right to remain silent...

For those interested in 'around the world'... Here's the Wiki on Right to Silence. I've been 'hearing' a 'Miranda like' passage in many UK crime films, from the wiki on the UK version

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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.
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Apparently there's a possibility that if one does not mention one's 'alibi' up front, and but later introduce it at court, the court can inform the jury of the lack of cooperation during the initial questioning, which may be fed into the jury's deliberations'...

The wiki lists other situations were 'right to silence' may not be in force... such as, apparently if one does not yield one's encryption keys, that in itself is an offense...
 
Sure, if the conversation is recorded, and a transcript produced, eventually introduced as evidence, the 'will' is very much a significant word.

In general, one should always 'believe' there is a transcription being generated, especially in these modern times where mics or video are being used more frequently further out into the field than in the police station.

By the same token, law enforcement should believe their statements are being recorded, again due to the ready availability of mobile recording devices.
 
j1clark@ucsd.edu said:
For those interested in 'around the world'... Here's the Wiki on Right to Silence. I've been 'hearing' a 'Miranda like' passage in many UK crime films, from the wiki on the UK version

---
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.
---

Apparently there's a possibility that if one does not mention one's 'alibi' up front, and but later introduce it at court, the court can inform the jury of the lack of cooperation during the initial questioning, which may be fed into the jury's deliberations'...

The wiki lists other situations were 'right to silence' may not be in force... such as, apparently if one does not yield one's encryption keys, that in itself is an offense...
Click to expand...

I've heard that too, and it seems like a more sensible phrasing to me.
 
j1clark@ucsd.edu said:
Sure, if the conversation is recorded, and a transcript produced, eventually introduced as evidence, the 'will' is very much a significant word.

In general, one should always 'believe' there is a transcription being generated, especially in these modern times where mics or video are being used more frequently further out into the field than in the police station.

By the same token, law enforcement should believe their statements are being recorded, again due to the ready availability of mobile recording devices.
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No one is going to believe every word they say, from the moment of arrest in their home, place of business, or on the street, is being mechanically recorded and transcribed. "Will be used" simply isn't accurate. "Can and may be used" would be much more correct.
 
Z
 
David W. Richardson said:
No one is going to believe every word they say, from the moment of arrest in their home, place of business, or on the street, is being mechanically recorded and transcribed. "Will be used" simply isn't accurate. "Can and may be used" would be much more correct.
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I'd say before the age of ubiquitous recording devices, that 'may' was a reasonable expectation. But these days, the more 'modern' version using 'can and will' seems more possible.

From the Wiki on Miranda Warning

Specifically:
"Anything you say or do may be used against you in a court of law. (Modern readings have can and will in place of may)"

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Heck... every time I call a 'support' line these days, I get a warning about the possibility of the call being monitored or recorded, and obviously, not involving law enforcement... but potentially could if the conversation moves in a criminal direction... So my assumption is that the call is recorded and retained for some time beyond the immediate call time.
 
David... come on. OBVIOUSLY not "everything" you say "WILL" be used against you in a court of law. You're arguing a point that has zero practical applicability.

OBVIOUSLY the only possible, rational, reasonable, practical, and legally feasible approach is that it "MAY" be used against you. There is no possible way that they are going to take a complete transcript of every single word you say, and somehow use that against you in a court of law. Who would have the time to sit there and read the entire transcript, for one thing?

Prosecutors will use what they think will be effective in their case. And they absolutely will not use anything that won't be effective in their case, or that would hurt their case. And therefore, obviously, it is irrational to think that "anything you say WILL be used against you in a court of law." It warrants no further discussion because as a matter of absolute semantics, it simply does not stand up and absolutely cannot be the case.
 
David W. Richardson said:
If it were just a line in a script, I would agree. But as a legal issue that any one of us could face someday, I think it's important. The way something is worded legally is critical when the letter of the law is being followed.
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How is either the "letter of the law" or your disposition as a potential defendant bothered by the inclusion of "and will"?

As for the letter of the law, the exact requirement as set down in Miranda v. Arizona is: "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court . . . "

As for your disposition as a defendant, you're in a much better position thinking that everything you say WILL be used against you than thinking there are things which won't be.
 
Barry_Green said:
David... come on. OBVIOUSLY not "everything" you say "WILL" be used against you in a court of law. You're arguing a point that has zero practical applicability.
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But that IS my point, David. If it's obviously not true that EVERY word you say WILL absolutely be used in court, then why is the Miranda warning worded the way it is? The fact that it can't possibly be true as worded is a problem to me. Granted, I'm a stickler. But most lawyers and judges are too.

When you're sworn to testify in court, you're swearing "to tell the truth, the whole truth, and nothing but the truth." Some people think that's redundant and over the top, but I totally get the difference between those three things and why all three are necessary -- specifically because nitpicking lawyers would use it to their advantage if all three were not sworn to. That I understand. But "will" in the Miranda warning makes no sense. It opens a grey area for assumption where none should be allowed to exist. "Can and may" would be completely perfect.
 
Barry_Green said:
Are you asking as a scriptwriting exercise, or legal advice?

