POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S Love Labour’s Lost
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from Shakespeare’s play Love’s Labour’s Lost 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. As you begin your review, consider that Shakespeare’s lack of respect for the police is seen in this play’s choice of the name Dull to identify a constable.
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 – elements of
Blush
MOTH. If she be made of white and red,
Her faults will ne'er be known;
For blushing cheeks by faults are bred,
And fears by pale white shown.
Then if she fear, or be to blame,
By this you shall not know;
For still her cheeks possess the same
Which native she doth owe.
A dangerous rhyme, master, against the reason of white and red.
[1-ii-95] [Emphasis added]
ARMADO. I do betray myself with blushing. Maid! [1-ii-126]
KING. … Come, sir, you blush … [4-iii-127]
Eye
BOYET. … Proud with his form, in his eye pride expressed … [2-i-35]
BOYET. But to speak that in words which his eye hath disclos'd … [2-i-249]
BEROWNE. … Such fiery numbers as the prompting eyes …” [4-iii-316]
Looks
BEROWE - “… search'd with saucy looks …”
Pallour
See “Blush”. In addition:
LONGAVILLE. … You may look pale, but I should blush, I know … [4-iii-322]
Wink
MOTH … Now here is three studied ere ye'll thrice wink… [1-ii-51]
Interviewing witnesses – lessons from this play
Interviewing – admission of guilt
A rare example is seen in this play: “BEROWNE. … Guilty, my lord, guilty! I confess, I confess.” [4-iii-201]
Interviewing – detailed explanation of what a witness is being asked
Shakespeare often illustrates a human trait that is troubling to investigators (and to judges): a lack of compliance with sworn undertakings, as illustrated below. One sound tactic is to provide a detailed explanation to the witness of what they agree to, in order to avoid the response that I not only was jesting, but that my yes covered uncertain or vague commitments. Thus:
LONGAVILLE. You swore to that, Berowne, and to the rest.
BEROWNE. By yea and nay, sir, then I swore in jest. [1-i-53]
Interviewing – invite questions of a potential witness
The prudent investigator will provide a thorough explanation to the witness of what the interview seeks to achieve and will invite the witness, at the very least, to ask a question should a word be said that is not well understood. Thus: “BEROWNE. What is a remuneration?” [3-i-132]
Interviewing – invite truthful answers
An investigator is allowed to be forceful yet not brutal in seeking truthful answers. Thus: “ROSALINE. Madam, speak true. It is not so, my lord.” [5-ii-363]
Interviewing – needless question
On occasion, interviewers are met with the attitude described below and they must show patience and ignore the “jab”.
BEROWNE. Did not I dance with you in Brabant once?
KATHARINE. Did not I dance with you in Brabant once?
BEROWNE. I know you did.
KATHARINE. How needless was it then to ask the question!
[2-i-113]
Interviewing – perjury – warning as to
Any sensible interview ought to include some form of warning as to perjury. For example: “BEROWNE. Nay, to be perjur'd, which is worst of all …” [3-i-184] To be complete, note what follows: “PRINCESS OF FRANCE … Nor God, nor I, delights in perjur'd men…” [5-ii-353]
Interviewing – seek an explanation
An interviewer should never hesitate to seek out further information to explain or provide much needed details. As stated by Armado: “How meanest thou?” [3-i-4] Consider as well:
PRINCESS OF FRANCE. To whom shouldst thou give it?
COSTARD. From my lord to my lady.
PRINCESS OF FRANCE. From which lord to which lady?
COSTARD. From my Lord Berowne, a good master of mine
To a lady of France that he call'd Rosaline. [4-i-94]
Notable as well are the next two quotes: “DULL. What is Dictynna?” [4-ii-35] and BEROWNE. What reason have you for 't?” [5-ii-693]
Interviewing – silence is available to all witnesses
In the estimation of many judges, but not all, it is open to a witness to refuse to answer questions put to an investigator outside of a courtroom without explaining their refusal, on the foundation that they do not wish to incriminate themselves and can thus rely upon their common law right to silence. Consider these words:
COSTARD. Nay, nothing, Master Moth, but what they look upon. It is not for prisoners to be too silent in their words, and therefore I will say nothing. I thank God I have as little patience as another man, and therefore I can be quiet. [1-ii-153]
Interviewing – useless responses – an example
Once in a while, interviewers are granted the favour of useless responses and they must simply “grin and bear it!”. For example:
LONGAVILLE. Pray you, sir, whose daughter?
