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Can and Will be used against you

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Why do they say "can and will be used against you"? Wouldn't they WANT to use anything you say against you as opposed to COULD (but not necessarily) be used against you?
 

Taxing Matters

Overtaxed Member
Why do they say "can and will be used against you"?
Because that is the standard for the warning as articulated by the Supreme Court. What the police/prosecutor want isn't what is relevant. What matters is what the rules allow to be used against the suspect. While the word "may" might be the better choice over "can" in this context it works out to be pretty much the same thing, and the phrase rolls off the tongue a bit easier with the latter. :D
 

justalayman

Senior Member
In case nobody has read the entire opinion, it can be found here:

https://supreme.justia.com/cases/federal/us/384/436/


It’s the first time I’ve read it in its entirety and has provided insight that I was previously unuaware of. It also suggests, to me, that a single warning may not be adequate to fulfill the requirement of the court. It shows, again, to me, that there is a continual attempt to dilute the findings of that court and reduce the rights empahsized by that court through continued trickery by police and by treating it as less than it was stated to be in that opinion.

Subsequent cases have shown that often times the police have attempted to dissuade a suspect of asserting their rights. Sometimes those actions have been successful. Obviously some of those situations have been tested in the courts and it has been decided the interrogation has been ruled a violation of a suspects rights. While some such situations have been challenged and addresses, we all are likely to be aware of situations where the rights stated in Miranda have been violated and a person convicted but the suppression of the defendants rights never challenged, usually due to financial constraints of the defendant.


Due to my new insights discovered by reading the opinion in whole, I would suggest additional instructions of one’s rights be given to a suspect/defendant through the process of their prosecution. When one is arrested, one’s mind can be quite overwhelmed and result in a state of confusion, panic, or even shock. If one were to ask a recently arrested person if they were advised of their rights, I suspect a great number of them, especially those not having had regular negative interactions with the process, to not recall whether they had been advised of their rights or not. To me, especially for those unfamiliar with the process, advising a person of their rights when they are in such a mental state, provides no more benefit than having never advised them of their rights at all. In effect is becomes a matter of “going through the motions” for the police and fulfills the legal requirement but surely does not provide the required benefit the SCOTUS had stated in Miranda.
 

Taxing Matters

Overtaxed Member
In case nobody has read the entire opinion, it can be found here:

https://supreme.justia.com/cases/federal/us/384/436/


It’s the first time I’ve read it in its entirety and has provided insight that I was previously unuaware of. It also suggests, to me, that a single warning may not be adequate to fulfill the requirement of the court. It shows, again, to me, that there is a continual attempt to dilute the findings of that court and reduce the rights empahsized by that court through continued trickery by police and by treating it as less than it was stated to be in that opinion.
But to understand the current state of the Miranda right, you have to read the subsequent Supreme Court decisions on it, as well as the decisions of the federal courts of appeals. And it has indeed been refined and limited to some extent to make it workable.

Subsequent cases have shown that often times the police have attempted to dissuade a suspect of asserting their rights.
That has sometimes happened. Often? I suppose that depends on your definition of what constitutes often. Bear in mind that the police arrest at least hundreds of people every day and in the vast majority of them there is no dispute over Miranda. I think it unlikely that most police have engaged in that kind of tactic and thereby put the case in jeopardy as a result.

To me, especially for those unfamiliar with the process, advising a person of their rights when they are in such a mental state, provides no more benefit than having never advised them of their rights at all. In effect is becomes a matter of “going through the motions” for the police and fulfills the legal requirement but surely does not provide the required benefit the SCOTUS had stated in Miranda.
I don't agree with your assessment of what most arrested people are capable of understanding after their arrest. But putting that disagreement aside for the moment, what solution do you think is needed to address the problem you perceive to exist? Why isn't advising the suspect of his/her rights sufficient? Bear in mind that if the suspect was truly unable to understand his/her rights, a challenge to a admission of the statement made can be raised. And if the defendant could understand his rights then why wouldn't advising him of those rights be good enough?
 

FlyingRon

Senior Member
The phraseology is much older than Miranda. It's derived from a similar warning in British Law: "anything you say will be taken down and used against you in court." However, this didn't become an absolute requirement of British law until a couple of decades after Miranda.
 

justalayman

Senior Member
I don't agree with your assessment of what most arrested people are capable of understanding after their arrest. But putting that disagreement aside for the moment, what solution do you think is needed to address the problem you perceive to exist? Why isn't advising the suspect of his/her rights sufficient? Bear in mind that if the suspect was truly unable to understand his/her rights, a challenge to a admission of the statement made can be raised. And if the defendant could understand his rights then why wouldn't advising him of those rights be good enough?
Have you ever been arrested? If not, it is impossible for you to have a true understanding of my statement. Don’t suggest that you do if you’ve never been there.

As an example:

We have had several people arrested for murders in my area. The trauma from the action itself can put a person in such a mental condition that they could be diagnosed as medically in shock. If arrested in this condition, they are not legally competent but the decisions in place affords no true protections for such s person having been duly read their Miranda rights. The ensuing interrogation is accepted as valid based on the person having been advised of their Miranda rights.

As having been arrested myself (and it was not immediately after the alleged crime but months later), it being the one and only time I have been arrested in my many years of life, I can say without hesitation I was overwhelmed and to this day cannot tell you if I was read my Miranda rifhts. I went into a state of psychological disbelief and surreality. Would a claim I was advised of my rights most likely been considered valid (if applicable)? Without hesitation i will answer affirmatively. It is impossible to be “in a persons head” at the moment and as long as I was deemed competent in general, the advisory reading of my rights would be accepted as valid.

Was it pertinent? No since the arresting department had nothing to do with the alledged crime and there was no interrogation. I can say that if there had been, I was not in a state of mind that I would have understood my rights as fear of what was happening caused a mental state where I could not make an informed decision.

In addition, many many confessions are predicated on threats to “haul a person off to jail” if they don’t tell the cop what they want to hear


I suspect your position in life has somewhat isolated you from the realities many people live. If you have never been threatened to be arrested, knowing you have done nothing wrong yet realizing the cop is serious and capable of arresting you (ultimately with an invalid but explained in a manner that makes it legally acceptable) to coerce you into giving responses you are not obligated to simply to avoid being arrested, you really have no place suggesting everything is hunky Dory in prosecutorial society.


Please don’t suggest the court system is fair. I can provide you with more examples of it not being so than you could read in your remaining years on Earth. It tries to be fair and just; it hasn’t reached that point yet.
 

justalayman

Senior Member
As to a resolution

While it seems onerous upon society, I see nothing short of no interrogation being valid without an attorney representing the accused. The legal circus is so complex and intimidating that I believe the general populace is actually incapable of understanding the implications of what Miranda says.

I know that simply isn’t going to happen. I have to accept that many people will give up their rights without truly understanding what their rights are. Many people believe “the system” will protect them and their rights. Any knowledgeable person knows that simply is not true. Money buys rights in this country and those not affluent enough to be able to have an attorney on speed dial will be taken advantage of by the system.
 

FlyingRon

Senior Member
Understand that questioning is a fundamental part of police work. Miranda only cuts in when the person is already in custody. A good deal of fruitful police interrogation happens in consensual situations where Miranda warnings aren't required.
 

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