POLICE INVESTIGATIONS 101

“A Case of Identity” by Sir Arthur Conan Doyle:

Sherlock Holmes Provides Instruction to Modern-Day Detectives

Justice Gilles Renaud (Retired) | Ontario Court of Justice

Introduction

This short story was published in 1891 and is found in the collection titled The Adventures of Sherlock Homes. By reason of the early and lasting reception of this great fictional character by the reading public, and the signal reputation this detective gained, Sherlock Holmes remains synonymous with excellence, indeed near perfection, in detective work. Until the advent of CSI type entertainment and the fascination with modern forensic evidence, his readers shared the belief that all investigators carried a “magnifying glass” and relied upon extraordinary powers of observation. More than another quality, Sherlock Holmes typified the ideal that a solution to a crime required information and that conclusions were quite premature and highly doubtful until all data had been mined and analysed. In the ultimate analysis, science and not intuition, was the foundation for success in police work.

The best illustration of this philosophy of investigation is seen in the short story, “A Scandal in Bohemia”, also found in the same collection, in Part I. The relevant passage follows, quoting his confidant and best friend, Dr. Watson, who asked Holmes:

“This is indeed a mystery,” I remarked. “What do you imagine that it means?” “I have no data yet. It is a capital mistake to theorise before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts. … [Emphasis added]

My objective in analyzing this short story is to provide guidance to police officers and especially detectives working in 2023. The instruction drawn from Sir Arthur’s imagination serves to illustrate current elements of controversy in detective work notably, how to identity a suspect. And, no less valuable, the short story offer insights into controversies touching upon demeanour evidence and the exercise of judgment including understanding human nature.

Discussion

A first theme: why pay attention to a piece of fiction from 1891?

My personal belief is that investigators succeed by asking sound and searching questions. The first might be: why read a short story from so long ago to become a better police officer today? In response, I quote from the late Dean John Wigmore, a leading law professor and writer on evidence: "The lawyer must know human nature. He [or she] must deal understandingly with its types and motives. These he cannot all find close around... For this learning he [or she] must go to fiction which is the gallery of life's portraits.”[1] If this proposition is sound, and surely it is, then detectives are in the same situation as lawyers, for they also must understand humanity, flawed and at times violent and or scheming. To achieve this goal, I propose that police officers turn to fiction.[2]

Demeanour evidence and investigative work

Assessing the body language of potential witnesses you interview art the scene of the crime or at the police station: An Introduction

This introductory paragraph seeks to make plain a vital element of demeanour that the investigator must assess to further the aims of justice: non-verbal language that purports to communicate information may well contradict what the speaker has stated, and this must be evaluated. It will assist the reader if I divert from this study of this short story in The Adventures of Sherlock Holmes to quote from William Shakespeare as this immortal playwright contributed greatly to the belief that demeanour is both informative and misleading in informing our daily decisions.[3] Perhaps the best known of these examples is found in Act 1, scene iv, l. 12 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 1, scene vii, l. 82: “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 2, scene iii, l. 135 of the same play. A rather celebrated expression of demeanour evidence is found in Julius Caesar, Act 1, scene ii, l. 192: “Caesar. Let me have men about me that are fat; Sleek-headed men and such as sleep o' nights: Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous.”

For investigators, the ultimate question is whether the attitude and manner of a witness reveals anything tangible, anything objective, upon which to conclude as to correct facts? Stated otherwise, what story did this tell, and was the story credible and reliable, especially considering the suggestions by Shakespeare that one can assume a favourable demeanour as well as hide a tell-tale one to avoid detection of one’s recent crime?

Further, I think it useful at this introductory stage to set out a few key passages from the case law to further the investigator’s understanding of this controversial subject, taken from R v Batchelor, [2022] OJ No 560 (Sup. Ct.), a well-reasoned judgment of Roger J.

50 Caution is required in considering favourable or unfavourable demeanour evidence. As indicated in R. v. M.M., 2016 ONSC 5027, at para. 59, and R. v. D.M., 2016 ONSC 7224, at para. 23, whether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted. As noted in R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27, demeanour evidence has been known to play a role in wrongful convictions. Indeed, demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as "the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses" and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence: R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at p. 314, citing Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C. C.A), at p. 357.

