police INVESTIGATIONS 101

Guidance from SHAKESPEARE’S THE COMEDY OF ERRORS

Gilles Renaud | Ontario Court of Justice[1]

INTRODUCTION

In the briefest play penned by William Shakespeare, The Comedy of Errors, the reader is introduced to two sets of twins and the resulting complications not only guarantee a great deal of mirth, but also serve to illustrate how easily an investigation and subsequent prosecution potentially involving one set of twins may be doomed from the outset. Indeed, the various sub-plots involving mistaken identification offer several quite useful illustrations and lessons touching upon the frailties of such evidence, magnified by two, considering the added complexity when two persons typically seen together are, in fact, two groups of twins.

The plot of the play may be summarised as follows for our purposes. Egeon, a merchant from Syracuse, is the father of twin boys, both of whom are named Antipholus and they are to be served by twin brothers, both of whom also share a name, Dromio. All of them, together with Egeon's wife, are caught in a vicious storm at sea that results in their physical separation. One of the sons and one of the servants settle in Syracuse and are thus known as Antipholus of Syracuse and Dromio of Syracuse; the two others take up residence in Ephesus and are described, not surprisingly, as Antipholus and Dromio of Ephesus. To add suspense, Egeon is to be killed if he is unable to discharge a debt, and the efforts of his son and of his son's servant to prevent that sentence are thwarted by the actions of their “look a like” who are spending money and contracting debts seemingly without any concerns.

Thus, police officers should study this play as it provides useful (and memorably funny) instruction on their general duties and about identification evidence, as well as the relative value of the demeanour of potential witnesses, basic psychology, wit and grace in pressure packed situations, not to mention a host of insights into how best to understand human nature. In fact, a very well-respected commentator, George Wilkes, has observed that the play contains great absurdities, and police work often requires the investigators to make sense of illogical or contradictory information.[2] Further, Professor Paul Raffield has written that The Comedy of Errors will assist anyone seeking to understand fully “... dramatic scenarios involving agreements, disagreements, non-agreements and misunderstandings ...”[3] Investigation of crime will, on many occasions, require officers to attempt to draw a bright line as between honest disagreements and misunderstandings, on the one hand, and criminal deceit and exploitation of the weak and vulnerable, on the other. Thus, a study of this play can only serve to assist those who wish to excel at their duties as investigators.

Investigators succeed in their arduous duties 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 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.”[4] 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?[5]

Thus, my goal is to assist investigators to excel in their difficult but so 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 achieved, in part, by analyzing this amusing play.

DISCUSSION

A brief look at the general assistance found in the case law

Judges have not discussed this play as much as many other works of Shakespeare. Most often, Courts have been content to merely refer to the title of the play to illustrate the unusual and complicated factual setting that typically serves to divert attention from the true issues to be considered. Indeed, it is rare that the reference includes major case letters. For example, Middleton J. (In Chambers) remarked in Clemmer v. Panton, 52 O.L.R. 211 (High Court) that it would be pointless to discuss the comedy of errors touching upon a mortgage and concentrate rather on the required legal remedy. Refer to para. 8. To the same effect is the brief comment consigned in paragraph 1 of the reasons of future Chief Justice Laskin in B.G. Linton Construction Ltd. v. Canadian National Railway Co., [1975] 2 S.C.R. 678, 1974 CanLII 189: "... The comedy of errors of the respondent's employees in handling a simple telegram message is admitted ..."[6]

Occasionally, however, a judgment includes a direct and probative reference to the play, most remarkably by Wong J. at the opening of the reasons in United Savings Credit Union v. Gill, [2002] B.C.J. No. 2791, 2002 BCSC 1725, 8 R.P.R. (4th) 226: “’Every why hath a wherefore.’ - Shakespeare, The Comedy of Errors, (2-2-1592)."

In sum, if the judges refer to this play, then investigators do not wish to ignore the instruction of the Courts on this subject.

A brief look at the assistance found in academic commentary

Academic commentators have mostly discussed this play in the context of contract law and commercial issues, as seen in E.P. Shatwell's article, 'The Supposed Doctrine of Mistake in Contract: A Comedy of Errors" (1955) 53 Can. Bar Rev. 166. Thus, almost no direct assistance is found in terms of the work of a police investigator, save for a well-understood reference to a quite complicated factual scenario.

Nonetheless, a book review of Doug Smith's text, "As Many Liars": The Story of the 1995 Manitoba Vote-Splitting Scandal, written by Maria Markatos, includes these typical remarks: “Given that it is currently the only book of its kind, As Many Liars is indispensable to those who are familiar with the events and an equally intriguing tale for anyone interested in a weird amalgam of detective story, comedy of errors, and tragedy”" Refer to (2004), 67 Sask. L. Rev. 660-661, at page 660. Professor W.W. Pue referred to a “comedy of errors” at page 174 of his commentary, "The Prime Minister's Police? Commissioner Hughes' APEC Report", found in (2001) 39 Osgoode Hall L.J. 165-184.

Investigation 101 – the Rule in R. v. Edgar, 101 O.R. (3d) 161, 2010 ONCA 529 (C.A.)

The Rule is often described in these terms, taken from the headnote: “A spontaneous exculpatory statements made by an accused person upon or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purpose of showing the accused's reaction when first confronted with the accusation, provided the accused first testifies and exposes himself or herself to cross-examination. An accused person's spontaneous reaction to an accusation may be relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.”

For the investigator, it is therefore important to record fully and fairly what the person stated, and what was said to that person, as a mere repetition may lead to a successful submission by the prosecution that the comment is merely parroting the officer, and not a sincere denial of the accusation. Consider the passage that follows as a good example of a person who provided detail upon being “accused” that might likely impress the Court. Of course, this passage, from The Comedy of Errors, Act 4, sc. i, l. 55-68, involves two honestly mistaken persons as they do not know of the existence of two sets of twins!

ANTIPHOLUS OF EPHESUS.
Why, give it to my wife, and fetch your money.

ANGELO.
Come, come, you know I gave it you even now.
Either send the chain or send by me some token.

ANTIPHOLUS OF EPHESUS.
Fie, now you run this humour out of breath.
Come, where’s the chain? I pray you, let me see it.

MERCHANT.
My business cannot brook this dalliance.
Good sir, say whe’er you’ll answer me or no;
If not, I’ll leave him to the officer.

ANTIPHOLUS OF EPHESUS.
I answer you? What should I answer you?

ANGELO.
The money that you owe me for the chain.

ANTIPHOLUS OF EPHESUS.
I owe you none till I receive the chain.

ANGELO.
You know I gave it you half an hour since.

ANTIPHOLUS OF EPHESUS.
You gave me none. You wrong me much to say so.

Demeanour evidence - An examination of the duty of investigators to assess the demeanour of those they interview

Introduction to demeanour evidence: Be careful not to assign too much value

At the outset, recall Antonio's aside in The Merchant of Venice, Act 1, sc. iii, l. 92-96 reads: "... 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!" In this context, the lesson to be drawn is that demeanour evidence may be quite incapable of revealing to the eyes of the judge the true thoughts of the speaker based solely on his or her outward expression, and the wise police investigator always seeks to be alert to the potential shortcomings of the evidence he or she is collecting for the prosecution’s brief.

