POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S ANTHONY AND CLEOPATRA
Gilles Renaud | Ontario Court of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from the play Anthony and Cleopatra that may result in enhanced excellence in investigative work.
Investigators succeed by asking sound and searching questions and my topic might lead to the query: why read a play from centuries ago to become a better police officer today? In response, I quote from 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 [or she] 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, and why not turn to fiction to accomplish this objective?[2]
In this contribution, I have organized my thoughts along thematic lines embracing demeanour evidence, followed by briefly discussing interviewing techniques and skills that police officers must acquire and hone, and more expansively the subject of judgment in police word including human nature and fact finding, concluding thereafter with the subject of professionalism. Thus, my goal is to assist investigators to excel in their difficult but vital work in bringing offenders to justice and in helping to exonerate those thought to have offended, whether suspects or already accused. My objective is best achieved, in part at least, by analyzing this excellent play.
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 assess 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:
o 1) We are not capable of assessing accurately what thoughts a person may be entertaining by means of their facial expression, and
o
o 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 – We all judge the looks of others, on a day-to-day basis, not just investigators
That demeanour is the stuff of day-to-day observations and judgments is supported by the quote that follows: “Polixenes. The king hath on him such a countenance …” See The Winter’s Tale – Act 1, sc. ii, l. 368.
Demeanour - Assuming a look, a countenance, to trick the person being spoken to
Goneril. Put on what weary negligence you please,
You and your fellows. I'd have it come to question.
With these words, at l. 517-518 of Act 1, sc. iii, of King Lear, Goneril invites her servant and his staff to deceive the King, her father, and obviously intends that they do so both by their inaction in following his orders and by their appearance in not showing any interest in their duties. That is the subtle nature of demeanour evidence as it goes hand in hand with words and objective actions such as holding out one’s hand to shake, for example, in a greeting in which a broad smile is visible. At all events, the Lady then states, at Act 1, sc. iii, l. 528-529 of that play: “Goneril. And let his knights have colder looks among you. …” In other words, a person may easily adopt a guise or a look, and demeanour, after all, is a form of communication that can be resorted to at will. The example that follows is in keeping with this line of thought: “Duke of Cornwall. This is some fellow Who, having been prais'd for bluntness, doth affect A saucy roughness …” Refer to Act 2, sc. ii, l. 1165.
Further about one’s ability to assume a certain element of demeanour, in our case involving a witness who seeks falsely to convince the listener, consider the passage that follows as support for this proposition:
Cassius. You are dull, Casca; and those sparks of life
That should be in a Roman you do want,
Or else you use not. You look pale and gaze
And put on fear and cast yourself in wonder,
[Julius Caesar, Act 1, sc. iii, l. 57-60] [Emphasis added]
Demeanour – Changes in manners and demeanour of persons that are being investigated
Refer to the passage found below, from Act 4, sc. ii, l. 13-19 of Julius Caesar, as a useful example:
Brutus. He is not doubted. A word, Lucilius,
Howhe receiv'd you: let me be resolv'd.
Lucilius With courtesy and with respect enough;
But not with such familiar instances,
Nor with such free and friendly conference,
As he hath us'd of old.
A careful investigator will wish to assess closely such elements as it might suggest that the parties thought to be on friendly terms are no longer and this might open fruitful investigative avenues.
Demeanour – Testimony, as a form of
At the outset, consider this example: “Oliver. This was not counterfeit: there is too great testimony in your complexion that it was a passion of earnest.” As You Like It, Act 4, sc. iii, l. 167-169. In other words, an investigator at their office may “read” the face of a witness and conclude how credible and / or reliable are the words spoken.
