IF I WERE asked to designate the most striking development in procedural reform during the last fifty years, I would unhesitatingly single out the progress of judicial rule-making. * * * We should, therefore, be perfectly justified in devoting this meeting to a celebration of these gratifying achievements. I prefer, however, to pursue a somewhat different course and speak to you on still another phase of judicial rule-making. * * *
I am led to suggest that the rule-making power be extended to criminal procedure prior to verdict.* I lay no particular claim to credit for this suggestion. It flows rather naturally from the previous reforms, for thus we would close the last gap in our procedural system.
If the extension of the rule-making power to criminal procedure is a worthwhile reform--if it will make the criminal trial less of a game and more of a search for truth--then there is no time like the present to begin the study of its possibilities. * * *
The Conformity Act of 1872, which requires the federal courts to conform to state practice in actions at law, does not apply to criminal proceedings. The latter are governed by section 722 of the Revised Statutes (U. S. Code, title 28, sec. 729) which reads as follows:____________________