NCJ Number
89599
Date Published
1982
Length
312 pages
Annotation
This book identifies the judicial discretions that may be exercised during a criminal jury trial and provides a theoretical framework within which to assess the discretions.
Abstract
In Part 1, an account is given of the term 'discretion,' with an explanation of how, by means of guidelines, limitations, and appeals, discretionary decisions may be controlled. In discussing the need for discretion, it is indicated that rules without discretion cannot fully consider the need for tailoring results to unique facts and circumstances in particular cases. Part 2 of the book outlines the major procedural and evidentiary discretions (minor discretions are listed in an appendix), along with the known principles by which they should be exercised in England and Australia. Judicial discretions are examined from the perspectives of those primarily affected by their exercise: the accused, the witness, counsel, the public, and the jury. Discretions that might be exercised with respect to these persons are identified, and the principles by which discretion is used are considered. In the concluding section, it is noted that it is important to take steps to reduce the risk of the abuse of discretion, even if abuse is currently uncommon. This involves establishing a satisfactory theory by which to review discretions and making judges and parties aware of the types of error which are appealable and that no judicial discretion is absolute. Also, courts should appreciate the importance of guidelines and encourage their development. Extensive chapter notes, a table of cases, and a subject index are provided.