Demeanour – Multiple elements “on display” at once
Consider this example from our featured As You Like It: “Oliver. … but should I anatomize him to thee as he is, I must blush and weep and thou must look pale and wonder.” [1-i-146]
Demeanour – Acting, putting on the element(s) to convince
Consider this excellent example from As You Like It: “Orlando … I thought that all things had been savage here; And therefore put I on the countenance Of stern commandment. … [2-vii-107] Consider as well: “Phebe … Now counterfeit to swoon; why now fall down…” [3-v-16]
Demeanour – Assessing strangers versus persons you know well
The Merry Wives of Windsor, Act 1, scene iii, l. 42-44, includes these words: "Falstaff. I can construe the action of her familiar style; and the hardest voice of her behavior." This passage suggests clearly that one may better (or best?) construe the actions of others if one is familiar with the person. But, for investigators, the witnesses are often strangers, with the possible exception of police officers in the smaller centres. That is why Pistol adds to what Falstaff has just stated: "He hath studied her well." See line 46 of scene iii.
Demeanour - Further dangers of demeanour evidence
Investigators must be mindful that a person's thoughts are not always revealed by their looks
I begin by focusing attention on our general inability to read thoughts by means of the facial features of others, by pointing to contrary authority. In effect, I acknowledge that many insist that we are capable of inviting fact finders to "read the thoughts" of others on their face, as did Shakespeare in Macbeth, Act I, scene V: "Your face, my thane, is as a book where men May read strange matters." In fact, Macbeth's features made plain his anxiety. I suggest that the fact that a witness is anxious or stressed may reflect little more than the anxiety associated with being in your office at the police station. It is, after all, a strange place for most individuals. More to he point, that the stress demonstrated by a witness, including the defendant, did not betray fear that the information provided is false and will be rejected, but rather the real concern that true testimony will not be accepted as it should be.
Indeed, is it not a plain truth that how others react to a certain situation is not capable of any universal rule or formula? Take the question of tears. Is the witness-accused breaking down in your office because of a realization that the doors to prison await, although he or she is innocent? In this light, note that in Macbeth, the son of the slain king states that he has not yet had time to weep in sorrow, in light of the circumstances: "... Let 's away; Our tears are not yet brew'd." See Act II, scene III.
A great number of further examples might be offered in attempting to demonstrate to detectives the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions. I think it best to group these along thematic lines, for ease of consideration, always being mindful that each of these "tells" is easily capable of being feigned. The play Romeo and Juliet will be featured, of course, but other relevant examples will referenced.
Dangers of demeanour evidence include “faking it”
A signal obstacle to the general acceptance by an investigator of demeanour evidence is the well understood belief that demeanour can be "adapted" at will. An example is found in Act 4, sc. iv, l. 18: "Tranio ... Here comes Baptista: set your countenance, sir." Consider as well: "Katherina Fie, fie! unknit that threatening unkind brow ." Refer to Act 5, sc. ii, l. 135-136.
Pursuing this concern, that certain witnesses may be adept at feigning emotions, leaving aside the concern that demeanour evidence is inherently dangerous as unreliable, consider the words found in Macbeth, Act 2, scene iii, l. 131-132: ". Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy." It is suggested that it is relatively simple for one to adopt a guise that may well hide the true nature of one's thoughts and actions. In The Taming of the Shrew, Act 1, scene i, l. 223, we read: "… puts my apparel and my countenance on." Indeed, the introductory passages include the phrase: "I know the boy will well usurp the grace, Voice, gait and action of a gentlewoman."
Demeanour evidence and fake tears is not an unheard of combination: Consider the Induction to The Taming of the Shrew, sc. i, l. 123-124, wherein Lord remarks: To rain a shower of commanded tears, An onion will do well for such a shift, Which in a napkin being close convey'd."
The most apposite citation with which to end our brief criticism of demeanour evidence (under this precise heading) is found in As You Like It, Act 2, scene vii, l. 139-140: "Jaques All the world's a stage, And all the men and women merely players." These apt words serve to teach advocates that individuals may very well have been acting when they provided information to the police, for a host of reasons and that necessarily they may have been acting when testifying, for a legion of motivations. In the final analysis, investigators must be wary of the power witnesses possess to appear sincere when interviewed by you at the scene or at your office but to fall short of presenting sincere information.
The elements of demeanour evidence
Introduction – the contributions from Othello
It is suggested that a good introduction to this subject is found in Othello, Act 1, scene i, l. 60-65:
o Iago
Heaven is my judge, not I for love and duty
But seeming so, for my peculiar end:
For when my outward action doth demonstrate
The native act and figure of my heart
In compliment extern, 'tis not long after
But I will wear my heart upon my sleeve
For daws to peck at: I am not what I am.
