POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S THE MERRY WIVES OF WINDSOR
Gilles Renaud | Ontario Court Of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from the play The Merry Wives of Windsor that may result in enhanced excellence in investigative work.
Investigators succeed by asking sound and searching questions and my topic might lead to the query: why read a play from centuries ago to become a better police officer today? In response, I quote from Dean John Wigmore, a leading law professor and writer on evidence: "The lawyer must know human nature. He [or she] must deal understandingly with its types and motives. These he [or she] cannot all find close around ... For this learning he [or she] must go to fiction which is the gallery of life's portraits.”[1] If this proposition is sound, and surely, it is, then detectives are in the same situation as lawyers, for they also must understand humanity, flawed and at times violent and or scheming, and why not turn to fiction to accomplish this objective?[2]
In this contribution, I have organized my thoughts along thematic lines embracing demeanour evidence, followed by 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 best achieved, in part at least, by analyzing this excellent play.
DISCUSSION
Demeanour evidence as a guide to investigators
General introduction
Justice O'Halloran cautioned against the fear that a good actor might hoodwink the Court (and His Lordship would have added “the investigator” had he been asked) in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10. Refer as well to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91, to demonstrate the ongoing vitality of this judgment:
46 There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility. As stated by O'Halloran J.A. in the frequently cited case from this Court, Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 10 …:
[10] If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
Demeanour – body language observed closely to judge if it “matches” the words spoken
Consider a first example taken from another play, King Henry VI (Part1): “Plantagenet. Meantime your cheeks do counterfeit our roses; For pale they look with fear, as witnessing The truth on our side.” Refer to Act 2, sc. iv, l. 62. In effect, I imagine that you as the investigator are speaking, and that you are stating to the person you are interviewing: “your words and your demeanour are fighting each other as what you say is denied by your pale cheeks and fearful expression. In short, your face shows that you are caught in a lie!”
A further useful example follows of the appearance of the witness as a form of “lie-detector”. Refer again to King Henry VI (Part1), at 2-iv-64:
Somerset.
No, Plantagenet,
'Tis not for fear but anger that thy cheeks
Blush for pure shame to counterfeit our roses,
And yet thy tongue will not confess thy error.
Demeanour – What Shakespeare teaches us in Macbeth
The works of Shakespeare contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of "testimony", and a subject that I have discussed critically in extra-judicial writings. Perhaps the best known of these examples is found in Act I, scene IV, of Macbeth: "Duncan: There's no art To find the mind's construction in the face." The companion reference that is best suited to underscore this point is set down in Act I, scene VII: "Macbeth ... Away, and mock the time with fairest show: False face must hide what the false heart doth know." I note as well how apposite is the passage that follows on the issue whether witnesses may be adept at feigning emotions: "... Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy." Refer to Act II, scene III of Macbeth.
In essence, Shakespeare teaches us two things:
o 1) We are not capable of assessing accurately what thoughts a person may be entertaining by means of their facial expression, and
o
o 2) A person is capable of assuming a "facial guise" that may well trick and deceive the observer.
In addition, both points are mutually reinforcing in the sense that the capacity that we all enjoy to adopt a "false face" only serves to exacerbate the general inability to discern "the mind's construction". In sum, the thoughts of a third party, a witness for our purposes, may not be judged fully and fairly based on their demeanour.
Demeanour – A brief excerpt from R. v N.S., [2012] 3 SCR 726
I only wish to quote this passage from the majority judgment of McLachlin C.J.C. and Deschamps, Fish and Cromwell JJ.A.:
Changes in a witness's demeanour can be highly instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a New Zealand judge asked to decide whether witnesses could testify wearing burkas commented:
... there are types of situations ... in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility. [para. 78]
Demeanour – Guidance from Bowman A.C.J. of the Tax Court of Canada
The future Chief Justice of the Tax Court observed in Faulkner v. Canada (Minister of National Revenue - M.N.R.), [2006] T.C.J. No. 173:
13 Where questions of credibility are concerned, I think it is important that judges not be too quick on the draw. In 1084767 Ontario Inc. (c.o.b. Celluland) v. Canada, [2002] T.C.J. No. 227 (QL), I said this:
8 The evidence of the two witnesses is diametrically opposed. I reserved judgment because I do not think findings of credibility should be made lightly or, generally speaking, given in oral judgments from the bench. The power and obligation that a trial judge has to assess credibility is one of the heaviest responsibilities that a judge has. It is a responsibility that should be exercised with care and reflection because an adverse finding of credibility implies that someone is lying under oath. It is a power that should not be misused as an excuse for expeditiously getting rid of a case. The responsibility that rests on a trial judge to exercise extreme care in making findings of credibility is particularly onerous when one considers that a finding of credibility is virtually unappealable.