In addition, the quote does suggest that it may be possible for a guilty person to produce a true statement, such as faithfully invoking Holy writings. In this vein, note that The Comedy of Errors, Act 1, sc. ii, l. 20 begins with the words, "Antipholus of Syracuse A trusty villain". Based on the experience he has enjoyed with his servant, Antipholus of Syracuse may well be capable of discerning when his servant is trustworthy and when he is not. The investigator will thus seek to buttress the evidence of such a witness if called by the prosecution by means of supporting witnesses or documents, to avoid or to attenuate at the very least the impeachment likely brought by the defence counsel; likewise, the advocate seeking to discredit this type of witness will be well served to paint he or she in the most devilish guise... In the result, the Court may find that it cannot put a great deal of faith on the demeanour elements in assessing credit and reliability, but it might, in limited circumstances, if the words and the presentation of a witness are supported. That is the responsibility of the investigator, and one must recall that a Court may accept or reject, in whole or in part, all or none of some of the testimony of a witness.

Value of demeanour evidence - One may fashion one's demeanour to serve our purposes

In Act 2, sc. ii, l. 32-35, we read: "Antipholus of Syracuse ... If you will jest with me, know my aspect, And fashion your demeanor to my looks..." In other words, the speaker invites his servant to adopt an outward guise that reflects the earnest nature of his master's temperament. Stated otherwise, if one may easily adopt a form of demeanour, how may an investigator assign any value to such outward signs of inner thoughts? In this context, note that Act 2, sc. ii, l. 120 of the play records Adriana telling Antipholus: "... look strange and frown." The investigator must ask oneself: what was my witness told to do and how it affects my evaluation of this proposed testimony?

More to the point in demonstrating that demeanour is no better than a fine suit or dress to be selected for a purpose, to impress, is the passage that follows, found in the same play, at Act 3, sc. ii, l. 13-18: "Luciana ... Look sweet, speak fair, become disloyalty; Apparel vice like virtue's harbinger. Bear a fair presence, though your heart be tainted. Teach sin the carriage of a holy saint. Be secret-false..." The professional investigator will not be swayed by a finely cut Italian suit and will not be dismayed by a potential witness’s misfortune in living out of his or her automobile. Judge only the quality of the information being advanced, not the cost of the smile after extensive dental work or the lack of dentition…

Demeanour evidence: Looks in general

Having introduced the subject of looks, and how that may influence the investigator, it will be of assistance to note that in The Comedy, we find these words: “DUKE … Excludes all pity from our threat’ning looks…” See Act 1, sc. i, l. 10. Next, in Act 2, sc. i, l. 93, we find this passage: "ADRIANA Whilst I at home starve for a merry look..." Later, at line 104 of the same scene, Shakespeare wrote: "Adriana ... A sunny look of his would soon repair..." Noteworthy as well are these remarks: “LUCIANA. … ’Tis double wrong to truant with your bed And let her read it in thy looks at board…” See Act 3, sc. ii, l. 18.

In the final analysis, beware of superficial judgments as to the merits of the potential testimony based on the apparent attractiveness (or lack thereof) of the speaker.

Demeanour – strange features on my face

Act 5, sc. i, l. 298-300 is helpful: “EGEON. O! grief hath chang’d me since you saw me last, And careful hours with time’s deformed hand, Have written strange defeatures in my face…” I do not doubt that features and defeatures, this last word in the sense of disfigurements, are on the same level of limited ability to assist the Court.

Looks - red face

That Shakespeare believed that outward signs of inner turmoil might serve to judge the thoughts of others is evidenced in the passage that follows, taken from The Comedy of Errors, Act 4, sc. ii, l. 4-6: "ADRIANA ... Looked he or red or pale, or sad or merrily? What observation mad'st thou in this case Of his heart's meteors tilting in his face ..." Police officers must be mindful of this school of thought.

Looks - pale or livid presentation

In, Act 4, sc. iv, l. 97, Shakespeare refers to a physician asking whether the "patient" presented with "... pale and deadly looks", with a view to ascertaining that person's mental health. Note as well that the phrase "... Look’d he or red or pale ..." is found at Act 4, sc. ii, l. 4.

Demeanour evidence – it may prove decisive

The case law I have attempted to follow does suggest great caution before assigning much positive weight to demeanour evidence, but it does permit it in appropriate circumstances. Indeed, Professor R.A. Foakes has expressed the opinion that Egeon was successful in gaining pity as he told his fantastic story by reason of the fact it was related “with such simple gravity” as to be almost credible.[7]

Demeanour evidence – contrasting with personality

On occasion, demeanour is seen as the opposite to one’s personality, but it is also seen at times as a facet of it. For present purposes, what matters is that the investigator is mindful that there is no clear definition shared by most people. Thus, in The Comedy of Errors, Act 2, sc. ii, l. 167-168, we read: “ADRIANA. How ill agrees it with your gravity To counterfeit thus grossly with your slave, Abetting him to thwart me in my mood…”

Demeanour evidence: A few words on facial expressions

The Comedy of Errors, Act 3, sc. ii, l. 9-10, is apposite on the subject of “the eyes”: "Luciana ... Muffle your false love with some show of blindness. Let not my sister read it in your eye." Note briefly that Act 4, sc. 4, l. 110 refers to "... false eyes..." As for frowns, Act 2, sc. i, l. 91 of The Comedy of Errors reads: "LUCIANA Fie, how impatience loureth in your face." We note that "lour" is an archaic way of referencing a frown that denotes an angry look. In this context, note that Act 2, sc. ii, l. 120 of the play records Adriana telling Antipholus: "... look strange and frown." Again, I repeat that an investigator must take pains to consider any such suggestions and to explore whether there is any active attempt to deceive by means of manipulating one’s demeanour.

Demeanour evidence: A brief reference to the case law

In closing, I have set out below 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.[8]

Duties of investigators

Duties of investigators - to well inform the prosecution

The Comedy of Errors, Act 2, sc. ii, l. 226 refers to the need to be "well advised" in a different context from the role of counsel who litigates, but the objective remains the same: to avoid errors that might lead to an innocent person being wrongly put on trial.

Duties of investigators – interview witnesses, when possible, at a time that they are rested and relaxed

The passage that follows, found in The Comedy of Errors, Act 1, sc. i, l. 15-16, demonstrates why this is a sound policy: “ANTIPHOLUS OF SYRACUSE … For with long travel I am stiff and weary. Get thee away.” One does not wish to seek important information from a weary traveller who is not in a positive state of mind., but I acknowledge that it is sometimes unavoidable.