BOYET. Her mother's, I have heard. [2-i-200]
Judgment in investigations – lessons from this play
Judgment – “armed in argument”
Consider this example of what you must be vigilant about in terms of being mindful of what role lawyers might play in the pre-charge status of their clients:
BOYET… Armed in arguments; you'll be surpris'd. [5-ii-83]
Judgment – categorizing potential witnesses to the extent that you fail to appreciate the nuances in their testimony
Very little in human affairs is black and white in nature. Thus, it is dangerous to follow the example that is found in Act 5, scene ii, 537, as it fails to take into account the richness of colours in the sense of the variety of nuanced observations. Thus: “BEROWNE. The pedant, the braggart, the hedge-priest, the fool, and the boy …”
Judgment – common sense always at the forefront of reasoning
It is understood that common sense if often criticized as being “uncommon” and contrary to logic but a good dose of it is required in reaching correct conclusions within the context of a criminal, not a civil, case. In this context, consider the salty exchange quoted next:
BEROWNE. … What is the end [i.e. the purpose] of study, let me know.
KING. Why, that to know which else we should not know.
BEROWNE. Things hid and barr'd, you mean, from common sense?
KING. Ay, that is study's god-like recompense. [1-i-55]
Judgment – credulity, be not too “understanding” of the accounts told
A healthy degree of credulity is necessary, it being understood that some “far fetched” stories are true. In thus context, noteworthy is this quote:
BOYET. But to speak that in words which his eye hath disclos'd; I only have made a mouth of his eye,
By adding a tongue which I know will not lie. … [2-i-250]
Judgment – errors are always possible, especially if emotions involved
Investigators must be careful not to be taken in by the appearance of sincerity as certain witnesses may be mistaken as a result of the role that emotions play in their perception of events, and subsequent retention and transformation over time. Consider:
BEROWNE. … Wise things seem foolish and rich things but poor. [5-ii-376]
Judgment – good conscience, did you judge this to be the case?
Consider this quote: “NATHANIEL. … done in the testimony of a good conscience.” [4-ii-1]
Judgment – identification evidence
In such cases, the slightest element of variation in descriptions as between the suspect and the person involved may prove to be decisive, as identification evidence is highly debated, and given little value in light of its inherent frailties. Consider:
NATHANIEL. …My scutcheon plain declares that I am Alisander…
BOYET. Your nose says, no, you are not; for it stands to right. [5-ii-560]
Judgment – logic – reversing the proposition
On occasion, investigators have to be able to “demolish” the poor logic of persons they interview, or have charged. The best illustration of “reversing the logic” that is known involves the former Berlin Wall. When it was built, the East German Communist government insisted that it was not built to keep East Germans from seeking freedom in the West but, rather, to contain in an orderly way the flood of West Germans who wished to emigrate to the Communist side! For present purposes, it is useful to illustrate how certain “spins” put on evidence by would-be witnesses (and accused) must be ended. For example: “KING. How well he's read, to reason against reading!” [1-i-93] Consider as well this example:
BEROWNE. So study evermore is over-shot.
While it doth study to have what it would,
It doth forget to do the thing it should;
And when it hath the thing it hunteth most,
'Tis won as towns with fire- so won, so lost. [1-i-140]
Judgment – memory – repetition may cause some errors of
On occasion, to repeat a set of facts brings about the danger that the witness is rehearsing an error at some point such that the witness can no longer be found to have a reliable memory. Consider: PRINCESS OF FRANCE. Else your memory is bad, going o'er it erewhile.” [4-i-88] Of course, some information touching upon memory is totally unsound: “HOLOFERNES. This is a gift that I have, simple, simple; a foolish extravagant spirit, full of forms, figures, shapes, objects, ideas, apprehensions, motions, revolutions. These are begot in the ventricle of memory, nourish'd in the womb of pia mater, and
delivered upon the mellowing of occasion. …” [4-ii-65]
Judgment – oaths – necessity to break one’s oath
See the rubric “Judgment – oaths – not complied with so easily”.
