Transcript CRIMINAL CASE IN ACTION: ESSENTIALS OF CRIMINAL PROCEEDINGS VICHAI ARIYANUNTAKA Chief Judge of the Central Labour Court Bangkok, Thailand 11/7/2015

CRIMINAL CASE IN ACTION:
ESSENTIALS OF CRIMINAL
PROCEEDINGS
VICHAI ARIYANUNTAKA
Chief Judge of the Central Labour Court
Bangkok, Thailand
11/7/2015
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
11/7/2015
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
11/7/2015
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
Lawyer for the Defendant
11/7/2015
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
11/7/2015
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)
11/7/2015
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”
11/7/2015
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)
11/7/2015
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?
•11/7/2015
A Code of Judicial Etiquettes is necessary
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)
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
13
Penalties in a Criminal Case
•
•
•
•
•
•
•
•
Imprisonment
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
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
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
11/7/2015
21
Questions & Answers
Vichai Ariyanuntaka
11/7/2015
22