In effect, the speaker is conscious of the fact that people generally expect that the outward appearance of the face and person will "testify" as to the internal thoughts. Thus, if Iago appears to be loyal and loving to his superior, it is feigned in order better to deceive his intended victim. This is the challenge posed by demeanour evidence: is the "external" Iago hiding what he is at bottom? Indeed, consider some later lines, starting at 169 of the same scene: "Iago ... Yet, for necessity of present life, I must show out a flag and sign of love, Which is indeed but sign ..." In few words, I am not sincere! In the same vein, we read: "Iago. Men should be what they seem; Or those that be not, would they might seem none!" Refer to Act 3, scene iii, l. 130-131. Since they are not, we look to demeanour evidence to assist us in judging if they are sincere and reliable.
Noteworthy as well is the following passage, found in Act 5, scene i, l. 106-110: "Iago. Stay you, good gentlemen. Look you pale, mistress? Do you perceive the gastness of her eye? Nay, if you stare, we shall hear more anon. Behold her well; I pray you, look upon her: Do you see, gentlemen? nay, guiltiness will speak, Though tongues were out of use."
Demeanour - Is “reading” of the face trustworthy?
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour evidence – The Grey’s Anatomy examination
Interviewing skills and techniques
Commenting on the evidence: Qualifying the answers
An example is provided by Mark Antony in Act 1, scene ii: “… No more light answers…” suggest that investigators only comment on information provided by would be (or actual suspects) only at the end of an interview.
Counting the questions
The Court may well wish to record when a question, simple on its face, had to be repeated during the investigative interview. Refer to in Act 2, scene vii: “MENAS Wilt though be lord of all the world? POMPEY What say’st thou? MENAS Will thou be lord of the whole world? That’s twice.”
Witness accuse themselves
We read in Antony and Cleopatra, Act IV, scene VI: “ENOBARBUS … I have done ill; Of which I do accuse myself so sorely…” As a matter of human nature, we take for granted that persons only accept responsibility if they are at fault – we do not accept blame if not warranted.
Judgment demonstrated by the investigator
Fact finding: Introduction
I suggest that investigators must raw conclusions of fact early on in the investigation, well before a decision is reached whether a prosecution is warranted and if so, against whom.
Fact finding: Assess the emotions the witness is struggling with
An example is provided by Charmian in Antony and Cleopatra, Act 1, scene iii: “… In time we hate that which we often fear…” Later, in Act 3, scene ii, we read: “ANTONY Her tongue will not obey her heart, nor can Her heart inform her tongue…”
Fact finding: Assess the faults of the witness
Note the suggestion made by Lepidus in Act 1, scene iv: “… His faults in him seem as the spots of heaven, More fiery by night's blackness…”
Fact finding: Assess the honesty of one who claims this quality
Antony remarked in Antony and Cleopatra, Act 2, scene ii: “… but mine honesty Shall not make poor my greatness…”
Fact finding: Benign view of facts
We read in Antony and Cleopatra, Act V, scene II: “OCTAVIUS CAESAR Take to you no hard thoughts: The record of what injuries you did us, Though written in our flesh, we shall remember As things but done by chance.”
Fact finding: Dissembling
The investigator must assess answers such as provided by Cleopatra in Act 1, scene iii: “… play one scene Of excellent dissembling, and let it look Like perfect honour.”
Fact finding: Evidence of love truly given
Antony and Cleopatra, Act 1, scene iii, includes the words: “ANTONY … And give true evidence to his love, which stands An honourable trial.” Who else but you can assess the merits of the professed love, at least at the outset?
