Trial-court discretion: its exercise by trial courts and its review by appellate courts.

• Author: Sneed, Joseph T.

1. SCOPE OF THE PROBLEM

   The pervasiveness of this topic is illustrated by Appendix A, (1) a survey of volumes 658 and 659 of the Federal Reporter, Second Series. Statistical data at the conclusion of Appendix A indicate that approximately one-fourth of the total number of cases reported contained one or more issues in which trial-court discretion was subjected to scrutiny by appellate courts. As a result of this scrutiny, approximately seventy percent of the trial courts' actions were approved and approximately thirty percent were disapproved. These data correspond to other similar surveys undertaken.

   Considerable discretion on the part of district and appellate courts is provided in the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, and Federal Rules of Appellate Procedure, which include approximately fifty provisions that either explicitly or implicitly recognize the existence of discretion.

   Thus, the topic of trial-court discretion is very wide. But the question remains: "Is it very deep?" My answer is equivocal: Good sense tells me that it ought to be. Surely a topic as pervasive as the exercise of judicial discretion is not an area about which it can be said that there is "no law at all" worth talking about. Nonetheless, it is true that judicial opinions almost invariably discuss the exercise of discretion by a court in a particular area as a discrete topic unrelated to other situations in which judicial discretion is recognized and exercised. Thus, while it is difficult to assert that general law pertaining to the exercise of judicial discretion exists, it is true that a great deal of particular law exists. Nonetheless, my purpose is to suggest that perhaps some useful generalizations are possible.

2. THE MEANING OF DISCRETION

   To have discretion is to have choice. To have choice is to be able to choose one course of action over one or more others with immunity from reversal by a higher court because of the course selected. The range of choice is determined by the number of permissible courses of action that exist. This number may be as small as two or innumerable. The fewer the number of permissible choices, the more narrow the discretion; the greater the number, the wider the discretion.

   This definition of discretion suggests a distinction between what might be called de jure discretion and de facto discretion: Immunity from reversal may exist because the choice made was permissible or because even though the choice was impermissible, reversal would be improper. An example of the former is the proper exercise of discretion in response to a request for a continuance. An example of latter is an application of the harmless error doctrine. Our concern is with de jure discretion.

3. WHY MUST THE TRIAL COURT BE GIVEN DISCRETION?

   Discretion is indispensable, first, because rules for every contingency cannot, and should not, be formulated. It is also indispensible because the trial court is better able to fashion the appropriate response to a specific fact situation than is an appellate court acting either before (by having fashioned a general rule in prior cases raising a similar issue) or after (by fashioning a general rule in the course of its present review) the trial court's exercise of its discretion. (2) And finally, discretion is indispensible because it contributes substantially to a proper division of labor between trial courts and appellate courts.

4. SOME TYPES OF ISSUES BEST LEFT TO TRIAL-COURT DISCRETION

   Issues that pertain to the details of the management of a trial are one example of those best left to the discretion of the trial court, and might include motions to sever; whether to permit use of expert testimony; management of voir dire; and time of proof of conspiracy where a co-conspirator statement is offered as an admission under Rule 801(d)(2) of the Federal Rules of Evidence. Issues that pertain to the credibility of witnesses are another example, and might include findings of fact and motions to reopen for new evidence. Issues that strongly resist efforts to standardize a response are a third example, and might include dismissal of a juror; declaration of a mistrial; and use of, or refusal to use, special interrogatories.

   Yet another example might be issues that arise infrequently, such as reopening a case after close of a criminal trial and setting aside judgment following a bench trial and ordering a new trial by the judge who conducted the trial. Also included would be issues the resolution of which requires assessment of the general fairness of trial, which might include determination of the effectiveness of counsel in a trial at which the trial judge presided and denial of motion for mistrial because of alleged juror misconduct.

   Issues that do not affect fundamental rights are an additional example of those best left to trial-court discretion. These can best be understood by comparing an issue such as forum non conveniens with any one of the following issues: whether a Denno-type hearing3 should be held on the trustworthiness of eyewitness identifications; (4) whether to grant or deny a motion to reveal the identity of a confidential informer; and whether a stop is based on founded suspicion.