Duties of investigators – exercise judgment and credulity in assessing the accounts of witnesses

Act 2, sc. ii, l. 16-17 of the play informs us of the following: “DROMIO OF SYRACUSE. Many a man would take you at your word,
And go indeed, having so good a mean [opportunity].” The police must be prudent before they accept information too readily. Recall that the alibi witness in The Ghost and Mr Chicken, starring Don Knotts, was quite impressive until he admitted that he travels to Mars for meetings! Thus, an investigator would have to be careful, for this reason, of the comments that follow, taken from the next lines of the play: “ANTIPHOLUS OF SYRACUSE. A trusty villain, sir, that very oft, When I am dull with care and melancholy, Lightens my humour with his merry jests…” How much may one rely on the opinion and observations of one who enjoys the company of a trusty villain?

Duties of investigators – not to jump to conclusions

“ANTIPHOLUS OF SYRACUSE. I knew ’twould be a bald conclusion …” Whatever concerns the investigator may have held about the likely results of an interview, including a total lack of success, one thing that may not occur is to reach an unsupported conclusion or to jump to one. The relevant passage is found in The Comedy of Errors, Act 2, sc. ii, l. 167.

Duty of investigators – do not grant time to recover from questions when challenging the suspect

“ANTIPHOLUS OF SYRACUSE. … why there is no time to recover.” See The Comed, Act 2, sc. ii, l. 167. An investigator, I suggest, should exhaust all other questions prior to seeking to confront a suspect and should then, as a last resort, seek to ask the most critical question and measure how long it takes to respond, as the delay in recovering from the surprise may be telling, and may even demonstrate by its undue length that the answer is a fabrication.

Duties of investigators – can one threaten a potential witness with obstruct justice if they refuse to respond to a question?

The play The Comedy of Errors, includes this relevant passage in Act 2, sc. ii, l. 193: “LUCIANA. Why prat’st thou to thyself, and answer’st not?” I some instances, the person is concerned that their response will be incriminating, and are thus excused by reason of the right to silence; in some cases, they simply will not wish to be harming a friend and elect not to say something that will bring them some difficulties but they also do not wish to lie to the investigator – thus, they refuse to respond. Since a witness at trial need not answer a question, I suggest that they need not reply to an investigator. That said, the wise course is to ask all other questions both to be practical and to possibly sway their thinking to greater cooperation subsequently.

Duties of investigators – to know as fully as possible the mind of the suspect

Consider this quote: “ADRIANA. Say, didst thou speak with him? know’st thou his mind?” See The Comedy of Errors, Act 2, sc. i, l. 47. I do not suggest that detectives have the time to achieve this objective in every case, but certainly in the major ones and, in fact, this is the goal to be pursued prior to a lengthy interview.

Duties of investigators – what to do when witness states that perhaps part or all of what experienced took place in a dream?

“ANTIPHOLUS OF SYRACUSE. To me she speaks; she moves me for her theme. What, was I married to her in my dream?” This passage, found in the play The Comedy of Errors, in Act 2, sc. ii, l. 182-183, underscores how this might be explained to an investigator. The best that can be done is to explore the issue fully, to then be in a position to have the witness realize that the matter was, in fact, truly experienced.

Duties of investigators - they must comply with the laws, even those they may disagree with

The Duke, the chief official if you wish, states in The Comedy of Errors Act 1, sc. i, l. 3, “I am not partial to infringe our laws.” In other words, I am not a partisan of disrespect for the rules and institutions that govern or country. This issue has become more topical with the prosecutions of police officers accused of not complying with certain regulations touching upon public heath, and one must be careful to not be liable to impeachment during a lifetime of trials over a momentary decision.

Duties of investigators – record information accurately

If an officer is not careful in recording information, and in having the witness verify the accuracy of what is recorded, the defence lawyer may be able to raise concerns that the defendant stated something different than what was recorded. In The Comedy of Errors, Act 2, sc. ii, l. 218-220, Shakespeare had Adriana say: “… and let none enter, lest I break your pate.” Without a clear, verified account by the witness, defence counsel might suggest to the witness that the threat was not of death or great harm, by attacking the person’s skull (pate) but of minor damage by breaking their plate.

D Duties of investigators – assist the meek

"ADRIANA ... They can be meek that have no other cause ..." Refer to the play, Act 2, sc. i, l. 32-35. In other words, those entrusted with investigating a case, a cause so to speak, cannot be meek. That does not mean they must be disrespectful or otherwise objectionable.

Duties of investigators - plead in earnest for justice

The Comedy of Errors, Act 4, sc. ii, l. 3 reads: "That he might plead in earnest ..." This seems to summarize ably what the police officer owes to both the victim and the community. This, in my view, directs the duty of the police witness to be firm where firmness is required and not to adopt fanciful suggestions but to always be frank and never to allow one’s wishes to stand greater than one’s oath. A simple example follows. A police officer stops a male driver for operating an unsafe “junk heap rescued” car about to fall apart and verifies that he is 100 kilometres away from his home and is 30 minutes from his curfew, and that the vehicle is nearly out of gas. As a result, there is an accusation for breach. At trial, the self-represented accused suggests to the officer that he was about to exit to a secret airfield and to board a private plane and would then parachute to his home. If the officer immediately agrees that such a scenario makes sense, one might conclude that the officer is not earnest in seeking justice.

Duties of investigators - be mindful of potential defamation if fruits of investigation are carelessly communicated to those not entitled to be informed

Shakespeare suggests clearly in The Comedy of Errors, Act 3, sc. i, l. 154-155, by means of Balthasar that "... slander lives upon succession, Forever housed where it gets possession." Thus, it is even more important in this Internet world that police officers do not allow, by direct action or inaction, that potentially slanderous information be communicated save as the law permits. If a suspect is arrested and charged with a horrible offence as a result of a professional investigation, then the resulting adverse media attention is consonant with the law; if a careless disclosure of the name of a suspect is made, that may not be consonant with the law’s respect for privacy.

Duties of investigators - Police officer cannot be swayed by the terrible consequences that might result from investigation

The Comedy of Errors illustrates at the outset of Act 1, sc. i, that an investigation may lead to a significant consequence for the individual suspected of a no less significant offence – but that this situation cannot dissuade the officers from their tasks. As we read, “EGEON. Proceed, Solinus, to procure my fall, And by the doom of death end woes and all.”

Duties of investigators – does not extend to calling witness a liar

I suggest that there is nothing wrong with a character in a play qualifying someone they are questioning as “liars”, as they are not subject to professional standards and to defamation laws. The police investigator is! In fact, there is no practical value to using such strong language when the investigator might be mistaken and might result in losing that person’s cooperation in terms of other information in the matter at hand. Consider “ANTIPHOLUS OF SYRACUSE. Villain, thou liest, for even her very words
Didst thou deliver to me on the mart”, found in The Comedy of Errors, Act 2, sc. ii, l. 163.

Duties of investigators – avoid leading questions and select to open-ended ones

No authority is required to establish that investigators who ask leading questions, especially on critical points, will influence the fact finding of the courts, but in a very negative way. For example, if the detective were to ask the witness a question tracking the passage that follows from The Comedy of Errors, Act 4, sc. iv, l. 82, the judge might well discount the weight of the testimony if there was no prior suggestion advanced by the witness as to the matter discussed. "Antipholus of Ephesus "And did [he] not in rage depart from thence?"

