Is the "will" in "can and will" necessary?

Question

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?

John Lawler · Accepted Answer

The will in can and will is not the epistemic ("predicted/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.

Jon Hanna · Answer

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.

TrevorD · Answer

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.

davarinofuntucson · Answer

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.

"Can" alone could be considered insufficient warning: "Yeah, sure, it CAN be used, but WILL it?"
"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.

Is the "will" in "can and will" necessary?

4 Answers

Add your own answers!

Ask a Question