POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S A Midsummer-Night’s DREAM
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from Shakespeare’s play A Midsummer’s-night Dream 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 – attempt to dupe you during statement phase
Investigators are always wary of these possibilities. For example, witnesses may seek to follow this course of action: “HELENA … do, persever, counterfeit sad looks …” [3-ii-237]
Demeanour – elements to be evaluated
Eyes
HERMIA
Belike for want of rain, which I could well
Beteem them from the tempest of my eyes. [1-i-132]
HELENA
… For she hath blessed and attractive eyes. [2-ii-91]
Face
DEMETRIUS
Abide me, if thou darest; for well I wot
Thou runn'st before me, shifting every place,
And darest not stand, nor look me in the face.
… [3-ii- 423]
Frowns
HERMIA
I frown upon him, yet he loves me still.
HELENA
O that your frowns would teach my smiles such skill! [1-i-193]
Look
HELENA
.. Deserve a sweet look from Demetrius' eye [2-ii-128]
Pallour
LYSANDER
How now, my love! why is your cheek so pale? [1-i-127]
TITANIA …
Pale in her anger… [2-i-101]
Smiles
HERMIA
I frown upon him, yet he loves me still.
HELENA
O that your frowns would teach my smiles such skill! [1-i-193]
Interviewing witnesses – lessons from this play
Interviewing – commenting on what a witness states
It is a dangerous thing to interrupt what a witness states and the better practice is to allow them to set out in full, without any hint of interference, what they know and only the n, to comment and to seek information. Hence: “HERMIA You speak not as you think: it cannot be.” [3-ii-191]
Interviewing – compelling a witness-detainee to respond to questions
A person who has been informed of their right to silence cannot be compelled to answer any questions. Thus, consider this quote:
LYSANDER
Thou canst compel no more than she entreat … [3-ii-247]
Interviewing – indirect responses – must clarify
The example that follows illustrate the need to as follow-up questions to avoid any danger of confusion touching upon quite important subject matters such as deceit and lies:
HERMIA
Lysander riddles very prettily:
Now much beshrew my manners and my pride,
If Hermia meant to say Lysander lied. … [2-ii-56]
But, gentle friend, for love and courtesy
Interviewing – invite witness to tell the truth
It is not improper, and is certainly intelligent, to invite a potential witness to tell the truth as illustrated in this passage:
HERMIA
… O, once tell true, tell true … [3-ii-67]
Of course, if the witness then informs you of something surprising, even contrary to your theory, you must record it and consider it fully. Thus:
DEMETRIUS
You spend your passion on a misprised mood:
I am not guilty of Lysander's blood … [3-ii-75]
Interviewing – know not what to say
On occasion, an honest and reliable witness is stumped to answer. You might be better served to postpone completing the interview until a later date. Thus: “HERMIA I am amazed, and know not what to say.” [3-ii-343]
Interviewing – multiple questions one after another – to be avoided
The danger in following the example set out below is that the witness will be responding in the affirmative to the first of the sequence but the investigator will believe, mistakenly, that it was in reference to the second. For example:
DEMETRIUS
Do I entice you? do I speak you fair?
Or, rather, do I not in plainest truth
Tell you, I do not, nor I cannot love you? [2-i-200]
Interviewing - persuading reluctant potential witnesses to co-operate
This is a skill honed by scholastic study of texts by psychologists on how best to persuade persons to conduct themselves as good citizens and by practical experience in speaking to members of the community and seeing what makes them tick, so to speak. In that regard, note:
LYSANDER
A good persuasion: therefore … [1-i-157]
Interviewing – right to silence –
Detectives must ensure that persons about to be charged or who have been detained or arrested must be told of their right to silence, and that they may consult with a lawyer, free of charge, and of other information vital to exercising their rights. Thus, if a person in such circumstances states: “FLUTE Must I speak now?”, you have not explained the rights sufficiently well. See Act 3, sc. I, l. 80.
