POLICE INVESTIGATIONS 101
GUIDANCE FROM SHAKESPEARE’S KING HENRY VIII
Gilles Renaud | Ontario Court of Justice[1]
INTRODUCTION
In this article, I document the various elements of guidance and instruction from the play King Henry VIII that may result in excellence in investigative work.[2]
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.”[3] 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?[4]
I have organized my thoughts along thematic lines embracing demeanour evidence, followed by interviewing techniques and skills that police officers must acquire and hone, judgment in police word including human nature and concluding 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 achieved, in part at least, by analyzing this excellent play.
DISCUSSION
Demeanour evidence as a guide to investigators
Demeanour – introduction – body language being observed to judge if “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 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”, also from that other play, 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
“Duncan: There's no art To find the mind's construction in the face…” [1-iv-12]; “Macbeth … Away, and mock the time with fairest show: False face must hide what the false heart doth know. » [1-vii-92]; “Malcolm … Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy…” [2-iii-135].
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 – The Grey’s Anatomy of
Aspect
“Cranmer [Aside] I am fearful: wherefore frowns he thus? 'Tis his aspect of terror. All's not well.” Henry VIII, Act 5, sc. i, l. 86-87.
Blush
“Sands. The red wine first must rise In their fair cheeks, my lord; then we shall have 'em Talk us to silence.” Henry VIII, Act 1, sc. iv, l. 43. Noteworthy as well is “Anne. As from a blushing handmaid, to his highness...” [2-iii-73] Further: “Cardinal Wolsey. Speak on, sir; I dare your worst objections: if I blush, It is to see a nobleman want manners.” [3-ii-307] Lastly: “Surrey. … Now, if you can blush and cry 'guilty,' cardinal, You'll show a little honesty.” [3-ii-305]
Brow
“I come no more to make you laugh: things now, That bear a weighty and a serious brow …” [1-Prologue]
Confidence
“Surveyor. … To me, should utter, with demure confidence This pausingly ensued: neither the king nor's heirs …” Henry VIII, Act 1, sc. ii, l. 167-168.
Eyes –
“Buckingham. … I'll follow and outstare him.” [1-i-128] Later, the passage that follows demonstrates how multi-faceted are demeanour elements: Patience. Do you note How much her grace is alter'd on the sudden? How long her face is drawn? how pale she looks, And of an earthy cold? Mark her eyes! Henry VIII, Act 4, sc. ii, l. 95-97. Further: “Cranmer … How earnestly he cast his eyes upon me! …” Henry VIII, Act 5, sc. ii, l. 12.
Faces
“Katharine. No? Saw you not, even now, a blessed troop Invite me to a banquet; whose bright faces Cast thousand beams upon me, like the sun? …” Henry VIII, Act 4, sc. ii, l. 87-88.
Frown
“Chamberlain. … Pass away frowning.” Henry VIII, Act 1, sc. iv, l. 37. And, “Cardinal Wolsey. What should this mean? What sudden anger's this? how have I reap'd it? He parted frowning from me, as if ruin
Leap'd from his eyes…” Henry VIII, Act 3, sc. ii, l. 206. Consider as well “Cranmer. [Aside] I am fearful: wherefore frowns he thus? 'Tis his aspect of terror. All's not well.” [5-i-86]
Heads
“Cranmer. … And hang their heads with sorrow … Dem we all accept as fair”. Henry VIII, Act 5, sc. v, l. 54.
Lip
“Norfolk. My lord, we have Stood here observing him: some strange commotion Is in his brain: he bites his lip, and starts …” [3-ii-113]
Looks
“Buckingham. Read in's looks Matter against me; and his eye reviled Me, as his abject object …” Henry VIII, Act 1, sc. i, l. 124. Also, “Suffolk. How sad he looks! sure, he is much afflicted.” [2-ii-64] Finally: “King Henry VIII. Now, by thy looks
I guess thy message. …” Henry VIII, Act 5, sc. i, l. 164-165.
Sweat
First Gentleman
When he was brought again to the bar, to hear
His knell rung out, his judgment, he was stirr'd
With such an agony, he sweat extremely,
And something spoke in choler, ill, and hasty:
But he fell to himself again, and sweetly
In all the rest show'd a most noble patience.
