NCJ Number
123001
Journal
Cardozo Law Review Volume: 10 Issue: 3 Dated: (December 1988) Pages: 475-527
Date Published
1988
Length
53 pages
Annotation
Proponents of both the adversarial and nonadversarial procedures used to determine the truth in criminal justice proceedings overlook the fact that both approaches rest on a particular epistemological tradition that is being increasingly questioned.
Abstract
Critics of the fact-finding process in Anglo-American criminal justice sometimes argue that the nonadversary procedures of civil-law countries in continental Europe may be better able to find the truth than the adversary procedures of common-law nations. However, both approaches rest on a shared conception of how truth is best found. Thus, the classic scientific method based on the empiricist epistemological tradition has dominated western conceptions of truth finding in the last few centuries. However, another theory of truth finding exists that may be termed dialectic and that rests on a completely different epistemological tradition. Like the other tradition, the dialectic approach is rationalist in that it requires conclusions of fact to be justified. However, the dialectic approach involves a sequential process. All participants, including the trier of fact, are seen as fact finders and are required to justify their methods of investigation during the inquiry. Establishing this approach would result in earlier interactions between the prosecution and the defense than permitted under current adversarial and continental procedures. 204 footnotes.