On many occasions, I have heard counsel debate whether a question was leading as it included the positive and the negative, as in the example that follows: “ADRIANA. Ah, Luciana, did he tempt thee so? Might’st thou perceive austerely in his eye That he did plead in earnest, yea or no? Look’d he or red or pale, or sad or merrily?” See Act 4, sc. ii, l. 3. In this case, there are two many binary choices to suggest fairly that the witness was left entirely to his or her devices – but it is close to the line. In the final analysis, it might be best if the witness is left entirely free to describe what took place as the most compelling account, from a judge’s perspective, if the one that flows natural from the lips of the witness.

Consider also: “ANTIPHOLUS OF SYRACUSE. Did you converse, sir, with this gentlewoman? What is the course and drift of your compact?” This passage, from Act 2, sc. ii, l. 160-161, illustrates how difficult it is to formulate a non-leading question. It is leading to propose an answer to a witness to close off that person’s independent contribution, on a matter of some controversy. It would not be leading to ask the Premier: “I understand that you are a politician?” It would be leading to ask: “I understand that you dislike those who voted against you in the last election?” In the example noted above, we see that the questioner asks if the witness “conversed” with a woman, a verb that entails a lot more than merely “cross paths” or “nod hello”. In addition, it is clear that the follow up question embracing “compact” would normally include course and drift as the expression certainly takes in a lot of interaction. Thus, it is leading as the witness is invited to agree with the questioner.

Duties of investigators – bald men are perhaps better investigators?

One must note the suggestion found at Act 2, sc. ii, l. 85-90 of the play The Comedy of Errors to the effect that wit may be more common in men who are bald! "Dromio of Syracuse ... what he hath scanted men in hair, he hath given them in wit..." I suggest that wit is a very useful quality in the arsenal of investigators.

Duties of investigators - Clarifying who are the parties named or referenced

The Comedy of Errors, Act 4, sc. iii, l. 15-18 provides an example of how best to clarify what and who is meant by the descriptions:

DROMIO OF SYRACUSE.
Master, here’s the gold you sent me for.
What, have you got the picture of old Adam new apparelled?

ANTIPHOLUS OF SYRACUSE.
What gold is this? What Adam dost thou mean?

DROMIO OF SYRACUSE.
Not that Adam that kept the paradise, but that Adam that keeps the prison; he that goes in the calf’s skin that was killed for the Prodigal; he that came behind you, sir, like an evil angel, and bid you forsake your liberty.

Duties of investigators - Witnesses are questioned, not cross-examined – that is reserved possibly for suspects and their confederates

"LUCIANA Spake he so doubtfully thou couldst not feel his meaning?", a phrase found in The Comedy of Errors, Act 2, sc. i, l. 50-51, makes plain the type of questioning that the investigator must engage in to ascertain whether two persons overheard speaking were, for example, repeating what they knew of a past terrorist attack or plotting one! If they cannot be trusted to have clearly understood what was being discussed, then the introduction of cross-examination and of suggestions may lead to a total contamination. The fear is always that the actual killer, to resort to that scenario, is at liberty while an innocent person is prosecuted as a result of suggestion.

Duties of investigators – to answer questions in court, but not with a question

An example of this type of situation, so common in any type of litigation, is found in Act 4, sc. i., l. 63 of The Comedy: "... Anthipholus of Ephesus I answer you? What should I answer you?" Well prepared counsel will have a stock response that may be provided almost as a reflex, and a common one follows: "Witness, in this hearing, I am free to ask you the question I did unless the Court or the other lawyers object. Since no one is objecting, you must provide me with the information I require." In brief, police officers are in no different situation than other witnesses: they are called to assist the Court and must respond unless the Court disallows the question on its own motion or as a result of an objection.

Duties of investigators - Not allowing a witness to respond in full

In The Comedy of Errors, Act 1, sc. i, l. 94-97, Egeon wishes to curtail his recitation of his tale of woe but the Duke, the chief law enforcement official if you like, admonishes him to complete his recitation of facts: "Egeon ... O, let me say no more! Gather the sequel by that went before. Duke Nay, forward, old man. Do not break off so ..." This illustrates the difficulty faced by the investigator – if you push the witness to continue to speak, the prosecution initially and the Court ultimately may assign little or no weight to what is said as it may be assessed as “telling what the questioner wanted to hear”.

Duties of investigators – Listening closely to what the witness states in response to your questions as opposed to thinking of next question

As a trial judge, I noted on occasion how lawyers might miss a very important admission from witnesses as they were distracted by formulating in their minds their next question. The play The Comedy of Errors provides an example at Act 2, sc. ii, l. 147-148: “ANTIPHOLUS OF SYRACUSE.
Plead you to me, fair dame? I know you not. In Ephesus I am but two hours old…” In other words, the witness not only stated he did not know the woman speaking to him but explained how he had quite a limited opportunity to make her acquaintance. The experienced investigator will make a note, not just a mental one, of that last bit of information and will return to it if the witness later contradicts the information.

Investigator’s duties – assess the volubility of the witness

I suggest that it is important for an investigator to assess whether the potential witness is typically voluble, but was not at the time of the interview, as this might provide circumstantial evidence of trauma, by way of limited example. Consider Act 2, sc. i, l. 93-94: “ADRIANA. … If voluble and sharp discourse be marr’d …”

Duties of investigators - Accessing the rhyme or reason of a crime

Act 2, sc. ii, l. 45-56, suggests that Shakespeare was of the view that a skilled and complete questioning by the police must explore not only the "whys?" but the "wherefores". Thus: "Antipholus Shall I tell you why? DROMIO OF SYRACUSE Ay, sir, and wherefore, for they say every why hath a wherefore." Of note, we read at lines 51-52: "DROMIO OF SYRACUSE Was there ever any man thus beaten out of season, When in the "why" and the "wherefore" is neither rhyme nor reason?"

Duties of investigator - Interpreting the meaning of the words of a witness

Act 3, sc. ii, l. 95-101 of The Comedy of Errors illustrates the duty cast upon the investigator to ensure that the meaning of the potential testimony of a witness is well understood by those called upon to prosecute the case:

DROMIO OF SYRACUSE

A very reverend body, ay, such a

one as a man may not speak of without he say

"sir-reverence." I have but lean luck in the match,

and yet is she a wondrous fat marriage.

ANTIPHOLUS OF SYRACUSE How dost thou mean a "fat

marriage"?

Assessment of the facts by the investigator – Factors influencing the value of the proposed testimony

Alcohol

The Comedy of Errors, Act 5, sc. i, l. 221-22, reminds us that the consumption of alcohol may well affect the ability of a witness to perceive an event accurately, to record it correctly, to retain it faithfully in memory and to report it without error. Thus, "Antipholus of Ephesus ... I am advised what I say, Neither disturbed with the effect of wine ..."