Act 2, sc. i, l. 31. [Emphasis added]
This was one person’s reaction to a death sentence!
Tears
“King Henry VIII. Good man, those joyful tears show thy true heart …” Henry VIII, Act 5, sc. iii, l. 176. I can only state that I doubt all tears are genuine.
Tongue
“Norfolk. … Durst wag his tongue in censure…” Henry VIII, Act 1, sc. i, l. 34. Of course, depending on the circumstances, the wagging of the tongue is soundless, and this is pure demeanour evidence in the sense of non-verbal communication. If there are words involved, it may still qualify in that the judge, yourself in your office and the Court, at trial, are called upon to assign some importance to the way the witness expresses contempt, for example, by the movement of the tongue.
Demeanour evidence and assuming a guise
Shakespeare provides the example in the play, at Act 1, sc. i, l. 39, of a witness assuming an honest guise, if the word “affect” is so interpreted. Consider: “Norfolk. As I belong to worship and affect In honour honesty …”
Interviewing skills and the work of investigators
Introduction
An excellent explanation of the importance of admissions and confessions, from suspects, and of sound statements from witnesses, is found in the lengthy passage that follows:
First Gentleman
I'll tell you in a little. The great duke
Came to the bar; where to his accusations
He pleaded still not guilty and alleged
Many sharp reasons to defeat the law.
The king's attorney on the contrary
Urged on the examinations, proofs, confessions
Of divers witnesses; which the duke desired
To have brought viva voce to his face …
Act 2, sc. i, l. 11. [Emphasis added]
Shortly put, this type of information from suspects is seen as typically convincing information, as it runs against human nature for persons to place themselves in a bad situation and, in addition, the fact that defendants will challenge the statements of others explains why you must take pains to record fully what witnesses say to you.
Interviewing skills and a refusal to defend oneself
In certain instances, a person who is suspected of wrongdoing will not “put up a fight”, so to speak, and although they do not confess guilt, they do not help themselves by pointing out some information that you might investigate to clear them of suspicion. For example,
Buckingham.
It will help me nothing
To plead mine innocence; for that dye is on me
Which makes my whitest part black. The will of heaven
Be done in this and all things! … [1-i-205]
Note this related scenario as well, in which the person being interviewed suggests a total inability to assist their case. As suggested in Karate Kid, when this is argued correctly, there is no defence! The reason for this is that no matter how you seek to be fair in your questioning, a cunning person can always claim to lack any ability to defend themselves from you!
Queen Katharine
My lord, my lord,
I am a simple woman, much too weak
To oppose your cunning…
Henry VIII, Act 2, sc. iv, l. 104-107.
The last words may be those that follow on this issue:
Cardinal Campeius
The queen is obstinate,
Stubborn to justice, apt to accuse it, and
Disdainful to be tried by't … [2-iv-123]
Interviewing skills and a “staggering” kind of question
Consider this example:
Lincoln
So please your highness,
The question did at first so stagger me …
Henry VIII, Act 2, sc. iv, l. 213-214.
In such instances, the investigating officer must allow an opportunity for the person being interviewed to “catch their breath”, so to speak.
Interviewing skills and analyzing what might motivate admissions
In my experience, it is contrary to human nature for persons to provide information to the police that will result in penalties. As the philosopher Jeremy Bentham stated, and so many others, we seek to obtain rewards and to avoid punishment! This said, the prudent investigator will attempt to ascertain what motivates a confession, and simple examples include the love of a person newly established in the person’s life, finding a religious faith, and wishing to obtain a benefit such as the respect of others. An example disclosed in the play is the wish of young men to garner glory in war. Thus, Queen Katharine stated: “… and the pretence for this Is named, your wars in France: this makes bold mouths: Tongues spit their duties out …” Henry VIII, Act 1, sc. ii, l. 59-62.
Interviewing skills and elocution – be wary of smooth talkers!
