POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S All’S Well That Ends Well
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from Shakespeare’s play All’s Well That Ends Well that may result in enhanced excellence in investigative work. Briefly stated, the discussion is organized along broad, thematic lines involving demeanour evidence, interviewing skills, judgment and professionalism in investigations.
DISCUSSION
Demeanour evidence as a guide to investigators
General introduction
Justice O'Halloran cautioned against the fear that a good actor might hoodwink the Court (and His Lordship would have added “the investigator” had he been asked) in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10. Refer as well to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91, to demonstrate the ongoing vitality of this judgment:
46 There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility. As stated by O'Halloran J.A. in the frequently cited case from this Court, Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 10 …:
[10] If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
Demeanour – body language observed closely to judge if it “matches” the words spoken
Consider a first example taken from another play, King Henry VI (Part1): “Plantagenet. Meantime your cheeks do counterfeit our roses; For pale they look with fear, as witnessing The truth on our side.” Refer to Act 2, sc. iv, l. 62. In effect, I imagine that you as the investigator are speaking, and that you are stating to the person you are interviewing: “your words and your demeanour are fighting each other as what you say is denied by your pale cheeks and fearful expression. In short, your face shows that you are caught in a lie!”
A further useful example follows of the appearance of the witness as a form of “lie-detector”. Refer again to King Henry VI (Part1), at 2-iv-64:
Somerset.
No, Plantagenet,
'Tis not for fear but anger that thy cheeks
Blush for pure shame to counterfeit our roses,
And yet thy tongue will not confess thy error.
Demeanour – What Shakespeare teaches us in Macbeth
The works of Shakespeare contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of "testimony", and a subject that I have discussed critically in extra-judicial writings. Perhaps the best known of these examples is found in Act I, scene IV, of Macbeth: "Duncan: There's no art To find the mind's construction in the face." The companion reference that is best suited to underscore this point is set down in Act I, scene VII: "Macbeth ... Away, and mock the time with fairest show: False face must hide what the false heart doth know." I note as well how apposite is the passage that follows on the issue whether witnesses may be adept at feigning emotions: "... Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy." Refer to Act II, scene III of Macbeth.
In essence, Shakespeare teaches us two things:
1) We are not capable of assessing accurately what thoughts a person may be entertaining by means of their facial expression, and
2) A person is capable of assuming a "facial guise" that may well trick and deceive the observer.
In addition, both points are mutually reinforcing in the sense that the capacity that we all enjoy to adopt a "false face" only serves to exacerbate the general inability to discern "the mind's construction". In sum, the thoughts of a third party, a witness for our purposes, may not be judged fully and fairly based on their demeanour.
Demeanour – A brief excerpt from R. v N.S., [2012] 3 SCR 726
I only wish to quote this passage from the majority judgment of McLachlin C.J.C. and Deschamps, Fish and Cromwell JJ.A.:
Changes in a witness's demeanour can be highly instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a New Zealand judge asked to decide whether witnesses could testify wearing burkas commented:
... there are types of situations ... in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility. [para. 78]
Demeanour – Guidance from Bowman A.C.J. of the Tax Court of Canada
The future Chief Justice of the Tax Court observed in Faulkner v. Canada (Minister of National Revenue - M.N.R.), [2006] T.C.J. No. 173:
13 Where questions of credibility are concerned, I think it is important that judges not be too quick on the draw. In 1084767 Ontario Inc. (c.o.b. Celluland) v. Canada, [2002] T.C.J. No. 227 (QL), I said this:
8 The evidence of the two witnesses is diametrically opposed. I reserved judgment because I do not think findings of credibility should be made lightly or, generally speaking, given in oral judgments from the bench. The power and obligation that a trial judge has to assess credibility is one of the heaviest responsibilities that a judge has. It is a responsibility that should be exercised with care and reflection because an adverse finding of credibility implies that someone is lying under oath. It is a power that should not be misused as an excuse for expeditiously getting rid of a case. The responsibility that rests on a trial judge to exercise extreme care in making findings of credibility is particularly onerous when one considers that a finding of credibility is virtually unappealable.
