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Comparing Thai and American Criminal Law: Plea Bargain

Transcript of the above video:

In this video today, we're going to be comparing and contrasting certain aspects of American law or the so called common law systems and certain aspects of the Thai criminal law system. Most notably we're going to have a look at the notion of so-called "plea bargaining".

This is more specific to the United States and other videos we somewhat broadly discussed common law notions that may pertain to other nations that utilize the common law system. In the U.S., we also we have what's called a plea bargaining system. And basically what we're talking about here is say you've got a defendant in a criminal case, the state generally does not necessarily want to spend time and resources undertaking a full trial of that individual. That individual is innocent until proven guilty but undertaking the full trial may cost a great deal of money in terms of time and resources. In exchange for the defendant not, for lack of a better word, wasting the Court's time or the state's resources by undertaking a trial sometimes a plea bargain will be offered to that defendant to go ahead and plead guilty in exchange “sentencing recommendation” can be made by the prosecutor. The prosecutor makes that recommendation to the judge.

Usually in the United States, judges take prosecutorial recommendations quite seriously and they tend to go ahead and go along with the prosecutor’s recommendation. Although understand that's not a foregone conclusion. The judge is ultimately the responsible party with respect to making a determination as a criminal culpability and as to sentencing with respect to criminal culpability. So simply having a prosecutor make a recommendation does not guarantees that the judge will take that recommendation even under advisement and go ahead and sentence accordingly. However, as a practical matter prosecutorial recommendations tend to be very carefully considered by a judge and in many cases, the judge is very likely to go ahead and send this according to what the prosecutor has recommended.

Entirely and it's a very different system. The police are far more integral to the criminal justice system in Thailand insofar as the police actually lodge initial charges. The prosecutor is tasked with prosecuting the case as far as a trial but they do not have the same ability with respect to being able to make recommendations to the judge as far as sentencing is concerned. And in fact, only the police are able to make determinations as to what charges to file and only a judge in Thailand is only able to make determinations as to what charges to find the defendant guilty of. Essentially what charges stick, to use a colloquialism?

To be clear again, I am NOT a Thai attorney. I'm an American attorney. I just sort of liaised with various Thai attorneys and various foreign clients over the years and come fairly close to these proceedings. We do have Thai attorneys of work for us to deal with criminal matters and obviously they're going to be able to provide a lot more detail with respect to these specifics. But to understand it sort of in a general sense, the notion of doing a plea bargain with the prosecutor is not effectively going to be possible and even the notion of a plea bargain in general is considered somewhat antithetical to the entire criminal justice process here in Thailand, whereby it's very inquisitorial versus so-called adversarial. The police are simply trying to ascertain what happened they're trying to make the correct charges. The prosecutor is then going to zealously prosecute under those charges and then the judge is ultimately the fact finder and the concluder of law with respect to which charges ultimately the defendant is or is not guilty of.  And in many cases a judge will say “yeah you know, these charges just simply there's no merit.” In other cases, the judge is going to go ahead and say yes based on the facts presented to me the law as it sits at the time of this adjudication you know, the defendant is guilty of XYZ whatever.”

So my only point being with this video, those who have these issues strongly recommend contacting competent legal professionals. Those who do not understand spoken, written or reading Thai are strongly recommended and perhaps some sort of translator liaison with respect to the Thai system may be very beneficial as well. But definitely gain the counsel and advice of a legal professional here in Thailand in the event that a criminal proceeding is brought against you.