Trial in absentia

Abstract

In criminal cases, trials and hearings of evidence must be conducted in front of the accused. The underlying principle behind this aims to guard the rights of the accused to confront the witnesses and to ensure that the accused will have an opportunity to cross-examine or to present evidences to rebut the witnesses’statements in order to prove his or her innocence. However, the principle that criminal procedures should be conducted in front of the accused applies with no exceptions in major criminal cases such as international criminal cases, human trafficking cases, and drug cases. Sometimes the right to be present might distort the justice during the judicial process. For instance, in a case where the accused escapes from the trials, the case will be temporarily disposed by the court, ceasing the case to proceed until the accused is arrested. During this delay, the witnesses’memory could have faded over time, just like other ordinary people, or they could have died while the case was suspended. Since the burden of proof in criminal cases is beyond reasonable doubt, the weight of testimony from such witnesses will lead the court to finally dismiss the case. Moreover, if the accused is still escaping until the prescription expires, then he or she will survive the conviction. From all of these examples, both international courts and domestic courts in different countries, particularly in civil law countries that always have the concept of in absentia trials, would exempt some trials and hearings of evidence to be conducted in front of the accused. This is because, from a civil law perspective, the judge can control all of the investigation and evidence-gathering process. Therefore, even without the cross-examination process, the judge can call and consider other evidence and materials. Similarly, like other civil law countries, Thailand added more exceptions of the trials and hearings of evidence that are conducted in front of the accused in Article 5 and Article 6 of the Act Amending the Criminal Procedural Code (No.33) B.E. 2562. The amended provisions are not necessary for criminal procedure law in general to have the exceptions of the trials and hearings of evidence that are conducted in front of the accused, although they are considered that they have the possibility of using those exceptions in Thai Criminal Proceedings. In addition, non of the amended provisions provide the solutions to compensate the accused who will be deprived of the rights to cross-examination. These are the problems that need appropriate solving.