Bias - Jealousy

Little authority is required to sustain the proposition that jealousy leads to rash and terrible decisions, and competent investigators are aware of this type of concern. In this vein, Luciana stated in The Comedy of Errors, Act 2, sc. i, l. 121: "How many fond fools serve mad jealousy!" Thus, counsel must ascertain whether testimony is susceptible of being impeached by reason of the jealousy that a witness demonstrated during the relevant period. Note in passing lines 150-157 of Act 2, sc. ii, in which Adriana tells her spouse that should he cheat on her, she would return the favour as their life together has made her contract his "poison of the flesh". Finally, this play also refers to jealousy at Act 5, sc. i, l. 69-70: "Abbess And thereof came it that the man was mad. The venom clamors of a jealous woman Poisons more deadly than a mad dog's tooth." Finally, I quote: LUCIANA. Self-harming jealousy! fie, beat it hence.” This is a phrase we read in Act 2, sc. i, l. 103. I have cited it to make plain that jealousy and other emotions that may influence how people act must always be at the centre of the inquiries and assessments made by the investigator

Jealousy

“LUCIANA. Self-harming jealousy! fie, beat it hence.” This is a phrase we read in The Comedy of Errors, Act 2, sc. i, l. 103. I have cited it to make plain that jealousy and other emotions that may influence how people act must always be at the centre of the inquiries and assessments made by the investigator.

Flattery

That the successful trial lawyer might resort to flattery, whether with adverse witnesses or the Court, goes without saying as it is part and parcel of the art of persuasion. In this vein, consider The Comedy of Errors, Act 3, sc. ii, l. 30: "Luciana ... When the sweet breath of flattery conquers strife." As for the investigator, however, it is not as easy to respond “yes” or “no” to the question of how easily or often one ought to flatter potential prosecution witnesses. At the end of the day, the question is whether this will result in an unfair statement by the witness.

Anger

The Comedy of Errors, Act 5, sc. i, l. 221-22, reminds us that a strong emotion such as anger may well affect the ability of a witness to perceive an event accurately, to record it correctly, to retain it faithfully in memory and to report it without error to the investigators. Thus, "Antipholus of Ephesus ... I am advised what I say ... Nor heady-rash provoked with raging ire..."

Investigations 101 – several elements to guide police investigators

Build case brick by brick when seeking information

"Second Merchant to Angelo You know since Pentecost the sum is due..." This citation is found at the first line of Act 4, sc. i, of The Comedy of Errors. This citation is followed by further information supplied by the merchant to the debtor Angelo, but he never directly concedes the fact of a debt or its precise sum, though he offers a chain to satisfy the debt. Successful investigators will prepare a full list of points to be covered and will ensure by pains taking effort to check off each point after it is exhausted. For example, a successful interview of a potential witness will include a shopping list of important points, i.e., “do you agree that a sum is due?” “You agree that the sum totals x amount as of x date, etc.” As for the offer of the chain, the investigative officer would go forth to ascertain its value, how that value was calculated, its provenance, proof of clear title, et ainsi de suite. Actually, that information is offered in the play further down at lines 28-34.

Turn rock over after rock to discover what really happened and why

The Comedy of Errors, Act 1, sc. i, l. 77-80, provides an apt illustration of children being treated quite poorly, tied up in fact, but to assist them to avoid a situation of peril. As we read, "Egeon My wife, more careful for the latter-born, Had fastened him unto a small spare mast ..." during a storm at sea with the hope of avoiding him being thrown overboard. Thus, context is everything in attempting to collect accurate information that might be presented to a Court – without a full investigation, the prosecution and the Court might be misled to consider the conduct as seemingly harmful.

Assist court is ascertaining whether situation accords with common sense

Act 3, sc. ii, l. 196-200 of The Comedy of Errors records that a character cannot understand the actions of another as the actions descried did not accord with the normal situation according to which people seek to advance their monetary position if it involves neither work nor inappropriate actions. The duty of the prudent investigator is to obtain all relevant information and to assess for the fact finder whether the account is consonant with common sense to then discuss whether the situation is expected or surprising. Hence:

ANTIPHOLUS OF SYRACUSE

What I should think of this I cannot tell,

But this I think: there's no man is so vain

That would refuse so fair an offered chain.

I see a man here needs not live by shifts

When in the streets he meets such golden gifts...

Consider a further illustration as well drawn from The Comedy of Errors, Act 4, sc. ii, l. 19-25: "ADRIANA ... My tongue, though not my heart, shall have his will. He is deformèd, crooked, old, and sere, Ill-faced, worse-bodied, shapeless everywhere, Vicious, ungentle, foolish, blunt, unkind, Stigmatical in making, worse in mind." Not surprisingly, Lucianna then asked: "Who would be jealous, then, of such a one?"

Patience is required

“ADRIANA. Patience unmov’d! … With urging helpless patience would relieve me: But if thou live to see like right bereft, This fool-begg’d patience in thee will be left.” This passage, from The Comedy of Errors, Act 2, sc. ii., l. 33-41, serves to exemplify that patience means different things to different persons in different contexts. If you believe that you being rushed to complete an investigation, you are duty-bound to demonstrate resolve in requiring more time and, of course, you cannot rush through a file as you might be criticized for being rushed and not thorough, In this context, please note that a favourite defence tactic is to as questions along these lines: “Detective, would you agree that you took all the time in the world to ensure that you looked under every stone, and then some more stones, prior to reaching the conclusion that you had grounds to arrest my client?” If you agree, according to your oath, you might then be met with the next question: “In comparison with other cases, this was a complex and lengthy investigation?” Again, should you agree, the next question might suggest that this was the most difficult case you worked on to date. Should you agree, further questions will be asked to tend to show that if it took you so much time and effort prior to being satisfied, then surely the jury should be reluctant to reach any hasty conclusion…” If you state at the outset that it was an easy and simple conclusion to reach grounds to arrest, the jury will be invited to find that you rushed to judgment. It is part of the wide range of “Do you still beat your spouse” type of questions and you must leave it to the Crown to argue, at the correct time, that the inquiry was not worth any of the time devoted to it.

To be complete, allow me to quote how impatience may be damaging. The play includes this passage, at Act 1, sc. i, l. 3: "DUKE Merchant of Syracuse, plead no more." A few lines later, at number 28, the Duke adds: "Well, Syracusian, say in brief the cause..." Further, in sc. ii, l. 59, another character states: "... Tell me, and dally not..." In effect, the Court comprised of Solinus, the Duke, has forbade Egeon from making any further comments in his defense and goes to pronounce the death sentence. No investigator could act in this fashion and be perceived as having fairly interviewed the witness-suspect. Indeed, from the perspective of the investigator at the start of the fact gathering process, there is no justification for any impatience with witnesses attempting to explain what may have happened, especially if the account being advanced obviously does not assist the prosecution side of things, and none when the potential accused is being interviewed. It is his or her liberty that is at stake and they must be treated, and seen to be treated, fairly throughout the investigation.

Does the conclusion rest upon a solid foundation or on a little bit of brittle support?

