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The Miranda Case Fifty Years Later, Yale Kamisar
The Miranda Case Fifty Years Later, Yale Kamisar
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A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …
Disentangling Administrative Searches, Eve Brensike Primus
Disentangling Administrative Searches, Eve Brensike Primus
Articles
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …
In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar
Articles
think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.
The Writings Of John Barker Waite And Thomas Davies On The Search And Seizure Exclusionary Rule, Yale Kamisar
The Writings Of John Barker Waite And Thomas Davies On The Search And Seizure Exclusionary Rule, Yale Kamisar
Articles
After browsing through many volumes of the Michigan Law Review, searching for the article I would discuss on the occasion of the law review's 100th anniversary, I wound up with two "finalists": a 1955 article by Professor John Barker Waite on the law of arrest search and seizure (on further reflection, four Michigan Law Review commentaries on the general subject written by Waite between 1933 and 1955)' and a monumental 200-page article (surely one of the longest articles ever to appear in the Michigan Law Review) by Thomas Davies on the "original Fourth Amendment. 2
Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar
Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar
Articles
About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.
Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar
Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar
Articles
When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …
'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar
'Comparative Reprehensibility' And The Fourth Amendment Exclusionary Rule, Yale Kamisar
Articles
It is not . . . easy to see what the shock-the-conscience test adds, or should be allowed to add, to the deterrent function of exclusionary rules. Where no deterrence of unconstitutional police behavior is possible, a decision to exclude probative evidence with the result that a criminal goes free to prey upon the public should shock the judicial conscience even more than admitting the evidence. So spoke Judge Robert H. Bork, concurring in a ruling that the fourth amendment exclusionary rule does not apply to foreign searches conducted exclusively by foreign officials. A short time thereafter, when an interviewer …
Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar
Edward L. Barrett, Jr.: The Critic With 'That Quality Of Judiciousness Demanded Of The Court Itself', Yale Kamisar
Articles
Barrett was as talented and as dedicated a law teacher as any of his distinguished (or soon-to-become-distinguished) contemporaries. But Barrett resisted the movement toward new rights in fields where none had existed before. At least, he was quite uneasy about the trend. To be sure, others in law teaching shared Barrett's concern that the clock was spinning too fast. Indeed, some others were quite vociferous about it.' But because his criticism was cerebral rather than emotional - because he fairly stated and fully explored the arguments urging the courts to increase their tempo in developing constitutional rights - Barrett was …
Introduction: Trends And Developments With Respect To That Amendment 'Central To Enjoyment Of Other Guarantees Of The Bill Of Rights', Yale Kamisar
Articles
Seventy years ago, in the famous Weeks case,' the Supreme Court evoked a storm of controversy by promulgating the federal exclusionary rule. When, a half-century later, in the landmark Mapp case,2 the Court extended the Weeks rule to state criminal proceedings, at least one experienced observer assumed that the controversy "today finds its end." 3 But as we all know now, Mapp only intensified the controversy. Indeed, in recent years spirited debates over proposals to modify the exclusionary rule or to scrap it entirely have filled the air - and the law reviews.'
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Articles
Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …
Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar
Does (Did) (Should) The Exclusionary Rule Rest On A 'Principled Basis' Rather Than An 'Empirical Proposition'?, Yale Kamisar
Articles
[U]ntil the [exclusionary rule] rests on a principled basis rather than an empirical proposition, [the rule] will remain in a state of unstable equilibrium. Mapp v. Ohio, which overruled the then twelve-year-old Wolf case and imposed the fourth amendment exclusionary rule (the Weeks doctrine) on the states as a matter of fourteenth amendment due process, seemed to mark the end of an era. Concurring in Mapp, Justice Douglas recalled that Wolf had evoked "a storm of constitutional controversy which only today finds its end."' But in the two decades since Justice Douglas made this observation, the storm of controversy has …
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar
Articles
Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in federal …
On Recognizing Variations In State Criminal Procedure, Jerold H. Israel
On Recognizing Variations In State Criminal Procedure, Jerold H. Israel
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Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
The Exclusionary Rule In Historical Perspective: The Struggle To Make The Fourth Amendment More Than 'An Empty Blessing', Yale Kamisar
Articles
In the 65 years since the Supreme Court adopted the exclusionary rule, few critics have attacked it with as much vigor and on as many fronts as did Judge Malcolm Wilkey in his recent Judicature article, "The exclusionary rule: why suppress valid evidence?" (November 1978).