Judgment – oaths – not complied with so easily
Shakespeare often illustrates a human trait that is troubling to investigators (and to judges): a lack of compliance with sworn undertakings. Consider this exchange from early on in the play:
LONGAVILLE. You swore to that, Berowne, and to the rest.
BEROWNE. By yea and nay, sir, then I swore in jest. [1-i-53]
Berowne later speaks of “… having sworn too hard-a-keeping oath …” [1-i-65] Further yet, the quote that follows illustrates how necessity may bring about the breaking of oaths:
KING. We must of force dispense with this decree;
She must lie here on mere necessity.
BEROWNE. Necessity will make us all forsworn
Three thousand times within this three years' space … [1-i-147]
Judgment – observations, must be detailed
What is described in the quote hat follows is hardly sufficient to warrant a sound conclusion. As we read: “MOTH. By my penny of observation.” [3-i-24]
Judgment – perjury, a cost-benefit analysis
An investigator must not lose sight of the fact that a certain number of individuals will be tempted to perjure themselves for the right price. Thus:
LONGAVILLE. This same shall go. [He reads the sonnet]
If by me broke, what fool is not so wise
To lose an oath to win a paradise?' [4-iii-67]
Judgment – perjury at the investigative stage, must be based on a sound foundation
If you believe that a KGB statement, given under oath prior to trial, involves an attempt to mislead your investigation, you should carefully examine and weigh all available information as this is a very serious accusation. Consider: “BEROWNE. Why, he comes in like a perjure, wearing papers.” [4-ii-41]
Judgment – rhetoric may not be a suitable foundation for sound conclusions
Consider this quote, that sounds as if it were created by a computer not possessed of the second component of AI:
LONGAVILLE. … Did not the heavenly rhetoric of thine eye,
Gainst whom the world cannot hold argument,
Persuade my heart to this false perjury? [4-i-56]
I suggest that you show great reserve when in receipt of such flowing words!
Judgment – right or wrong answer – too simplistic
Police work does not involve mere right or wrongs responses for there are a number of situations calling for more nuanced replies. Thus, one ought not to be led by this type of quote:
KING. Ay, that there is. Our court, you know, is haunted
With a refined A man of complements, whom right and wrong
Have chose as umpire of their mutiny … [1-i-165]
Judgment – some element which is amiss may be decisive
A single fact that contradicts all others may suffice to lead you to conclude that you have the wrong suspect in mind. For example: “COSTARD. … O, Sir, you have overthrown
Alisander the conqueror! … A conqueror and afeard [afraid] to speak! …” [5-ii-572]
Judgment – sound basis for a conclusion, is there a
At times, the investigator cannot hope to reach a conclusion that is sensible, in light of poor information from the available witnesses. For example:
PRINCESS OF FRANCE. Was that the King that spurr'd his horse so hard
Against the steep uprising of the hill?
BOYET. I know not; but I think it was not he. [4-i-3]
Judgment – truth is truth
This is the view that Shakespeare propounds in this play but the fact remains that two individuals, standing each on one side and the other of a line, let us say of a tennis court, may each be convinced of an opposite concluded and who is to say which is in error. In this context, note: “COSTARD. The thickest and the tallest! It is so; truth is
truth …” [4-i-48]
Judgment – two plus two equals four
Certain witnesses seem to be categotized as such, and are to be counted upon as being solid persons possessing sound judgment. The play contains this example: “BEROWNE. By Jove, I always took three threes for nine.” [5-ii-494] The danger is that they might reduce all difficult questions of disputed facts to far too simple equations…
Judgment – weasel words, beware of responses containing
Weasel words are meant to refer to responses that are deliberately vague or incomplete in order to avoid a direct response that would be harmful. Consider the reply “I did not hear that precise response from John” when the speaker wishes to avoid a direct reply and responds in this fashion by reason of the fact he heard the word “eh” in the question but the speaker included two “ehs”. It is the truth but only framed to deceive. In this context, read what follows:
MOTH. Of the sea-water green, sir.
ARMADO. Is that one of the four complexions?
MOTH. As I have read, sir … [1-ii-80]
“As I have read” may well be strictly true but the responder knows fully well what he read was not true. Think of the actor Bill Murray in the original Ghostbuster telling the student that he was wrong in guessing a couple of wavy lines when, in fact, there were three. He did not respond fully and fairly in order to pursue his devious design. The investigator must, thus, be vigilant not to be duped in this fashion.