…
14 I continue to be of the view that as judges we owe it to the people who appear before us to be careful about findings of credibility and not be too ready to shoot from the hip. Studies that I have seen indicate that judges are no better than any one else at accurately making findings of credibility. We do not have a corner on the sort of perceptiveness and acuity that makes us better than other people who have been tested such as psychologists, psychiatrists or lay people. Since it is part of our job to make findings of credibility, we should at least approach the task with a measure of humility and recognition of our own fallibility. I know that appellate courts state that they should show deference to findings of fact by trial judges because they have had the opportunity to observe the demeanour of the witness in the box. Well, I have seen some accomplished liars who will look you straight in the eye and come out with the most blatant falsehoods in a confident, forthright and frank way, whereas there are honest witnesses who will avoid eye contact, stammer, hesitate, contradict themselves and end up with their evidence in a complete shambles. Yet some judges seem to believe that they can instantly distinguish truth from falsehood and rap out a judgment from the bench based on credibility. The simple fact of the matter is that judges, faced with conflicting testimony, probably have no better than a 50/50 chance of getting it right and probably less than that when their finding is based on no more than a visceral reaction to a witness. Moreover, it is essential that if an adverse finding of credibility is made the reasons for it be articulated. [Emphasis added]
Demeanour evidence and non-verbal testimony – lessons from the playDemeanour – affecting a precise look or appearance
Consider the passage that follows in respect of the concern that a potential witness is attempting to deceive you by means of their appearance:
COUNTESS
'Tis the best brine a maiden can season her praise
in. The remembrance of her father never approaches
her heart but the tyranny of her sorrows takes all
livelihood from her cheek. No more of this, Helena;
go to, no more; lest it be rather thought you affect
a sorrow than have it.
HELENA
I do affect a sorrow indeed, but I have it too. [1-i-43]
[Emphasis added]
Demeanour – elements of this type of evidence
Blushes
HELENA
… The blushes in my cheeks thus whisper me,
'We blush that thou shouldst choose; but, be refused … [2-iii-67]
Brows
HELENA … His arched brows, his hawking eye … [1-i-88]
Interviewing potential witnesses and accused – lessons from this play
Interviewing – confessions, invoking God or deities
Does this type of invocation add anything to the merits of the confession. Thus:
HELENA
Then, I confess,
Here on my knee, before high heaven and you,
That before you, and next unto high heaven,
I love your son… [1-iii-183]
Interviewing – confessions – seek always to confirm contents
It is always sound practice to verify the contents of a statement, especially if you cannot record the witness. In this context:
Second Lord
His confession is taken, and it shall be read to his
face … [4-iii-108]
Interviewing – emotions may compel a person to disclose information
The stereotypical example is the victim of sexual and or other forms of violent conduct who would never disclose anything to the authorities who might reconsider this “view” to protect another would-be victim. As the Countess expressed it: “… My heart is heavy and mine age is weak; Grief would have tears, and sorrow bids me speak.” [3-iv-42]
Interviewing – explanations must be sought whenever required
There is no shame in seeking explanations, only in failing to obtain much-needed information the failure of which may doom a prosecution. Thus:
BERTRAM
Madam, I desire your holy wishes.
LAFEU
How understand we that? [1-i-52]
Note as well the following:
Clown
Faith, madam, I have other holy reasons such as they
are.
COUNTESS
May the world know them? … [1-iii-30]
Finally, I would think an investigator on sound footing to request an explanation of the phrase:
HELENA
… Is a reserved honesty … [3-v-57]
Interview – invite an honest answer
Consider this useful example
COUNTESS
…
Against the proclamation of thy passion,
To say thou dost not: therefore tell me true;
But tell me then … [1-iii-164]
Later, at line 179, the Countess states: “Come, come, disclose …” and later yet, at line 210, “… Had you lately an intent – speak truly …”
Interview – vocabulary – if witness speaks of “gabble”
On occasion, in keeping with your duty to invite the witness to explain any difficult to follow comments within a statement, do not hesitate to ask the meaning of word. For example, if a witness were to state what follows, you wish to know the meaning of each word:
Second Lord
He must think us some band of strangers i' the
adversary's entertainment. Now he hath a smack of
all neighbouring languages; therefore we must every
one be a man of his own fancy, not to know what we
speak one to another; so we seem to know, is to
know straight our purpose: choughs' language,
gabble enough, and good enough. ... [4-i-14]
Judgment in investigative work – lessons from this play
Judgment – bias in favour of reports from those whom we trust
One of the major difficulties that investigators face is the undue degree of reliance placed upon reports and opinions put forward by those with whom they enjoy a cordial if not quite friendly relationship. The dangers of this lack of objectivity, even if it does not reach the stage of bias, cannot be ignored. In the example that follows, credence is assigned to a report not by reason of the contents or depth of analysis but solely by reason of the author of the report. Thus:
KING
Nay, 'tis most credible; we here received it
A certainty, vouch'd from our cousin Austria,
With caution that the Florentine will move us
For speedy aid; wherein our dearest friend
Prejudicates the business and would seem
To have us make denial. [1-ii-4] [Emphasis added]
Not surprisingly, the King them utters at l. 14: “… And Florence is denied before he comes …”
Judgment – “black and white” conclusions are rarely sound
Investigators judge human actions and it is rarely sound to conclude in 100% perspectives – all black or all white, if you wish. Thus, avoid this type of fact finding:
First Lord
Holy seems the quarrel
Upon your grace's part; black and fearful
On the opposer. [3-i-5]
Consider these two further “one-sided” examples:
Second Lord
Believe it, my lord, in mine own direct knowledge,
without any malice, but to speak of him as my
kinsman, he's a most notable coward, an infinite and
endless liar, an hourly promise-breaker, the owner
of no one good quality worthy your lordship's
entertainment. [3-vi-7]
Second Lord
… and that with the divine forfeit of his soul upon oath, never
trust my judgment in any thing. [3-vi-28]
Judgment – clothes as false clues
This passage is of assistance in this context:
LAFEU
And shall do so ever, though I took him at 's
prayers. Fare you well, my lord; and believe this
of me, there can be no kernel in this light nut; the
soul of this man is his clothes. Trust him not in
matter of heavy consequence; I have kept of them
tame, and know their natures. Farewell, monsieur:
I have spoken better of you than you have or will to
deserve at my hand; but we must do good against evil.
