Primary tabs

Discretion is the power of a judge, public official or private party to act according to the dictates of their own judgment and conscience within general legal principles. In criminal and tort law, discretion is the ability to judge between right and wrong, which is sufficient to hold one liable for one's own conduct.

  • For example, a judge may have discretion over the amount of a fine, a prosecutor may have discretion when prosecuting a criminal case.

Discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable. If the plaintiff or the defendant thinks that the trial court judge has abused the discretion, the party can appeal the case. The appellate judge’s job is essentially to review whether the trial court judge has acted properly and correctly applied the law. If reasonable men 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.

See also: discretionary

[Last updated in October of 2022 by the Wex Definitions Team]