Criminal Law in Thailand Part 34: The criminal trial _ what is

D

Dave The Dude

Guest
Criminal Law in Thailand Part 34: The criminal trial _ what is
proof?
















This time we'll talk about some special rules of the road
in a trial _ how facts are proved and disproved. In the world of a criminal
trial, as with life, much common knowledge is deemed admissible because it is
universally known.


226358.jpg



For example, let's say an issue at a trial is whether a witness could
identify a suspect at 10pm from a distance of 50m on a street in Bangkok that
was not artificially lit one moonless night a month ago. Would the defence have
to introduce evidence to show that at that time of the night it's dark?


No, because judges can take what's called judicial notice of facts that are
universally known or indisputable, such as the fact that it's dark in Bangkok at
10pm.


Likewise, the parties can agree that a fact can be admitted into evidence.
For example, they might agree that the defendant was somewhere an hour before
the crime was committed. They might disagree bitterly where the defendant was 10
minutes later, but if they can agree on basic facts, and the judge agrees to
admit them into evidence, much time can be saved by not having to prove things
that the parties already agree on.


Here's something important that is not admissible at trial. Earlier in this
series we wrote about how statements obtained from defendants before they have
received certain rights are not admissible. Examples of these rights are that
the defendant:


Must be told he or she can make a statement but if so, the statement may be
used in evidence.


Must be allowed to call anyone, including a lawyer, after arrest.


Must be given a translator if he or she doesn't speak Thai.


Must be allowed to have a lawyer present at all critical stages of the
proceedings, such as the trial.


If the defendant's statements are taken in violation of these rights, they
will be inadmissible to prove the guilt of the witness. They may be used by the
defence to prove innocence.


Let's look at another kind of evidence that both sides may want to introduce
_ past behaviour of the defendant. For example, the defence may want to
introduce evidence that the defendant is a good person, incapable of committing
this or any crime. And the prosecution may want to introduce evidence to suggest
that the defendant is such a rat that there's little doubt of guilt.


Can they?


The answer depends on the nature of the evidence offered. There are three
instances in which it can be admitted. First, if the fact introduced is directly
concerned with one of the elements of the offence charged.


For example, perhaps the defendant is being charged with public drunkenness
and his defence is that he wasn't drunk at all. Instead he claims that he was
given a prescription medication by a doctor and, though it made him behave in a
drunken manner in public, he didn't know the medication would have this effect
and wouldn't have taken it if he had. If there is evidence that he is a
teetotaller, the judge would probably allow it in, because it tends to refute
the drunkenness, an element of the crime.


Second, a judge may allow evidence of past acts offered to prove that the
defendant committed the crime in a certain way. For example, let's say the
defendant is accused of committing a bank robbery in which the perpetrator was
dressed in a clown mask, kneecapped the security guard with a sawn-off shotgun,
took a female hostage and took only gold items from the bank vault. The
defendant denies he was the perpetrator.


The prosecutor wants to submit evidence to show that the defendant was
convicted nine months ago for committing another bank robbery in exactly the
same way _ the mask, the kneecapping, the gun, the hostage and the gold. Because
it shows modus operandi _ the way the crime is committed _ and this may prove
that the defendant committed the present crime, the judge may admit it.


The third way past acts may be admitted is to refute evidence of good
character by the defendant. For example, the defendant, accused of stealing,
might have introduced evidence that he volunteers in an orphanage to show a high
level of morality inconsistent with stealing. The prosecution might then offer
testimony from the director of the orphanage that the defendant volunteered
there for a while but was banned because of inappropriate behaviour with the
children. The judge might admit it because it refutes the evidence introduced
that the defendant has a good character.


The three above reasons for admitting past acts apply to the phase of the
trial where the judge decides the defendant's guilt or innocence. If the judge
decides that the defendant is guilty of something, any evidence of past acts is
acceptable for the judge to consider when deciding on the severity of the
penalty.
 
Criminal Law in Thailand Part 34: The criminal trial _ what is
proof?














This time we'll talk about some special rules of the road
in a trial _ how facts are proved and disproved. In the world of a criminal
trial, as with life, much common knowledge is deemed admissible because it is
universally known.


226358.jpg



For example, let's say an issue at a trial is whether a witness could
identify a suspect at 10pm from a distance of 50m on a street in Bangkok that
was not artificially lit one moonless night a month ago. Would the defence have
to introduce evidence to show that at that time of the night it's dark?


No, because judges can take what's called judicial notice of facts that are
universally known or indisputable, such as the fact that it's dark in Bangkok at
10pm.


Likewise, the parties can agree that a fact can be admitted into evidence.
For example, they might agree that the defendant was somewhere an hour before
the crime was committed. They might disagree bitterly where the defendant was 10
minutes later, but if they can agree on basic facts, and the judge agrees to
admit them into evidence, much time can be saved by not having to prove things
that the parties already agree on.


Here's something important that is not admissible at trial. Earlier in this
series we wrote about how statements obtained from defendants before they have
received certain rights are not admissible. Examples of these rights are that
the defendant:


Must be told he or she can make a statement but if so, the statement may be
used in evidence.


Must be allowed to call anyone, including a lawyer, after arrest.


Must be given a translator if he or she doesn't speak Thai.


Must be allowed to have a lawyer present at all critical stages of the
proceedings, such as the trial.


If the defendant's statements are taken in violation of these rights, they
will be inadmissible to prove the guilt of the witness. They may be used by the
defence to prove innocence.


Let's look at another kind of evidence that both sides may want to introduce
_ past behaviour of the defendant. For example, the defence may want to
introduce evidence that the defendant is a good person, incapable of committing
this or any crime. And the prosecution may want to introduce evidence to suggest
that the defendant is such a rat that there's little doubt of guilt.


Can they?


The answer depends on the nature of the evidence offered. There are three
instances in which it can be admitted. First, if the fact introduced is directly
concerned with one of the elements of the offence charged.


For example, perhaps the defendant is being charged with public drunkenness
and his defence is that he wasn't drunk at all. Instead he claims that he was
given a prescription medication by a doctor and, though it made him behave in a
drunken manner in public, he didn't know the medication would have this effect
and wouldn't have taken it if he had. If there is evidence that he is a
teetotaller, the judge would probably allow it in, because it tends to refute
the drunkenness, an element of the crime.


Second, a judge may allow evidence of past acts offered to prove that the
defendant committed the crime in a certain way. For example, let's say the
defendant is accused of committing a bank robbery in which the perpetrator was
dressed in a clown mask, kneecapped the security guard with a sawn-off shotgun,
took a female hostage and took only gold items from the bank vault. The
defendant denies he was the perpetrator.


The prosecutor wants to submit evidence to show that the defendant was
convicted nine months ago for committing another bank robbery in exactly the
same way _ the mask, the kneecapping, the gun, the hostage and the gold. Because
it shows modus operandi _ the way the crime is committed _ and this may prove
that the defendant committed the present crime, the judge may admit it.


The third way past acts may be admitted is to refute evidence of good
character by the defendant. For example, the defendant, accused of stealing,
might have introduced evidence that he volunteers in an orphanage to show a high
level of morality inconsistent with stealing. The prosecution might then offer
testimony from the director of the orphanage that the defendant volunteered
there for a while but was banned because of inappropriate behaviour with the
children. The judge might admit it because it refutes the evidence introduced
that the defendant has a good character.


The three above reasons for admitting past acts apply to the phase of the
trial where the judge decides the defendant's guilt or innocence. If the judge
decides that the defendant is guilty of something, any evidence of past acts is
acceptable for the judge to consider when deciding on the severity of the
penalty.
 
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