I glanced at the reading of the Miranda rights and this phrase puzzled me. Anything I say can and will be used against me if I choose to speak… isn’t ‘can be’ good enough? Certainly if I ask them if sandwiches will be served at the holding cell it would hardly incriminate me.
What’s the point of this seemingly superfluous language?
I’ve wondered this as well. I bet its to the extent that they will repeat what you have said, but deny the context. That is use skullduggery with what you have said. Possibly even “shopping around” with what you said… disclose this part, but not that part.
I’m sure that sandwhich queries won’t see play in court, but as what got Miranda off in the first place (Obviously because police have to say the spiel nowdays) Police must disclose all rights, and to what extent those rights may be used / abused.
It adds emphasis and makes the meaning unmistakable. No one can argue that the phrase didn’t make it clear that their words would be used against them. “Can be” alone is too mild and doesn’t convey the full meaning that you get from “will be”.
What they mean is that anything you that that CAN be used against you WILL be used against you. If you say anything at all that will bolster their case against you, they are going to use it. Even if you just misspoke or honestly didn’t remember something right. If they CAN use your statement - if it’s going to help their case - they WILL use it.
Also, the police are free to lie to you during an interrogation, and if you tell them something because you thought their lies were the truth - and your statements incriminate you - they will use it because they legally can.
Does that make more sense?
In the UK, the police caution rather tortuously and probably ungrammatically goes like this:
"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."
Note that “may”.
I never thought about this, but this raises an even some more interesting questions in my mind!
a) Isn’t that hearsay evidence? Why is it admissible in court?
b) We’re really at the mercy of the police, aren’t we? What if I never said that, or he took it out of context, or I never said a word…who’s gonna believe you?
Ah, life in those United States! Say, did you know “Untied” is an anagram from United? 
- Jinx
This has been asked before, especially here, but I’m still waiting on a better answer. In the linked thread Minty Green gave a valient effort to explain it but I’m still left with a nagging feeling that it’s just stupid.
There are a lot of exceptions to the hearsay rule. They’re all ultimately grounded in the principle that although testifying in open court under oath is the best indicator that a statement is true, there can be other situations where an unsworn, out-of-court statement is given in circumstances that make it sufficiently reliable that it can be admitted in court.
One example is an admission against interest. That is, if you say something to another person, and your statement is against your own interest, that is taken as an indication that the statement is reliable. The reasoning is that people have the best information as to their past actions, and they look out for their own interests. So if someone admits to committing a crime, or breaking a contract, or anything else against his own interest, that’s a pretty reliable statement.
So if Joe says to Jim that he, Joe, robbed a bank last night, that’s considered a reliable statement, even though it’s not sworn and not in court. After all, Joe is in the best position to know what he did last night, and it’s definitely not to his interest to confess to a serious crime. The fact that he makes a statement against his own interest brings it within this exception to the hearsay rule.
a) What you say about yourself directly to the police after you’ve been arrested and Mirandized is the exact opposite of hearsay.
If you say something about others, the police still have to go out and get corroboration for it.
b) That’s why most police departments are moving over to videotape interrogations these days.
The Miranda Warnings are read because the Supreme Court mandated in Miranda v. Arizona that a person can not be arrested without being apprised of their rights. The Fifth Amendment declares that you can not be compelled to be a witness against yourself. What the Amendment does NOT say is that you are free to be a witness against yourself of your own free will.
I think the phrasing in the warning is a way of reminding the arrestee of the latter fact.
(The right to an attorney, btw, is not delineated in the Constitution, but is based on another Supreme Court decision, Gideon v. Wainwright.
Aaah, the stuff you remember from college…
No it’s not. It is hearsay, it just fits into an exception to the general hearsay rule, as Northern Piper mentioned above. To clarify, “it” in this context means the police testimony as to what the suspect told them after they arrested him.
Definition time: hearsay is: (1) an out of court statement (2) offered to prove the truth of the matter asserted. Federal Rule of Evidence 801©. So if the police are testifying that you admitted the crime while in custody, that testimony is hearsay.
The general rule stated in FRE 802 is that hearsay is inadmissible. But there are many exceptions in FRE 803 and 804.
No, it is hearsay, but it’s admissible under the hearsay exception.
Suppose the police arrest Joe for bank robbery. They mirandize him. During interrogation, Joe eventually says to Officer Maloney “Yeah, I robbed the bank on 5th & Oak.”
That is an out-of-court, unsworn statement, which is one definition of hearsay.
And when Officer Maloney is a witness in court and repeats Joe’s statement, then it is evidence told by a witness (Officer Maloney) about which he does not know personally, but that another (Joe) told him.
There’s a difference between they type of evidence (hearsay), and whether it’s admissible under Miranda and other rules of evidence. If Officer Maloney hadn’t miradnized Joe, the statement would still be hearsay, but inadmissible under Miranda rules.
OK, and after further reviewing the rules, I have to modify my answer.
I had forgotten that an admission by a party opponent is not excepted from the hearsay rule, but is actually carved out from the definition of hearsay. Meaning that a suspect’s admission in custody is not hearsay, pursuant to 801(d)(2), and thus not subject to the hearsay rule.
Here’s the relevant statutory text:
802(d): A statement is not hearsay if (2) The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity
Just to clarify, an adult does NOT have to be mirandized upon being arrested. They do, however, have to be mirandized prior to questioning.
Further note: the Miranda warnings are not mandated by any court of law. But fifth and sixth amendment rights guarantee that the person who is arrested and questioned must be fully aware of those rights prior to making any statement that might incriminate himself. The “Miranda warning” text is a quick way to assure that the arrestee/questionee has been apprised of those rights.
Scotandrsn: I respect Gideon v. Wainwright and your memory of it, but allow me to point to the Sixth Amendment:
Thanks for the correction. My statement was indeed too broad. I should have stated that the appointment of attorney in non-capital cases in state court (“If you can not afford an attorney one will be provided for you”) stems from GvW.
A relevant passage from the decision describing the situation before the decision (link above):
Hey, guys. This is all well and good, and maybe I should just let it go since I’m not the OP, but this has nothing to do with why “will” is in the Miranda text.
What I want to know is if I’m arrested, should I start rattling off state capitals, multiplication tables, American Presidents, and the like so that my lawyer can leap up at the last minute and exclaim, “Ah,. hah! You didn’t use *everything * my client said against him like you promised. I. Rest. My. Case.”
It’s anything you say, not everything, you big silly.
As I already said way up at the top, it just means that if it CAN be used against you, then it WILL be.
Reciting the multiplication tables just to hear the sound of your own voice has nothing to do with whatever case you’re being questioned on. So you’re free to babble whatever you want and if it has absolutely nothing to do with the case, and the police cannot interpret it in any way to have any connection to the case, then you can babble to your heart’s content.
If you start babbling nonsense that YOU think has nothing to do with your case, but the police can legally manipulate to have some kind of relation to the case, then they WILL use it against you.
As pravnik said, it’s “anything” you say - meaning if you say something that CAN be used against you, they will use it. If you don’t say anything that CAN be used against you, then they won’t use it.
I know that one off by heart from watching many episodes of The Bill.