Answer to Question 1
Formal criminal procedure focuses on decision making according to written rules
spelled out in constitutions, laws, judicial opinions and other sources. Discretionary
decision making involves judgments by professionals based on unwritten rules, their
training, and their experience.
Justice, fairness, and predictability require the certainty and protection against abuse
provided by written rules. These same goals also require discretion to soften the
rigidity of written rules. This discretion must exist because it's impossible for those
people who promulgate the written rules to predict all the ramifications of the rules
they enact. Enforcing written rules to the letter could in some circumstances lead to
unfair results.
Answer to Question 2
The history of criminal procedure is described as a pendulum swing between the
extremes of trying to balance the conflicting interests of society and those of the
individual. No system has found a perfect balance between the power of the
government to enforce its interest in crime control and the rights of the individuals in
fair procedures to control crime. During different times in Western Civilization, the
balance has swung towards one extreme or another.
In the 1960s, an increase in police power spawned a reaction called the due process
revolution. This revolution tilted the balance of power towards process in individual
rights in the criminal justice system. Since the early 1970s, the pendulum has swung
back towards the ends-result part of the balance. Presidential candidates promised
to appoint judges who were tough on crime.
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