Investigators must be willing and able to demonstrate to the prosecution, and ultimately to the Court, that the conclusion reached by the witness, and rests upon much more than a "bald conclusion", as discussed at lines 80-119 of The Comedy of Errors, Act 2, sc. ii.

Consent - "Given, but not willingly" - After the fact reconsideration or a cold and correct appraisal of lack of agreement?

"... Unwilling, I agreed..." is a phrase found in The Comedy of Errors, Act 1, sc. i, l. 60. The context shows clearly that the husband was persuaded by his spouse that a sea voyage was required. Regrettably, disaster struck. The question then must be asked by the investigator whether the party began to question his willingness to undergo the trip by reason of the unfortunate conclusion, or for objective reasons, as that may influence the value of the information provided.

Did the witness obtain a verbatim or a quite incomplete account of what parties discussed?

In Act 2, sc. i, l. 62-72, Shakespeare provides a humorous example of an exchange in which one of the participants suggests without hesitation that he clearly heard and clearly recorded and retained the words of another. In sum, that he can provide a verbatim account. Experienced investigators would attempt to assess the reliability of what follows by reference either to the proximity in time of the words spoken to being related to the police, or to the fact that they were set down in some form of aide-memoire. Hence, "DROMIO OF EPHESUS ... When I desired him to come home to dinner, He asked me for a thousand marks in gold. "'Tis dinnertime," quoth I. "My gold," quoth he. "Your meat doth burn," quoth I. "My gold," quoth he. "Will you come?" quoth I. "My gold," quoth he. "Where is the thousand marks I gave thee, villain?" "The pig," quoth I, "is burned." "My gold," quoth he. "My mistress, sir," quoth I ..."

On the point earlier noted that a recent conversation is more easily well retained and repeated, as a matter of common sense, reference is made to Act 2, sc. ii of The Comedy of Errors, at l. 13-14: "Dromio of Syracuse /// When spake I such a word? Antipholus of Syracuse Even now, ever here, not half an hour since."

Humour in police work – “There is a season ...” but it is quite limited in duration

Antipholus of Syracuse remarks "Come, Dromio, come, these jests are out of season. Reserve them till a merrier hour than this..." Refer to Act 1, sc. ii, l. 69-70. In this context, one is reminded of the quote found in Ecclesiastes 3:1: "There is a time for everything, and a season for every activity under the heavens." For the investigator, an important lesson to be drawn is that one must be careful prior to injecting any note of humour during police inquiries. The further lesson is that humour might be proper, in limited situations, dependant wholly upon context and content. Later, again in The Comedy of Errors, Act 2, sc. ii, l. 71-72, the Bard expands on this point thus: "Antipholus of Syracuse. Well, sir, learn to jest in good time. There's a time for all things."

Memory in the work of a detective

“LUCIANA. And may it be that you have quite forgot A husband’s office?” This is not a true example of forgetfulness, drawn from The Comedy of Errors, Act 3, sc. ii, l. 1-2 but it does assist in making plain that the most minimally satisfactory investigation must include some consideration of the memory of a potential witness.

Deceit, assist Court in discovering

Note this passage: "Antipholus of Syracuse ... The folded meaning of your words' deceit." In sum, that is the function of the skilled investigator, to discover the length and breadth of any deceit, for example. See The Comedy of Errors, Act 3, sc. ii, l. 37.

Distraction

The Comedy of Errors, Act 4, sc. iii, l. 35, provides an example of the type of submission that might prevail in the case of a seemingly credible witness whose evidence might be undermined by reference to distraction at the time of perception, making the testimony less than reliable. "The fellow is distract ..." In the result, it is important for the prudent investigator to inquire fully into the circumstances of the perception of events by the witness to account for this potential factor in undermining the ability to have observed accurately the unfolding of the events.

Mixed emotions - At times, good and bad things occur together

"... Fortune had left to both of us alike What to delight in, what to sorrow for ..." is a phrase found in The Comedy of Errors, Act 1, sc. i, l. 105-106. In effect, Egeon is explaining to the Duke, who has just sentenced him to death, how his family was divided years prior as a result of a shipwreck with the result that only of his twin sons and one of his male servants, also a twin, survived and found themselves with him; there was no trace of his wife, his other son and of the other twin. More to the point, when asked about the trip, the witness might rejoice in recounting it if his heart and mind are focused on those whose lives were saved; he might become quite sad when focused on those loved ones he lost. Indeed, an advocate might point to his seeming lack of concern for those he lost if attention is drawn to those instances when he rejoiced at his good fortune. Accordingly, investigators must be careful to obtain and to present to the fact finder a full account of the factual background to the controversy in such emotional situations.

Exaggeration by the proposed witness – or the lack thereof

How often have you heard a witness being interviewed at the police station or scene of an event state: "Let me be candid” or “I swear on my mother's grave" or words to this effect, to then exaggerate? In The Comedy of Errors, Act 4, sc. iv, l. 78, Shakespeare illustrates this situation, but without stating the words in question: "Dromio of Ephesus Sans fable ..." [Meaning without exaggeration or making this account seem a fairy tale] In other words, this is the truth, warts and all. Note the relevant example found in the same play, also at Act 4, sc. iv, but at line 95: "God and the rope-maker bear me witness."

Evolution in one's thinking - relationship

In Act 2, sc. ii, l. 123-132, Shakespeare illustrates the simple fact that all individuals evolve in their thinking, and this necessarily includes their perspective on all kinds of relationships, notably domestic and romantic ones. Hence:

ADRIANA

... I am not Adriana, nor thy wife.

The time was once when thou unurged wouldst vow

That never words were music to thine ear,

That never object pleasing in thine eye,

That never touch well welcome to thy hand,

That never meat sweet-savored in thy taste,

Unless I spake, or looked, or touched, or carved to

thee.

How comes it now, my husband, O, how comes it

That thou art then estrangèd from thyself?

Obviously, investigators must consider such factors in interviewing witnesses, lest surprises arise. By way of limited example, it ought not to be surprising in a civil case embracing a contested will that certain adult children who have experienced separation and divorce might be sympathetic to the perspective of their surviving parent who wishes to claim a share for their "new" spouse, while those children who will inherit less as a result might be at the local station suggesting fraud and deceit!

Good character and reputation as elements of reliability

Noteworthy is the example found in The Comedy of Errors, Act 3, sc. i, l. 136-140: "Balthasar ... your long experience of [your wife's] wisdom, Her sober virtue, years, and modesty Plead on her part ..." Investigators must stress these qualities when interviewing witnesses in appropriate instances, such as listing the awards an accountant may have obtained who is to be called to relate findings in a fraud case – it is rare that a C.V. is presented to the Court save in cases in which a doctor (M.D. or Ph.D.) is called.