Act 1, sc. ii, l. 110 sets out this useful precedent:
King Henry VIII
… The gentleman is learn'd, and a most rare speaker;
To nature none more bound; his training such,
That he may furnish and instruct great teachers,
And never seek for aid out of himself…
Of course, a beautiful speaker may be a great boon to the investigation and to the prosecution at trial. In the final analysis, the best speaker may be the one who states: “Believe it, this is true …”, as does Norfolk in Henry VIII, Act 3, sc. i, l. 26.
Interviewing skills and fairness to the witness: do not resort to Latin, big words, etc.
Consider how Queen Katharine reacts when spoken to in Latin: “O, good my lord, no Latin; I am not such a truant since my coming,
As not to know the language I have lived in.” In other words, use simple words in the language of choice of the witness. See Henry VIII, Act 3, sc. i, l. 41-44.
Interviewing skills and “fishing” for more information – reciprocal situations
Consider this example found in the play at Act 1, sc. ii, l. 204: “King Henry VIII. There's something more would out of thee; what say'st?” This may only be considered an appropriate question, although leading, once you have obtained all that apparently is available. It cannot be resorted to earlier as the leading nature will doom the information you might obtain to reduced or nil value as you have suggested there was more information to be had.
On the other hand, witnesses may seek to receive information to enable them to judge if the information they are providing is credible, or reliable. Investigators should be wary of situations such as set out below:
Chamberlain
You bear a gentle mind, and heavenly blessings
Follow such creatures. That you may, fair lady,
Perceive I speak sincerely …
Henry VIII, Act 2, sc. iii, l. 59-60.
Interviewing skills and interpreting some problematic language
Queen Katharine stated:
… Even he escapes not
Language unmannerly, yea, such which breaks
The sides of loyalty, and almost appears
In loud rebellion. Act 1, sc. ii, l. 26-28.
A skilled investigator will wish to obtain clarification of whatever was said that is unclear or that might be “flipped” at trial by the defence lawyer as it is vague. The expressions such as “Language unmannerly” and “almost appears” are unhelpful if not nuanced after further careful non-leading questioning.
Later, we read an example of the King seeking clarification: “… Still exaction! The nature of it? in what kind, let's know, Is this exaction?” Act 1, sc. ii, l. 53.
Interviewing skills and involuntary statements by reason of a promise, an inducement, of a favourable outcome – a pardon
Consider this admission by Queen Katharine “… I am much too venturous
In tempting of your patience; but am bolden'd nder your promised pardon …” See Henry VIII, Act 1, sc. ii, l. 55. See also: “King Henry VIII.
… Then mark the inducement…” [2-iv-167]
Interviewing skills and leading questions – context driven
It is incorrect to say that a question is a leading one merely by reason of the fact that it contains information not yet consigned on the record. For example, if a witness tells the investigator at the hospital after waking from emergency surgery “I remember nothing after getting in my car at the parking lot of the courthouse”, it is not objectionable to ask: “Do you recall your car being interfered with in any way?” It is a question of degree as to the weight to be given to any replies, considering what the witness has stated previously. In that context, consider the example below and understand that it is leading, and to a great or minor degree, in accordance with what was communicated previously.
King Henry VIII
Speak on:
How grounded he his title to the crown,
Upon our fail? to this point hast thou heard him
At any time speak aught?
Henry VIII, Act 1, sc. ii, l. 144.
I note as well this last example of a leading question without any redeeming feature: “King Henry VIII … my Lord of Lincoln; you remember How under my oppression I did reek …” Henry VIII, Act 2, sc. iv, l. 207.
Interviewing skills and quote marks for verbatim evidence
Consider this attempt by a potential witness to provide an exact citation:
Surveyor
'If,' quoth he, 'I for this had been committed,
As, to the Tower, I thought, I would have play'd
The part my father meant to act upon
The usurper Richard; who, being at Salisbury,
Made suit to come in's presence; which if granted,
As he made semblance of his duty, would
Have put his knife to him.'
Henry VIII, Act 1, sc. ii, l. 193-198
The quote marks are always valuable and may be required by your police force. I can say without hesitation that the absence of quote marks nearly always results in judges experiencing difficulties in accepting at face value what witnesses are claiming other persons stated to them or within their hearing.
Interviewing skills and “reacting” to testimony you might doubt
Consider this example:
Old Lady
Yes, troth, and troth; you would not be a queen?
