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ResourcesThailand Criminal LawCriminal LitigationComparing Thai and American Criminal Law: Judges and Juries

Comparing Thai and American Criminal Law: Judges and Juries

Transcript of the above video:

Basically every now and again, as sort of part of not only having to operate here in Thailand but also just sort of as a thought experiment. I will occasionally compare and contrast the way Thai Law offers versus say the United States. And one interesting aspect of the Thai criminal law that I found through various studies, various experiences is the fact that the Thai legal system, the Thai criminal legal system does not utilize juries the same way that the American system as well as the so-called common law systems do not utilize juries.

And in fact in Thailand, they tend to use judges in certain types of cases. They even use panels of judges to make decisions with respect to criminal liability and culpability.

Just sort of a little bit of background in the United States, which inherited our legal tradition from the United Kingdom, we utilized the so called common law tradition and inherent in the common law tradition which goes all the way back to Magna Carta and the notion of judgment by one's peers came the creation of the so called jury system where a panel of fact finders from the individual’s peer group is going to be the finder of fact and in some cases the concluder law with respect to a trial. In many cases, in virtually every case you're going to have a judge also present who's going to deal with some of the more finer points with respect to the laws in a given trial or in a given case.

But a jury is ultimately going to be the finder of fact in most situations involving criminal culpability. A small side note - the United States often uses juries with respect to civil matters. This is something that is a little bit alien in some of the other common law jurisdictions whereas my understanding juries are not often utilized with respect to civil law adjudications or civil adjudications in civil courts.

That being said, moving back to the criminal issue in Thailand, there is no such tradition of using juries. Judges are the primary findings of fact and concluders of law. And then there's an appeal process whereby if one disagrees with the judgment that was handed down, one can go ahead and appeal up the judgment to another tribunal of judges and finally concluding with the Supreme Court. Depending on the type of case, Thailand is a little different insofar as they sort of, for lack of a better term, compartmentalized various functions of jurisprudence. So there is a specific Supreme Court for political office holders as opposed to a specific Supreme Court for everyone else. There's also a specific court with respect to things like administrative function, civil functions but with respect to the criminal cases, there is a Supreme Court that has jurisdiction over criminal law.

Again, it's going to be judges all the way through. If one is finds themselves in the criminal system as opposed to the United States or say U.K. or the so-called Commonwealth countries, in many of those jurisdictions you're going to see a jury system utilized for determining significant criminal culpability. With respect to Thailand, that's just simply not going to be the case and that comes from the fact that it's just a different legal tradition.

The Thai legal tradition stems from the notions of civil law which the notions of civil law don't particularly have a tradition of utilizing juries, sort of a lay jury to make determinations with respect to criminal culpability and liability. When I first came to Thailand, the Civil Law was somewhat foreign and it was somewhat difficult for me to wrap my head around in so far as I come from a tradition where finders of fact tended to be jurors. I found over the years that I can definitely see certain advantages and disadvantages to both systems.

Most notably with respect to criminal culpability, sometimes a lay jury especially in cases involving very nuanced analysis of legal doctrines. Lay jurors can sometimes have difficulty in understanding, you know, or making a determination whether or not an individual is criminally liable. That's where a judge tends to come in to go ahead and provide things like instructions to the jury on how they need to analyze things.

But that being said, I can definitely see certain advantages to the civil law perspective where basically a judge who is legally trained and also is a reasonable person can make not only findings of fact but also conclusions of law with respect to a given case. So I think I can definitely see both sides of this having been out here for a significant period of time and I think overall, the two systems have significant pros and cons associated with each of them.