When someone says you have the right to remain silent, it means exactly that -- you have the right to not answer any questions or make any statements. If you choose to make statements anyway, that's on you, and you may be waiving a very valuable right.

So for scriptwriting purposes, you can have your character ignore the officer and say whatever they want anyway. Or you can have them clam up and refuse to say anything. Either works.

If you're asking for actual legal advice -- you should ask a lawyer. Although you may find this interesting, a law school professor and criminal defense attorney's take on speaking to the police:
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Yup, saw this some time ago.

Here is part 2 by a police officer:

 
It's not earth-shattering, just curious. I see the Miranda warning as a legally-binding contract. If inaccurate language were used in a written contract, there could be dire consequences. Which is why lawyers make big bucks.

But again, it's just a curiosity.
 
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What Barry said. Condensed: "may" leaves as much of an opening as "will", but in the other direction. "May" implies too much leniency.

But really? David, I'm afraid you are wrong to begin with, for a really fundamental reason: grammar and syntax. Your analysis of usage is grammatically and lexically wrong, full stop.

Here's why. In the phrase "can and will", "can" and "will" are not independent clauses - in fact, "can" is controlling "will", and therefore the latter functions as a subclause. If they were separate, you could divide them into two clauses.

1) statements can be used against you.

2) statements will be used against you.

But that would make no sense - why would you be told that statements CAN be used, which implies that they can, but don't have to, and then immediatly append "and WILL" implying they surely will be? Either, or. Either there is latitude (Can) or there isn't (Will). There is a way to make it not contradictory by removing the optional feature of "can", if you said "statements HAVE TO and WILL be used against you" then that is what you THINK it says (according to you, David). Except it isn't. In fact it is "CAN" and not "HAVE TO". See the problem? That right there is your misunderstanding. You think in fact it says HAVE TO, when it actually says CAN. And your case falls apart.

Therefore, "can and will" cannot be understood as separate clauses - the only way to make sense of "can and will" and not have it be inherently contradictory as explained above, is if "can" controls "will". This is therefore how it works and I'll spell out in square brackets the shorthand to make the subclause nature clear:

Statements CAN [and in the case when "can" means we've decided to go ahead] and WILL be used against you. Therefore WILL only applies to situations where CAN has been decided that way, rather than the "we're dropping it" way.

Bottom line, you need to carefully analyze any legal statement, to make absolutely sure that your position is sustainable. Lawyers live for such analysis, where a single comma can decide a case. You struck out on this one.

EDIT: there is also the whole issue of legal meaning of words, which is not the same as common usage. Sometimes words used in a law or legal document can be severely misunderstood if you apply everyday English meaning to the word. This is why it is dangerous to simply try to use common usage words to analyze legal meaning - as David, you are doing. The reason this happens is not simply some kind of desire to obfuscate meaning, but because often the law in question was written at a time when the meaning was genuinely different, only language evolved, but we don't change how that law is written (think of how sometimes to make it easier, people translate Shakespeare or the Bible into modern vernacular to make it more accessible - but in the original, it's hard to understand). Language changes a lot faster - and sometimes legal meaning of words doesn't keep up. Bottom line: that's why we employ lawyers to read legal documents, because not everything in them is as it seems to those of us who are not trained in the profession, and that includes lexical meaning of words.
 
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David W. Richardson said:
My final word on the subject comes from Police Magazine:

"It soon became clear, for example, that the 'can and will be used against you' language was neither required by Miranda nor legally accurate. Whether a statement will be used is subject to the prosecutor's offer, the defense attorney's objection, and the judge's ruling."

Police Magazine - October 1, 2006
http://www.policemag.com/channel/patrol/articles/2006/10/point-of-law.aspx
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I will go to the store... unfortunately a plane drops on my head just at the first intersection and my dead body is taken to the morgue.

Was my initial statement 'false'... no, 'will' as a marker of future potential action, wish, or desire, and not necessarily a 'guarantee' of eventuality.

Here's the passage quoted from the Miranda v. Arizona Decision:

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(d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473.


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If the Supreme Court Ruling uses 'will' then why would there be a debate about its use by police officers when making an arrest?
 
David W. Richardson said:
My final word on the subject comes from Police Magazine:

"It soon became clear, for example, that the 'can and will be used against you' language was neither required by Miranda nor legally accurate. Whether a statement will be used is subject to the prosecutor's offer, the defense attorney's objection, and the judge's ruling."

Police Magazine - October 1, 2006
http://www.policemag.com/channel/patrol/articles/2006/10/point-of-law.aspx
Click to expand...

When I have a choice between Police Magazine and the Unites States Supreme Court, I look to the latter in matters of law. And while it is true that the USSC did not require any specific wording, they themselves used that very word as seen here (I have taken the liberty to emphasize and underline):

The Supreme Court did not specify the exact wording to use when informing a suspect of his/her rights. However, the Court did create a set of guidelines that must be followed. The ruling states:
...The person in custody must, prior to interrogation, be clearly informed that he/she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he/she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he/she is indigent, an attorney will be provided at no cost to represent him/her.





If it's good enough for the USSC, then it's good enough for me, Police Magazine or not: "WILL be used against" - straight from the horse's (err, Court's) mouth.
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