Interviewing – seek explanations
It is proper, and necessary, to point out that you require an explanation. Thus: “HERNIA I understand not what you mean by this.” [3-ii-236]
Interviewing – truth, explain that you seek the
Note this useful quote: “LYSANDER … A good moral, my lord: it is not
enough to speak, but to speak true.” [5-i-100]
Judgment that investigators must display – guidance from this play
Judgment – bias – potentially arising from friendship
Consider the potential effect of this situation in what follows: “HELENA … All school-days' friendship …” [3-ii-204]
Judgment – concessions made by cautious persons being fair
Many witnesses, including police officers, will testify by adding “limitations” or “caveats” to express their respect for oaths and their honour-based concerns as to the possibility of mistake. Thus:
Fairy
Either I mistake your shape and making quite,
Or else you are that shrewd and knavish sprite
Call'd Robin Goodfellow … [2-i-33]
Judgment – human nature – dated and discredited beliefs
Investigators will sometimes interview witnesses at the scene of a crime or in their office who profess beliefs that are no longer reasonably held in our modern, secular based society. It is important that you evaluate statements for clues indicating these dated and discredited beliefs. This is not to say that such beliefs are indicative of harmful philosophies or that inimical conduct towards society is contemplated; merely to point out that surprising views might lead at trial to surprising testimony and the prosecutor is entitled to a “warning”, so to speak, about such potential perspectives. In this context, note this quote:
THESEUS
What say you, Hermia? be advised fair maid:
To you your father should be as a god … [1-i-47]
Judgment – human nature – improve our situation
Humans are always engaged in cost-benefit analyses. Thus:
LYSANDER
… Who will not change a raven for a dove? [2-ii-113]
Judgment – human nature – jealousy – affect reliability of statements
No authority is required to support this proposition. Nonetheless, these quotes are helpful:
PUCK …
And jealous Oberon would have the child … [2-i-23]
TITANIA
What, jealous Oberon! Fairies, skip hence:
I have forsworn his bed and company. [2-i-62]
TITANIA
These are the forgeries of jealousy:
And never, since the middle summer's spring … [2-i-81]
Judgment – human nature – love and other emotions affect reliability
Police investigators must take account of the fact that we are all subject to the whirl of emotions, notably love, and that witnesses caught in a particularly difficult period may not be able to provide reliable information at the scene of a crime or at the police station. Consider this passage:
LYSAER
Ay me! for aught that I could ever read,
Could ever hear by tale or history,
The course of true love never did run smooth [1-i-133]
Note as well:
BOTTOM
Methinks, mistress, you should have little reason
for that: and yet, to say the truth, reason and
love keep little company together now-a-days; the
more the pity that some honest neighbours will not
make them friends. … [3-i-129]
LYSANDER
Why should you think that I should woo in scorn?
Scorn and derision never come in tears:
Look, when I vow, I weep; and vows so born,
In their nativity all truth appears.
How can these things in me seem scorn to you,
Bearing the badge of faith, to prove them true? [3-ii-124]
Judgment – human nature – oaths – examine what binds one’s conscience
It is noteworthy that persons’ will invoke their mother’s soul, the grave of their father, and of course, God, in attempting to prove that their oath binds their conscience. However, short of a fear of jail for perjury, does anything guarantee the truthfulness of a statement made outside of a Courthouse to a police officer? Note the following:
HERMIA
My good Lysander!
I swear to thee, by Cupid's strongest bow,
By his best arrow with the golden head,
By the simplicity of Venus' doves … [1-i-168]
Judgment – human nature - oaths – not respected often
It is a staple belief, oft expressed by Shakespeare’s plays, that oaths are not worth a great deal. Thus:
HERMIA
My good Lysander!
I swear to thee…
By all the vows that ever men have broke,
In number more than ever women spoke … [1-i-175]
And, in addition:
HELENA
… As waggish boys in game themselves forswear,
So the boy Love is perjured every where … [1-i-240]
PUCK
Then fate o'er-rules, that, one man holding troth,
A million fail, confounding oath on oath. [3-ii-94]
HELENA
You do advance your cunning more and more.