Fact finding: Honesty, claim of
Antony and Cleopatra, Act V, scene II, includes these words: “SELEUCUS Madam, I had rather seal my lips, than, to my peril, Speak that which is not.” In addition, “… Clown … I heard of one of them no longer than yesterday: a very honest woman, but something given to lie; as a woman should not do, but in the way of honesty…”
Fact finding: Honest woman given to lie
Antony and Cleopatra, Act V, scene II, makes plain: “… Clown … I heard of one of them no longer than yesterday: a very honest woman, but something given to lie; as a woman should not do, but in the way of honesty…”
Fact finding: Sudden change in mood
Antony and Cleopatra, Act 1, scene ii, records: “Cleopatra He was disposed to mirth; but on the sudden A Roman thought hath struck him…” Investigators do well to consider and weigh such matters.
Fact finding: Testimony of a mechanical sort
Antony and Cleopatra, Act 4, scene iv, includes the words: “… And worthy shameful cheque it were, to stand On more mechanic compliment…”
Fact finding: Truth as a tale
Antony and Cleopatra, Act 2, scene ii, includes these words: “AGRIPPA … Truths would be tales, Where now half tales be truth…” I suggest that it is part of your function to evaluate such issues.
Fact finding: Honest men may be corrupted
Antony states at Act 4, scene v: “… O, my fortunes have Corrupted honest men! …”
Human nature: Discretion
A servant states in Antony and Cleopatra, Act 2, scene ii: “But it raises the greater war between him and his discretion.” Such issues cannot be overlooked in the investigation and elements of discretion might be confused with prejudice or racism.
Judgment: Thought of as having good judgment
We all desire to be thought of has described in the play at Act 3, scene iii: “CLEOPATRA He’s very knowing … The fellow has good judgment.” To begin to be thought of in this manner requires a good deal of thought after an investigation is completed in order to ensure that the steps taken were thorough. After all, a person may plead guilty and your actions never the subject of any review.
Reversing the proposition: Investigating the merits of both sides, if not more, of any issue
I have argued elsewhere, and in great detail,[3] that one of the fundamental tools with which to assess the merits of any witness statement or pre-trial deposition is the technique of reversing the proposition. If the defence, for example, were to submit that the account of the event advanced by a prosecution witness does not dovetail well with the testimony of a second Crown witness, it should be stressed that incidental errors and inconsistencies support the credit of the supposedly mistaken witness. After all, his account was not suspiciously “too pat”. Put shortly, what does an investigator conclude of an account, for example, that the accused was found bent over the body of a stabbing victim whilst holding the bloody knife? That the defendant stabbed the victim or happened to be the first person to stumble across the body? In effect, let us look at both sides of an issue, if not at all possible facets.
A first illustration is drawn from the opening pages of Charles Dickens’ immortal A Christmas Carol. Scrooge quite reluctantly raises the subject of his clerk taking December 25 as a holiday and observes that it is unfair that his employee consider himself “ill-used” if docked a day’s pay if no work is performed on Christmas and adds, a propos of our discussion, “And yet … you don’t think me ill-used when I pay” for no work. Note as well that in The Gondoliers, Gilbert and Sullivan's last great success, we sing "when everyone is somebody, then no-one's anybody"
A further illustration is seen in Romeo and Juliet, Act II, scene V: “Nurse Jesu, what haste? can you not stay awhile? Do you not see that I am out of breath? JULIET How art thou out of breath, when thou hast breath To say to me that thou art out of breath?”[4] Note how Iago stated, in Othello, Act II, scene I: “… You rise to play and go to bed to work.” Turning to Hamlet, we read at Act V, scene II:
HAMLET
Sir, in my heart there was a kind of fighting,
That would not let me sleep: methought I lay
Worse than the mutines in the bilboes. Rashly,
And praised be rashness for it, let us know,
Our indiscretion sometimes serves us well,
When our deep plots do pall: and that should teach us
There's a divinity that shapes our ends,
Rough-hew them how we will,--
It is not unusual for a beleaguered witness to suggest that the other party stated (or did) what she or he is accused of saying or doing. An example of this situation is found in Measure for Measure, Act V, scene I, wherein Lucio accuses the friar, not knowing that he is in fact the Duke, of slander and other crimes. Hence: “LUCIO … And was the duke a fleshmonger, a fool, and a coward, as you then reported him to be? DUKE VINCENTIO You must, sir, change persons with me, ere you make that my report: you, indeed, spoke so of him; and much more, much worse.”
