CRIMINAL CASE IN ACTION ESSENTIALS OF CRIMINAL PROCEEDINGS

CRIMINAL CASE IN ACTION: ESSENTIALS OF CRIMINAL PROCEEDINGS VICHAI ARIYANUNTAKA Chief Judge of the Central Labour Court Bangkok, Thailand 10/23/2021 1

MAJOR LEGAL TRADITIONS OF THE WORLD – THE CIVIL LAW TRADITION • Roman Law, Codification, Inquisitorial Procedure – THE COMMON LAW TRADITION • Anglo-American, Importance of court decisions, Adversarial Procedure – LEGAL TRADITION BASED ON RELIGION • Muslim law particularly in family and succession law • INFLUENCE OF CIVIL LAW TRADITION IN ASIA – FRENCH, GERMAN, DUTCH, SPANISH • INFLUENCE OF COMMON LAW (ANGLOAMERICAN) TRADITION – ENGLISH LAW – AMERICAN LEGAL CONCEPTS IN JAPAN AND THE PHILIPPINES 10/23/2021 2

THE THAI LEGAL SYSTEM • CIVIL LAW TRADITION but adversarial system of procedure • CODIFICATION • ENGLISH LAW INFLUENCE IN COMMERCIAL AND PROCEDURAL LAW • WTO AND TRIPS (TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS) • Human Rights movement and protection of civil liberties – major influence in criminal justice system 10/23/2021 3

A Criminal Action: Judge and the legal profession • • Judge Prosecutor, Public Prosecutor Attorney-General Office Private Prosecution Injured person Defendant, Alleged Offender Defense Lawyer for the Defendant 10/23/2021 4

Judge/Public Prosecutor/Attorney • Judge – Career judge (Thailand, Japan, France) – In Thailand -- LLB, Barrister-at-law, two-year practice at the Bar or other legal profession – Pass competitive examination • Appointment from successful Queen’s Counsels (QC – Senior Barrister) – England 10/23/2021 5

Public Prosecutor/Private Attorney • Public Prosecutor – Educational qualifications: same as judges – Caution: Brain drain from public sectors to private sectors in the light of economic success • Private Attorney – Division between Barrister and Solicitor in England – Litigator (Trial Lawyer and Consultant elsewhere) 10/23/2021 6

Adversarial V. Inquisitorial System • Adversarial system – Role of a judge • Passive, act as an umpire • Leave the examination of witnesses mainly to the lawyers from both sides • Adhere to Burden and Standard of Proof • Common Law and Anglo-American Practice • Inquisitorial system • More involvement of judges in the examination of witnesses • Problem: The Maintenance of Neutrality for judges • “Justice must not only be done, but must manifestly be seen to be done” 10/23/2021 7

Essential Elements in a Criminal Case • Judge sitting alone, but may consist in a quorum of two or more • Judge sitting with jury (UK, US) • Jury to decide question of fact and judge to decide question of law • Jury consisting of 12 people chosen at random from a list of electorate • Jury to hear only admissible evidence screened by the judge • Rigorous rules of evidence • Conviction will need unanimous or majority of 10: 2 (in England) 10/23/2021 8

Essential Elements in a Criminal Case • Jury trial – a very expensive system of trial but claimed by common law to be the guarantee of fair trial and protection of civil liberty • Thailand did not choose jury trial because the expenses involved and what if the accused can corrupt or bribe one or two jurors? • Jury trial creates lawyers who perfect at the art of persuasion or advocacy but not necessarily finding the truth • The trial of O. J. Simpson, Michael Jackson • Judge sitting alone (without jury) enjoys more freedom of admissibility of evidence • But what is the guarantee of neutrality and objectivity? • A Code of Judicial Etiquettes is necessary 10/23/2021 9

Essential Elements in a Criminal Case • The presumption of innocence of the accused until proven guilty by the prosecution • The pleading of the accused: guilty or innocence • In case of doubt, an innocence plea will be entered • Confession by the accused acquired by police through fraud, coercion, torture, promise – inadmissible --resulting in the case being dismissed • Right of a counsel (lawyer) appointed by the State for the accused where the charge involves imprisonment or where the accused is a juvenile (i. e. under 18 yrs of age) • Conviction on the confession alone where the charge is not so serious (maximum penalty less than 5 yrs. imprisonment) 10/23/2021 10

