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Comparing the Bail Systems in Thailand and the USA

Transcript of the above video:

In this video, we're going to be discussing bail specifically the system of granting bail for those who have been accused of a crime here in the Kingdom of Thailand and we're going to be comparing it to the way that the bail system operates in jurisdictions in the United States. As I stated, I'm an American attorney. I'm not a Thai attorney. We have Thai attorneys on staff here that I liaise with often and discuss these matters with.

And I just kind of like to do these videos as sort of, I don't know, sort of a surface look at how this stuff works. And I often find that by comparing the Thai system to the American system, it provides an extra bit of insight so that people understand via both analogy and both comparison/contrast how these different systems operate on a day-to-day basis.

There was a recent article in the Bangkok Post which I'm not going to quote in this video. But I was just reading it where the author was basically was an editorial, he or she was basically making note of the fact that the bail system in Thailand is rather old. It hasn't really been upgraded or updated as far as the body of law in some years/decades. In fact and moreover, this person was also taking enough note of the fact that they felt like the system was a bit inequitable because in a lot of ways, it favored those with means over those without means because those were unable to pay bail notwithstanding the fact that they may ultimately be proven not guilty or be adjudicated as innocent with respect to the charges. They still have spent time in jail for not having bail. My retort to that's just, sort of, on a general level is probably this first of all: bail is always going to be advantageous for those with means and not going to be particularly advantageous for those without any means. It's one reason judges have to review things on a case-by-case basis and it's also should be noted that judges have to take note with respect to bail the totality of the circumstances, what's the accusation, how is this person in the community had said, you know, where is this person standing in the community, are they a risk of flight, etc.

They're looking at much more than just sort of a superficial look at the case. I shouldn't say they're making that hypothetical but basically, they have to look at the totality of the circumstances in front of them but making a decision with respect to bail in some cases, they'll make a determination that bail is not going to be issued and that happens. We had a case last year or simply the attorneys working on it, I was acting as liaison with American counsel. Basically the judges made the determination based on the circumstances the case, the person posed a significant risk of flight. Moreover, the judge simply didn't feel that bail was appropriate under the circumstances. That does happen. I sort of compare this and contrast it though entirely and I have noticed that they seem that the Thai system seems to take a more, how do I put this, they seem to take a more routine approach to bail in the sense that it sort of seems like unless there's a really extreme case, the defendant is going to be given the opportunity to post bail. Whether that individual can do that or not as a different set of circumstances, it's a different issue entirely but this is somewhat different to say the United States where it's not necessarily you know, for lack of a better term, a foregone conclusion and I would say that it's not a foregone conclusion here.

But it's not a foregone conclusion. The bail is even going to be issued now. It's not a foregone conclusion here either. But that being said, is there seems to be more of a feeling that bail is sort of part and parcel with the overall notion of due process. For that reason, I've noticed that in many cases, bail has been granted and now that being said, a good lawyer may be able to get you know bail, a little bit lower, may be able to get bail set faster depending procedurally on where the cases at the posture of the case.

So those are different things but with respect to bail, it seems to be sort of looked upon as just one more component of due process, sort of analysis. The other thing I find rather interesting here in Thailand is bail pending appeal seems to be issued much more frequently than bail pending appeal in the USA. And especially in the United States, once an individual is convicted of crime in the U.S. and after the sentence has been brought to bear, yes that individual is entitled to an appeal and oftentimes, he'll go ahead and undertake that in criminal matters.

But that being said, of all the cases on appeal is very rare to see a criminal defendant be issued bail while that appeal is pending. That's just simply not a frequent occurrence that I've ever seen. It can happen, but that being said, I think it's going to be quite a rarity to see that the Thai system seems to take a different approach and bail pending appeal seems to happen with some degree of frequency now. That being said, the relative cost of bail pending appeal especially here in Thailand, a foreign national might look at the amount in dollar terms or in euro or pounds and maybe think that that bail is a little bit low. But in Thai Baht terms, oftentimes these bail amounts are a significant amount of money and they're set that way in order to create an incentive for that individual to not shirk the court's jurisdiction, basically.

So it's kind of a positive sort of, half positive-half negative reinforcement mechanism to ensure the individual returns. But that being said, one of the biggest things I've noticed with respect to bail here in Thailand is the frequency by which it is granted pending appeal and which is just something that's rather uncommon in the U.S. courts. It sort of been closing with respect to this video as I said earlier. I think bail is almost an integral component of the due process of a case and this may be due to the fact that the criminal prosecutions have a different complexion and Thailand especially with the fact that in Thailand, their personal criminal prosecutions that can be brought to bear. And so I think perhaps bail is sort of viewed as integral to due process because you know, what if the accusation isn't correct? You know, they basically want to give that individual as much opportunity as possible to be at liberty notwithstanding the adjudication that's occurring just in case.

I think the way they're looking at is just in case that individual does happen to be innocent. But that being said, this article I was reading that sort of was questioning some of the policies with respect to bail in Thailand because it would tend to be an advantage to those with means. My only comment on that would be that although I see where that author was coming from, I do think bail is always advantageous for those which means if you have the ability to post bail and you're standing next to someone who doesn't, you're in a markedly in a qualitatively different position than that other individual and it just is what it is sometimes. I'm not going to say the system isn't fair but sometimes equity is a matter of providing opportunity. It's not necessarily a matter of everyone getting treated the same way as far as outcome.

That being said, for though it's cold comfort for those who are sitting in a jail cell unable to be bailed out because they don't have means to do so. Those who find himself perhaps in a position where they're under accusation for a criminal matter who may need bail it is definitely a good idea to contact a Thai attorney who's skilled in criminal law and go ahead and use them as a resource to go ahead and get bail set because again, once bail has been posted that individual can be at liberty until such time as the court decides otherwise. It won't tell such time as in cases either draw for an acquittal occurs so it's a beneficial bail. It is very beneficial thing for those who have been accused and obtaining it as quickly and smoothly as possible is often times going to be the most positive thing for the individual concerned.