Anne
No, not for all the riches under heaven …
Henry VIII, Act 2, sc. iii, l. 35.
In some situations, the investigator may be highly doubtful of the information provided but no one should be called into “account” for apparently suspect information.
Interviewing skills and repetition of valuable information
In many cases, the person to be interviewed has already provided the information you seek in a permanent way, let us say by means of a social media quote. In such an instance, you seek to “nail down” the information at play.
King Henry VIII
… Bid him recount
The fore-recited practises; whereof
We cannot feel too little, hear too much.
Henry VIII, Act 1, sc. ii, l. 126.
A further valuable example follows:
Surveyor
First, it was usual with him, every day
It would infect his speech, that if the king
Should without issue die, he'll carry it so
To make the sceptre his: these very words
I've heard him utter to his son-in-law,
Lord Abergavenny; to whom by oath he menaced
Revenge upon the cardinal. Henry VIII, Act 1, sc. ii, l. 134.
Obviously, a complete record, whether electronic or by way of notes, must be verified by the witness to augment the value of this information.
Interviewing skills and “sourcing” information
The careful investigator will always situate a person being interviewed towards the later stages to “source” the origin of any information not obviously described earlier. In this context, note that the King asked in Act 1, sc. ii, l. 150: “How know'st thou this?”
Interviewing skills and “speaking freely”
King Henry VIII illustrates at Act 1, sc. ii, l. 134, what you wish the persons you interview to do: to speak with apparent ease and without fear or obviously because of a favour. Thus, “Speak freely” is what we read in the play.
Interviewing skills and the nuances of a compelled statement versus a request for information that may be turned down without adverse consequences
A sound example follows:
King Henry VIII
… Let be call'd before us
That gentleman of Buckingham's; in person
I'll hear him his confessions justify;
And point by point the treasons of his master
He shall again relate. Henry VIII, Act 1, sc. ii, l. 4-8.
For present purposes, it seems clear that the example describes a “coerced” confession as to the wrongs of his master, which may lead to the loss of the head of both the master and the servant. That said, a different choice of words might render a clearly involuntary statement intone that is arguably voluntary.
Interviewing skills and transcripts – be careful of quotes where question marks might have to be included
Consider this simple example of what a witness tells you they heard two people say to each other:
Second Gentleman
Were you there?
First Gentleman
Yes, indeed, was I.
Henry VIII, Act 2, sc. i, l. 4-5.
In the context, it is fairly obvious that no question mark is required for the last words spoken by the First Gentleman. But what if he had said “Yes, was I?” The indeed appears to be a designation of a positive, affirmative statement. Thus, careful investigators will be wary of such phrases and will seek clarification, even if it makes you appear a bit pedantic.
Interviewing skills and “warning” the witness of potential prosecutions for false or misleading or incomplete information
Queen Katherine provides a good example of what should be communicated to a witness before they provide information at the police station or other place for the communication of a formal and cautioned interview:
If I know you well,
You were the duke's surveyor, and lost your office
On the complaint o' the tenants: take good heed
You charge not in your spleen a noble person
And spoil your nobler soul: I say, take heed;
Yes, heartily beseech you. Henry VIII, Act 1, sc. ii, l. 173-177.
I easily recall a case in Prague when I was a prosecutor with the Canadian War Crimes Section and Crimes Against Humanity Section of the Department of Justice (Canada) and the witness we sought to interview was told by the local member of the Superior Court that “he should not answer unless what he told was full, fair and not due to a base motive…”
At the end of the day, the professional investigator wishes to hear this: “Surveyor On my soul, I'll speak but truth…” [1-ii-175]
Judgment and the work of investigators
Judgment – Act decisively – before it is too late
Consider this passage from Henry VIII, Act 3, sc. ii, l. 39-43:
Chamberlain
The king in this perceives him, how he coasts
And hedges his own way. But in this point
All his tricks founder, and he brings his physic
After his patient's death…
In other words, one must not call in the doctor after the death of the patient and one must arrest when there is clear evidence, lest a further crime is committed in the interim. In this context, consider the following: “Katharine. O my good lord, that comfort comes too late;
'Tis like a pardon after execution … Henry VIII, Act 4, sc. ii, l. 119-121.