Based on the foregoing introduction to the subject of “reversing the proposition”, I now wish to draw attention to The Merchant of Venice, Act I, scene I, wherein Salarino states:
Not in love neither? Then let us say you are sad,
Because you are not merry: and 'twere as easy
For you to laugh and leap and say you are merry,
Because you are not sad. Now, by two-headed Janus,
Nature hath framed strange fellows in her time:
Some that will evermore peep through their eyes
And laugh like parrots at a bag-piper,
And other of such vinegar aspect
That they'll not show their teeth in way of smile,
Though Nestor swear the jest be laughable.
In sum, the speaker notes that his interlocutor might just as easily adopt one of two possible, and contrasting, attitudes, demeanour or states of mind. For the advocate, if it may be said of a witness that he or she cannot be fairly sure that the person she saw was sad, as opposed to not happy, then the testimony may fairly be discredited in submissions as speculative and as based on flimsy assumptions. For the investigator, if it may be said of a witness that he or she cannot be fairly sure that the person she saw was sad, as opposed to not happy, then the proposed testimony may fairly be assigned little weight. In the same vein, some witnesses cannot perceive the obvious humour in a situation or, at the very least that there was an element of levity, then it may be that the witness is unable to fairly and fully describe what took place. Of course, those who cannot be trusted to have perceived the serious background to an event they witnesses might also be faulted as being unworthy of full credit, especially if something fairly serious was scoffed at or trivialized, at least at first.
For example, King Lear attacks the views of Cordelia on the basis of her pride and she retorts that her comments are grounded upon plainness, and the lack of reconciliation is due to the different perspectives enjoyed by each witness. I have set out below the passage, from Act I, scene I:
Peace, Kent!
Come not between the dragon and his wrath.
I loved her most, and thought to set my rest
On her kind nursery. Hence, and avoid my sight!
So be my grave my peace, as here I give
Her father's heart from her! Call France; who stirs?
Call Burgundy. Cornwall and Albany,
With my two daughters' dowers digest this third:
Let pride, which she calls plainness, marry her.
(Emphasis added)
Refer as well to As You Like It, Act III, scene II: “CORIN No more but that I know the more one sickens the worse at ease he is; and that he that wants money, means and content is without three good friends; that the property of rain is to wet and fire to burn; that good pasture makes fat sheep, and that great cause of the night is lack of the sun… [Emphasis added]” Note also Coriolanus, Act II, scene I, on this subject: “MENENIUS A hundred thousand welcomes. I could weep And I could laugh, I am light and heavy…”
Further on the subject of reversing the proposition, we read a comment by Brabantio in Othello, Act I, scene III, is of interest: “Look to her, Moor, if thou hast eyes to see: She has deceived her father, and may thee… Refer as well to As You Like It, Act V, scene I: “TOUCHSTONE Then learn this of me: to have, is to have; for it is a figure in rhetoric that drink, being poured out of a cup into a glass, by filling the one doth empty the other; for all your writers do consent that ipse is he: now, you are not ipse, for I am he.”
A humorous example of this situation is seen in A Comedy of Errors, Act I, scene II: “DROMIO OF EPHESUS … My mistress made it one upon my cheek: She is so hot because the meat is cold; The meat is cold because you come not home …” Consider, in this jocular vein, Othello, Act III, scene I, wherein the Clown states: “… masters, here's money for you: and the general so likes your music, that he desires you, for love's sake, to make no more noise with it…”[5]
Note the contrast between youth and advanced age in the extract found below, consigned in The Taming of the Shrew, Act II, scene I:
GREMIO
Youngling, thou canst not love so dear as I.
TRANIO
Graybeard, thy love doth freeze.
GREMIO
But thine doth fry.
Skipper, stand back: 'tis age that nourisheth.
TRANIO
But youth in ladies' eyes that flourisheth.
Consider the more serious example found in Julius Caesar, Act II, scene II, wherein one of the would-be murderers allays Caesar’s fears about a dream that included a scene in which he is bleeding from many wounds, by spinning this nightmare into a positive source of immortal glory.
