POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S King John
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from Shakespeare’s play King John 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 – lessons from this play
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
Demeanour – a form of lie detector
Many individuals within the criminal justice system, including investigators, lawyers and judges, believe that demeanour evidence, properly considered, is a reliable form of “truth detection”. Consider Shakespeare’s contribution in this regard: “KING PHILIP … the gentle brow Of true sincerity? …” [3-i-247]
Demeanour – confirmation of verbal testimony?
See the discussion under “Demeanour – is there any objective weight to be assigned to such evidence?”
Demeanour – duplicity is within our power to achieve
Every day, humans attempt to achieve a communicative purpose that may involve falsehoods as to our state of mind, by means of the wilful manipulation of our appearance, Thus, “KING JOHN … Cousin, look not sad …” [3-iii-2]
Demeanour – is there any objective weight to be assigned to such evidence?
In this vein, consider this quote that poses a question I asked of myself hundreds of times over a 40-year career in the criminal courts: “CONSTANCE … What dost thou mean by shaking of thy head? …” [3-i-19] A few lines later, Constance added: “… Be these sad signs confirmers of thy words?” [3-i-23]
Demeanour – elements of this non-verbal information to analyze
Hand
CONSTANCE … What means that hand upon that breast of thine? [3-i-21]
Head
CONSTANCE … What dost thou mean by shaking of thy head? … [3-i-19]
Look
CONSTANCE … Why dost thou look so sadly on my son? [3-i-20]
ARTHUR … Even with the fierce looks of these bloody men. [4-i-73]
ARTHUR … He hath a stern look, but a gentle heart … [4-i-88]
Interviewing witnesses – lessons from this play
Interviewing – brevity
Refer to the latter part of the section entitled “Interviewing – interest in seeking out information”.
Interviewing – difficulties the witness experiences in attempting to speak
On occasion, a witness cannot relate a coherent account and may be thought, wrongly in the circumstances, to be attempting to protect the accused or likely suspect. In support we quote: “KING PHILIP I am perplex'd, and know not what to say.” [3-i-221]
Interviewing – interest in seeking out information
The example of patient interest in obtaining information that follows is to be emulated: “KING JOHN Speak on with favour; we are bent to hear.” [2-i-423] To the same effect are the words that follow: “KING PHILIP Speak England first, that hath been forward first To speak unto this city: what say you?” [2-i-480] That said, on occasion, a witness will seek to be brief and you ought not to interrupt. For example, “HUBERT … I must be brief, lest resolution drop…” [4-i-35] In other words, if it becomes obvious that a witness is quite emotional, get to the significant part without delay.
Judgment that investigators must possess – lessons from this play
Judgment – analyze what may motivate the witness to speak falsely
One potential obstacle to truth telling is need, be it monetary, psychological, familial, etc. Thus: “BLANCH The Lady Constance speaks not from her faith, But from her need.” [3-i-208]
Judgment – answers appear to be drawn from a primer
At times, you might judge that the witness you interviewed at the police station was responding as if repeating “rote” answers, in the sense of answering by means of a script, suggesting the statement is not full and fair. In this light, note this quote: “BASTARD … that is question now; And then comes answer like an Absey book …” [1-i-197] An Absey book is a primer containing a great deal of basic information.
Judgment – cover-up crimes may lead to parties guilty of first offences
As made plain in the President Nixon cover-up scenarios, investigators may solve earlier crimes by solving subsequent attempts at hiding the original crimes. In this context, note what follows:
PEMBROKE
When workmen strive to do better than well,
They do confound their skill in covetousness;
And oftentimes excusing of a fault
Doth make the fault the worse by the excuse,
As patches set upon a little breach
Discredit more in hiding of the fault
Than did the fault before it was so patch'd. [4-i-29]
[Emphasis added]
Judgment – deception – witnesses may wish to dupe investigators
Little authority is required in support of this suggestion but if you wish a useful quote, note the following: “BASTARD … Which, though I will not practise to deceive …” [1-i-212]
Judgment – errors, are there mistakes in what witness believes took place?