51 More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions) and improbabilities (exaggerations or illogical propositions). However, inconsistencies vary in their nature and importance; some are minor or concern peripheral subjects, others are more important or involve a material issue or something material.

52 Demeanour evidence is however not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, hesitations, challenging counsel, or run-on and unresponsive answers, may in certain circumstances be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence: see e.g., Hull, at paras. 8-9; R. v. Boyce, 2005 CarswellOnt 4970 (C.A.), at para. 3. Regardless, trial judges should not unduly rely on demeanour to make credibility findings, and any reliance on demeanour must be approached cautiously because looks can be deceiving. Importantly, a witness' demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: see R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45. Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours: see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 99, 101. Demeanour is therefore often of limited value because it can be affected by many factors, including the background of the witness, stereotypical attitudes, and the artificiality of, and pressure associated with, a courtroom or virtual courtroom. A perceived positive demeanour can equally be difficult to assess.

An excellent summary of the perspective of a trial judge is found in the wise words of Chief Justice Bowman in Faulkner v. M.N.R., 2006 TCC 239:

[13] Where questions of credibility are concerned, I think it is important that judges not be too quick on the draw. [...]

[14] [...] 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. [...] [Emphasis added]

In essence, the investigator must judge the demeanour of those they interview. To assist in this judging exercise, I now set out examples of demeanour drawn from “A Case of Identity”. I think this exercise should fairly lead you to be guarded about your ability to judge the value of the body language you note, and to be quite guarded in thinking that any “positive” demeanour supports to any measurable degree the information you receive.

Demeanour – interpretation of objective movement by means of a subjective judgment owing to prior association

“… having closed the door and bowed her into an armchair, he looked her over in the minute and yet abstracted fashion which was peculiar to him.” [Emphasis added] The difficulty I face as a trial judge and you, the investigative reader of this article must address, is to justify the soundness of the proposition underlined as we, unlike Dr. Watson, have no long acquaintance with Sherlock Holmes and his habits. How do we know how he acts and how does an investigator assess fully and fairly a stranger regarding their habits?

Based on the foregoing extract, it seems obvious that Dr. Watson as an investigator would not be wrong to conclude that Holmes was pondering a case, a crime. Surely, he was correct to write in his memoirs, “To me, who knew his every mood and habit, his attitude and manner told their own story”. The better question to pose is: would others who did not know Holmes quite as well be on sound ground to conclude as much? And, irrespective of the answers to either question, the only valuable question that an investigator requires an answer to is: what was he thinking and does attitude and manner reveal anything tangible, anything objective, upon which to conclude as to correct facts? Stated otherwise, what story did this tell, and was the story credible and reliable, especially considering the suggestions by Shakespeare that one can assume a favourable demeanour as well as hide a tell-tale one to avoid detection of one’s recent crime?

Demeanour – the fear that a potential witness is misleading the interviewer and that the investigator must assess

“A Case of Identity” does not contain the illustration of the potential role for deceit in demeanour that is found in “A Scandal in Bohemia”, so I elected to quote from this other short story. In Part III, Holmes dons the guise of a Churchman, complete with “sympathetic smile …” and “… general look of … benevolent curiosity” that misled those around him to accept his expression and manner as testifying honesty. Consider this further example, drawn from Shakespeare’s King Henry IV (Part 1): “Falstaff … Give me a cup of sack to make my eyes look red, that it may be thought I have wept…” Act 2, sc. iv, l. 373.

Demeanour – Classic examples of “body language” – fear

“I did at first,” she answered, “but now I know where the letters are without looking.” Then, suddenly realising the full purport of his words, she gave a violent start and looked up, with fear and astonishment upon her broad, good-humoured face. “You’ve heard about me, Mr. Holmes,” she cried, “else how could you know all that?” Holmes explained his thoughts easily enough, but for our purposes, what matters is that we can all agree that an investigator should be able to correctly discern elements such as “fear” or “astonishment”, even in the demeanour of strangers.

Demeanour – Classic examples of “body language” – surprise

Refer to the discussion immediately above. In addition, note as well this later passage: “… Again a startled look came over the somewhat vacuous face of Miss Mary Sutherland.”