DECIUS BRUTUS
This dream is all amiss interpreted; It was a vision fair and fortunate: Your statue spouting blood in many pipes, In which so many smiling Romans bathed, Signifies that from you great Rome shall suck Reviving blood, and that great men shall press For tinctures, stains, relics and cognizance. This by Calpurnia's dream is signified.
I commend as well the remarks found in Coriolanus, Act IV, scene V, on this subject of peace: “First Servingman… Ay, and it makes men hate one another. Third Servingman Reason; because they then less need one another…”
In sum, if it is contented that the person who would obviously gain from the offence is the accused, the immediate response of the Court must be to weigh whether it would be foolhardy for a person to act in that fashion and immediately attract the attention of the authorities, such as in a case of suspected arson mere hours after negotiating a substantial increase in insurance coverage. Hence, the famous phrase uttered by the three “weird” sisters in Act I, scene I of Macbeth, “Fair is foul, and foul is fair” should serve as an easy mnemonic in this respect.
Vocabulary - Evaluating and assessing any obstacles that the witness may be struggling with such as vocabulary
Cleopatra remarks in Act 1, scene v: “My salad days, When I was green in judgment, cold in blood…” Do you consider that all witnesses would understand what you meant if you asked about “salad days”?
Professionalism during your career as an investigator
Patience
Cleopatra states in Antony and Cleopatra, Act IV, scene XV: “… Patience is scottish, and impatience does Become a dog that's mad…” In short, patience is a much sought after quality.
Conclusion
In conclusion, since the function of the police is to discover “where truth is hid”,[6] all means of discharging fully this task are to be pursued, including reading (or watching) a play that you may have found without interest in high school. Judges are vitally interested in putting forward what I describe as an “evidence-based verdict” as exemplified in King Lear, Act III, scene VI: “I'll see their trial first. Bring in the evidence.”[7] Indeed, King Lear proclaimed a judge’s ultimate ambition in Act III, scene II: “… When every case in law is right…”[8] Whether judges succeed in accomplishing the objective of producing “… Better judgments...”, to track the language found in As You Like It, Act II, scene VII, is greatly dependent upon the quality of the investigation you will conduct. In this context, I am hopeful that contributions such as this will assist investigators in providing courts with the means of achieving justice.
[1] See “A List of One Hundred Legal Novels” (1922), 17 Ill. L. Rev. 26, at page 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 pages 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] Advocacy: A Lawyers’ Playbook, Chapter 6, at pages 119-161.
[4] A personal experience is worth noting, if for no other reason than to permit me to poke fun at myself. I asked an accused person who appeared at three o'clock why he had not been present at nine thirty in conformity with his promise to appear and he responded: “Since everybody else was going to be here on time, I figured you had enough work to keep you busy until I showed up.” When I responded gravely “What is everybody else on the list had decided to show up late by many hours, as you did? What then?” His tart reply was: “If everybody else was going to be late, I would be a fool to show up on time, wouldn’t I!” A perfect illustration of reversing the proposition.
[5] A further example drawn from Othello, Act V, scene II, provides a wonderful example: “OTHELLO She was false as water. EMILIA Thou art rash as fire, to say That she was false: O, she was heavenly true!”
[6] Refer to Hamlet, Act 2, scene ii wherein Lord Polonius states: “… If circumstances lead me, I will find Where truth is hid, though it were hid indeed Within the centre.”
[7] Assuming, of course, that the following statement is not justified: “… Truth's a dog must to kennel; he must be whipped out…”, as suggested in King Lear, Act I, scene IV.
[8] That being said, we must always be concerned that the evidence pointing to a certain result may be improbable, but it might well be reliable. As Lord Halsbury wrote: “… If an advocate were to reject a story because it seemed improbable to him, he would be usurping the office of the judge, by which I mean the judicial function, whether that function is performed by a single man, or by the composite arrangement of judge and jury which finds favour with us. Very little experience of courts of justice would convince any one that improbable stories are very often true notwithstanding their improbability." Refer to “The Ethics of Advocacy”, by Showell Rogers, (1899), 15 L.Q.R., 259, at page 265. [Emphasis added]