Yale Kamisar: the enemy of injustice.

• Author: White, Welsh S.
• Position: Testimonial

In the summer of 1978, Duke Law School hosted a conference in which a variety of speakers offered perspectives on Constitutional Criminal Procedure. One of the speakers argued that the Warren Court's criminal-procedure revolution created a backlash that ultimately made things worse for criminal defendants. In order to dramatize his point, he suggested, "Yale Kamisar is the enemy." When that speaker had finished, the Conference Moderator began his response by stating, "First of all, Yale Kamisar is not the enemy of anything, except injustice."

To those unfamiliar with Kamisar's work, it might seem implausible to suggest that any law professor should be given the credit or the blame for the Warren Court's landmark criminalprocedure decisions, much less a commentator's evaluation of the consequences of those decisions. Kamisar's scholarship, however, played a significant part in producing some of the Court's most important criminal-procedure decisions. Most famously, his articles on police interrogation during the early sixties provided the basis for the Court's decision in Miranda v. Arizona (1) and earned him the title of the "father of Miranda." (2) Even earlier, his incisive critique of the Court's decision in Betts v. Brady (3) helped produce the Court's unanimous overruling of Betts in Gideon v. Wainwright. (4) Through his analysis of Betts and other cases in which indigent criminal defendants were convicted after trials in which they were not represented by attorneys, Kamisar convincingly demonstrated the fallacy of Betts's central premise: it is simply not possible to determine whether an unrepresented defendant received a fair trial by examining the defendant's trial transcript. His articles relating to the Fourth Amendment exclusionary rule, moreover, have shown that the practical effect of abolishing the exclusionary rule established in Mapp v. Ohio (5)--would be to eliminate the Fourth Amendment. (6)

Why has Kamisar been so influential? His meticulous scholarship, his precise analysis, and his passionate advocacy are all significant. But most important, perhaps, is simply the power of his writing. Prior to the Court's Miranda decision, other scholars commented on the disparity between the rights afforded suspects at trial and during pretrial interrogation. But by using his vivid "gatehouses and mansions" metaphor, Kamisar described this disparity in a way that gave it an immediacy it had previously lacked:

The courtroom is a...