ADMISSIBILITY OF EXTRINSIC WITNESSES AND EVIDENCES IN CRIMINAL CASES

Abstract

          There are two major systems of law in the world, namely common law and civil law. Common law adheres to the adversarial system as its law on witnesses and evidence. Civil law subscribes to the inquisitorial system as its law on witnesses and evidences.

          According to the adversary system, a plaintiff has to charge and prove that a defendant is guilty, and the defendant has to defend and prove that he is not guilty. The parties to the dispute must bring their own respective witnesses and evidences to prove their charge and defence. This must be done under rigid legal procedures. A court shall oversee whether the procedures are respected, but shall not intervene in the procedures. As to the inquisitorial system, the court shall not merely oversee whether the procedures are respected, but shall also intervene in the procedures in order to inquire into the truth of the case. The court can consider both intrinsic witnesses and evidences and extrinsic witnesses and evidences.

          Although Thailand is a civil law state, its law on witnesses and evidences is a mixture of both civil law and common law. Thai courts have power to inquire witnesses and evidences to verify the truth of the case. Factual analysis in cases require evidence and witness. Hearing of evidence and witness is screening to prove that the defendant is guilty or innocent. A qualitative study showed that the evidence hearing in Thai cases was based on discretion, while the hearing of extrinsic witnesses and evidence would be based on laws. The meaning of the “extrinsic witnesses and evidence” meant the evidence or witness not admitted into the case per the evidence hearing legal principles. This kind of evidence is rather dangerous as the court might have prejudice against the evidence that is not examined. Thus, the party will be unable to refute the facts arising out of the evidence, but it should not be simply dismissed and instead should be used in conjunction with other evidence for more weight or as leads to other evidence to clarify the case or determine the appropriate penalty against the defendant.

          Therefore, this dissertation posits whether the Thai courts should exercise their inquisitorial power more in order to verify the truth of the case in the interest of justice. There should be a clear definition in the Thai witness laws about which type of extrinsic witnesses and evidence that could be admitted, with some consideration about proving value of extrinsic witnesses and evidence of each type, as well as the hearing process to prove the case. The principle of audi alterem partem should be used along with the principle of hearing the extrinsic witnesses and evidence.