…
14 I continue to be of the view that as judges we owe it to the people who appear before us to be careful about findings of credibility and not be too ready to shoot from the hip. Studies that I have seen indicate that judges are no better than any one else at accurately making findings of credibility. We do not have a corner on the sort of perceptiveness and acuity that makes us better than other people who have been tested such as psychologists, psychiatrists or lay people. Since it is part of our job to make findings of credibility, we should at least approach the task with a measure of humility and recognition of our own fallibility. I know that appellate courts state that they should show deference to findings of fact by trial judges because they have had the opportunity to observe the demeanour of the witness in the box. Well, I have seen some accomplished liars who will look you straight in the eye and come out with the most blatant falsehoods in a confident, forthright and frank way, whereas there are honest witnesses who will avoid eye contact, stammer, hesitate, contradict themselves and end up with their evidence in a complete shambles. Yet some judges seem to believe that they can instantly distinguish truth from falsehood and rap out a judgment from the bench based on credibility. The simple fact of the matter is that judges, faced with conflicting testimony, probably have no better than a 50/50 chance of getting it right and probably less than that when their finding is based on no more than a visceral reaction to a witness. Moreover, it is essential that if an adverse finding of credibility is made the reasons for it be articulated. [Emphasis added]
Demeanour evidence – We all judge the looks of others, on a day-to-day basis, not just investigators
That demeanour is the stuff of day-to-day observations and judgments is supported by the quote that follows: “Polixenes. The king hath on him such a countenance …” See The Winter’s Tale – Act 1, sc. ii, l. 368.
Demeanour - Assuming a look, a countenance, to trick the person being spoken to
Goneril. Put on what weary negligence you please,
You and your fellows. I'd have it come to question.
With these words, at l. 517-518 of Act 1, sc. iii, of King Lear, Goneril invites her servant and his staff to deceive the King, her father, and obviously intends that they do so both by their inaction in following his orders and by their appearance in not showing any interest in their duties. That is the subtle nature of demeanour evidence as it goes hand in hand with words and objective actions such as holding out one’s hand to shake, for example, in a greeting in which a broad smile is visible. At all events, the Lady then states, at Act 1, sc. iii, l. 528-529 of that play: “Goneril. And let his knights have colder looks among you. …” In other words, a person may easily adopt a guise or a look, and demeanour, after all, is a form of communication that can be resorted to at will. The example that follows is in keeping with this line of thought: “Duke of Cornwall. This is some fellow Who, having been prais'd for bluntness, doth affect A saucy roughness …” Refer to Act 2, sc. ii, l. 1165.
Further about one’s ability to assume a certain element of demeanour, in our case involving a witness who seeks falsely to convince the listener, consider the passage that follows as support for this proposition:
Cassius. You are dull, Casca; and those sparks of life
That should be in a Roman you do want,
Or else you use not. You look pale and gaze
And put on fear and cast yourself in wonder,
[Julius Caesar, Act 1, sc. iii, l. 57-60] [Emphasis added]
Demeanour – Changes in manners and demeanour of persons that are being investigated
Refer to the passage found below, from Act 4, sc. ii, l. 13-19 of Julius Caesar, as a useful example:
Brutus. He is not doubted. A word, Lucilius,
Howhe receiv'd you: let me be resolv'd.
Lucilius With courtesy and with respect enough;
But not with such familiar instances,
Nor with such free and friendly conference,
As he hath us'd of old.
A careful investigator will wish to assess closely such elements as it might suggest that the parties thought to be on friendly terms are no longer and this might open fruitful investigative avenues.
Demeanour – Testimony, as a form of
At the outset, consider this example: “Oliver. This was not counterfeit: there is too great testimony in your complexion that it was a passion of earnest.” As You Like It, Act 4, sc. iii, l. 167-169. In other words, an investigator at their office may “read” the face of a witness and conclude how credible and / or reliable are the words spoken.