All witnesses are human and one of your tasks is to analyze their statements at the investigative stage to see, amongst other things, whether they misheard or misunderstood what others stated. Thus, “CONSTANCE … thou hast misspoke, misheard …” [3-i-4] Errors, of course, are different from acts of perjury, acts that are deliberate. Note: “CONSTANCE … This day of shame, oppression, perjury …” [3-i-88]
Judgment – fact-finding is far from being easy
Consider this example:
SALISBURY
In this the antique and well noted face
Of plain old form is much disfigured;
And, like a shifted wind unto a sail,
It makes the course of thoughts to fetch about,
Startles and frights consideration,
Makes sound opinion sick and truth suspected,
For putting on so new a fashion'd robe.
[4-i-21] [Emphasis added]
Judgment – grief and other emotions distort reliability of statements
Investigators must always be wary of such matters as they potentially affect, if not distort, the reliability element of the statement. Thus: “SALISBURY … Our griefs, and not our manners, reason now.” [4-iii-28]
Judgment – human nature – criminals (and others) band together in hard times
Consider this quote: “KING PHILIP Do glue themselves in sociable grief, Like true, inseparable, faithful loves, Sticking together in calamity.” [3-iv-67]
Judgment – manner of speaking – describing things indirectly
This is quite apparent in the example that follows:
ARTHUR
As little prince, having so great a title
To be more prince, as may be. You are sad.
HUBERT
Indeed, I have been merrier. [4-i-10] [Emphasis added]
Judgment – proof by way of testimony, how much is too much?
One of the classic stories told by veteran investigators is of a stick-swinging battle between two hockey players in front of 8,344 (or so) fans at the Soo Arena that led to charges of assault causing bodily harm. When asked by reporters whom he would call as witnesses, the local Crown Attorney stated that the police would be issuing subpoenas to each and every person present. For our purposes, the point is that you must present reasonable numbers of potential witnesses to the prosecution, and all of this will be disclosed, of course. In this vein, note: “KING JOHN Doth not the crown of England prove the king? And if not that, I bring you witnesses, Twice fifteen thousand hearts of England's breed …” [2-i272]
Judgment – think as the criminal may have in conceiving the crime
On occasion, this technique will lead to a successful outcome in your investigation. Consider this quote: “KING PHILIP … To cull the plots of best advantages …” In other words, to attempt to follow what trail, to consider what criminal plots, the culprits may have considered.
Judgment – truth is truth – is there an objective truth?
On occasion, increasingly rare as no one reads Shakespeare these days, investigators will be cross-examined by defence counsel who will quote what follows: “ROBERT … But truth is truth …” [1-i-103], to then ask questions suggesting that the officer cannot correctly believe that they saw this, that and the other thing. In effect, that the investigator may believe that what they saw amounts to a subjective truth, let us say that the car driven by their client may not have come to a complete stop before turning to the right, but that objectively they cannot be positive that there was not a momentary cessation of forward momentum. For my part, there is rarely a role for the belief that “truth is truth” in that all human based opinions embrace some measure of subjective belief.
Judgment – truth, or a lie, or a mistake?
