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Anyone who's ever seen much American film or television has heard some variation of the following sentences countless times:

You have the right to remain silent. If you choose to give up that right, anything you say can and will be used against you in a court of law.

And the phrase "can and will" can be seen in other contexts as well. My issue with this is not the "can" part, but the "will" part. "Can" implies that anything you say may be used against you in court, but "will" asserts that it is a certainty. The person being arrested could obviously say any number of things that would not be of any use in a case against them, so it's not true to say that anything they say will be used, only that it can be.

Does Hollywood have it wrong? I looked around to see what the official text of the Miranda warning is, and it seems there isn't any - it varies from one jurisdiction to the next, but the Hollywood version is always pretty much the same. (The Miranda rights are universal, but the actual words to be spoken by the arresting officer are not mandated so long as the rights are properly delineated.)

And more to the point, is this phrase just being incorrectly used in these (and other) cases? Does "can and will" maybe bear more legal weight than simply "can"? Or could the officer leave out the "and will" part and consider the Miranda warning just as properly given without it?

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I am not sure about the grammar part, but Hollywood doesn't have it wrong -- see the case document Miranda v. Arizona - 384 U.S. 436 (1966): "... 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. ..." –  Stan May 31 '13 at 5:54
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Per grammar, this is a NARQ. Both can & will are well defined and they are used in their standard sense here. If you are debating the interpretation and its implications, that would be off-topic. Either way the Q needs to be closed. –  Kris May 31 '13 at 6:21
    
Perhaps it's presenting a worst-case scenario to cover themselves. If they use what the accused says, they can say, "We told you we'd use it!" If they don't, the accused isn't going to complain that they broke their promise. –  gmcgath May 31 '13 at 11:20
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6 Answers 6

up vote 6 down vote accepted

The will in can and will is not the epistemic ("expected future") will, but rather the deontic ("be willing to") will, the one that shows up in hypothetical clauses (where you were probably told in school that you "can't use the future tense").

  • If he will hand in his homework, I will correct it.

The first will is deontic only; the second could be either deontic or epistemic. (Ambiguity, too!
Aren't modals fun?)

That means that, since the can part means be able and the will part means be willing, the whole phrase can and will is just a verbing of able and willing. And both parts are necessary.

Modals are tricky that way; every modal auxiliary has an epistemic and a deontic sense, and you always have to figure out which one is intended, because they're not marked and each reading of each modal has its own unique grammar.

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+1 for an actual grammatical justification. This is probably the closest to a real answer this can have. I'm still not sure both parts are really needed - it doesn't matter what the prosecution is willing to do so long as it allowed (which is already covered by "can"). Just seems a bit off logically. –  Darrel Hoffman May 31 '13 at 19:34
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Strictly the can is unnecessary, as it's entailed in the will; anything one will do one by definition can do, while not everything one can do one will do.

However, considering the context, there is a value in making the two statements severally:

We have the legal right to...

We have a policy of doing...

While one would obviously hope that people would not have a policy of doing things they had no right to do, in a context of stating different people's rights in a given situation, it's worth emphasising.

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As a matter of grammar, can is unnecessary (except for extra emphasis) as it is implicit in will (as @JonHanna says).

On the other hand, it has always struck me (as a Brit.) that the will is strictly incorrect. I imagine that the person being questioned may well say many things that subsequently are not in fact used against him: either because they are irrelevant or neutral, or because the prosecution choose not to use them for whatever reason.

I've always thought it ought to be:

... anything you say can and may be used against you in a court of law.

But legalese is notorious for stating the obvious, repeating itself in different words, using ten words when one will do, and trying to avoid all possible loopholes. They particularly want to avoid a lawyer arguing that something their client said cannot be used in court because the suspect wasn't properly warned.

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Actually, there isn't a set language throughout all agencies affected by Miranda v Arizona, never mind those in other jurisdictions that have a similar concept (such as the UK). There is though there is a set list of facts that must be stated. "Can and will" is indeed found in the set language used by some particular departments and agencies in fulfilling that obligation. –  Jon Hanna May 31 '13 at 11:30
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That said. I do agree that may would be a better choice. –  Jon Hanna May 31 '13 at 11:34
    
I've no doubt that there are similar clauses in most English-speaking democracies, and indeed other countries as well. It's more a question of the general use of the phrase rather than its specific use in the Miranda warning. Of course "may" is also unnecessary - if something can be done, it should go without saying that it may (or may not) be done - these are the only two options, after all. –  Darrel Hoffman May 31 '13 at 19:40
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The "can" and "will" are both useful from the point of view of legal phraseology.

"Can" is a warning that by speaking you are abandoning caution, which you are legally entitled to exercise. "Where a word is worth a silver dollar, silence can be worth a $20 gold piece."

"Will" is a warning that your speech is irrevocable and could cause you harm.

Using either word alone would not give sufficient warning. Using both together implies "you are advised not to speak unless it is clearly in your best interest". And then, should you be so foolish as to speak, it's your problem.

  1. "Can" alone could be considered insufficient warning: "Yeah, sure, it CAN be used, but WILL it?"
  2. "Will" alone implies a threat. ("So you'll take EVERYTHING I say and use it against me? Thus I refuse to say anything in my defense, even if it could help me at the present moment.") This could give grounds at trial that there was unduly aggressive behavior in the arrest procedure in threatening the suspect with certain punishment for anything he would say, even in his own defense.
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I reject the deontic "be willing to" because it doesn't comply with the subject. While the perp may have to understand that he/she is willing to comply, the subject of the sentence is "anything," which doesn't have a will. The matter is one of logic, not one of grammar. The authority issuing the rights does not have the right/ability to say what "will" (a certainty) be used in court. The lawyers and judge will decide what can be used in court at the time of trial. The arresting cop has no authority to declare that in advance.

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This isn't a bad point, but I think it entirely depends on what the PERP says, if they even say anything that at all.

Saying nothing at all renders "will" void, unless silence suddenly becomes incriminating.

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Certainly that's the intent of the Miranda rights, of course. But what I'm asking about is the language usage. Like you could picture the cops saying "Okay, suspect made idle chatter about the weather - how do we use this against him in court?" It makes no sense from a common language standpoint, but legalese is funny like that sometimes - does the "will" part have added meaning to a lawyer somehow? –  Darrel Hoffman May 31 '13 at 5:49
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