[2-v-42] [Emphasis added]
Judgment – consider fully the information and its sources
In this context, note the following:
COUNTESS
What does this knave here? Get you gone, sirrah:
the complaints I have heard of you I do not all
believe: 'tis my slowness that I do not; for I know
you lack not folly to commit them, and have ability
enough to make such knaveries yours. [1-iii-8]
[Emphasis added]
Judgment – deceit, you are fighting against falsehoods and lies, at times
In this context, note the following:
BERTRAM
I mean, the business is not ended, as fearing to
hear of it hereafter. But shall we have this
dialogue between the fool and the soldier? Come,
bring forth this counterfeit module, he has deceived
me, like a double-meaning prophesier. [4-iii-94]
Judgment – difficult to know what weight to assign to what factors
In this context, consider the following:
COUNTESS
You have discharged this honestly; keep it to
yourself: many likelihoods informed me of this
before, which hung so tottering in the balance that
I could neither believe nor misdoubt … [1-iii-112]
Noteworthy as well are these words:
KING
We thank you, maiden;
But may not be so credulous of cure,
When our most learned doctors leave us and
The congregated college have concluded
That labouring art can never ransom nature
From her inaidible estate; I say we must not
So stain our judgment, or corrupt our hope,
To prostitute our past-cure malady
To empirics, or to dissever so … [2-i-133]
[Emphasis added]
Judgment – emotions – relevant to reliability
The following excerpt is helpful:
Steward
… This she delivered in the most bitter touch of
sorrow that e'er I heard … [1-iii-108]
Consider as well this passage: “HELENA … But, like a timorous thief, most fain would steal What law does vouch mine own.” [2-v-79]
Judgment – experience, starting in childhood
I find this quote rather interesting and thought provoking:
HELENA
What I can do can do no hurt to try,
Since you set up your rest 'gainst remedy.
He that of greatest works is finisher
Oft does them by the weakest minister:
So holy writ in babes hath judgment shown,
When judges have been babes; great floods have flown
From simple sources, and great seas have dried
When miracles have by the greatest been denied.
Oft expectation fails and most oft there … [2-i-137[
[Emphasis added]
Judgment – honesty – in general
Consider this general comment:
Clown
That man should be at woman's command, and yet no
hurt done! Though honesty be no puritan, yet it
will do no hurt; it will wear the surplice of
humility over the black gown of a big heart. I am
going, forsooth: the business is for Helen to come hither.
[1-iii-88] [Emphasis added]
Judgment – honesty – it is not an inherited trait
I often head witnesses proclaim that so-and-so was honest (or dishonest) by reason of their family background and I wish to warn investigators not to believe that such traits are inherited. Of course, being shown a good or a poor example must play a role, but you ought to examine whether the person you are investigating is, or not, honest. In this context, consider:
COUNTESS
His sole child, my lord, and bequeathed to my
overlooking. I have those hopes of her good that
her education promises; her dispositions she
inherits, which makes fair gifts fairer; for where
an unclean mind carries virtuous qualities, there
commendations go with pity; they are virtues and
traitors too; in her they are the better for their
simpleness; she derives her honesty and
achieves her goodness. [1-i-35] [Emphasis added]
This instruction is to be divorced from guidance on the subject of one’s reputation for honesty, which is a very different matter. Thus:
HELENA
… One that goes with him: I love him for his sake;
And yet I know him a notorious liar [1-i-93]
Judgment – human nature – comforts of our losses
In this vein, consider this quote: “First Lord How mightily sometimes we make us comforts of our losses! [4-iii-61]
Judgment – human nature – common sense about fighting
Consider this guidance on this subject:
HELENA
You go so much backward when you fight.