A Defense Of The Exclusionary Rule, Yale Kamisar
A Defense Of The Exclusionary Rule, Yale Kamisar
Articles
The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Exclusionary Rule: Reasonable Remarks On Unreasonable Search And Seizure, Yale Kamisar
Articles
Can we live with the so-called exclusionary rule, which bars the use of illegally gained evidence in criminal trials? Can the Fourth Amendment live without it? A growing number of lawyers and judges, including Chief Justice Warren Burger, have called for abandonment of the rule, usually on the ground that it has not prevented illegal searches and seizures and on the ground that the rule has contributed significantly to the increase in crime. No one has convincingly demonstrated a causal link between the high rate of crime in America and the exclusionary rule, and I do not believe that any …
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Is The Exclusionary Rule An 'Illogical' Or 'Unnatural' Interpretation Of The Fourth Amendment?, Yale Kamisar
Articles
More than 50 years have passed since the Supreme Court decided the Weeks case, barring the use in federal prosecutions of evidence obtained in violation of the Fourth Amendment, and the Silverthorne case, invoking what has come to be known as the "fruit of the poisonous tree" doctrine. The justices who decided those cases would, I think, be quite surprised to learn that some day the value of the exclusionary rule would be measured by-and the very life of the rule might depend on-an empirical evaluation of its efficacy in deterring police misconduct. These justices were engaged in a less …
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
Criminal Procedure, The Burger Court, And The Legacy Of The Warren Court, Jerold H. Israel
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I start in Section I of this Article with an examination of the first major theme of the criminal procedure decisions of the Warren Court, the selective incorporation of Bill of Rights' guarantees into the due process clause of the fourteenth amendment. My conclusion is that the selective incorporation principle, which provided the doctrinal basis for many of the "liberal" decisions of the Warren Court, remains firmly established today under the Burger Court. Section II of the Article then analyzes the theme of equality and the role it played in Warren Court decisions in the criminal procedure area. It is …
Mondale On Mapp, Yale Kamisar
Mondale On Mapp, Yale Kamisar
Articles
Any judicial reversal of the Mapp rule threatens to have just the opposite effect. Law enforcement officials are likely to treat a decision that illegally obtained evidence may be admitted into state criminal trials as though that were a practical suspension of the constitutional rules as to lawful arrest, search, and seizure. They are likely to feel that once again "the judiciary is okaying it." With the smell of revelations of FBI "black-bag jobs" and intelligence agency abuses still in the air, is this how we want the Court to contribute to the atmosphere of police practices as we enter …
Legislative Regulation Of Searches And Seizures: The Michigan Proposals, Jerold H. Israel
Legislative Regulation Of Searches And Seizures: The Michigan Proposals, Jerold H. Israel
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IN March 1971, the Michigan Bar Commissioners appointed a twenty-five-member committee with a directive "to promulgate a recommended revision of the Code of Criminal Procedure codifying existing statutory and case law provisions which, in the judgment of the Committee, should be retained and adding thereto such provisions as the Committee, in its judgment, deems warranted; and to incorporate such recommendations into proposed legislation for submission to the Legislature."' The committee membership included judges, prosecutors, legislators, criminal defense lawyers, law school professors, and representatives of Michigan police and corrections agencies.2 Judge Horace Gilmore served as Chairman, and I served as Reporter.