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The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
Articles
There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
Crawford Surprises: Mostly Unpleasant, Richard D. Friedman
Articles
Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the …
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 …
Earl Warren: Law Enforcement Leads To Defendants' Rights, Yale Kamisar
Earl Warren: Law Enforcement Leads To Defendants' Rights, Yale Kamisar
Articles
Before becoming governor of California, Earl Warren spent 22 years in law enforcement: five as a deputy district attorney (1920- 25); thirteen as head of the Alameda County district attorney's office (1925-38); and four as state attorney general (1939-42). My thesis is that Warren's many years in law enforcement significantly affected his work as Chief Justice of the United States.
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
Articles
Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come. They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide links in the chain of evidence needed to convict him.
Has The Court Left The Attorney General Behind? The Bazelon-Katzenbach Letters On Poverty, Equality, And The Administration Of Criminal Justice, Yale Kamisar
Articles
Distribution of the first preliminary draft of the proposed American Law Institute Model Code of Pre-Arraignment Procedure last June touched off a brisk exchange of letters between Chief Judge David Bazelon of the United States Court of Appeals for the District of Columbia Circuit, who maintained that the proposed code left a good deal to be desired, and Attorney General Nicholas deB. Katzenbach, who, although he did not explicitly treat any provision of the preliminary draft, sharply challenged the conception of equality underlying Bazelon's criticism of it. By now, both the code, and the Bazelon-Katzenbach correspondence which it evoked, are …