PAROLLES
That's for advantage.
HELENA
So is running away, when fear proposes the safety;
but the composition that your valour and fear makes
in you is a virtue of a good wing, and I like the wear well. [1-i-188]
Judgment – human nature – faults play a role in statement giving
Emotions are part of human psychology that impels us to be forthright or deceiptful. In this vein, note:
First Lord
The web of our life is of a mingled yarn, good and
ill together: our virtues would be proud, if our
faults whipped them not; and our crimes would
despair, if they were not cherished by our virtues. [4-iii-66]
Judgment – identity evidence – distinct marks such as a scar
Investigators must dig deep in order to obtain information from a witness to satisfy the signal requirements of the law as to reliable identification egvidence. Thus:
PAROLLES
… Good sparks and lustrous, a word, good metals: you shall
find in the regiment of the Spinii one Captain
Spurio, with his cicatrice, an emblem of war, here
on his sinister cheek … [2-i-43] [Emphasis added]
Judgment – jumping to conclusions
To be avoided, obviously. Thus:
HELENA
… Oft expectation fails and most oft there
Where most it promises … [2-i-141]
Judgment – memory – is it a faithful recollection of what was perceived?
One can never be sure of the accuracy and reliability of distant memories and investigators do well to probe deeply in order to avoid rusging to judgment. Thus:
COUNTESS
… Where loves strong passion is impress’d in youth
By our remembrances of days foregone,
Such were our faults, or then we thought them none…
[1-iii-123]
Judgment – noble cause perversion
This is one way of explaining how police officers, at times, are thought to consider lying under oath, in order to bring about a result that their limited success in the investigation will not bring about honestly. Consider:
Second Lord
None in the world; but return with an invention and
clap upon you two or three probable lies …
HELENA
… Let us assay our plot; which, if it speed, Is wicked meaning in a lawful deed … “[3-vii-45]
Judgment – oaths – are they sufficient to bind one’s conscience?
Shakespeare is constant in doubting that oaths add much to the reliability or sincerity of what witnesses say and doubtless the same concerns would have existed had he wrote a great deal more on the subject of police interviews, a theme touched upon in the play Much Ado About Nothing. On this subject, consider what follows:
DIANA
'Tis not the many oaths that makes the truth,
But the plain single vow that is vow'd true.
What is not holy, that we swear not by,
But take the High'st to witness: then, pray you, tell me,
If I should swear by God's great attributes,
I loved you dearly, would you believe my oaths,
When I did love you ill? This has no holding,
To swear by him whom I protest to love,
That I will work against him: therefore your oaths
Are words and poor conditions, but unseal'd,
At least in my opinion. [4-i- 20]
Judgment – reasons – ability to express to others your full thoughts
In the same way, that oral evidence at trial is the means by which your testimony is judged, your conclusions as to your investigations are also required to be assessed by means of a report, be it considered by your superior, the Crown or others. In this vein, please note this quote:
DIANA
… Remain there but an hour, nor speak to me:
My reasons are most strong; and you shall know them … [4-ii-59
Judgment – response from witness is too god to be true
One must be wary of too good an answer, so to speak. Thus: “COUNTESS Marry, that's a bountiful answer that fits all questions.” [2-ii-13]
Judgment – testimony of value, judge whether it is
This task is captured in the quote that follows: “BERTRAM And by other warranted testimony.” [2-v-3]
Judgment – time to think, time to lie?
There is always a concern of this nature if the witness is given time prior to being interviewed:
Second Lord
None in the world; but return with an invention and
clap upon you two or three probable lies … [3-vi-88]
Judgement – youth – frailties of their inexperienced judgment
Consider this example:
KING
… Of younger spirits, whose apprehensive senses
All but new things disdain; whose judgments are
Mere fathers of their garments; whose constancies
Expire before their fashions … [1-ii-60]
Professionalism that investigators must display – lessons from this play
Professionalism – advice, from superiors and those with more experience
It is always important to seek and share the advice of others. Thus:
… Share the advice betwixt you; if both gain, all
The gift doth stretch itself as 'tis received,
And is enough for both. [2-i-3]
By way of contrast, note: “Clown I will show myself highly fed and lowly taught: I know my business is but to the court.” [2-ii-4]
Professionalism – anger, to be avoided always
This quote is helpful:
LAFEU
Do not plunge thyself too far in anger, lest thou
hasten thy trial … [2-iii-208]
Professionalism – ask questions when information is lacking or unclear
True professionalism is demonstrated by the courage to admit that you lack information or understanding that others possess and that might make you appear less competent than you would otherwise wish to be thought of. Thus:
BERTRAM
What is it, my good lord, the king languishes of?
