Criminal Law in Thailand Part 30: Plea bargaining _ is it

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Dave The Dude

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Criminal Law in Thailand Part 30: Plea bargaining _ is it
constitutional?


  • Published: 28/11/2010 at 12:00 AM
  • Newspaper section: Spectrum






Nobody can be around the legal system in Thailand for long
before discovering that many criminal matters never go to trial _ even if the
defendant is guilty of something. The legal system is simply not set up to
accommodate a full-blown trial for every offence that gets committed. And there
are two sides to every story. There are simply not enough prosecutors, judges
and tax money allocated to the justice system to go to trial in every little
case. Both sides have to pay the lawyers and tax money has to pay for the court
and all of the government officials who are needed to run the court system.
Also, if every case had a full trial, the delays would be into the next century.
So what happens? Plea bargaining.


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Black's Law Dictionary, a standard ref erence in the US, defines plea
bargaining as ''the process whereby the accused and the prosecutor in a criminal
case work out a mutually satisfactory disposition of the case subject to court
approval. It usually involves the defendant's pleading guilty to a lesser
offence or to only one or some of the counts of a multi-count indictment in
return for a lighter sentence than that possible for the graver charge.''


The idea of plea bargaining is that a criminal case is concluded without a
trial. The defendant typically agrees to plead guilty without a trial and the
prosecutor in turn dismisses certain charges or makes favourable sentence
recommendations to the judge. Such a deal has, of course, to be acceptable to
the judge.


In some legal systems, for example in the US, 95% of all criminal cases are
plea bargained. In Thailand, however, despite the reality, there is a division
of legal authority as to whether plea bargaining is constitutional.


Section 39 of the constitution of the Kingdom of Thailand, BE 2550 (2007)
provides that ''the suspect or the accused in a criminal case shall be presumed
innocent. Before the passing of a final judgment convicting a person of having
committed an offence, such person shall not be treated as a convict.''


In short, some legal scholars believe that the above provision of the
constitution means that the system cannot assume guilt without a trial, and,
since plea bargaining skips the trial, this violates the constitution. There are
also provisions of the Criminal Procedure Code (sections 135 and 226, for
example) that arguably prohibit government officials such as the prosecutor or
the judge from promising leniency in exchange for guilty pleas.


Despite the theoretical controversy, if you are accused of a crime, there
will be some discussion of whether you should plead guilty in exchange for
perhaps probation and a fine, when the sentence on the books might even involve
jail time. Our advice is this: Don't make any decision like this on the spur of
the moment. Talk to as many people as you can about the offer. And don't worry.
If it takes you a couple of days to listen to experts and friends, the offer
won't go away.


Who would you talk to about such an offer? The answer is as broad as your
list of friends and acquaintances. One thing is certain. Listen to your lawyer,
but there's no harm in getting a second or third opinion. Maybe a friend's
lawyer, whom you just called to talk about the matter, can suggest an
alternative, such as a lesser counter offer to the prosecutor, and will call
your lawyer to discuss it. Or maybe he or she knows this particular prosecutor
and is willing to try to make an offer more favourable to you.


If you are in this process, we know the stress you are under. Please
remember, that no matter what happens, things will seem better once they are
resolved.
 
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