How to Use Discretion in Criminal Justice
Discretion in criminal justice is used primarily during three phases of a case by a prosecuting attorney. Discretion is relevant in determining whether a person is to be charged with a crime in the first place. Discretion additionally plays a role in both plea negotiations and in the sentencing of an offender following a conviction or a plea.
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Instructions
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Review and analyze the facts and circumstances regarding the alleged crime. Discretion is used by a prosecuting attorney in the first instance in determining whether criminal charges need to be filed against a person. The standard that is applied is whether there is probable cause (a reasonable belief) that a crime has been committed, and whether it is more likely than not that a particular individual is responsible for committing it.
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Organize all evidence collected by law enforcement in investigating the case once a defendant is charged with a crime. Through this process a prosecuting attorney makes a determination as to the strength of her case. If the prosecuting attorney believes the case is not particularly strong, she will exercise her discretion and commence plea negotiations with the defendant.
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Prepare and proceed to trial if the prosecuting attorney believes the evidence against the defendant is strong. The standard the prosecuting attorney uses in this exercise of discretion is whether he can prove beyond a reasonable doubt the guilt of the defendant before a jury.
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Examine a defendant's criminal history after a plea or a conviction in a case. The defendant's criminal history plays a significant role in the process of making a sentence recommendation to the court. Although a prosecuting attorney does not have to make a sentence recommendation, in most cases he will do so at the sentencing hearing.
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