Scenario (Utah, USA): A defendant is arraigned at a pre-trial hearing. Charges include driving without insurance and driving with an expired license. State law declares that those who do these things are guilty of misdemeanors in each case, and prescribes a minimum penalty for each if found guilty.

The defendant expresses a desire for a trial, and seeing that these are criminal charges, he exercises his State and Federal Constitutional right to a jury trial to respond to those charges.

The judge immediately prevaricates and solicits input from the prosecutor, who promptly adjusts the charges to "infractions". The judge then repeatedly affirms that a jury trial is not an option because no criminal charges are being made, despite criminal charges having been the cause of the arraignment.

The judge attempts to coerce either a bench trial or a plea deal, repeatedly saying that since no criminal charges are being made, no jury trial can be arranged.

The State Constitution also says that "All laws of a general nature shall have uniform operation".

In the same jurisdiction, people arraigned with identical initial charges and with comparable evidences against them have been charged as misdemeanors, pled guilty or issued a plea in abeyance, and were convicted by a bench trial with no further findings beyond police reports or pulling their traffic records, and were left with a criminal record on account of the conviction, and required to pay a commensurate fine and being required to conform to additional sentencing.

Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights or that his rights were taken away by unwarranted modification of the charges?

  • What's the actus reus for the infractions that the misdemeanor charges got adjusted to? If it is the same as for the misdemeanors, then how do the latter differ? Some mens rea added on top of the actus reus?
    – Greendrake
    Jan 3, 2023 at 21:26
  • They are identical. No mens rea could be alleged for the misdemeanor status, except by the "not guilty" plea entered by requesting a trial. Mens rea would make no difference the way the law is worded; the minimum punishments including misdemeanor status are uniform irrespective of intent (although there is enhancement language for repeat offenders). I have found no laws on the books fitting the description of the allegations that should be charged as infractions; the reduction to infraction status is an arbitrary maneuver by the prosecutor in disregard of the minimum statutory definitions.
    – pygosceles
    Jan 4, 2023 at 1:22
  • I removed the insurance tag as it didn't seem to have any connection with the real question here, and added a Utah tag.
    – ohwilleke
    Jan 4, 2023 at 1:59

1 Answer 1


Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law?


Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process.

Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in).

Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights


or that his rights were taken away by unwarranted modification of the charges?


Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty.

The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19.

But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record.

  • 2
    "Why would the OP question exempt the possibility of criminal liability?" Because nobody has done anything wrong. Prosecutors are perfectly entitled to bring a lesser charge that in turn affords you fewer rights. That's a tactical choice that prosecutors get to make. The system gives them a choice between more serious charges with more rights and more lenient charges with fewer rights. In the U.S. as a common law country, legislating from the bench is allowed and fundamental to how the system works.
    – ohwilleke
    Jan 4, 2023 at 2:25
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    @pygosceles Justice via jury verdict is about as far from uniform in operation as you can get.
    – ohwilleke
    Jan 4, 2023 at 2:33
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    "Denying a civil right is a crime and a dereliction of duty for any officer of public trust, by definition." Got any authority for that? And, nobody has denied anyone's civil rights here. You don't have a right to trial by jury in anything that could have been charged as a crime. There is no right to a jury trial by calling a charge an infraction and it changes the consequences and what your rights are. Your understanding of the legal system is deeply incorrect.
    – ohwilleke
    Jan 4, 2023 at 2:36
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    @pygosceles Sorry, but that's just wrong. The law in the US generally does not require prosecutors to bring every charge they can. Civil rights are not violated if a prosecutor drops charges to avoid violating a right. Legislating from the bench is a fundamental principle of the US legal system. Common law is created by judges through decisions, not by the common people.
    – cpast
    Jan 4, 2023 at 2:37
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    @pygosceles The legal system the Founding Fathers left to us was a common-law system. A defining principle of those systems is that judicial opinions are binding law in their own right, not just because they're persuasive but because they were made by a judicial officer resolving a case.
    – cpast
    Jan 4, 2023 at 2:49

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