Judgment – yield to reason and not to passion
In this vein, note the following: “KING. It shall suffice me; at which interview All liberal reason I will yield unto …” [2-i-165]
Professionalism in investigations – lessons from this play
Professionalism – authorities to justify your course of action
The Canadian legal system is based on legislation, such as the Criminal Code, and the common law in which authorities (or precedents) are cited to support actions, such as prior court decisions justifying an investigative detention, i.e. R. v. Mann, [2004] 3 S.C.R. 59. In many investigations, you must search for case law or authorities, another way of expressing this idea, to justify the course of action you have undertaken. In this context, we read:
ARMADO. … Comfort me, boy; what great men have been in love?
MOTH. Hercules, master.
ARMADO. Most sweet Hercules! More authority, dear boy, name more … [1-ii-66]
On the subject of precedents, note what follows. Firstly: “ARMADO. I will have that subject newly writ o'er, that I may example my digression by some mighty precedent …” [1-ii-111] And, secondly, “ARMADO. No, page; it is an epilogue or discourse to make plain Some obscure precedence that hath tofore been said …” [3-i-76]
Professionalism – deference to authority not in your chain of command
Investigators must not allow individuals not yet ascertained to be victims of a crime to “jump the queue”, so to speak, and to receive privileged access to you and to your timetable. Indeed, even if victims, the so-called “movers and shakers” get priority in terms of the degree of their suffering, not royal blood or bank account, etc. In this context, consider the following:
PRINCESS OF FRANCE. Tell him the daughter of the King of France, On serious business, craving quick dispatch, Importunes personal conference … [2-i-29]
Professionalism – detested crimes
Note the interesting expression that follows:
PRINCESS OF FRANCE. … Glory grows guilty of detested crimes … [4-i]
Professionalism – fame, seeking acclaim
There is nothing wrong in taking non-sinful pride in achieving a measure of fame because of your hard work and success in investigating offences. That is consistent with the sentiments of the King with which Shakespeare opens this play: “Let fame, that all hunt after in their lives …” [1-i-1] What you cannot do is to seek out media opportunities that are, in effect, the result of the suffering of the victims. Note as well: “BOYET. Proud of employment, willingly I go. PRINCESS OF FRANCE. All pride is willing pride, and yours is so.” [2-i-34]
Professionalism – patience
Consider this quote to support the need for patience within the world of investigations: “LONGAVILLE. A high hope for a low heaven. God grant us patience! …” [1-i-192]
Professionalism – promises that cannot be kept are not to be made
For investigators, the classic situation involves public statements that no one shall rest until the guilty party is captured and convicted. Victims and the community need your assurances that you and your colleagues are dedicated to achieving success and consider the case to be a vital one. That said, you cannot promise to capture a criminal as it is beyond your ability to prevent someone from having left the country before the crime is even brought to light, to set out but one example of the challenges you face. In this regard, the quote that follows illustrates foolish promises that Berowne was not keen to agree to:
BEROWNE. … So much, dear liege, I have already sworn,
That is, to live and study here three years.
But there are other strict observances,
As: not to see a woman in that term …
And one day in a week to touch no food,
And but one meal on every day beside …
And then to sleep but three hours in the night
And not be seen to wink of all the day
O, these are barren tasks, too hard to keep,
Not to see ladies, study, fast, not sleep! [1-i-35]
Professionalism – serve the community, your ultimate duty
In this context, note what follows: ?BOYET. I am bound to serve” [4-i-56]
Professionalism – shame
Investigators ought not to be concerned about such things, as all that maters is keeping the community safe. Thus: “BEROWNE. We are shame-proof, my lord, and 'tis some policy…” [5-ii-508]
Professionalism – teaching to know
More important than anything is your ability to teach those under your direction how to learn. As we read:
BOYET. Who is the shooter? who is the shooter?
ROSALINE. Shall I teach you to know?
[4-i-103]
Professionalism – truth is a costly value
Consider the situation of an investigator discovering that a superior has stolen drugs from the exhibit vault. Your duty is obvious but it is nonetheless a difficult experience to bear. Thus: “COSTARD. I suffer for the truth …” [1-i-289]
Professionalism – weigh evidence fully and fairly
Consider this example: “KING. Will you hear this letter with attention?” [1-i-210]