In the daily grind of the courtroom, we often hear a judge say, “It is within my discretion to allow this.” As lawyers, we usually take that at face value, either we’re happy with the result, or we start planning an appeal. But for years, I struggled with a deeper question that kept me up before big hearings: Is that “discretion” a question of fact or a question of law? The answer is the “holy grail” of appellate practice. If it’s a question of fact, the appellate court will almost never touch it. If it’s a question of law, the doors are wide open for a reversal.
In this guide, I’m going to break down this complex legal gray area into simple language, sharing what I’ve learned about how courts actually examine “discretion.”
Section I: The Basic Divide (Fact vs. Law):
Before we get to discretion, we have to remind ourselves of the two poles of the legal world.
- Question of Fact: Did the light turn red? Did the defendant sign the contract? These are answered by looking at evidence.
- Question of Law: Does the statute of limitations apply to this specific contract? What is the legal definition of “negligence”? These are answered by looking at statutes and precedents.
Where does Discretion fit?
Discretion is the bridge between the two. It is the power given to a judge to choose between two or more legally valid options based on the “facts and circumstances” of the case.
Section II: Why Discretion is Usually Seen as a “Question of Fact”
In most trial-level scenarios, the exercise of discretion is treated similarly to a finding of fact. This is because the trial judge is “on the ground.” They can see the witness’s demeanor, they feel the “vibe” of the courtroom, and they have the best view of the evidence.
1. The “Abuse of Discretion” Standard:
When an appellate court reviews a discretionary move (like admitting a piece of evidence or granting a continuance), they don’t ask, “Would I have done the same thing?” Instead, they ask, “Was this decision so crazy or ungrounded that no reasonable person could have made it?”
- The Fact-Like Nature: Because this review is so deferential, we often treat it as a factual matter. If there is any evidence to support the judge’s choice, the higher court stays out of it.
2. The Credibility Component:
Often, a judge exercises discretion because they don’t believe a witness. Since credibility is a pure “Question of Fact,” the discretion that follows it becomes shielded by that same factual protection.
Section III: When Discretion Becomes a “Question of Law”
This is where it gets interesting for us as practitioners. There are moments when a judge thinks they are being “discretionary,” but they are actually making a legal error. In these moments, “discretion” transforms into a “Question of Law.”
1. Applying the Wrong Legal Test:
If a judge uses their discretion to deny a motion, but they base that decision on a wrong legal standard, they have committed an error of law.
- My Experience: I once had a judge deny a motion for a new trial “in his discretion.” However, he incorrectly cited the burden of proof required for that motion. On appeal, the court held that because he used the wrong “legal yardstick,” his exercise of discretion was a Question of Law and subject to full review (De Novo).
2. Failure to Exercise Discretion:
Ironically, one of the biggest “Questions of Law” is when a judge refuses to use their discretion because they mistakenly think their hands are tied by a rule.
- The “Non-Exercise” Rule: If a judge says, “I wish I could help you, but the law says I can’t,” and the law actually gave them the choice to help, that is a legal error. The failure to realize you have discretion is a Question of Law.
Section V: The “Mixed Question” Reality:
In 2025, modern jurisprudence is moving toward the “Mixed Question” model. This is the idea that every discretionary act has two parts:
- Finding the underlying facts (Question of Fact).
- Applying the legal principle to those facts (Question of Law).
Conclusion:
Is court discretion a question of law or fact? It is both, and it is neither. It is a legal power (Law) that is fueled by evidence (Fact).
If you want to win an appeal against a discretionary order, don’t just say the judge was “unfair.” That’s fighting a losing battle on the “Fact” front. Instead, find the Legal Standard the judge ignored or misapplied. Turn the “discretion” into a “Question of Law,” and you’ve just given yourself the best chance at a reversal.
FAQs:
1. Is sentencing in criminal law a question of fact or law?
Usually, it’s a discretionary act based on facts (mitigating/aggravating factors). However, if the sentence exceeds the “Statutory Maximum,” it becomes a pure Question of Law.
2. Can I appeal a “Finding of Fact” if I think the judge was biased?
Yes, but it’s very difficult. You have to prove “Manifest Error” or “Clear Error,” which is a much higher bar than a “Question of Law.”
3. What does “De Novo” mean in this context?
“De Novo” means “from the beginning.” When a higher court reviews a Question of Law, they don’t care what the trial judge thought; they decide the issue as if it were being heard for the first time.
4. Why do appellate courts hate reviewing questions of fact?
Because the appellate judges weren’t in the room. They only have a cold, written transcript. They can’t see if a witness was sweating or trembling, so they defer to the trial judge who was actually there.
5. How do I “frame” a discretionary error as a question of law?
Look for the pre-conditions. Every discretionary power usually has a “test” that must be met before the judge can use it. If the judge didn’t meet the test, that’s your legal hook.
6. Does the “Mixed Question” approach make appeals easier?
It makes them more technical. It allows a lawyer to admit that the judge got the facts right but argue that they pulled the wrong legal lever based on those facts.