# Anything you say can and WILL be used against you? **URL:** \ **Category:** Factual Questions\ **Created:** [February 13, 2005, 7:24am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850 "2005-02-13T07:24:17Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![James\_Westphal](https://avatars.discourse-cdn.com/v4/letter/j/b9bd4f/32.png) [@James\_Westphal](https://boards.straightdope.com/u/James_Westphal)\ **Post date:** [February 13, 2005, 7:24am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/1 "2005-02-13T07:24:17Z")
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? ---
**Author:** ![Meeko](https://avatars.discourse-cdn.com/v4/letter/m/e495f1/32.png) [@Meeko](https://boards.straightdope.com/u/Meeko)\ **Post date:** [February 13, 2005, 8:35am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/2 "2005-02-13T08:35:43Z")
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. ---
**Author:** ![Cazzle](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cazzle/32/75_2.png) [@Cazzle](https://boards.straightdope.com/u/Cazzle)\ **Post date:** [February 13, 2005, 9:31am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/3 "2005-02-13T09:31:34Z")
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”. ---
**Author:** ![missbunny](https://avatars.discourse-cdn.com/v4/letter/m/76d3ee/32.png) [@missbunny](https://boards.straightdope.com/u/missbunny)\ **Post date:** [February 13, 2005, 1:27pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/4 "2005-02-13T13:27:50Z")
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? ---
**Author:** ![seosamh](https://avatars.discourse-cdn.com/v4/letter/s/ce7236/32.png) [@seosamh](https://boards.straightdope.com/u/seosamh)\ **Post date:** [February 13, 2005, 1:41pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/5 "2005-02-13T13:41:10Z")
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”. ---
**Author:** ![Jinx](https://avatars.discourse-cdn.com/v4/letter/j/c6cbf5/32.png) [@Jinx](https://boards.straightdope.com/u/Jinx)\ **Post date:** [February 13, 2005, 2:02pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/6 "2005-02-13T14:02:06Z")
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 ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [February 13, 2005, 2:56pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/7 "2005-02-13T14:56:57Z")
This has been asked before, especially [here](http://boards.straightdope.com/sdmb/showthread.php?t=168280&highlight=miranda), 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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 13, 2005, 3:09pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/8 "2005-02-13T15:09:40Z")
> [@Jinx](#): > > a) Isn’t that hearsay evidence? Why is it admissible in court? 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. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 13, 2005, 5:47pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/9 "2005-02-13T17:47:05Z")
> [@Jinx](#): > > 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? a) What you say about yourself directly to the police after you’ve been arrested and Mirandized is the exact opposite of hearsay. > **[Hearsay Definition | Legal Meaning of Hearsay](https://www.legal-explanations.com/hearsay/)** > > This article explains the legal definition of Hearsay and how it applies to the law. > [@](#): > > 1. Evidence told by a witness about which they do not know personally, but what others told him/her. 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. ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [February 13, 2005, 6:39pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/10 "2005-02-13T18:39:46Z")
The Miranda Warnings are read because the Supreme Court mandated in [Miranda v. Arizona](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436) 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](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=372&page=343). Aaah, the stuff you remember from college… ---
**Author:** ![TheFifthYear](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@TheFifthYear](https://boards.straightdope.com/u/TheFifthYear)\ **Post date:** [February 13, 2005, 7:02pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/11 "2005-02-13T19:02:09Z")
> [@Exapno Mapcase](#): > > a) What you say about yourself directly to the police after you’ve been arrested and Mirandized is the exact opposite of hearsay. 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. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 13, 2005, 7:03pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/12 "2005-02-13T19:03:55Z")
> [@Exapno Mapcase](#): > > a) What you say about yourself directly to the police after you’ve been arrested and Mirandized is the exact opposite of hearsay. > > > [@](#): > > > > 1. Evidence told by a witness about which they do not know personally, but what others told him/her. 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. ---
**Author:** ![TheFifthYear](https://avatars.discourse-cdn.com/v4/letter/t/958977/32.png) [@TheFifthYear](https://boards.straightdope.com/u/TheFifthYear)\ **Post date:** [February 13, 2005, 7:09pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/13 "2005-02-13T19:09:34Z")
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 ---
**Author:** ![Omar](https://avatars.discourse-cdn.com/v4/letter/o/f0a364/32.png) [@Omar](https://boards.straightdope.com/u/Omar)\ **Post date:** [February 13, 2005, 11:50pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/14 "2005-02-13T23:50:45Z")
> [@scotandrsn](#): > > The Miranda Warnings are read because the Supreme Court mandated in [Miranda v. Arizona](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&invol=436) that a person can not be arrested without being apprised of their rights. Just to clarify, an adult does NOT have to be mirandized upon being arrested. They do, however, have to be mirandized prior to questioning. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [February 14, 2005, 1:04am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/15 "2005-02-14T01:04:56Z")
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: > [@James Madison and the First Congress (band name!)](#): > > In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [Emphasis added.] ---
**Author:** ![scotandrsn](https://avatars.discourse-cdn.com/v4/letter/s/a4c791/32.png) [@scotandrsn](https://boards.straightdope.com/u/scotandrsn)\ **Post date:** [February 14, 2005, 6:32am UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/16 "2005-02-14T06:32:57Z")
> [@Polycarp](#): > > 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): > [@](#): > > The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” We have construed [372 U.S. 335, 340] this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. 3 Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down “no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.” 316 U.S., at 465 . In order to decide whether the Sixth Amendment’s guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered “[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date.” 316 U.S., at 465 . On the basis of this historical data the Court concluded that “appointment of counsel is not a fundamental right, essential to a fair trial.” 316 U.S., at 471 . It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment’s guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, “made obligatory upon the States by the Fourteenth Amendment.” Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was “a fundamental right, essential to a fair trial.” it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court. [372 U.S. 335, 341] ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [February 14, 2005, 1:04pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/17 "2005-02-14T13:04:47Z")
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.” ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 14, 2005, 2:55pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/18 "2005-02-14T14:55:00Z")
> [@El Zagna](#): > > 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. ---
**Author:** ![missbunny](https://avatars.discourse-cdn.com/v4/letter/m/76d3ee/32.png) [@missbunny](https://boards.straightdope.com/u/missbunny)\ **Post date:** [February 14, 2005, 3:01pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/19 "2005-02-14T15:01:47Z")
> [@](#): > > 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.” 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. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [February 14, 2005, 3:33pm UTC](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850/20 "2005-02-14T15:33:33Z")
> [@seosamh](#): > > 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 know that one off by heart from watching many episodes of _The Bill_. 🙂 [Next page](https://boards.straightdope.com/t/anything-you-say-can-and-will-be-used-against-you/289850.md?page=2)