Determining the guilt or innocence of the accused is one of the ultimate purposes of any criminal proceeding. To accomplish this purpose it is necessary to attempt a reconstruction of what occurred in the past. Hence, the function of a trial is to bring to light all of the facts which are relevant to the alleged crime or defenses which are the subject of the trial. Formerly the “sporting” theory of justice was widespread, and under it the fact-finding processes of the courts took on some of the aspects of an athletic contest. These were truly adversary proceedings, sometimes to such an extent that the emphasis seemed to bear more upon the tactical skill and finesse of the respective advocates than upon the real purpose of a trial, namely, a correct and complete revelation of all pertinent facts. The adoption in 1946 of the Federal Rules of Criminal Procedure is the most notable attempt in recent years to modify the “sporting” theory.” One of the most important innovations wrought by the adoption of these rules is the development of various discovery devices through which various elements of opposing counsel’s case may be brought to light. Of course, state as well as federal courts are gradually reforming their judicial processes, and improvements in the processes of state courts often embody many of the same principles found in the federal rules. As these devices developed the civil courts accepted and used them long before the criminal courts; even today in most jurisdictions discovery practice in criminal proceedings is far more limited than in civil actions.
Alfred W. Blessing,
Criminal Procedure—Discovery Practice in Nebraska,
34 Neb. L. Rev. 645
Available at: http://digitalcommons.unl.edu/nlr/vol34/iss4/8