POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S THE MERCHANT OF VENICE
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from Shakespeare’s play The Merchant of Venice 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 – elements of
Cheek
ANTONIO.
Mark you this, Bassanio,
The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
O, what a goodly outside falsehood hath!
[1-iii-91] [Underlining added]
PORTIA.
There are some shrewd contents in yond same paper
That steals the colour from Bassanio’s cheek … [3-ii-245]
Eyes
PRINCE OF MOROCCO.
… I would o’erstare the sternest eyes that look … [2-i-27]
PORTIA.
… and green-ey’d jealousy. [3-ii-110]
Frown
NERISSA.
Then is there the County Palatine.
PORTIA.
He doth nothing but frown, as who should say “And you will not have me, choose.” He hears merry tales and smiles not. I fear he will prove the weeping philosopher when he grows old, being so full of unmannerly sadness in his youth. I had rather be married to a death’s-head with a bone in his mouth than to either of these. God defend me from these two! [1-ii-41]
Smiles
SALARINO. … And other of such vinegar aspect
That they’ll not show their teeth in way of smile … [1-i-55]
Visage
GRATIANO. … There are a sort of men
whose visages Do cream and mantle … [1-i-87]
PORTIA. …
With bleared visages come forth to view [3-ii-59]
Interviewing potential witnesses and accused – lessons from this play
Interviewing – oath to tell the truth is a minimum save for children
Consider this example:
PORTIA.
It is almost morning,
And yet I am sure you are not satisfied
Of these events at full. Let us go in,
And charge us there upon inter’gatories,
And we will answer all things faithfully. [5-i-295]
Interviewing – voir dire – inducements
What follows illustrates a very real danger: “BASSANIO. Promise me life, and I’ll confess the truth.” [3-ii-33] If you change the words to “bail” or a “light sentence” or “my wife does not get charged”, it is all the same: an inducement that dooms the confession.
Judgment and an investigator’s function: lessons from this play’
Judgment – actors, potential witnesses may include
In this context, affecting reliability quite markedly, consider the following:
ANTONIO.
I hold the world but as the world, Gratiano,
A stage, where every man must play a part,
And mine a sad one. [1-i-77]
Judgment – age and being fooled
An investigator must neither presume youth are senseless or older persons are mature and wise. The question is always: what maturity, if any, does this potential witness possess? Thus:
NERISSA.
… Superfluity come sooner by white hairs, but competency lives longer. [1-ii-7]
Consider as well:
PRINCE OF MOROCCO …
Young in limbs, in judgment old [2-vii-72]
Judgment – “cherchez l’argent”
In many investigations, investigators chase a money trail, or a trail of love and jealousy, Thus:
ANTONIO.
… Go presently inquire, and so will I,
Where money is, and I no question make
To have it of my trust or for my sake. [1-i-182]
Judgment – deliberation prior to decisions being reached
The wisdom of this course is seen in this passage:
PRINCE OF MOROCCO.
… Pause there, Morocco,
And weigh … [2-vii-24]
Judgment – examine things closely
Consider this example:
BASSANIO.
So may the outward shows be least themselves.
The world is still deceiv’d with ornament.
In law, what plea so tainted and corrupt
But, being season’d with a gracious voice,
Obscures the show of evil? … [3-i-75]
Judgment – experimentation – be wary of
A sound example of pure luck being assessed as circumstance is described below. It is one of the reasons why courts assign little weight to circumstantial evidence:
BASSANIO.
In my school-days, when I had lost one shaft,
I shot his fellow of the self-same flight
The self-same way, with more advised watch
To find the other forth; and by adventuring both
I oft found both. I urge this childhood proof
Because what follows is pure innocence.
I owe you much, and, like a wilful youth,
That which I owe is lost. But if you please
To shoot another arrow that self way
Which you did shoot the first, I do not doubt,
As I will watch the aim, or to find both,
Or bring your latter hazard back again,
And thankfully rest debtor for the first. [1-i-138]
The modern version is to find a lost golf ball by imitating the same bad shot! Investigators must rely on skill and objective elements of judgment.
Judgment – “fool’s gold” – assess things with an objective eye
Shakespeare teaches us this valuable lesson in Act 2, sc. Vii, l. 65 when he writes:
PRINCE OF MOROCCO.
…
There is a written scroll. I’ll read the writing.
ll that glisters is not gold …
Consider as well:
BASSANIO.
So may the outward shows be least themselves.
The world is still deceiv’d with ornament. [3-ii-73]
BASSANIO.
… The seeming truth which cunning times put on
To entrap the wisest. Therefore thou gaudy gold,
Hard food for Midas, I will none of thee … [3-ii-101]
Judgment – human nature –grief
One can never know how others experience such emotions. Consider:
SOLANIO.
I would she were as lying a gossip in that as ever knapped ginger or made her neighbours believe she wept for the death of a third husband. … [3-i-10]
Judgment – not the truth, the whole truth …
This is an example of not having told the “whole truth”:
BASSANIO.