Demeanour – Multiple elements “on display” at once
Consider this example from our featured As You Like It: “Oliver. … but should I anatomize him to thee as he is, I must blush and weep and thou must look pale and wonder.” [1-i-146]
Demeanour – Acting, putting on the element(s) to convince
Consider this excellent example from As You Like It: “Orlando … I thought that all things had been savage here; And therefore put I on the countenance Of stern commandment. … [2-vii-107] Consider as well: “Phebe … Now counterfeit to swoon; why now fall down…” [3-v-16]
Demeanour – Assessing strangers versus person you know well
The Merry Wives of Windsor, Act 1, scene iii, l. 42-44, includes these words: "Falstaff. I can construe the action of her familiar style; and the hardest voice of her behavior." This passage suggests clearly that one may better (or best?) construe the actions of others if one is familiar with the person. But, for investigators, the witnesses are often strangers, with the possible exception of police officers in the smaller centres. That is why Pistol adds to what Falstaff has just stated: "He hath studied her well." See line 46 of scene iii.
Demeanour - Further dangers of demeanour evidence
Introduction: Investigators must be mindful that a person's thoughts are not always revealed by their looks
I begin by focusing attention on our general inability to read thoughts by means of the facial features of others, by pointing to contrary authority. In effect, I acknowledge that many insist that we are capable of inviting fact finders to "read the thoughts" of others on their face, as did Shakespeare in Macbeth, Act I, scene V: "Your face, my thane, is as a book where men May read strange matters." In fact, Macbeth's features made plain his anxiety. I suggest that the fact that a witness is anxious or stressed may reflect little more than the anxiety associated with being in your office at the police station. It is, after all, a strange place for most individuals. More to he point, that the stress demonstrated by a witness, including the defendant, did not betray fear that the information provided is false and will be rejected, but rather the real concern that true testimony will not be accepted as it should be.
Indeed, is it not a plain truth that how others react to a certain situation is not capable of any universal rule or formula? Take the question of tears. Is the witness-accused breaking down in your office because of a realization that the doors to prison await, although he or she is innocent? In this light, note that in Macbeth, the son of the slain king states that he has not yet had time to weep in sorrow, in light of the circumstances: "... Let 's away; Our tears are not yet brew'd." See Act II, scene III.
A great number of further examples might be offered in attempting to demonstrate to detectives the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions. I think it best to group these along thematic lines, for ease of consideration, always being mindful that each of these "tells" is easily capable of being feigned. The play Romeo and Juliet will be featured, of course, but other relevant examples will referenced.
The elements of demeanour evidence
Expression
"Slender. All his successors, gone before him, hath done't; and all his ancestors, that come after him, may: they may give the dozen white luces in their coat." This phrase, found in The Merry Wives of Windsor, Act 1, scene i, l. 12-14, expresses well what investigators, lawyers and judges see on occasion: a witness mixes up the fancy words that describe certain relationships but it is clear what s/he meant to say. Refer as well to Act 1, scene i, l. 157-159: "Bardolph. the gentleman has drunk himself out of his five sentences. Evans It is his five senses " In this context, I refer to an accused person I saw testifying at a bail hearing who was being asked by his lawyer about the Court's concern that he might be a "flight risk". To this, he answered "I am no escape goat!" The Court smiled, and later released this fellow.
Face
The play in question includes this expression in Act 4, scene ii, l. 119: "Ford … brazen-face." Refer also to Act 1, scene i, l. 153: “… he in the red face had it." In this context, I refer to what we read at page 243 of the biography of the celebrated advocate, Sir Edward Marshall Hall, For the Defence, by Edward Marjoribanks: ". His unruffled demeanour throughout the trial is based on an unruffled conscience." The statement is in reference to his client, accused of murder. [New York:The Macmillan Company, 1930].
Guilty mind
A definition of this type of demeanour might also include these remarks: "A guilty mind produces outwards signs". This is suggested in The Merry Wives of Windsor, Act 5, scene v, l. 120. Indeed, Falstaff states: "… the guiltiness of my mind … drove the grossness of the foppery into a receiv'd belief."
Lips
The Merry Wives of Windsor, Act 1, scene i, l. 209-210 reads: "Evans … for divers philosophers hold that the lips is parcel of the mouth.”
Looks
Consider the example found in The Merry Wives of Windsor, Act 2, scene ii, l. 21: "Falstaff … your cat-a-mountain looks." What in the world does that mean? How does it affect your opinion as an investigator? The play contains these words at Act 2, scene i, l. 171-173: "Page. Look where my ranting host of the Garter comes: there is either liquor in his pate or money in his purse when he looks so merrily." It is the type of observation that a person familiar with the witness is able to make.