Public v. Private Prosecution • Under Thai law a criminal prosecution could be brought to the court by a Public Prosecutor or by the injured party • Burden of Proof, Standard of Proof --- the same • A private prosecution is brought where the public prosecution refuses to prosecute for insufficiency of evidence but the injured party disagrees and want to seek justice by employing a lawyer for a private prosecution • A committal hearing will be conducted by the court in a private prosecution to examine whether the case warrants a hearing 10/23/2021 11

At the Hearing of a Criminal Case • Burden of Proof • In a criminal case it is the burden of the prosecution to proof beyond reasonable doubt the alleged offense committed by the defendant. • The benefit of doubt shall be given to the defendant. • Standard of Proof in a Criminal Case: Proof Beyond Reasonable Doubt 10/23/2021 12

Contrast a Criminal Action with a Civil Action • Standard of Proof – Proof beyond reasonable doubt in a Criminal Case: 85% Certainty? – Proof on balance of probabilities in a Civil Case: 51 against 49? • Burden of Proof – Prosecution in a criminal case – Party who alleges the facts (normally the plaintiff) has the burden of proof • • • Trial by jury Trial by judge alone without jury A quorum of two judges on the bench in the court of first instance Court of Appeal – a quorum of three The Supreme Court – a quorum of three except in plenary session for cases of utmost importance 10/23/2021 13

Penalties in a Criminal Case • • Imprisonment with suspended sentence Put on probation Given a community service order Death penalty by lethal injection Fine Confiscation, exhibits shall be confiscated Custody, detention 10/23/2021 14

Conviction Stage and Sentencing Stage • Conviction by proof beyond reasonable doubt • Sentencing policy – Capital punishment considered to be inhumane and cruel by European Convention on Human Rights but constitutional under US law – Imprisonment – Alternatives to imprisonment – probation, community service order 10/23/2021 15

Bail or Provisional Release • To avoid detention during trial, an accused may apply for provisional release • Court to examine the possibility of the accused avoiding court appearance or escaping the jurisdiction of the court “jumping bail” • Security may be demanded for provisional release during trial • Seen as guarantee of civil liberty and a testament for the notion ‘Innocence until proven guilty’ • What if the accused cannot post the bond or security? – Justice for the affordable and justice for the unaffordable? • Make security affordable for the accused e. g. security in the form of a guarantee by third party 10/23/2021 16

At the Hearing of a Criminal Case • • The judge sits on the bench Lawyers at the bar Witness at the witness box Witness to take an oath, or to make an affirmation • “I swear to tell the truth, the whole truth and nothing but the truth (so help me God – the American style). ” • Examination of witness 10/23/2021 17

Examination of Witness in a Criminal Case • • Examination Cross-examination Re-examination Leading question not to be asked in examination or re-examination • Admissible and inadmissible evidence • Weight of evidence • Hearsay evidence 10/23/2021 18

Protection of Basic Human Rights • The accused who stands trial must know the essence and implication of the trial. • To afford full opportunity in defending the charge. • Appointment of attorney and interpreter by the court • Inadmissibility of evidence obtained through unlawful means; coercion, torture, promise, fraud etc. • Right to contact one’s lawyer, Embassy or Consulate (in case of a foreign national) • Privilege against self-incrimination 10/23/2021 19

Admissibility V. Weight of Evidence • The reliability of eyewitnesses • The quality of light, the excitement, the length of time, the resemblance with others (Ethnic similarities: Middle Eastern, Caucasian, African etc. ) • Eye witness in a murder case • Weight of the testimony of the victim in a sexual offence case • The need for corroboration 10/23/2021 20

Sentencing in a Criminal Case • Plead for mitigation circumstances • Poverty, ignorance, lack of education, provocation, diminished responsibility, repentance etc. • Aggravation circumstances • Recidivist, aggravated result etc. • Closing statement • Opening statement 10/23/2021 21

Questions & Answers Vichai Ariyanuntaka 10/23/2021 22