Judgment – Admissions, of something negative, but of what precisely?
Investigators must exercise great judgment in interpreting whatever a person may have said, whether recorded by others or brought out during an interview, to ensure that the conclusion you reach is sound? There is the famous situation of a prisoner in a British Columbia holding call who yelled out “God! Let me get away with something, just once!” The challenge for the investigator was in establishing that this was an admission of guilt for the serious charge he was arrested for, or the numerous breaches he was also facing. In this context, consider this quote:
Buckingham.
Lo, you, my lord,
The net has fall'n upon me! I shall perish
Under device and practise. Act 1, sc. i, l. 204-207.
In that instance, did the net fall upon him for a crime and if so, which crime, or for some other act, let us suggest adultery for which grave consequences might flow?
Judgment – Cannot judge a book by its cover
A different way of voicing the same idea is seen at 3-i-25: “Queen Katharine … They should be good men; their affairs as righteous: But all hoods make not monks.”
Judgment – Consider how anger, like other emotions, evolves
Investigators must display sound judgment in assessing how the play of emotions might affect the testimony, in terms of reliability, of a potential witness you interview. In this context, I note Shakespeare’s thoughts:
Norfolk.
Stay, my lord,
And let your reason with your choler question
What 'tis you go about: to climb steep hills
Requires slow pace at first: anger is like
A full-hot horse, who being allow'd his way,
Self-mettle tires him… Act 1, sc. i, l. 129.
Judgment – Duplicity
A good example of the imperative need for investigators to exercise judgment in considering how persons may be guilty of duplicity when speaking to others is seen in this quotation from what Queen Katharine states at 3-i-66: “My lords, I thank you both for your good wills; Ye speak like honest men; pray God, ye prove so! …” A little later, Her Royal Highness adds: “… Ye have angels' faces, but heaven knows your hearts …” Henry VIII, Act 3, sc. i, l. 145.
Judgment – Evolution in one’s life – must be assessed when called upon to investigate a distant crime
The long passage that follows illustrates well what an investigator must consider in assessing potential testimony from one now aged who is looking back to bring forth information from what might be a distant past. In effect, in judging the actions of others, the witness may be judging themselves first, and not evenly.
Cardinal Wolsey
So farewell to the little good you bear me.
Farewell! a long farewell, to all my greatness!
This is the state of man: to-day he puts forth
The tender leaves of hopes; to-morrow blossoms,
And bears his blushing honours thick upon him;
The third day comes a frost, a killing frost,
And, when he thinks, good easy man, full surely
His greatness is a-ripening, nips his root,
And then he falls, as I do. I have ventured,
Like little wanton boys that swim on bladders,
This many summers in a sea of glory,
But far beyond my depth: my high-blown pride
At length broke under me and now has left me,
Weary and old with service, to the mercy
Of a rude stream, that must for ever hide me.
Vain pomp and glory of this world, I hate ye:
I feel my heart new open'd. O, how wretched
Is that poor man that hangs on princes' favours!
There is, betwixt that smile we would aspire to,
That sweet aspect of princes, and their ruin,
More pangs and fears than wars or women have:
And when he falls, he falls like Lucifer,
Never to hope again.
Henry VIII, Act 3, sc. ii, l. 351-371.
Judgment – Falsehoods abound – be wary!
Although quite lengthy, the passage that follows is rather thought-provoking as to the extent of mendacity investigators will encounter:
King Henry VIII
Know you not
How your state stands i' the world, with the whole world?
Your enemies are many, and not small; their practises
Must bear the same proportion; and not ever
The justice and the truth o' the question carries
The due o' the verdict with it: at what ease
Might corrupt minds procure knaves as corrupt
To swear against you? such things have been done.
You are potently opposed; and with a malice
Of as great size. Ween you of better luck,
I mean, in perjured witness, than your master,
Whose minister you are, whiles here he lived
Upon this naughty earth? Go to, go to;
You take a precipice for no leap of danger,
And woo your own destruction.
