdict. These examples are only a small cross section of the chain of choices that is criminal law
In civil actions, judges and juries are also deemed to have discretion in the matter of damages. Judges also have discretion in the grant or denial of certain motions, e.g. a motion for a continuance.
Abuse of discretion
The exercise of discretion by judges is an inherent aspect of judicial independence under the doctrine of the separation of powers. The standard of review applied to appeals from decisions involving the exercise of judicial discretion is "abuse of discretion."
An abuse of discretion is a failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom. On appeal of an exercise of judicial discretion, "abuse of discretion" is a standard of review requiring the appellate court to find that the lower court's decision would "shock the conscience" of a reasonable person in order to reverse the decision below.
The term often comes as part of "Viewer Discretion Is Advised" warning on TV shows before the show begins. In this context, VDA implies the show's content may not be suitable for some viewers; that is, too explicit.
- Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority.". Yale Law Journal 117 (6): 1070–1130.
- Merriam-Webster. [<http://www.merriam-webster.com/dictionary/crime "Crime"]. Merriam-Webster.com. Retrieved 10 October 2014.
- Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority.". Yale Law Journal. 117 (6): 1070–1130.
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