Hesitations - time to think, as a positive indication of reliability

On occasion, investigators must assess apparent difficulties associated with the hesitations shown by a potential witness during their interview. Does this action or, better stated, this inaction, demonstrate a desire to respond appropriately, after having mulled over the question? Of course, it might also make plain that the witness does not wish to respond correctly and truthfully and requires this prolonged period prior to answering to cobble together a seemingly coherent and compelling reply. Consider the example drawn from the short story The Sisters, penned by James Joyce: "[...] no, I would not say he was exactly ... but there was something queer ... there was something uncanny about him. I will tell you my opinion..." He began to puff at his pipe, no doubt arranging his opinion in his mind [...]" In this example, the speaker appears to be prepared to reply to the question, but obviously hesitates for fear of being too blunt, or too critical perhaps. In such a case, the answer may not reflect the truth, the whole truth and nothing but the truth. [Emphasis added]

Human nature – do criminal brag of their failures?

Luciana asks in The Comedy of Errors, Act 3, sc. ii, l. 16: “What simple thief brags of his own attaint?” I would suggest that this is not uncommon, but if it does occur, such as the one who posts on Tik Tok how they could not remove a large safe from a small room, it is nonetheless admissible as a form of confession.

Human nature - The suspect who invites you to make an arrest

On occasion, police officers will encounter a person who invites an arrest, as the surest way of being able to explain their innocent circumstances and, on rarer ones, to get away from a menacing person or crowd. Consider ANTIPHOLUS OF EPHESUS: “Consent to pay thee that I never had? Arrest me, foolish fellow, if thou dar’st.” See Act 4, sc. i, l. 76.

Human nature - Equality of gender roles

No doubt, some individuals, of both genders, believe that the female ought to follow the directions of the male in domestic relationships. Shakespeare offers an example of this type of belief, during an exchange between two sisters, in Act 2, sc. i, l. 5-13 of The Comedy of Errors. Hence:

ADRIANA

Neither my husband nor the slave returned

That in such haste I sent to seek his master?

Sure, Luciana, it is two o'clock.

LUCIANA

Perhaps some merchant hath invited him,

And from the mart he's somewhere gone to dinner.

Good sister, let us dine, and never fret.

A man is master of his liberty;

Time is their master, and when they see time

They'll go or come. If so, be patient, sister.

ADRIANA

Why should their liberty than ours be more?

LUCIANA

Because their business still lies out o' door.

Later, we read at lines 15 and then at 19-20: "Luciana ... headstrong liberty is lashed with woe ... Are theor males' subjects and at their controls..." Irrespective of one's view of this belief, an investigator ignores to his or her peril the fact that some persons espouse this philosophy and, as in all areas of controversy, the prudent police investigator will have examined the philosophy that may animate the views of any witness in the expectation of obtaining assent to whatever proposition is being put forward.

Human nature - we say negative things that we do not truly believe

Consider this illustration drawn from the play at Act 4, sc. ii, l. 19-25: "ADRIANA ... He is deformèd, crooked, old, and sere, Ill-faced, worse-bodied, shapeless everywhere, Vicious, ungentle, foolish, blunt, unkind, Stigmatical in making, worse in mind." Later, at line 27, the same person adds, "... but I think him better than I say..." This should illustrate that the investigator must take it all in, without attempting to sanitize any response, and allow the prosecutor to address it during the trial.

Human nature and the perception of lawyers

No one can be unaware of the generally low opinion held of the legal profession by the general population. As stated in a different context in The Comedy of Errors, Act 1, sc. ii, l. 101-103, lawyers are assimilated to: "... nimble jugglers that deceive the eye, Dark-working sorcerers that change the mind ..." Whatever one thinks of these low opinions, it is the duty of the advocate to employ legitimate means to "change the mind" of witnesses holding beliefs inimical to the cause being advanced and, of course, to change the mind of the judiciary if inclined to rule in favour of the opposing party. As well, to not consider the lack of respect of witnesses for the task of the advocate is to invite lack of success in terms of the task that the advocate must accomplish.

As for the investigator, he or she cannot seek to disparage the legitimate role of defence counsel to obtain the cooperation of reluctant witnesses as the resulting witness information is typically held to be of poor value as the fruit of contamination and undue influence.

Identification - Twins - times two

Consider how the academic criticism of the play may be of assistance to investigators faced with an "identification" case. As suggested by George Wilkes in "Shakespeare, From an American Point of View", accessed through HeinOnline, pages 120-127, at page 121: "... if they do look alike, [they] must necessarily bear themselves differently, walk differently, and dress differently ..." All these points must be addressed by the police officers in terms of the potential value of the identification evidence, especially in cases in which it is said of the twins: “EGEON …And, which was strange, the one so like the other As could not be distinguish’d but by names…” See Act 1, sc. i., l. 51-52.

Problems that arise in notetaking – changes in time as we “Fall Back and Spring Forward”

I am always amused at the number of times over the years in which the arrest or breath-taking procedures involved the change in the hour such that the police officer could only avoid confusion as to when he or she first saw – spoke to – arrested the suspect and when this took place later during the same “hour” with clear notes setting out this was first 2:05 a.m. and this was the second instance of a 2:05 a.m. Consider The Comedy of Errors, Act 4, sc. ii, l. 61-63: “If ‘a be in debt and theft, ad a sergeant in a way, Hath he not reason to turn back an hour in a day?”

Be not too elaborate

The Duke points out in Act 5, sc. i, l. 269 of The Comedy of Errors: " Why, what an intricate impeach is this! ..." In other words, if possible, the challenge to the testimony of the defence’s witness(es) ought not to be too elaborate. If you can mount a reply that is direct, it cuts down on the disclosure and augments the capacity of the Court to focus on the main issue that is emerging.

Proof offered may be fanciful and without merit

An example is found in The Comedy of Errors, Act 3, sc. i, l. 11-15:

DROMIO OF EPHESUS

Say what you will, sir, but I know what I know.

That you beat me at the mart I have your hand to show;

If the skin were parchment and the blows you gave were ink,

Your own handwriting would tell you what I think.

On the other hand, recall how the Sheriff in To Kill a Mockingbird explained to Atticus Finch that whatever his failings, he is the Sheriff!

Reputation evidence

Although rarely accomplished in practice, Crown counsel always wish to be able to call favourable reputation evidence. An example is found in Act 5, sc. i, l. 3-8: "Second Merchant How is the man esteemed here in the city? Angelo Of very reverend reputation, sir, Of credit infinite, highly beloved, Second to none that lives here in the city. His word might bear my wealth at any time." The careful investigator will attempt to marshal whatever favourable evidence of this kind is available. Of course, the investigator may be called upon to assist the prosecution in demolishing the reputation of a defence witness. In this vein, consider “BALTHASAR. Have patience, sir. O, let it not be so: Herein you war against your reputation, And draw within the compass of suspect…” See Act 3, sc. i, l. 86.

Sleep - how poor sleep affects the disposition of the witness to assist

If one may credit Shakespeare in his regard, it seems that common sense suggests that a person is expected to be somewhat upset if their sleep is disturbed. As we read in Act 5, sc. i, l. 83-84, includes the words: "... In food, in sport, and life-preserving rest To be disturbed would mad or man or beast ..." Hence, careful detective work will be enhanced, and not diminished, if the interview with a witness is scheduled for a time when the witness is well rested, if possible. Of course, the longer the interview is delayed, the more there is a gap between the perception of the events and the communication of the description of these events.