When truth kills truth, O devilish-holy fray!
These vows are Hermia's: will you give her o'er?
Weigh oath with oath, and you will nothing weigh:
Your vows to her and me, put in two scales,
Will even weigh, and both as light as tales. [3-ii-127]
Judgment – human nature – opposites attract
Consider this support for that proposition:
HERMIA
The more I hate, the more he follows me.
HELENA
The more I love, the more he hateth me. [1-i-197]
Judgment – imagination of potential witnesses – be wary of
I doubt very much that there is any great scientific justification for the quote that follows, but there is no doubt that imaginative persons represent potentially unreliable witnesses if they turn their fertile minds to deceit. Thus:
THESEUS
… .The lunatic, the lover and the poet
Are of imagination all compact … [5-i-6]
… Such tricks hath strong imagination … [5-i-18]
Judgment – impatient answers – be wary of
On occasion, attempts at trial by the Crown to take advantage of so-called “impatient answers” by a future accused when questioned by the police will ricochet to the prosecution’s disadvantage as the accused will be seen by the Court to have been given too little time to formulate correct responses. Thus, haste may lead to waste of an opportunity. Consider:
HELENA
… will you tear
Impatient answers from my gentle tongue? [3-ii-287]
Judgment – mistakes – honest ones
Theseus states with emphasis “… How easy is a bush supposed a bear!” There is much food for thought in that phrase.
Judgment – sources of information – from almanac to Google
Investigators must seek out corroboration for what witnesses say, in order to support or inform their statements. For example, if a witness states that lightning hit the clock tower as in the Back to the Future scenario, you are well advised to seek out quality proof, which may not be either the almanac or Google. The more vital is the point in issue, the more one ought to seek out the best possible evidence. Consider:
BOTTOM
A calendar, a calendar! look in the almanac … [3-i-46]
Judgment – statement, must ensure that apparent admissions of having caused harm are, in fact, expressions of negative conduct
On rare occasion, thankfully in my experience, apparent admissions of negative behaviour, indeed of confessions of criminal behaviour, are not of such a character upon fuller examination. In this vein, note what follows:
THESEUS
…
Hippolyta, I woo'd thee with my sword,
And won thy love, doing thee injuries;
But I will wed thee in another key,
With pomp, with triumph and with revelling. [1-i-16]
In fact, Theseus admits only of wrongdoing towards the enemies of their state. Thus, an investigator is well served to inquire of any interviewee apparently admitting to such misconduct to provide details. The last thing the Crown Attorney wishes is an innocent explanation put forward at trial that fully exonerates the accused.
Judgment – stereotypes, to be avoided
There is no set look for innocent or guilty persons. Thus: “HERMIA … So should a murderer look, so dead, so grim.” [3-ii-55]
Judgment – strange truths
Investigators must not be too quick to dismiss as nonsense factual possibilities that appear strange. Consider:
HIPPOLYTA
'Tis strange my Theseus, that these
lovers speak of.
THESEUS
More strange than true … [5-i-1]
Judgment – subjective perspectives are best assessed by being “flipped”
Detectives will enjoy great success if they harness the skill of reversing propositions. That is to say, of judging the merits of a precise point of view by looking at it from the opposite side. Thus:
HERMIA
I would my father look'd but with my eyes.
THESEUS
Rather your eyes must with his judgment look. [1-i-56]
In effect, if attempting to address the merits of a claim of proportionate self-defence, you must view the actions of all from the viewpoint of both the smaller and bigger party, of the younger and older person, etc. Indeed, you may progress from the comparative to the superlative, if required.
Judgment – time, estimates of, are quite different for lovers
It is a generally held objective truth that most individuals demonstrate poor results when tested as to their ability to gauge the passing of time accurately. Subjectively, a variety of factors interferes with a person’s ability, and one of these is the emotional state of love. In this context, note these relevant passages from Act 1, scene i, lines 2 to 8:
THESEUS
… but, O, methinks, how slow
This old moon wanes! she lingers my desires,
Like to a step-dame or a dowager
Long withering out a young man revenue.