Voice
I note that in The Merry Wives of Windsor, Act 1, scene i, l. 44, we read: “Slender … Mistress Anne Page … speaks small like a woman." Note also Act 1, scene iii, l. 42-44: "Falstaff. I can construe the action of her familiar style; and the hardest voice of her behavior."
Wink
The Merry Wives of Windsor, Act 5, scene v, l. 46 reads: "Falstaff. I'll wink." Yes, and what does it mean?
Interviewing skills
Authentic, do the words of the witness sound
"Mrs. Page [reading a letter] I will not say Pity me: this not a soldier-like phrase." This example of what an investigator must assess is found in The Merry Wives of Windsor, Act 2, scene i, l. 9-10.
Brevity
On rare occasions only, investigators will wish to follow the guidance we find in The Merry Wives of Windsor, at Act 2, scene ii, l. 71: "Falstaff. Be brief." A few lines later, at l. 161, Ford states: "I will be brief." In the overwhelming majority of cases, investigators wish to draw out as many details as possible from potential witnesses. In this context, note the following from King Lear, Act 5, scene iii, l. 201-202: "... but speak you on; You look as you had something more to say."
Confession
Confession is to be followed by redress, according to Justice Shallow in The Merry Wives of Windsor, Act 1, scene i, l. 93: "If it be confessed, it is not redress'd: is not that so, Master Page? He hath wronged me…” For our purposes, the need for a person to undo the harm done may bring about a confession and a sincere vow to make amends. In this context, I quote from Act 1, scene i, l. 28-30 of the play: "Sir Hugh Evans. If Sir John Falstaff have committed disparagements unto you, I am of the church, and will be glad to do my benevolence to make atonements and compromises between you."
More generally on this subject, The Merry Wives of Windsor, Act 1, scene i, l. 83 records Slender stating: "You'll not confess, you'll not confess." That is all right when one refuses to acknowledge that the Leafs (or the Habs.) lost badly the night before; it is altogether different when it comes to remaining silent in the face of an accusation, as the right not to incriminate oneself must dominate any such debate. In other words, the investigator may not tell someone of their right to silence to then seek to take advantage of the fact that a person exercised that right. Later, at l. 103-104 of Act 1, scene i, Falstaff is pleased to state: "I will answer it straight. I have done all this. That is now answer'd." The prudent investigator will ensure that the Record contains a few more questions to "nail down" what it is that has been admitted, lest some controversy arise later.
Cross-examination – you do not engage in such a practice, but you do question the potential witness
I suggest that you are wise to begin with a question that the potential witness must agree with, as a general introduction. For example, “You agree with me that it is important for good citizens to help the police?” The example from the play is found at Act 1, scene i, l. 265-266: "Slender. You are afraid, if you see the bear loose, are you not?" In the context of structuring your questions in order to have the witness agree with you, I refer to the wonderful example provided by J.J. Robinette in the case of R. v. MacFadden and Barrow, as set out at pages 9 and 10 of Jack Batten's vastly interesting biography, Robinette The Dean of Canadian Lawyers, Toronto: Macmillan of Canada, 1984. As we read at page 9: "[He would inject] a positive rhythm into his questions, structuring them to invite a ‘yes' in response…”
Details or fundamental facts – your assessment drives your questioning
The Merry Wives of Windsor, Act 2, scene i, l. 40-41 reads: "Mistress Page. Hang the trifle … What is it? dispense with trifles; what is it?" Your degree of “in your face” questioning may well depend on your judgment as to what is important and was is secondary. Further, in this vein, consider what follows, from Act 2, scene i, l. 353: "Quickly. Marry, this is the short and the long of it.” You will decide if such be the case.
"Form letter" kind of statement (or testimony)
The play we re studying these words at Act 2, scene i, l. 66-69: ". I warrant he hath a thousand of these letters, writ with blank space for different names-sure, more,-and these are of the second edition: he will print them, out of doubt; for he cares not what he puts into the press." In other words, investigtors must verify to what extent what is being communicated is original and reliable and how much is mere rote repetition and unreliable.