Act 5, sc. i, l. 125-139. [Emphasis added]
Judgment – Goading a witness to no good purpose
I invite the reader to consider the wisdom of Norfolk’s words, as consigned in the play at 1-i-139:
Norfolk
Be advised;
Heat not a furnace for your foe so hot
That it do singe yourself: we may outrun,
By violent swiftness, that which we run at,
And lose by over-running… Henry VIII, Act 1, sc. i, l. 139-144.
On occasion, in my experience, investigators have attempted to incite a witness to lose their self-control in baiting them as to their relationship with a suspect and the result is a resolve to not assist the authorities in any way. In effect, do not blow up your case!
Judgment – Human nature – Corruption versus honesty
I am impressed by these words spoken by Cardinal Wolsey:
Cardinal Wolsey …
Love thyself last: cherish those hearts that hate thee;
Corruption wins not more than honesty.
Still in thy right hand carry gentle peace,
To silence envious tongues. Be just, and fear not …
Henry VIII, Act 3, sc. ii, l. 443-446.
Judgment – Human nature – Frail, we are all
In this context, I offer this quotation for further thought:
Chancellor
… but we all are men,
In our own natures frail, and capable
Of our flesh; few are angels: out of which frailty
And want of wisdom, you, that best should teach us,
Have misdemean'd yourself, and not a little …
Henry VIII, Act 5, sc. iii, l. 9-13.
Judgment – Human nature – Mixed emotions -
Consider this example: “… A man may weep upon his wedding day.” Henry VIII, Act 1, Prologue, l. 33.
Judgment – Human nature – Good vs evil
I have heard this statement on occasion in final submissions: “Griffith. …
Men's evil manners live in brass; their virtues We write in water. …” [4-ii-45]
Judgment – Human nature – Understanding how good people might come to make terrible decisions if under great stress
The lengthy passage that follows, from Act 1, sc. ii, l. 29, quotes Norfolk as e explains the transformation of law-abiding citizens into persons ready to commit crimes:
… Not almost appears,
It doth appear; for, upon these taxations,
The clothiers all, not able to maintain
The many to them longing, have put off
The spinsters, carders, fullers, weavers, who,
Unfit for other life, compell'd by hunger
And lack of other means, in desperate manner
Daring the event to the teeth, are all in uproar,
And danger serves among then! [Emphasis added]
Judgment – Human nature – Virtue finds no friends
“Queen Katharine. … let me speak myself, Since virtue finds no friends …” Henry VIII, Act 3, sc. i, l. 125-126.
Judgment – Memory - Anchors
“King Henry VIII. I remember Of such a time: being my sworn servant, The duke retain'd him his…” Henry VIII, Act 1, sc. ii, l. 190-193. The goal for interviewers is to get the person who is questioned to situate the recollection or to somehow identify an “anchor” to that memory, so to speak.
Judgment – Objective basis for your decision making
At the outset, I look to this quote for assistance:
Chamberlain
No doubt he's noble;
He had a black mouth that said other of him.
Henry VIII, Act 1, sc. ii, l. 57.
In my estimation, successful investigators are those who possess a talent for setting out objective criteria for their decision making, not unlike the number of points for fingerprints to cite an older example, and who do not rely on purely subjective ones that any information can be made to satisfy. What is important is that you can respond to the question, whether posed by the prosecutor before trial or during the hearing, as to what was assessed in ascertaining if a person was “noble”.
Judgment – Observations are critical to well-founded conclusions
In the same way that baseball great Yogi Berra famously stated, “You can se a lot by watching”, the suggestion that follows is pithy and valuable: “Norfolk. Observe, observe, he's moody.” Henry VIII, Act 3, sc. ii, l. 75.
Judgment – Refrain from “pushing too much”
“Chamberlain. O my lord, Press not a falling man too far! …” Henry VIII, Act 3, sc. ii, l. 333-334. In addition, consider well what follows;
Gardiner.
… My noble lords; for those that tame wild horses
Pace 'em not in their hands to make 'em gentle,
But stop their mouths with stubborn bits, and spur 'em,
Till they obey the manage. …
Henry VIII, Act 5, sc. iii, l. 21-25.
Judgment – Reputation evidence – vengeful
This example is apposite: “Norfolk. … You know his nature,
That he's revengeful …” Henry VIII, Act 1, sc. i, l. 107.
