why can and *will* be used against you?

Not much different. I suppose you could make a case that “anything will be used against you” means that each separate statement will be used against you, while “everything will be used against you” means that your statements taken as a whole will be used against you.

One thing that I think that needs to be mentioned that hasn’t yet is that someone does not have to be under arrest to be Mirandized - he does not even have to be a suspect.

IIRC, in order to protect his fifth amendment rights against self-incrimination, if a witness (even if he is not currently under suspiscion for any crime) starts providing testimony that implicates himself in the crime being investigated (or any other crime for that matter) and a law enformcement official is present, that official must then advise the witness of his rights, and any statements made to the official before the witness had been Mirandized cannot be used in court.

For instance, if there’s a cop investigating a drive-by shooting and someone runs up and says “Officer, I saw the car that did it - I was over in the alley smoking a j…” At that point, he should be Mirandized before going any further.

As far as the statement itself, “can and will” is a special case - I can’t find a cite right now, but I dimly recall this from my grandmother the grammar teacher. Normally when two verbs are joined by a conjunction that share the same subject and object, it is implied that the phrase is being used in such a manner as saying the two phrases separately (ie, “he hopped and skipped to school” implies “he hopped to school and he skipped to school”), but certain verb conjuctions (“can and will”) are themselves to be treated as a whole verb, and not two separate verbs (please let a grammar expert come along and save my bacon :), I’m almost in over my head - these are coming from 18+ year old grammar memories :slight_smile: ) resulting in a slightly different implication, especially when paired up with an indefinite pronoun like anything.

critter42

The legal answer to the OP is really pretty simple: The Supreme Court did not prescribe exact wording for the warning required by Miranda. It offered the familiar language quoted above by Enderw24 as an example of a warning that would be constitutionally adequate, but stated that different wording may be okay too. Thus, there’s no requirement for the cops to stick word-for-word to the language used by the Supreme Court. As long as the warning they give adequately conveys the information to the suspect, the statements of the accused can be used by the prosecution without violating the 5th Amendment. In fact, the Supreme Court has approved alternative warnings on at least a couple occasions. See Duckworth v. Egan, 492 U.S. 195 (1989); California v. Prysock, 453 U.S. 355 (1981).

But police agencies are not stupid. The Court handed them a constitutionally adequate warning , and they’re generally gonna stick with it rather than take a risk of blowing a confession’s admissibility by winging it too much. In practical effect, however, there is no real difference between warning that “anything you say may/can/will be used against you in a court of law.” The constitutional point, after all, is to apprise the suspect of his right to remain silent, not to bind the prosecutor in how to present any resulting criminal case. Thus, the nitpicky grammar stuff is allowed to float a little, while the substantive contents of the warning remain pretty well standard.

And as long as I’m here, allow me to point out that nearly everything critter42 said above is incorrect. First, Miranda applies only to custodial interrogations. The dope-smoking car wreck witness above is not in custody, so Miranda is simply inapplicable.

Second, a person need not be taken into custody or Mirandized merely because he says something incriminatory. Officer Jones need not arrest Bob the Dope-Smoking Hippie, and even if he decides to do so, the only consequence of not giving Bob the requisite warnings is that his custodial statements will not be admissible in a prosecution against him. The baggie full of weed and the Sailor Moon bong are still going to send Bob straight to probation and weekly piss tests, if the cop really feels like fighting the war on drugs rather than finishing his accident report and going home.

Third, if Bob is stupid enough to just blurt out that he has committed a crime, Bob is hosed. Even if Bob is taken into custody immediately after blurting out that he was smoking a joint, it’s going to be admissible because it was not the product of interrogation. Similarly, even if Bob is already in custody but not being questioned, he’s tubed if he starts blabbing on the way to jail that the hydroponic set-up in his basement yields some primo shit.

Lessons for the day: (1) Ask for a lawyer. (2) Shut up.

Um, that’s exactly what I said–Miranda is an example of the disclosure style of legal writing because the purpose is to make sure to fully disclose the suspect’s legal rights. This does not mean that Miranda is “based on some esoteric style of legal writing.”

I’m using the phrase “style of writing” in the sense that all writing typifies some style based on the purpose for which it is being written. And I don’t see what’s “esoteric” about it; in fact it’s the most practical thing in the world. If you were in the business of generating legal writing, perhaps you would know what I meant.

So why was I Mirandized when an investigator came to the store I worked at to question me about some pallets of camcorders that were stolen off our loading dock?

I was never in custody that I’m aware of - I was interviewed in our break room. There were several other employees that were interviewed the same way. As soon as we were seated in the break room, we were Mirandized by the detective, then interviewed about information we had about the crime. At no time during the entire investigation was I ever led to believe that I was a suspect - I was just the last person in the electronics department to see the pallets before they were wheeled down to the loading dock.

critter42

(upon review, the wording of my question sounds a little confrontational - it’s not meant to be. I’m just trying to find out if this is a common interview tactic rather than a legal requirement. The above incident is what led me to believe the information that I made in my previous statement, because it was based on what the detective told me during the interview. This happened back in '87 or 88 - I was 19 or 20 at the time. Naivety at the time is my only excuse…{No, I WON’T bring up the old “cops can lie??” dead horse again :slight_smile: :)})

You were mirandized because of the cover-your-ass rule, critter42. Even though you don’t believe you were in custody, the cops were well aware that since you were led into a little room for a little sit-down you might well claim that you didn’t feel free to leave and based on the objective circumstances actually were in custody. By mirandizing you the police prememptively divested your lawyer of that argument.

An abundance of caution, perhaps? Well-warranted caution, I shouls add, since . . .

Hey, you! Joe Palletloader! Get your ass into the break room. The police want to talk to you.

That could easily be construed as custody. Of course, the courts probably would not construe it as such, but why take that chance at all? By giving the warning, you immunize the subsequent statements from challenge under Miranda. Of course, providing the warning may also dissuade the suspect from speaking, so it’s a balancing act.

Personally, if I ever hear that warning, the only further words out of my mouth will be a request to speak to an attorney.

Shall and will do indeed mean different things, but your point is not made clearer by comparing should and would. Yes, the past tense of will is would, but would is not always construed that way. Should and would are also the subjunctive case of shall and will, and as such they imply a degree of uncertainty or conditionality that distorts the comparison.

However, your point is nonetheless ill-taken, because the word “will” in “can and will be used against you” is in the third person (its subject being “the evidence”); by any analysis, this makes “will” an expression of simple futurity.

I suspect that this verbiage, where it is used, is used because legal types like word couplets: aid and abet, for instance. There are historical reasons for this that do not apply to can and will, but the pull is strong nonetheless. There is also a little CYA factor here: “…can be used against you” is a weaker statement than “…can and will be used against you,” and leaves more room for a defendant to argue that he didn’t realize his statement would be used against him.