THE EVIDENCE IN THE FORM OF THE CONFESSION OF THE ACCUSED AT THE TIME OF ARREST FROM THE RECORDING OF VIDEO AND AUDIO USING ELECTRONIC DEVICES

Abstract

A suspect’s confession at the stage of arrest holds significant probative value, as it occurs in close proximity to the commission of the alleged crime. Consequently, such a confession constitutes important evidence that should be considered and weighed by the court in rendering its judgment to establish the facts of the case. However, under the current Thai law governing the admissibility of evidence, Section 84, final paragraph, of the Criminal Procedure Code strictly prohibits the court from admitting any confession made by a suspect during arrest as evidence, under any circumstances. This provision serves as an absolute exclusionary rule, removing judicial discretion in this regard. The aforementioned provision resulted from the 2004 amendment to the Criminal Procedure Code. Previously, the law allowed the court to exercise discretion in admitting a suspect’s confession made during arrest. However, due to past misconduct and unlawful acts committed by state officials during arrest, the law was amended to impose a categorical ban on such evidence, which remains in effect to this day. This amendment emphasizes the principle of procedural legality and aims to protect the rights and freedoms of suspects from unlawful actions by state officials. Nonetheless, this absolute prohibition has negatively impacted the principle of evidence admissibility in criminal proceedings and has limited the court’s discretion in evaluating facts. As a result, true offenders may escape punishment when other evidence is insufficient to prove guilt, leading to acquittals of guilty individuals. This outcome runs counter to the purpose of crime control.

            Section 84, final paragraph, in its current form demonstrates a strong preference for upholding procedural legality and safeguarding the rights of suspects at the arrest stage over allowing potentially crucial confessional evidence to be used in establishing the truth and convicting offenders. This raises concerns about the disproportionate weight given to the protection of individual rights over the need to admit evidence necessary for effective criminal justice. A well-functioning evidentiary law must maintain a balance between these two principles: the right to due process and the need to gather reliable evidence to prevent and punish crimes. To resolve the issue of admissibility of confessions during arrest, the solution should lie in enhancing the protection of individual rights through lawful evidence collection during the arrest process. Currently, Thai law requires the use of video and audio recordings during arrests as a means of demonstrating that a suspect's confession is voluntary and that the arrest was lawfully conducted, free from rights violations.This requirement is enshrined in the Prevention and Suppression of Torture and Enforced Disappearance Act B.E. 2565 (2022). As such, confessions recorded via video and audio, which document both the confession and the officers' conduct during the arrest, possess high levels of accuracy, probative value, and credibility. They also serve as safeguards protecting the suspect’s rights. Therefore, such confessions should be admissible in court as evidence for determining a defendant’s guilt. Studies reveal that countries like the United States and the United Kingdom allow for the admissibility of confessions made during arrest when they are captured through video and audio recordings, treating such evidence as valid and credible in court proceedings.Accordingly, Section 84 of the Criminal Procedure Code must be amended to align with the current legal framework, which incorporates modern technology in the evidence-gathering process. This amendment would enable the court to use such evidence in adjudicating criminal cases and ensure that actual offenders are held accountable under the law.