Demeanour – Classic examples of “body language” – eyes,

– Eyes - bright

“’We do all our correspondence with this machine at the office, and no doubt it is a little worn,’ our visitor answered, glancing keenly at Holmes with his bright little eyes.”

- Eyes - sharp

“The man who entered was a sturdy, middle-sized fellow, some thirty years of age, clean-shaven, and sallow-skinned, with a bland, insinuating manner, and a pair of wonderfully sharp and penetrating grey eyes. He shot a questioning glance at each of us, placed his shiny top-hat upon the sideboard, and with a slight bow sidled down into the nearest chair….” [Emphasis added]

Demeanour – Classic examples of “body language” – face

- face and a flushed appearance

“A flush stole over Miss Sutherland’s face, and she picked nervously at the fringe of her jacket.” I suggest most investigators will do well in noting this, but what does it mean is the better question. Does it belie the truth of the statement provided by the witness?

- face - ghostly

“Our visitor collapsed into a chair, with a ghastly face and a glitter of moisture on his brow. ‘It—it’s not actionable,’ he stammered.”

- face – languor

“Sherlock Holmes sat silent for a few minutes with his fingertips still pressed together, his legs stretched out in front of him, and his gaze directed upward to the ceiling. Then he took down from the rack the old and oily clay pipe, which was to him as a counsellor, and, having lit it, he leaned back in his chair, with the thick blue cloud-wreaths spinning up from him, and a look of infinite languor in his face.”

– face - pale

“… Our visitor had recovered something of his assurance while Holmes had been talking, and he rose from his chair now with a cold sneer upon his pale face.” The prudent investigator will wish to know whether this is the typical pigmentation or an apparent result from the stress of the interview. Of course, the stress of the interview might only be related to the fact that an innocent person is suspected of a crime!

– face - sneer

“Our visitor had recovered something of his assurance while Holmes had been talking, and he rose from his chair now with a cold sneer upon his pale face.”

- face - vacuous

“For all the preposterous hat and the vacuous face, there was something noble in the simple faith of our visitor which compelled our respect. She laid her little bundle of papers upon the table and went her way, with a promise to come again whenever she might be summoned…”

Demeanour – Classic examples of “body language” – flush

Consider this example of a “flush” and of a “sneer”. “’The law cannot, as you say, touch you,’ said Holmes, unlocking and throwing open the door, ‘yet there never was a man who deserved punishment more. If the young lady has a brother or a friend, he ought to lay a whip across your shoulders. By Jove!’ he continued, flushing up at the sight of the bitter sneer upon the man’s face …”

Demeanour – Classic examples of “body language” – glance

Consider this example of a “keen” glance as well: “’We do all our correspondence with this machine at the office, and no doubt it is a little worn,’ our visitor answered, glancing keenly at Holmes with his bright little eyes.”

Lastly, what does an investigator conclude if they hear a witness track the language found in “A Case of Identity”: “’What! where?’ shouted Mr. Windibank, turning white to his lips and glancing about him like a rat in a trap.”

Demeanour - Classic examples of “body language” – head – sunk

“The man sat huddled up in his chair, with his head sunk upon his breast, like one who is utterly crushed. Holmes stuck his feet up on the corner of the mantelpiece and, leaning back with his hands in his pockets, began talking, rather to himself, as it seemed, than to us.” This is surely noteworthy, and should be “captured” by means of videotape.

Demeanour - Classic examples of “body language” – lips - white

“A Case of Identity” includes this passage: “’What! where?’ shouted Mr. Windibank, turning white to his lips and glancing about him like a rat in a trap.”

Demeanour - Classic examples of “body language” – nervousness

“… I saw that on the pavement opposite there stood a large woman with a heavy fur boa round her neck, and a large curling red feather in a broad-brimmed hat which was tilted in a coquettish Duchess of Devonshire fashion over her ear. From under this great panoply she peeped up in a nervous, hesitating fashion at our windows, while her body oscillated backward and forward, and her fingers fidgeted with her glove buttons. Suddenly, with a plunge, as of the swimmer who leaves the bank, she hurried across the road, and we heard the sharp clang of the bell.”[4] [Emphasis added]

It is noteworthy to add the contents of the next paragraph:

“I have seen those symptoms before,” said Holmes, throwing his cigarette into the fire. “Oscillation upon the pavement always means an affaire de cœur. She would like advice, but is not sure that the matter is not too delicate for communication. And yet even here we may discriminate. When a woman has been seriously wronged by a man she no longer oscillates, and the usual symptom is a broken bell wire. Here we may take it that there is a love matter, but that the maiden is not so much angry as perplexed, or grieved. But here she comes in person to resolve our doubts.”

