# why can and \*will\* be used against you? **URL:** \ **Category:** Factual Questions\ **Created:** [March 9, 2003, 1:53pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077 "2003-03-09T13:53:17Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![curwin](https://avatars.discourse-cdn.com/v4/letter/c/f05b48/32.png) [@curwin](https://boards.straightdope.com/u/curwin)\ **Post date:** [March 9, 2003, 1:53pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/1 "2003-03-09T13:53:17Z")
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? ---
**Author:** ![Q.E.D](https://avatars.discourse-cdn.com/v4/letter/q/51bf81/32.png) [@Q.E.D](https://boards.straightdope.com/u/Q.E.D)\ **Post date:** [March 9, 2003, 2:37pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/2 "2003-03-09T14:37:51Z")
That’s pure Hollywood. You’ll find a breakdown of the actual wording used by most law enforcement agencies [here.](http://usgovinfo.about.com/library/weekly/aa012300b.htm) ---
**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:** [March 9, 2003, 2:49pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/3 "2003-03-09T14:49:27Z")
> [@](#): > > \*Originally posted by Q.E.D. \* > \*\*That’s pure Hollywood. \*\* I don’t think so. See [here](http://oregonfamilyrights.com/educate/miranda.html) and [here](http://www.landmarkcases.org/miranda/beyond.html) and [here](http://www.lawinfo.com/legalfaqs/miranda_warning.html), etc. I’ve asked this same question on these boards and never got a very good answer. Maybe you’ll have better luck. ---
**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:** [March 9, 2003, 2:57pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/4 "2003-03-09T14:57:48Z")
Actually from **Q. E. D.**'s post it apears that the “and will” part comes directly from the Supreme Court. > [@](#): > > The exact wording of the “Miranda Rights” statement is not specified in the Supreme Court’s historic decision. Instead, law enforcement agencies have created a basic set of simple statements that can be read to accused persons prior to any questioning. > > The Court: “The warning of the right to remain silent must be accompanied by the explanation that anything said can _and will_ be used against the individual in court.” Paging **Minty Green** and **SuaSponte**. ---
**Author:** ![Q.E.D](https://avatars.discourse-cdn.com/v4/letter/q/51bf81/32.png) [@Q.E.D](https://boards.straightdope.com/u/Q.E.D)\ **Post date:** [March 9, 2003, 3:04pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/5 "2003-03-09T15:04:07Z")
Huh. I didn’t see that part. Color me embarassed! 😃 ---
**Author:** ![johncole](https://avatars.discourse-cdn.com/v4/letter/j/5f9b8f/32.png) [@johncole](https://boards.straightdope.com/u/johncole)\ **Post date:** [March 9, 2003, 3:51pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/6 "2003-03-09T15:51:37Z")
> [@](#): > > \*Originally posted by Q.E.D. \* > \*\*That’s pure Hollywood. You’ll find a breakdown of the actual wording used by most law enforcement agencies [here.](http://usgovinfo.about.com/library/weekly/aa012300b.htm) \*\* **Q.E.D.** - good link - however on that site it states that the Supreme Court used the “can & will” format: > [@](#): > > 1. Anything you say can be used against you in a court of law. > > The Court: “The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.” 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. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [March 9, 2003, 5:55pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/7 "2003-03-09T17:55:56Z")
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. ---
**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:** [March 9, 2003, 6:58pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/8 "2003-03-09T18:58:00Z")
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.” ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 9, 2003, 9:20pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/9 "2003-03-09T21:20:54Z")
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. ---
**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:** [March 9, 2003, 9:54pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/10 "2003-03-09T21:54:31Z")
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. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [March 9, 2003, 10:11pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/11 "2003-03-09T22:11:10Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*Actually from **Q. E. D.**'s post it apears that the “and will” part comes directly from the Supreme Court. \*\* 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. ---