Trustworthiness of witness - "The Devil may quote scripture"

If we leave aside the debate respecting demeanour for another day, the quote does suggest as well that it may be that a villain may be capable of producing a true statement, such as faithfully invoking Holy writings. In this vein, note that Act 1, sc. ii, l. 20 of the play begins with the words, "Antipholus of Syracuse A trusty villain". Based on the experience he has enjoyed with his servant, Antipholus of Syracuse may well be capable of discerning when his servant is trustworthy and when he is not. The advocate will thus seek to buttress the evidence of such a witness if called, to avoid or to attenuate at the very least the impeachment likely brought by opposing counsel; likewise, the advocate seeking to discredit this type of witness will be well served to paint he or she in the most devilish guise...

“Words are but wind”

The Comedy of Errors, Act 3, sc. i, l. 119-120, suggests: "Dromio of Ephesus ... words are but wind." This may be so, but are the anvil upon which a thorough detective forges favourable prosecution briefs.

The word and credit of a police officer not held to a higher standard than any other person’s until they testify and are judged on that basis

As a matter of common sense and fairness, no “upfront” increased or enhanced reliability is assigned to the testimony of a police officer or of anyone else who hold a favoured position. In The Comedy of Errors, Act 5, sc. i, l. 166, these words refer to that issue: "Duke ... And I to thee engaged a prince's word ..." As the investigator, if you are interviewing a witness who holds a favoured position, whether a police officer from your own or another force ranging “up” to a witness from the Royal Family, it is your duty to remind yourself that no objective reliability is assigned to anyone, including high born individuals. Reliability of testimony is earned after a scrutiny of the person and of the evidence.

Evidence is weighed at every step of the case – ultimately, the Court may accept all, some or none of the testimony

The Comedy of Errors, Act 5, sc. i, l. 315-317, reads: "Dromio of Ephesus ... and whatsoever a man denies, you are now bound to believe him." In fact, that conclusion may be drawn, but only if a searching evaluation of the testimony has found the evidence to be reliable (and credible etc.) At the earlier stage of the investigation, the careful investigator will be critical in assessing the value of any proposed testimony.

Witness preparation

Act 3, sc. ii, l. 35, of The Comedy of Errors, includes the words: "ANTIPHOLUS OF SYRACUSE ... Teach me ... how to think and speak ..." Although a lawyer can hardly be said to have sufficient time to achieve this remarkable feat, Crown counsel must find the time to explain to all potential witnesses in major cases how examination in chief and cross-examination are conducted. In this fashion, counsel may prevent a favourable witness from succumbing to the suggestions of opposing counsel or, if you prefer, to track the image we read of in Act 3, sc. ii, l. 180: "ANTIPHOLUS OF SYRACUSE ... I'll stop mine ears against the mermaid's song", to ensure that that favourable scenario comes about. The investigator will often be invited to be present, both the make the witness more at ease as they have met and to record any fresh disclosure, if any.

CONCLUSION

In the final analysis, if it is suggested that investigators do not, currently, read and watch The Comedy of Errors or other Shakespearean plays or be influenced by them, we reply that one ignores the lessons they contain to one's peril. In fact, the internet has made it far easier for all those vitally interested in studying psychology of fact finding as taught by the Bard to do so at any time and in any location. Indeed, it was said by Mr. Bruce Hutchinson, in praise of the late Chief Justice Wilson of the British Columbia Supreme Court: "And always, without fail, the judge's cloth bag contained, in one volume, now crumbled with much use ... the complete works of Shakespeare, whose every word he has read, whose every play he has pondered ..."[9] I do not suggest that all good detectives and wise judges and accomplished advocates are as familiar with Shakespeare as was the late Chief Justice, but I do state emphatically that no one has ever wasted his or her time in reading the timeless lessons about human nature put forward by William Shakespeare.

[1] This article is written in a private capacity. Should any of my opinions be quoted to me by a prosecutor seeking to support the work of an investigator, I reserve the right to state: “Now that I think about that point, in light of the cases cited by defence lawyer, I find that I was wrong!” I recall a very experienced judge, who had one of his books cited by a lawyer to support his final submission, conclude: “I will change that part when the book goes to the printer for the next edition.”

[2] Refer to “Shakespeare, From an American Point of View”, accessed through HeinOnline, pages 120-127, at page 121. Refer as well to E.J. White, Commentaries on the Law in Shakespeare, accessed through HeinOnline, pages 190-197.

[3] Refer to page 208 of "The Comedy of Errors and the Meaning of Contract", (2009) 3(2) Law and Humanities 207-229.

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

[5] 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.

[6] Some, but certainly not all, of the relevant case law includes these authorities. See also para. 9 of R. v. Avery, [1986] N.W.T.J. No. 12, [1986] N.W.T.R. 359, 30 C.C.C. (3d) 16 (C.A.), para. 2 of M.B.W. Surveys Ltd. v. Bank of Nova Scotia, [1986] Y.J. No. 52, 5 B.C.L.R. (2d) 292, 1 Y.R. 157 S.C.), para. 13 of Modern Air Spray Ltd. V. Homme et al, [1983] A.J. No. 931, 45 A.R. 95 (Q.B.), para. 22 of George Weston Ltd. V. Sterling & Affiliates, [1984] F.C.J. No. 1208, 3 C.P.R. (3d) 527 (Fed Ct. T.D.), para. 8 of Radium Developments Ltd. v. Imperial Oil Ltd., [1977] B.C.J. No. 629 (S.C.), para. 41 of National Trust Co. v. Brock, [1996] O.J. No. 3950, 15 O.T.C. 139, 8 R.P.R. (3d) 157 (Gen. Div.), R. v. Bentley, [1990] O.J. No. 1286, Mackenzie v. Rau, [2002] O.J. No. 5935, 22 C.C.E.L. (3d) 238 (Gen. Div.), at para. 16, Phan v. Canada (Minister of Citizenship and Immigration), [2014] F.C.J. No. 1284, 2014 FC 1203, 32 Imm. L.R. (4th) 27, 470 F.T.R. 83, para. 46 of R. v. Senathirajah, [2014] O.J. No. 3476, 2014 ONCJ 346, 316 C.R.R. (2d) 192 and most recently Kobi's Auto Ltd. v. 5174245 Manitoba Ltd., [2018] M.J. No. 325, 2018 MBCA 134.

[7] Refer to page 3 of The Arden Shakespeare, Methuen & Co. Ltd., London, 1962.

[8] I invite any readers to contact me at gilles.renaud@ocj-cjo.ca if they require assistance in locating these or any other cases. In addition, I refer to my book, Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008. Refer as well to my article, "Demeanour Evidence and "Eyelid Turns": Guidance from the Manitoba Court of Appeal and Anthony Trollope", posted in Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-293, April 27, 2020.

[9] Refer to "Address to the Victoria Bar Association", (1993), 51 Advocate 199-205, at page 203.