Judgment – Self serving situation, be wary of
“Katharine. … His own opinion was his law … Henry VIII, Act 4, sc. ii, l. 36. Later, she stated: “And now I should not lie, but will deserve For virtue and true beauty of the soul, For honesty and decent carriage …” [4-ii-143]
Judgment – Subjective nature of whatever you consider to be the fact
Griffith
…
He was a scholar, and a ripe and good one;
Exceeding wise, fair-spoken, and persuading:
Lofty and sour to them that loved him not;
But to those men that sought him sweet as summer…
Henry VIII, Act 4, sc. ii, l. 51-55.
This quote serves to express well how subjective are judgments might well be.
Judgment – Two witnesses, two points of view?
Chamberlain
It seems the marriage with his brother's wife
Has crept too near his conscience.
Suffolk
No, his conscience
Has crept too near another lady. Henry VIII, Act 2, sc. ii, l. 15-19.
In many cases, investigators must grapple with contending theories, all based on subjective beliefs.
Judgment – Words are not deeds – actions are what counts
Consider this passage:
King Henry VIII
'Tis well said again;
And 'tis a kind of good deed to say well:
And yet words are no deeds…
Henry VIII, Act 3, sc. ii, l. 155.
Professionalism and the work of investigators
Professionalism and accusations that you are biased
In the play, Queen Katharine laments her situation, being investigated by high priests of the Church and by judges, none she finds neutral, and for good reason as they wish to curry favour with the King. Thus:
Sir, I desire you do me right and justice;
And to bestow your pity on me: for
I am a most poor woman, and a stranger,
Born out of your dominions; having here
No judge indifferent, nor no more assurance
Of equal friendship and proceeding…
Henry VIII, Act 2, sc. iv, l. 12-19.
If such accusations are levied at you, you would do well to explain your independence and to describe the various independent boards that will enquire into any complaints a witness or other person may wish to advance.
Professionalism and delay
Consider this example:
King Henry VIII
[Aside] I may perceive
These cardinals trifle with me: I abhor
This dilatory sloth and tricks of Rome …
Henry VIII, Act 2, sc. iv, l. 235-237.
Professionalism and giving a detainee a fair chance to explain their predicament
My concerns are well illustrated by this quote:
King Henry VIII.
… He is attach'd;
Call him to present trial: if he may
Find mercy in the law, 'tis his: if none,
Let him not seek 't of us: by day and night,
He's traitor to the height.
Henry VIII, Act 1, sc. ii, l. 210-215.
If you undertake the interview merely to obtain additional negative information with no interest in even accepting favourable information, your professionalism is in doubt. You do not attempt merely to convict when you interview, but to ascertain the truth of the event you are investigating.
Professionalism and public disputes with other police officers (and / or prosecutors)
“First Gentleman: … we are too open here to argue this; Let’s think in private more.” Excellent advice in my opinion. Henry VIII, Act 2, sc. i, l. 168,
Professionalism and the testimony you will provide
What follows described well what the Courts expect from you when you testify:
Cardinal Wolsey
Stand forth, and with bold spirit relate what you,
Most like a careful subject, have collected
Out of the Duke of Buckingham.
Henry VIII, Act 1, sc. ii, l. 128-130.
Professionalism and the application of sincerity and intellect
I suggest that the passage that follows will be of assistance to investigators in counselling sincerity and intelligence in pursuing your vital work:
Buckingham.