**Author:** ![daniel801](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@daniel801](https://boards.straightdope.com/u/daniel801)\ **Post date:** [March 9, 2003, 11:00pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/12 "2003-03-09T23:00:05Z")
I believe you are confusing the meanings of shall and will. Note that will is the past tense of would. > [@](#): > > The traditional rules for using shall and will prescribe a highly complicated pattern of use in which the meanings of the forms change according to the person of the subject. In the first person, shall is used to indicate simple futurity: I shall (not will) have to buy another ticket. In the second and third persons, the same sense of futurity is expressed by will: The comet will (not shall) return in 87 years. You will (not shall) probably encounter some heavy seas when you round the point. The use of will in the first person and of shall in the second and third may express determination, promise, obligation, or permission, depending on the context. Thus I will leave tomorrow indicates that the speaker is determined to leave; You and she shall leave tomorrow is likely to be interpreted as a command. The sentence You shall have your money expresses a promise (“I will see that you get your money”), whereas You will have your money makes a simple prediction.•Such, at least, are the traditional rules. The English and some traditionalists about usage are probably the only people who follow these rules, and then not with perfect consistency. In America, people who try to adhere to them run the risk of sounding pretentious or haughty. Americans normally use will to express most of the senses reserved for shall in English usage. Americans use shall chiefly in first person invitations and questions that request an opinion or agreement, such as Shall we go? and in certain fixed expressions, such as We shall overcome. In formal style, Americans use shall to express an explicit obligation, as in Applicants shall provide a proof of residence, though this sense is also expressed by must or should. In speech the distinction that the English signal by the choice of shall or will may be rendered by stressing the auxiliary, as in I will leave tomorrow (“I intend to leave”); by choosing another auxiliary, such as must or have to; or by using an adverb such as certainly.•In addition to its sense of obligation, shall also can convey high moral seriousness that derives in part from its extensive use in the King James Bible, as in “Righteousness shall go before him and shall set us in the way of his steps” (Ps 85:13) and “He that shall humble himself shall be exalted” (Mt 23:12). The prophetic overtones that shall bears with it have no doubt led to its use in some of the loftiest rhetoric in English. This may be why Lincoln chose to use it instead of will in the Gettysburg Address:“government of the people, by the people, for the people shall not perish from the earth.” ---
**Author:** ![TaxGuy](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@TaxGuy](https://boards.straightdope.com/u/TaxGuy)\ **Post date:** [March 9, 2003, 11:55pm UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/13 "2003-03-09T23:55:21Z")
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. ---
**Author:** ![brianmelendez](https://avatars.discourse-cdn.com/v4/letter/b/65b543/32.png) [@brianmelendez](https://boards.straightdope.com/u/brianmelendez)\ **Post date:** [March 10, 2003, 12:35am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/14 "2003-03-10T00:35:54Z")
> [@](#): > > \*Originally posted by daniel801 \* > \*\*I believe you are confusing the meanings of shall and will. Note that will is the past tense of would. \*\* 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. ---
**Author:** ![cmosdes](https://avatars.discourse-cdn.com/v4/letter/c/a587f6/32.png) [@cmosdes](https://boards.straightdope.com/u/cmosdes)\ **Post date:** [March 10, 2003, 1:04am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/15 "2003-03-10T01:04:49Z")
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. ---
**Author:** ![AmbushBug](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ambushbug/32/4600_2.png) [@AmbushBug](https://boards.straightdope.com/u/AmbushBug)\ **Post date:** [March 10, 2003, 2:14am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/16 "2003-03-10T02:14:01Z")
> [@](#): > > \*Originally posted by Boyo Jim \* > \*\*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. \*\* 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 😃 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 10, 2003, 2:27am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/17 "2003-03-10T02:27:22Z")
> [@](#): > > \*Originally posted by AmbushBug \* > \*\*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). > \*\* 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 ---
**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:** [March 10, 2003, 2:36am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/18 "2003-03-10T02:36:55Z")
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. ---
**Author:** ![PetW](https://avatars.discourse-cdn.com/v4/letter/p/d2c977/32.png) [@PetW](https://boards.straightdope.com/u/PetW)\ **Post date:** [March 10, 2003, 3:16am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/19 "2003-03-10T03:16:33Z")
“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” ---
**Author:** ![daniel801](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@daniel801](https://boards.straightdope.com/u/daniel801)\ **Post date:** [March 10, 2003, 3:19am UTC](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077/20 "2003-03-10T03:19:09Z")
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. [Next page](https://boards.straightdope.com/t/why-can-and-will-be-used-against-you/160077.md?page=2)