The passage that follows states a dangerous belief, to the effect that if one does not state the truth, what is declared must be a lie. The witness might be mistaken. Consider: “HUBERT … Yet I am none: whose tongue soe'er speaks false, Not truly speaks; who speaks not truly, lies.” [4-iii-90]
Judgment – two contradictory statements – you decide
The last line of Act 1, scene I reads: “BASTARD… Who says it was, he lies; I say 'twas not.” As an investigator, you seek proof, not just bald expressions of “this is the truth”. Rarely will you be able to correctly decide who is both honest and reliable without some objective proof. In reaching this conclusion, you must be careful not to assign any weight to titles such that you give greater importance to what the local priest or M.P. might have stated in their statements, to name but two luminaries not deserving of greater deference by reason of their rank in society. Thus: “CONSTANCE … Believe me, I do not believe thee, man; I have a king's oath to the contrary…” [3-i-8]
Professionalism in investigative work – lessons from this play
Professionalism – bad news – be not afraid to deliver
I once worked for someone who did not wish to hear bad news, so we walked on eggshells until someone had the courage to tell him whatever negative news there was. I regret not having the courage to act otherwise. Do not follow my poor example. Thus: “KING JOHN … Now, what says the world To your proceedings? do not seek to stuff My head with more ill news, for it is full.” [4-ii-130]
Professionalism – copy great examples of investigative excellence
The quote that follows summarizes this advice: “BASTARD … That borrow their behaviors from the great …” [5-i-52]
Professionalism – courage, and other qualities, emerge as are required
I often have asked police officers how they found the courage to carry out their functions and I heard a number say words to the effect “it found me when the occasion required it …” This is true of other qualities, no doubt. In this context, consider: “AUSTRIA … For courage mounteth with occasion …” [2-i-84]
Professionalism – difficulties abound with your professional responsibilities
Consider this example of how you must undertake arduous tasks and not merely easy ones: “LEWIS … Forego the easier.” [3-i-206]
Professionalism – discipline – always a necessary attribute
Consider this expression as to this great and much needed quality: “BASTARD O prudent discipline! …” [2-i-414]
Professionalism – equal justice for all
Investigators must be mindful that the law must be applied fully and fairly to all, rich or poor. On the one hand, it is said often that the disadvantaged groups in society are over-policed, as a result of the ease with which low-hanging fruit is plucked. Think of the expression: “It is illegal for both the rich and poor to sleep under the bridges of Paris”. Of course, the well off rarely seek to do so. One cannot discriminate against affluent persons, of course, and the quote that follows is apposite: “BASTARD … there is no sin but to be rich …” [2-i-593]
Professionalism – harm to witnesses, be mindful of the potential for
This self-evident statement is illustrated by the quote that follows: “SALISBURY What other harm have I, good lady, done, But spoke the harm that is by others done?” [3-i-37]
Professionalism – Mr. Big scenarios are untrustworthy
Limitations of space preclude a full discussion but readers will profit from reading the case of R. v. Amin, 2024 ONCA 237 in which Chief Justice Tulloch explained how these situations risk producing unreliable confessions and may become “abusive and unduly coercive.” The play “King John” offers this relevant comment: “CARDINAL PANDULPH … And falsehood falsehood cures …” [3-i-277] in the sense that police lied to suspects in such operations to overcome their lies about not having committed the crime.
Professionalism – reversing the proposition
Investigators must look at both sides of an issue, at the very least, being mindful that there are no simple perspectives when assessing human behaviour. Thus, by looking at the other side of the coin, one may best judge the merits of any controversy. For example, Supreme Court of Canada Justice Beverley McLaughlin joked after her swearing-in as the third female member of the Supreme Court of Canada “three down, six [spots] to go”. A number of persons criticized her for suggesting that it would be appropriate for an all-female bench of justices to preside over our highest court. The retort is that the Supreme Court was all-male for nearly five decades and yet no one suggested that they rendered one-sided justice. For investigators, you must do the same, and if it is suggested that “BASTARD… Who dares not stir by day must walk by night …” [1-i-169] to support a view of when the offence took place, it must have been during the late hours when fewer persons walk outside their home, you should reverse by stating “is it not more likely that persons will be at home during that time?”
Professionalism – victims deplore your inability to provide them with justice
Investigators cannot always succeed and at times, your signal efforts in investigations, arresting and testifying against a criminal will provide no comfort to victims. You must accept this sad reality and attempt as best you can to provide whatever assistance is within your power. Thus:
CONSTANCE
And for mine too: when law can do no right,
Let it be lawful that law bar no wrong:
Law cannot give my child his kingdom here,
For he that holds his kingdom holds the law;
Therefore, since law itself is perfect wrong,
How can the law forbid my tongue to curse? [3-i-184]