HIPPOLYTA
Four days will quickly steep themselves in night;
Four nights will quickly dream away the time …
Judgment – tongue-tied witnesses are not invariably caught in a falsehood
There are a number of reasons why honest witnesses are nervous and tongue-tied! Thus: “THESEUS … I read as much as from the rattling tongue Of saucy and audacious eloquence. Love, therefore, and tongue-tied simplicity …” [5-i-104]
Judgment – will – how it affects the reliability of information
Consider the advice found within this quotation:
LYSANDER
… Things growing are not ripe until their season
So I, being young, till now ripe not to reason;
And touching now the point of human skill,
Reason becomes the marshal to my will … [2-ii-116]
Professionalism of investigators – lessons from this play
Professionalism “all shall be well”
In all you do, you must believe that you will contribute to the safety of your community – that through your skill and hard work, in the words of PUCK: “… all shall be well.” [3-ii-464]
Professionalism – be kind and courteous
One may easily achieve great professional success and yet follow the quote that follows: “TITANIA Be kind and courteous …” [3-i-149]
Professionalism – brevity
Consider this advice: “HIPPOLYTA … I hope she will be brief.” [5-i-309]
Professionalism – consult with colleagues before deciding
The wise investigator will obtain the advice of either more senior colleagues or that of less experienced ones in terms of years but with particular knowledge touching upon the subject of controversy. Thus:
THESEUS
I must employ you in some business
… and confer with you … [1-i-125]
Professionalism – correct your subordinates with respect
If someone is mistaken in their use of terms, you must correct them only in respectful terms. For example:
QUINCE
Yea and the best person too; and he is a very
paramour for a sweet voice.
FLUTE
You must say 'paragon:' a paramour is, God bless us,
a thing of naught. [4-ii-9]
Professionalism – deliberate before deciding
Consider the wisdom of the words that follow on this subject:
THESEUS
Take time to pause … [1-i-82]
Professionalism – distinguish between your work and personal issues
The investigator cannot allow personal issues to interfere with work assignments, a rather self-evident proposition in theory but one that is difficult to comply with in practice as any number of us have to fight off the worries of a quite ill parent or child, to name but two examples. In this vein, I note:
THESEUS
I must confess that I have heard so much,
And with Demetrius thought to have spoke thereof;
But, being over-full of self-affairs,
My mind did lose it. … [1-i-113]
Professionalism – duty – in general
Investigators are celebrated rightly for discharging “… the modesty of fearful duty”. [5-i-100]
Professionalism – duty to follow direction of superiors
Assuming that the order you received is a lawful one, it must be followed or you risk a criminal prosecution, such as criminal negligence causing bodily harm for example, if a fellow prisoner who was not handcuffed to the rear as was ordered injures a detainee. In this context, note
EGEUS
With duty and desire we follow you. [1-i-127]
Professionalism – excuses versus explanations
The best quote follows: “THESEUS Never excuse…” [5-i-347]
Professionalism – know thy strengths
One is always well served by having fair and full insights of one’s strengths and weaknesses. For example:
SNUG
Have you the lion's part written? pray you, if it
be, give it me, for I am slow of study. [1-ii-60
Professionalism – mocking those whom you serve
Be very careful not to take for granted, or worse, those whom you serve. For example, “PUCK … Lord, what fools these mortals be!” [3-ii-115]
Professionalism – patience, a quality to be honed with experience
All investigators must develop a deep sense of patience. Thus, this model is to be followed:
HERMIT
… Then let us teach our trial patience […] [1-i-152]
OBERON
… And she in mild terms begg'd my patience … [4-i-35]
Ultimately, it matters not if your are “… Slow in pursuit …” [4-i-120] so long as you succeed in solving the case. Indeed, we read a few lines further, “THESEUS … Judge when you hear…” [4-1-124] but you are not required to do this as you are only required to judge the merits of a case when all reasonable efforts have been expended.