LAFEU
A fistula, my lord.
BERTRAM
I heard not of it before. [1-i-28]
Professionalism – careless work
Nothing can justify such a situation, not even lack of time:
KING
… Or I will throw thee from my care for ever
Into the staggers and the careless lapse
Of youth and ignorance; both my revenge and hate
Loosing upon thee, in the name of justice … [2-iii-161]
Professionalism – confidence
One must be wary of being too confident. “KING Are thou so confident? …” [2-i-157] A few fines later, at 167, the King adds: “Upon thy certainty and confidence …”
Professionalism - do wrong to none
A successful and well-respected investigator, must amongst other things, do the following:
COUNTESS
Be thou blest, Bertram, and succeed thy father
… Love all, trust a few, Do wrong to none: be able for thine enemy
… [1-i-44] [Emphasis added]
Professionalism – duty to do one’s utmost
As stated by Parolles “… I know not what the success will be, my lord; but
the attempt I vow.” [3-vi-71]
Professionalism – honour and confirming to Charter values
A professional officer cannot share the lack of values evident in the quote that follows: “First Lord There's honour in the theft. …” [2-i-33] Recall the police forces engaged in stealing evidence with which to prosecute suspected criminals. All actions must conform to the law, notably Charter values.
Professionalism – hope, always clinging to
Investigations are very difficult tasks and one may well suffer bouts of despondency but it is important that you display hope and a duty to persevere to your staff and to the public notably the family of the victim. In this light, noteworthy is this quote:
LAFEU
He hath abandoned his physicians, madam; under whose
practises he hath persecuted time with hope, and
finds no other advantage in the process but only the
losing of hope by time. [1-i-12]
Professionalism – mocking or being disrespectful to a witness
Never act in ay manner that smacks of lack of respect. For example:
Second Lord
This is the first truth that e'er thine own tongue
was guilty of. [4-i-30]
The joy of such a quip is nothing compared to the joy it gives a defence lawyer. That said, at times, a report may require a stinging condemnation. For example,
PAROLLES
He will steal, sir, an egg out of a cloister: for
rapes and ravishments he parallels Nessus: he
professes not keeping of oaths; in breaking 'em he
is stronger than Hercules: he will lie, sir, with
such volubility, that you would think truth were a
fool: drunkenness is his best virtue, for he will
be swine-drunk; and in his sleep he does little
harm, save to his bed-clothes about him; but they
know his conditions and lay him in straw. I have but
little more to say, sir, of his honesty: he has
every thing that an honest man should not have; what
an honest man should have, he has nothing. [4-iii-236]
Professionalism – patience, resolve to be one known for your
PAROLLES … Well, I must be patient … [2-iii-230]
COUNTESS Think upon patience. … [3-i-44]
Professionalism – speak only when it will assist the case
It is important to point out that an investigator does not speak in order to garner attention or praise, but solely to advance the aims of the investigation. Thus:
COUNTESS
… be cheque'd for silence,
But never tax'd for speech. … [1-i-60]
Professionalism – trust a few persons
A successful and well-respected investigator, must amongst other things, do the following:
COUNTESS
Be thou blest, Bertram, and succeed thy father
… Love all, trust a few, Do wrong to none: be able for thine enemy
… [1-i-44] [Emphasis added]
Professionalism – wisdom
This a much sought after quality, honed by constant study of the thoughts and actions of others and reading cases and texts on proper procedures and philosophies to be followed. Hence:
LAFEU
Why, Doctor She: my lord, there's one arrived,
If you will see her: now, by my faith and honour,
If seriously I may convey my thoughts
In this my light deliverance, I have spoke
With one that, in her sex, her years, profession,
Wisdom and constancy, hath amazed me more
Than I dare blame my weakness … [2-i-80]
In that context, note the following resolve: “PAROLLES Well, I shall be wiser.” [2-iii-211] In addition, this quote is thought provoking:
Clown
Marry, you are the wiser man; for many a man's
tongue shakes out his master's undoing: to say
nothing, to do nothing, to know nothing, and to have
nothing, is to be a great part of your title; which
is within a very little of nothing. [2-iv-21] [Emphasis added]
Professionalism – words can sting
COUNTESS
Ah, what sharp stings are in her mildest words! [3-iv-17]