Yale Kamisar: The Enemy of Injustice

Abstract

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, 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' 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