5. SOME TYPES OF ISSUES WITH RESPECT TO WHICH TRIAL-COURT DISCRETION SHOULD NOT BE RECOGNIZED

   Issues that pertain to determining the scope and nature of constitutional rights and duties are one example of those that fall into this category, which might include whether the Fifth Amendment privilege against self-incrimination has been violated and whether a search or seizure conforms to the Fourth Amendment. Similarly, issues that pertain to interpretation of statutes and judicial precedents, such as whether there has been a deprivation of property without due process for purposes of the Fourteenth Amendment and 42 U.S.C. 1983 [section], are in this category as well. Finally, issues that pertain to fashioning a rule intended to apply to all substantially similar cases in the future--such as when counsel should be disqualified or when a class should be decertified--are a third example of those with respect to which the appellate court need not defer to the discretion of the trial court.

6. PITFALLS FOR TRIAL AND APPELLATE COURTS MANAGING THEIR DIVISION OF LABOR

   Trial courts sometimes regard the protection of fundamental rights as discretionary. They might, for example, be unduly sensitive to the cumulative weight of numerous decisions pertaining to discretionary matters adverse to a defendant in a criminal case that imperils the fairness of the trial.

   Appellate courts sometimes impose a general rule in an area best left to trial court discretion, at least in large part. They might, for example, establish rigid rules to govern dismissals for failure to prosecute or fix precise rules to be followed in computing allowable attorneys' fees.

   Trial courts might leave no record of reasons for exercising discretion as they did. This might occur in cases that involve, for example, rulings pursuant to Rules 404(b) and 609(a)(1) of the Federal Rules of Evidence or dismissals for failure to prosecute.

   Appellate courts sometimes reverse trial courts in areas in which their discretion has been recognized without either (1) a finding that the discretion has been abused, or (2) the establishment of a general rule. Instead the appellate court merely finds that the trial court was wrong. (5)

   Trial courts might exercise their discretion in an apparently injudicious manner. This creates an atmosphere of arbitrariness that invites appellate court intervention even when discretion was, in fact, exercised properly.

   Appellate courts might narrow the permissible limits of discretion for all judges when reviewing and reversing the actions of the occasional "bad" trial judge.

   Trial courts might permit their discretion to be exercised consistently in a manner that favors the side that the court thinks should win. This pattern invites reversal even though no individual exercise is demonstrably an abuse of discretion.

   Appellate courts might reduce the scope of discretion, frequently inadvertently, by so emphasizing the particulars of the situation in which the trial court exercised its discretion as to suggest that hereafter only the presence of those circumstances will justify action such as that being reviewed. In this manner discretion, in an area in which it is legitimate, is eliminated and a general rule replaces it.

   Trial courts might fail to analyze as carefully as circumstances require when aware that their resolution of issues is subject to their own discretion.

   Appellate courts might affirm judgments made by trial courts without adequate review when issues on appeal turn on whether the trial court exercised its discretion properly.

   Trial courts might manipulate the application of general rules of law by expanding the category of facts to embrace mixed law and fact issues in which there is more law than fact. In a similar way, appellate courts might (1) review findings of mixed law and fact with the same deference properly accorded findings of historical facts and (2) clothe trial courts with considerable discretion in applying a rule of law by treating its application and the determination of historical facts as merely findings of fact. Failings of this type might include a trial court's finding of probable cause to search and exigent circumstances justifying a search without a warrant as a fact and the appellate court's deferring to that finding as it would to a finding of historical fact.

7. LESSONS THAT THESE PITFALLS TEACH

   Preservation of the proper division of labor between trial and appellate courts requires careful consideration by both of the situations in which discretion is exercised, and also requires mutual respect and deference. What constitutes a proper division changes over time in response to, inter alia:

   * An expansion of fundamental rights, such as comment on the...