… From sincere motions, by intelligence,
And proofs as clear as founts in July when
We see each grain of gravel … [1-i-154]
Consider as well: “Cranmer. Let me speak, sir, For heaven now bids me; and the words I utter Let none think flattery, for they'll find 'em truth. …” [5-v-16]
Professionalism and the objective of making the crime appear clearly in the file you create
This overall objective is captured with the words: “Buckingham. … He shall appear in proof.” Henry VIII, Act 1, sc. i, l. 197. Stated otherwise, you must succeed in drawing for the prosecutor, and ultimately for the Court, the picture of the offender and of the offence. In this vein, you must understand that any mistake in the file you prepare may lead toa wrongful conviction. Indeed, once a person is so declared, subsequent appeals may never overcome the first stain. See the play at Act 2, sc. i, l. 155:
Second Gentleman
But that slander, sir,
Is found a truth now: for it grows again
Fresher than e'er it was; and held for certain …
Professionalism and the request for an interpreter
Lawyers and judges are at times chastised by Courts of Appeal for appearing to have criticized individuals who sought the services of an interpreter, aright set out at section 14 of the Charter. In the same vein, please do not question a witness on their request for an interpreter but seek out whatever person is readily available who speaks the language in question. As stated by Queen Katharine, at Act 3, sc. i, l. 45, the very fact of requesting one is perceived in a negative light and this is unfortunate. Thus: “… A strange tongue makes my cause more strange [and suspicious] …”
Professionalism and the resolve to persevere notwithstanding the obstacles and criticisms that are in your way
A good start is to quote Cardinal Wolsey: “… We must not stint Our necessary actions, in the fear To cope malicious censurers…” Henry VIII, Act 1, sc. ii, l. 76. Experienced investigators will have faced a ton of criticism in their careers, from their superiors, from the media and from the courts. Nothing should distract them from pursuing their honestly held belief in the merits of their conclusions.
In addition, I remind investigators of their great powers, expressed in the passage below, though from the opposite perspective in the sense that royalty can create and destroy a person’s future:
Norfolk.
… From princes into pages: all men's honours
Lie like one lump before him, to be fashion'd
Into what pitch he please.
Henry VIII, Act 2, sc. ii, l. 46.
Professionalism and the right to counsel
Consider this quotation:
Cardinal Wolsey
I know your majesty has always loved her
So dear in heart, not to deny her that
A woman of less place might ask by law:
Scholars allow'd freely to argue for her.
Henry VIII, Act 2, sc. ii, l. 115. [Emphasis added]
Not long after, we read of the Queen seeking independent advice. Thus:
Queen Katharine
… Beseech you, sir, to spare me, till I may
Be by my friends in Spain advised; whose counsel
I will implore: if not, i' the name of [2-iv-54]
Professionalism and the support of courts such as by the issuance of a warrant or of the prosecutors
Note what Cardinal Wolsey stated in Act 1, sc. ii, l. 69: “And for me, I have no further gone in this than by A single voice; and that not pass'd me but By learned approbation of the judges …” By the way, history records that he was lying!
Leaving that aside, consider this further illustration from the same scene, starting at l. 87: “King Henry VII.
Things done well,
And with a care, exempt themselves from fear;
Things done without example, in their issue
Are to be fear'd. Have you a precedent
Of this commission? …
I remind investigators that every ground-breaking procedure and innovation since I went to Law School in 1978 was without precedent. There is no reason to avoid a useful innovation by reason of the fact that no one has done it before, as with the resort to DNA. Of course, it may be that you will have to consider the merits of a warrant. In this respect, consider what follows about new developments:
Sands
New customs,
Though they be never so ridiculous,
Nay, let 'em be unmanly, yet are follow'd.
Henry VIII, Act 1, sc. ii, l. 3-5.
Professionalism and the truth as the bright star that guides your path
Consider what Cardinal Wolsey declared at Act 3, sc. ii, l. 395: “… May he continue Long in his highness' favour, and do justice For truth's sake and his conscience…”
Conclusion
Police investigators always live with the fear of a wrongful conviction and of hearing an innocent person, not yet found to be so, state to the judge who has pronounced sentence: “Buckingham. Yet I am richer than my base accusers, That never knew what truth meant …” See Henry VIII, Act 2, sc. i, l. 103. It is my sincere hope that some f what I wrote in this and other similar guides to investigative work may assist in avoiding a situation in which the truth was “missed”.
[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 counsel, I find that I was wrong!” I recall a very experienced judge, who had one of his books cited by a lawyer, and who stated: “I will change that part when the book goes to the printer for the next edition.”
[2] For the sake of brevity, I might only refer to “the play”. As for the citations, Act 2, sc. ii, l. 2 may be referenced as 2-ii-2.
[3] See "A List of One Hundred Legal Novel" (1922), 17 III. L. Rev. 26, at p. 31.
[4] 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.