Whatever you might think of the objectives merits of the general proposition that we are able to assess degrees of nervousness, and more so investigators trained to observe, the conclusions set out in the above noted paragraph are unscientific and border on charlatanism…

Demeanour – Classic examples of “body language” – manner

“The man who entered was a sturdy, middle-sized fellow, some thirty years of age, clean-shaven, and sallow-skinned, with a bland, insinuating manner …” [Emphasis added] Could Dr. Watson reach that conclusion at the start of their meeting, as opposed to after the lengthy time that they spoke? Care must be taken by the investigator not to interject later perceptions into earlier opportunities for observations to assign greater weight to “immediate” and apparently obvious views.

Demeanour – Classic examples of “body language” – shoulders

“Oh, well, he was very good about it. He laughed, I remember, and shrugged his shoulders, and said there was no use denying anything to a woman, for she would have her way.” In this instance of demeanour, unlike flushing or turning pale, it may be said that this is an element non-verbal communication that one acquires by imitating others. In brief, investigators must understand that we learn to communicate in this fashion as we are exposed to this silent speech for our youth.

Demeanour – Classic examples of “body language” – sneer

Refer to “Demeanour – Classic examples of “body language” – flush”.

Demeanour – ‘easy demeanour’

Consider this example as well found in “a Case of Identity”:

I had had so many reasons to believe in my friend’s subtle powers of reasoning and extraordinary energy in action that I felt that he must have some solid grounds for the assured and easy demeanour with which he treated the singular mystery which he had been called upon to fathom. Once only had I known him to fail, in the case of the King of Bohemia and of the Irene Adler photograph; but when I looked back to the weird business of the Sign of Four, and the extraordinary circumstances connected with the Study in Scarlet, I felt that it would be a strange tangle indeed which he could not unravel. [Emphasis added]

Demeanour – start

“Mr. Windibank gave a violent start and dropped his gloves. ‘I am delighted to hear it,’ he said.”

Demeanour - voice

“’He was a very shy man, Mr. Holmes. He would rather walk with me in the evening than in the daylight, for he said that he hated to be conspicuous. Very retiring and gentlemanly he was. Even his voice was gentle. He’d had the quinsy and swollen glands when he was young, he told me, and it had left him with a weak throat, and a hesitating, whispering fashion of speech…’” This passage makes plain that one may, during an interview, draw conclusions as to the sincerity of a speaker by addressing how they communicate verbally, including emphasis of the voice.

A more conventional situation involves stammering, if the person being interviewed demonstrated no hint of this aspect of speech until “the questions got tough”, so to speak.

Human nature – warning to investigators

Human nature – common sense of simply repeating uncritically what others have said?

Consider this quote from “A Case of Identity” in which Sherlock Holmes stated:

Indeed, I have found that it is usually in unimportant matters that there is a field for the observation, and for the quick analysis of cause and effect which gives the charm to an investigation. The larger crimes are apt to be the simpler, for the bigger the crime the more obvious, as a rule, is the motive. … [Emphasis added]

It reads to me as a non-scientific statement that sounds correct…

Human nature – female characteristics

“’If I tell her she will not believe me. You may remember the old Persian saying, ‘There is danger for him who taketh the tiger cub, and danger also for whoso snatches a delusion from a woman.’ There is as much sense in Hafiz as in Horace, and as much knowledge of the world.”

Human nature – unexplained actions and “non-reactions”

“… The husband was a teetotaler, there was no other woman, and the conduct complained of was that he had drifted into the habit of winding up every meal by taking out his false teeth and hurling them at his wife, which, you will allow, is not an action likely to occur to the imagination of the average story-teller...”

The importance for the investigator is to avoid asking the question: “Have I ever heard of such a case?” as we are obsessed with identifying a precedent for reports of wrongdoing. The better question is: “Why would I not believe this report?” Other valuable questions might include: “Does the man wear false teeth? Are there witnesses to this event? Are there witnesses who often dine with them and who have no supporting information?”

