Yale Kamisar died Jan. 30 at the age of 92. He was perhaps the most influential individual whose name most Americans have never heard. But as the “father” of the Miranda Rule, he and his work deserve to be remembered.
Miranda, one important result of his efforts, is already well remembered. People who do not know stare decisis from “Starry, Starry Night” know that if being questioned by the police they have “the right to remain silent.” Characters who cannot repeat the Pledge of Allegiance or the Lord’s Prayer can recite the Miranda warning.
Part of that clearly reflects the popularity of cop shows and courtroom dramas. The countless iterations of “Law and Order” alone can explain much of that.
In every one of those, one hears some form of a familiar litany, which stemmed from the Supreme Court’s 1966 ruling in Miranda vs. Arizona. And, while the phrasing can vary, it always included several key provisions: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
What is truly remarkable, however, is not that we have all heard that so often, but that it exists at all. And that is largely because of Kamisar.
As reported by The New York Times, Feb. 4, Kamisar was a lawyer, scholar, professor and civil liberties activist. He had the crucial insight that while trials themselves might be conducted with scrupulous attention to propriety, what happened before them was not. A fair trial does not mean much if the cops had already beaten or conned the defendant into confessing. And before Kamisar’s work, that sort of thing was all too common.
His scholarship was first cited by the Supreme Court in its 1963 decision in Gideon vs. Wainwright, which established the right to counsel in criminal cases. Kamisar’s work has been cited in more than 30 such decisions.
His biggest impact, however, was Miranda. His work was central to that case and led directly to the famous requirement that those subject to questioning be informed of their rights.
Perhaps nothing in American history has so profoundly affected our criminal justice system. With Miranda, and Kamisar’s help, the Supreme Court established what may be the best real-world bulwark we have against a police state. As he rightly observed, great judges, good lawyers, proper procedure and even the Bill of Rights itself, mean little to an innocent person who has already confessed.
Kamisar’s life demonstrates something else, too. While he was probably well-known in legal and academic circles, he was virtually unknown to the general public. But even for those of us whose only experience with courts or cops comes from television, the results of his work are familiar. And with that we all have a better understanding of our rights.
As it turns out, fame is not the same as importance.
