When people are read their rights, they are told that "anything they say can and will be used against " them. I understand why anything they say can be used, but why add will? Not everything they could possibly say will be used, so what does it add?
That’s pure Hollywood. You’ll find a breakdown of the actual wording used by most law enforcement agencies here.
I don’t think so. See here and here and here, etc. I’ve asked this same question on these boards and never got a very good answer. Maybe you’ll have better luck.
Actually from Q. E. D.'s post it apears that the “and will” part comes directly from the Supreme Court.
Paging Minty Green and SuaSponte.
Huh. I didn’t see that part. Color me embarassed! 
Q.E.D. - good link - however on that site it states that the Supreme Court used the “can & will” format:
I have always assumed that the “can” emphasises the right under law to use the material, and the “will” indicates the intention to use it. Redundant for everyday speech, but the lawyers love it.
P.S. on preview I see that bnorton has already made that point - still, I am not going to waste all that typing and stuff.
Suppose you say “I’ve never been to that 7-11 and my neighbor gave me the $540.” At your trial your statements are given, someone testifies that you went to the 7-11 5 times last month and the neighbor says he never gave you any money, it will look really bad for you from the jury point of view. Most criminals are amazingly stupid and try to talk their way out of trouble. They have to be repeatedly told that their baloney is actually digging them deeper into the hole.
Maybe, but that still doesn’t mean that they are required to use it against you. That’s what we’re trying to figure out. What if the arrestee says something like “Let’s see, today is Sunday.” How is the prosecution going to that against him. A literal interpretation of the Miranda ruling would require them to do that.
I wonder if a clever (or delusional) lawyer has ever tried to get his guy off by saying “Look, Judge, they told him that anything he said would be used against him, yet there are several of his statements that the prosecution never bothered to bring up.”
There is an unstated component to the warning, which is anything incriminating you say can and will be used against you. IMHO this is not emphasized because due to the nature of crime and evidence, it’s impossible to state in advance exactly WHAT might be an incriminating statement.
And it’s conceivable (though unlikely)that “Let’s see, today is Sunday.”, could indeed be incriminating if your crime somehow involved deception about what day it was, and was made in the context of describing what you said to the victim.
Also, there is no mandate on the prosecutor to use EVERY available piece of evidence against you. They only use what, in their judgement, is sufficient to convict you.
But everything you said in your post is covered by the “can be held against you” part. What I’m saying is that by saying “will be held against you” technically requires the prosecution to take every statement that the suspect says and somehow twist that into increminating evidence.
Not as far as I can determine.
“…unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to excercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him…”
Miranda v. Arizona 384 US 436.
I believe you are confusing the meanings of shall and will. Note that will is the past tense of would.
There are several different styles of legal writing that each have a distinct function. People probably most often think of the persuasive style when thinking of legal writing, which is the style one would use in writing a brief to the court.
I think that “and will” is included because a Miranda warning is an example of the disclosure style of legal writing. The speaker of the Miranda warning wants to tell the suspect about all of the bad things that can happen if the suspect chooses to waive his or her right to remain silent; the worst thing that can happen is that the statement will be used in a court of law. Of course, it’s not literally true that anything the suspect says will be used in court (and the language of the Miranda warning of couse does not bind the speaker to actually use the statement in court), but that’s the worst thing that can happen, so you might as well tell them that it will happen to provide full disclosure.
Huh? Where does your quoted excerpt come from? I do not see how it supports your proposition that “will is the past tense of would,” which sounds wrong to me. And the excerpt contains some statements that I think most writers on usage would disagree–for example, most sources outright dismiss the idea that “highly complicated pattern of use in which the meanings of the forms change according to the person of the subject” as superstition.
My feeling has always been that the idea that something “can” happen is a far cry from what “will” happen.
“You can be struck by a meteor tomorrow” is a lot less daunting then “You will be struck by a meteor tomorrow.”
In other words, you want to be sure the accused has no doubts left about what will happen with what they say. It simply closes one more loophole someone might try to use:
“But your honor, just because they say they can use what I say, doesn’t mean they will! I had no idea they would actually use it!”
Just my $.02 and it probably isn’t worth even that.
I am not a lawyer, but I was under the impression that if they didn’t use some evidence aginst you in the initial trial, they would have difficulty bringing it forward later, if some initial evidence was thrown out on appeal.
So if a man was accused of murdering his girlfriend, and his phone records substantiating a complaint the victim made about threats on her life were not introduced at trial because the cops found her blood on a knife in his car and he then confessed, I think it’d be hard to bring them up after an appeal where the knife got excluded due to an illegal search, and the confession was also tossed (i.e., if he only confessed during questioning because of the knife, and the phone records weren’t in evidence so the prosecutor can’t say he was going to be questioned anyway due to the past threat complaint).
I’m sure I have a half-dozen things wrong here, in my ignorance. But maybe I’ll get lucky and an attorney will be along soon
Er… no.
If an apellate court decides that certain pieces of evidence were inadmissble, and orders a new trial, the prosecution can use any relevant evidence they wish, even if it was not used at the forst trial. They cannot, of course, use evidence that was suppressed by the apellate ruling. There’s a doctrine called the law of the case which generally forbids relitigating the suppression of evidence that was suppressed at the first trial. And the prohibition against prosecutorial vindictiveness prevents the prosecution from charging a more serious crime after a successful appeal.
But in the example you gave, the phone records are fair game at retrial.
Obviously, they couldn’t be brought up for the first time at the appellate court, but that’s not what we’re talking about either.
- Rick
Wow, daniel801, I hadn’t given that any thought since Jr. High English nearly 40 years ago. You’re right, though, that technically the phrase “anything you say will be held against you” is expressing an intention to use his statements against him rather than stating a certainty. Boy, that’s a pretty subtle distinction, and one that probably less than 1% of the population would even be aware of, especially the kind of people who tend to get arrested.
TaxGuy - It seems to me that the whole intention of the Miranda ruling was to make sure the suspect knew his rights. If the words used are based on some esoteric legal style of writing, that would defeat the puropose.
“anything will be used against you in a court of law”
it’d be different if they said
“everything will be used against you in a court of law”
that quote was from Atomica’s dictionary. sorry, would is past tense of will; i wrote it backwards in my haste, sorry (how ironic). the point was that shall and will mean different things. try saying the same things in the past tense using each word base (shall and will) and see how it sounds a little less certain.