In addition, it is rarely useful to ask why the victim would suffer such indignities as human experience teaches us that many victims suffer in silence. The ultimate question is: “This victim, having brought forth a complaint, does the information provide reasonable and probable grounds to arrest?”

Judgment in investigative work – Details, importance of

“’Pon my word, Watson, you are coming along wonderfully. You have really done very well indeed. It is true that you have missed everything of importance, but you have hit upon the method, and you have a quick eye for colour. Never trust to general impressions, my boy, but concentrate yourself upon details…

I leave it to seasoned investigators to comment as to the wisdom of what Sherlock Holmes stated on this occasion.

Judgment in investigative work – Truth may be stranger than fiction

One of the enduring lessons leaned from a study of law and literature is that truth is often stranger than fiction. In “A Case of Identity”, the opening paragraph sets out these observations:

“My dear fellow,” said Sherlock Holmes as we sat on either side of the fire in his lodgings at Baker Street, “life is infinitely stranger than anything which the mind of man could invent. We would not dare to conceive the things which are really mere commonplaces of existence. If we could fly out of that window hand in hand, hover over this great city, gently remove the roofs, and peep in at the queer things which are going on, the strange coincidences, the plannings, the cross-purposes, the wonderful chains of events, working through generations, and leading to the most outré results, it would make all fiction with its conventionalities and foreseen conclusions most stale and unprofitable … Depend upon it, there is nothing so unnatural as the commonplace.’”

A second valuable passage from this set of short Sherlock Holmes stories, found in “The Red-Headed League” reads:

“My dear fellow,” said Sherlock Holmes as we sat on either side of the fire in his lodgings at Baker Street, “… You will remember that I remarked … that for strange effects and extraordinary combinations we must go to life itself, which is always far more daring than any effort of the imagination.”

Refer as well to Hamlet, by William Shakespeare: “… There are more things in Heaven and Earth, Horatio, than are dreamt of in your philosophy.” Act 1, sc. v.

Further element of guidance for investigators

Platitudes of judges

“’A certain selection and discretion must be used in producing a realistic effect,’ remarked Holmes. ‘This is wanting in the police report, where more stress is laid, perhaps, upon the platitudes of the magistrate than upon the details, which to an observer contain the vital essence of the whole matter. Depend upon it, there is nothing so unnatural as the commonplace.’” [Emphasis added]

Whatever platitudes I have put forward over the years, and they are numerous, the wise investigators ought to pay attention as they invariably reveal some of the thinking of the judge, such as how impressed I am when the investigator refers to the persons being questioned with a high degree of respect, and by reference to Mr. or Ms. or other polite words.

Conclusion

“A Case of Identity” was revolutionary at that time for describing how typewriters could lead investigators to the identity of the person who had typed a message. For present purposes, it illustrates how common it is for fiction writers to describe several elements of demeanour within their works, including short stories, but without providing any real basis to consider such non-verbal communication as being either correct or useful. After all, investigators are interviewing perfect strangers and are unable, as is Dr. Watson, to call upon the knowledge gained from close contact over some time. Adding to what I believe should be a natural hesitation prior to relying upon demeanour, the illustrations from the field of human nature adds to the disquiet that investigators might experience in assessing the value of the potential testimony of persons experiencing a wealth of emotion, from envy to jealousy to hatred, etc.

[1] See "A List of One Hundred Legal Novel" (1922), 17 III. L. Rev. 26, at p. 31.

[2] Refer as well to a similar article by Law Professor W.H. Hitchler who published these relevant remarks in "The Reading of Lawyers", (1928) 33 Dick. L. Rev. 1-13, at pp. 12-13: "The Lawyers must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction. ...” I could easily replace “lawyers” by “police officers” and the meaning remains correct.

[3] Interested readers may wish to consult my text, Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008, and two articles: “Demeanour evidence: Guidance from the Tax Court of Canada for Criminal Defence Counsel”, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-294, May 4, 2020, and “Demeanour Evidence and "Eyelid Turns": Guidance from the Manitoba Court of Appeal and Anthony Trollope”, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-293, April 27, 2020.

[4][4] Later, Sir Arthur wrote: “… A flush stole over Miss Sutherland’s face, and she picked nervously at the fringe of her jacket…”