Article by Martha S. Davis and Stevan Alan Childress
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."
Like Humpty Dumpty, reviewing courts often seem to be telling us that words mean just what the courts say they mean, "neither more nor less." "We will review the trial court's decision," they tell us, "only for abuse of discretion." "[D]iscretion," the appellate court says, means "sound discretion, exercised with regard to what is right and in the interests of justice." Discretion which is not so exercised is abused. That the definition carries no meaning does not seem to be of great concern to the appellate court. Further, although no one seems to agree on what is law and what is fact, and what is mixed law and fact, everyone agrees that this distinction determines the level of deference that the appeals court will give to findings below. Similarly, the wording of the standards of review becomes almost talismanic, either losing meaning or taking on new meaning, depending on the balcony from which they are viewed.
We intend this article as a collection of standards of review that the Fifth Circuit Court of Appeals has applied to particular situations or decisions, categorized in the main by decisionmaker and subject matter. It is concerned with criminal and habeas corpus appeals and is intended as a reference point from which the reader may choose either to move quickly beyond the standard of review issue or to investigate it more closely. The article also provides background on the substantive law at issue where it serves to develop the manner in which the standard of review works on appeal or, even before, at trial.
The most important issue is not the stated standards themselves, but rather the allocation of power among the decisionmakers in the criminal process. What level of deference will the appellate court give to the judge, the jury, the prosecutor, and the defendant, and to the other participants in the process? Where are the boundaries that mark the extent of the power of the participants; or, perhaps more realistically, in what area do those boundaries move about? Once these boundaries, or boundary areas, are defined, appeal becomes more predictable, and even the choice whether to appeal at all can be made more rationally.
About the Author
Martha S. Davis. Assistant Professor of Law, University of South Dakota School of Law; LL.M., Harvard Law School; J.D., Baylor Law School; B.A., University of Texas at Austin.
Stevan Alan Childress. Lecturer on Law, Golden Gate University Law School; J.D., Harvard Law School; B.A., University of Alabama.
Citation
60 Tul. L. Rev. 461 (1986)