The importance of fact-finding in criminal trials: a study of judges' work in the courts of justice in Thailand

What should be the role of Thai judges in the administration of criminal justice? There is the adversarial process, most commonly practiced in the Anglo-American world, where judges act as neutral referees. And there is the inquisitorial process, most commonly found in continental Europe, where judges are active fact-finders to determine ‘the truth’ in a particular case. The Thai criminal justice system is a mixture of both adversarial and inquisitorial systems. The rules of evidence prescribed in the Criminal Procedure Code, B.E. 2477 (1934), also provide judges with the power to actively engage in fact-finding during the trial, as is the case for judges in inquisitorial countries. This is especially the case in sections 228, 229, and 235, which allow judges to question witnesses or examine additional evidence to ensure that they have sufficient evidence to make an accurate judgment. However, the limited Thai research, anecdotal evidence, and personal experience indicate that Thai judges have a limited role in fact-finding during criminal trials. This can then mean that their judgments may be based on insufficient or defective evidence. This research explains how Thai judges approach their work and justify their limited role in fact-finding in criminal trials, despite having the legal power to be more involved in the process of justice as fact-finders. The research is based on the examination of documents, the researcher’s prosecutorial and judicial experiences, trial observations, and individual in-depth interviews with judges in the Courts of First Instance, the Courts of Appeal, and the Supreme Court. It shows that apart from discrepancies in the relevant laws, judges’ reluctance to become more involved in fact-finding is caused by the judicial organization’s norms, which do not obviously take priority over the active judicial function of fact-finding. The thesis concludes with a discussion of what should be done to improve the fact-finding function of Thai judges to reduce erroneous judgments and inappropriate sentences resulting from defective or incomplete evidence.