Only exceptional trial lawyers have the ability to provide an effective defense given the restraints of the Thai judicial system:

• 1.) There is no stenographer, no complete video or audio recording of criminal or civil trials. The official record of the trial is the judge’s notes. During the trial the judge will record his notes by speaking in to a hand held micro phone attached to old style video cassette recorder left over from the cold war. This process requires the judge to speak into the micro phone continually while a witness is testifying to record statements the judge feels are important. Often a witness’s testimony overlaps with the judge recording his notes and the judge doesn’t hear part of a witness’s testimony because both are talking at the same time. Typically, the judge attempts to take brief notes to keep the process moving. This process is far from a complete record of the court proceeding.

• When the witness has completed their testimony the clerk of the court will listen to the judge’s spoken words recorded to the cassette tapes, type and print the judge’s notes. The witness and defendant must now read the notes and sign all pages to confirm the accuracy of the witness’s testimony. This is the official court record of the witness’s testimony. This is neither a complete or accurate record of the witness’s testimony, only the points the judge felt were important to note.

• If the defendant is of the opinion that the notes don’t match his/her recollection of the witness’s testimony, theoretically, changes can be made, but this is often difficult. First, the judge has left the building. Second, the defendant’s bail could be revoked should he/she disrespects the judge. The defendant is then encouraged to sign the document even if he disagrees with its contents.

• The judge’s notes are a partial record of the witness’s testimony. They don’t include every word spoken in the court room and often the judge only records the witness’s answers given to questions asked by the prosecutor or defense attorney.

• The questions are not typically recorded. Having no record of the question asked can create a lot of doubt as to what a question might have been. One is left to guess. For example: “no I did not shoot him in the head”, one can safely assume the witness was asked if he shot someone in the head. But if the noted answer is for example: “the moon”, and you don’t know the question, recording the answer is not useful. For example: the question could have been “what is the bright, round object in the night sky” or “where did you spend last weekend”.  While the answer itself seems harmless, when it is matched with a question, the implications can vary greatly.

• If multiple judge’s preside over a case at different times or in different locations, the presiding judge at the end of the trial will need to make a verdict based on the notes of all other judge’s who have presided over the case during the trial. We have been involved with cases where multiple judges have been involved at different times. For example: one of our cases saw 5 different judges over a 2 year period. The last judge assigned to the case was required to render his judgment base on the brief notes of the 4 prior judges as well as his own brief notes.

• 2.) In cases involving the testimony of minors, the minor is seated in a room in the courthouse but not in the courtroom. This is to prevent the minor from being subjected to a face to face encounter with the defendant.

• The prosecutor and the defendant’s lawyer, who are in the courtroom, will examine and cross examine the minor through a psychologist via CCTV. The law states that the minor’s testimony; “image and voice of such examination shall be evidenced in the manner that can be reproduced continuously”. “Testimony shall be made by recording it in a material which can be transmitted into a picture and sound by which the veracity of note can be verified, and the appeal court and the Supreme Court shall use said note for judicial proceedings”. Defense attorney’s can not rely on the availability of the recording if they elect to use it in defense of their clients.

• 3.) “Hear say” testimony by police and other government officials is very common in Thailand. It is standard practice for a senior officer to testify for junior officers. The senior officer will testify as to what the junior officer has seen. The junior officer, who, it is claimed, was an eye witness, will not appear. The senior officer will testify as to the actions of the junior officer and others. The officer will draw conclusions. The officer will make statements as if they were fact, which may or may not be supported by evidence or by the individual who it is claimed was an eye witness. In developed countries hear say evidence is inadmissible because the accuracy of the statements can not be verified through cross-examination. In Thailand a senior police official will make strong statements implicating the defendant, when challenged by the defendant’s lawyer the police officer will merely answer, “I don’t know”. At the end of the day the judge will have recorded damaging unsupported accusations and nothing more, because the officer responded “don’t know” when the defendant’s lawyer cross examined. Again; in developed countries hear say evidence is inadmissible because the accuracy of the statements can not be verified through cross-examination.

• 4.) No jury: A jury trial requiring a unanimous decision by 12 jury members, a jury of your piers, is seen by many to be the truest form of justice. A bench trial, that is decided by a judge can be fair in jurisdictions like the United States where laws have been created to eliminate convictions in cases that lack evidence, disallow hearsay, have extensive rules of evidence to protect the rights of the accused, etc

• 5.) Falsification of witness statements: A significant percentage of police officers in Thailand, (not all police officer’s) are not above acting unscrupulously. Written witness statements can be falsified. Often a witness will not review the written statement before signing in an atmosphere where the police have encouraged the witness to sign the statement without reading it.

• 6.) Control of witnesses by means of threat: some, not all, Thailand police officer’s will use any method available to them to control a witness’s statement.  For example: threats to implicate a witness to the crime along with a promise not to do so in exchange for their cooperation, an offer not to drug test a witness in exchange for their cooperation.

• 7.) How many judge’s decides your fate? Theoretically, serious criminal cases are presided over by not less than 2 judges simultaneously. In fact, you may only see one judge. A judge may or may not enlist the participation of a second or third judge for their input on a case before rendering a judgment.

• 8.) Witness statements can change during testimony to suit the needs of the prosecutor: A percentage of prosecutors, (not all prosecutors) occasionally act in ways that would be deemed inappropriate or unethical in most western countries. Such actions are seen in Thailand as appropriate. For example: If a prosecutor asks a prosecution witness a question and receives an answer that is good for the defendant but bad for the prosecution, the prosecutor will repeat the question and advise the witness that it is in their best interest to answer according to the prosecutor’s prior instructions. The judge will only record the witnesse’s final answer. For example: if the witness is asked if she was raped by the defendant and answers no, and then changes her answer to yes at the direction of the prosecutor, the judge will record that she answered yes and nothing else.

• 9.) No depositions. You and your attorney can not depose prosecution witnesses. There is no system for speaking with prosecution witness in advance of trial. You and your attorney will not know what a prosecution witness will say until the day of the trial. The defendants lawyer must be able to react to events decisively, effectively, and without prior thought or planning.

• 10.) You do not have the right to cross examine witnesses or confront your accusers, if they do not appear at trial. A piece of paper, a written statement can be used against you, and as you can not cross examine a piece of paper, the accuracy of the information in a written statement can not be verified or challenged. Example: a female accuses a male of the crime of rape, she provides her statement to a police officer who types the statement which the female signs. The female does not appear in court. The court uses the (facts?? Contained in) written statement to convict the defendant. Courts often prefer to rely on the statements of victims and witnesses made to the police at the time of the incident believing that the details of the events are clearly in the mind of the witness or victim when provided at the time of or within a short time of the event, as opposed to court room testimony that might be given months after the event transpired. Often the court, when provided with a written statement taken by the police, and the court testimony of the victim or witness, will elect to give more weight to the written statement.

I think you will agree that given the state of the Thailand judicial system criminal cases require an exceptional defense attorney.