O sweet Portia,
Here are a few of the unpleasant’st words
That ever blotted paper. Gentle lady,
When I did first impart my love to you,
I freely told you all the wealth I had
Ran in my veins, I was a gentleman.
And then I told you true. And yet, dear lady,
Rating myself at nothing, you shall see
How much I was a braggart. When I told you
My state was nothing, I should then have told you
That I was worse than nothing … [3-ii-255]
Judgment – oath – not complying with
How many oaths may be disrespected before you stop trusting the person involved? Consider this example:
BASSANIO.
Nay, but hear me.
Pardon this fault, and by my soul I swear
I never more will break an oath with thee. [5-i- 248]
Judgment – strange things are encountered in daily life
One ought never to forget that human kind involves all kings of persons having all kinds of thoughts and actions. Thus,
SALARINO.
… Nature hath fram’d strange fellows in her time … [1-i-51]
A few lines later, we read:
BASSANIO.
… You grow exceeding strange. … [1-i-68]
Judgment – wisdom and words
Investigators ought to be mindful of the old joke: “Better to be thought of as a fool then to open one’s mouth and remove all doubt.” From the perspective of the investigator, you must not consider a person to be wise until you hear and assess words of wisdom; consider the negative side of things until you receive positive information. In that context, note the following:
GRATIANO.
… That therefore only are reputed wise
For saying nothing; when, I am very sure,
If they should speak, would almost damn those ears
Which, hearing them, would call their brothers fools… [1-i-91]
Later, we read:
BASSANIO.
Gratiano speaks an infinite deal of nothing, more than any man in all Venice. His reasons are as two grains of wheat hid in two bushels of chaff: you shall seek all day ere you find them, and when you have them they are not worth the search. [1-i-113]
Professionalism that must be present in investigative work – lessons from this play
Professionalism – breach of the law is never authorized
Unless your actions are in keeping with the common law, or the Criminal Code, or authorized by a Court, such as by means of a general warrant, your actions are not justified. Think of this example:
BASSANIO.
… I beseech you,
Wrest once the law to your authority.
To do a great right, do a little wrong. [4-i-211]
Professionalism – brevity
You always appear very wise when you speak briefly. Thus: “SOLANIO. … But it is true, without any slips of prolixity or crossing the plain highway of talk …” [3-i-11] Note as well: “PORTIA. … I speak too long …” [3-ii-21]
Professionalism – emotions, if help is required, must be sought
The pressures that an investigator must endure are often far beyond what one can imagine and if they become acute, one ought not to hesitate prior to seeking professional assistance. Mental illness or difficulties are no different than physical ailments: they arise and must be treated. Consider:
ANTONIO.
In sooth I know not why I am so sad … [1-i-1]
Professionalism – follow your own advice
One cannot attain professional success otherwise. Note the following:
PORTIA.
If to do were as easy as to know what were good to do, chapels had been churches, and poor men’s cottages princes’ palaces. It is a good divine that follows his own instructions … [1-ii-14]
Professionalism – judging is not the same as investigating
This review of the teachings of Shakespeare in this play, and the others in this series, have in common an emphasis on judgment. In this context, please note that in investigating offenses, you may offend witnesses and certainly those who fall under suspicion. That cannot be helped, but you must ask with objectivity and respect. Consider:
PORTIA.
To offend and judge are distinct offices,
And of opposed natures. [2-ix-62]
Professionalism – luck is not the foundation of your investigation
Justice requires that you not follow the example that follows: “PRINCE OF MOROCCO … And so may I, blind Fortune leading me …” [2-i-36] Nor is a form of deity: “PRINCE OF MOROCCO. Some god direct my judgment! …” [2-vii-12]
Professionalism – lying to avoid responsibility
This is a sound example:
BASSANIO.
If I could add a lie unto a fault,
I would deny it, but you see my finger
Hath not the ring upon it, it is gone. [5-i-185]
It is almost as if the witness was saying: “I would lie if I could get away with it!”
Professionalism – mocking a person
Sadly, over the years, I have seen police officers mock a detainee. This is a serious matter. It cannot be tolerated. For example:
PORTIA.
God made him, and therefore let him pass for a man. In truth, I know it is a sin to be a mocker … [1-ii-54]
Professionalism – nonsense is nonsense
A true investigator is not influenced, much less directed by nonsensical beliefs of the nature of:
NERISSA.
The ancient saying is no heresy:
Hanging and wiving goes by destiny. [2-ix-83]
If a person faces a life sentence in jail, as hanging is abolished, it is because of their actions, not the stars in heaven…
Professionalism – prejudice – of any kind, infects your work
No authority is required but it is of interest to quote:
PRINCE OF MOROCCO.
Mislike me not for my complexion ,,, [2-i-1]
Professionalism – “Smart and smooth talkers”, beware of
Consider this passage:
BASANIO …
In law, what plea so tainted and corrupt
But, being season’d with a gracious voice,
Obscures the show of evil? … [3-ii-75]
Professionalism – trust in justice and in your talent ‘
The quote that follows is quite significant:
LAUNCELET.
… truth will come to light, murder cannot be hid long, a man’s son may, but in the end truth will out. [2-ii-71]