Record as to what is said, the investigator must shelter the
What follows is a great example of what must not occur during an interview: "Ford. You heard what this knave told me, did you not? Page. Yes: and you heard what the other told me? Ford. Do you think there is truth in them?" This situation cannot be tolerated, as the words are far too vague. The investigator must ensure that the exact words are quoted for the record of the interview.
Refusal to answer further
The Merry Wives of Windsor, Act 2, scene ii, l. 199-200, provides an example of what investigators encounter on some occasions in the course of questioning potential witnesses: a refusal to answer further on the grounds that all that needed to be said has been said. Thus, "Ford When I have told you that, I have told you all…”
Stare down the witness
The Merry Wives of Windsor, Act 2, scene ii, l. 247-248, provides this example: "Falstaff Hang him, mechanical salt-butter rogue! I will stare him out of his wits." As a very young law student, in 1978, I watched with awe a senior lawyer receive this answer from a police officer about an interrogation that took over three hours: "Your client took about 5 minutes to answer [a precise question], but he was not intimidated then or at any time." Mr. Scott Milloy then pointed to the clock, stated the time, and began to stare at the police officer and within 60 seconds, or so it seemed, one heard the quite distinct sound of the officer's throat bobbing up and down as he was swallowing in a nervous fashion, to then begin to sweat profusely." I do not suggest that you do so when questioning a witness, but it may be effective from time to time.
Verbose versus hard to engage in conversation types of witnesses
I begin by stating that some persons are not “tell-tales”, so to speak. In assessing the case, it is wise to evaluate to what extent any individual will cooperate further with the authorities, possibly to curry favour, and how many will not do anything to aid the Crown, no matter what. In this vein, your analysis ought to go further and embrace how different personalities my get in the way of a genuine desire to co-operate. The Merry Wives of Windsor, Act 1, scene iv, l. 8, illustrates this as Quickly reviews the faults and qualities of John Rugby and notes " [he is] no tell-tale."
Verification by witness of their apparent success in providing statement
It is not uncommon for those who select rich vocabulary to pause to see if the words are having the desired result. The example that follows makes this situation quite plain: "Host My hand, bully; thou shalt have egress and regress; -said I well?" Refer to The Merry Wives of Windsor, Act 2, scene i, l. 192-193.
Voir dire and praise
"Quickly. Why, you say well …" are the words of praise found in The Merry Wives of Windsor, Act 2, scene ii, l. 85. I suggest that to say this to a witness who becomes a suspect by reason of what was communicated is not n inducement.
Voir dire and demeaning comments
The Merry Wives of Windsor illustrates fully at Act 2, scene ii, l. 12, the type of language that ought not to be resorted to during an interview: “Falstaff. Reason, you rogue, reason."
Voir dire and violence
An investigator must never resort to threats or inducements to obtain a statement and must never think that the sentiment that follows must be adopted to any degree: "... Truth's a dog must to kennel; he must be whipped out...", as suggested in King Lear, Act 1, scene iv, l. 115-116. See also The Merry Wives of Windsor, Act 4, scene iv, l. 60-63: "Mrs. Ford. And till he tell the truth, Let the supposed fairies pinch him sound …"
Investigative skills
Death threat, conditional or simply not made out?
The Merry Wives of Windsor, Act 1, scene i, l. 35-36 recounts how a Justice of the Peace named Shallow states: "… if I were young again, the sword should end it." If a case you are investigating contains this type of remark, your task would be to consider carefully whether these are but idle words as he is not at all young.
Deceit versus craft
The Merry Wives of Windsor, Act 5, scene v, l. 213 reads: "Fenton. And this deceit loses the name of craft…”
Identification
The detective is always seeking distinctive or unusual feature, such as height We find an example of this in The Merry Wives of Windsor, at Act 1, scene iv, l. 22-24: "Simple Ay, forsooth: but he is as tall a man of his hands as any is between this and his head; he hath fought with a warrener." In this context, consider the many articles and studies that examine how persons appear to reason when suggesting how they reached a conclusion as to their purported identification and especially the study of height as a marker in identification. A starting point, I suggest, is Chapter 6 "Whole body information: Its relevance to eyewitnesses", by N.D. MacLeod, J.N. Frowley and J.W. Shepherd, at pages 125-143 as it discusses height, in the text Adult Eyewitness Testimony Current Trends and Developments, edited by D.F. Ross, J.D. Read and N.P. Toglia, New York: Cambridge University Press, 1994.
Judgment in investigations
Bias
“Love is blind!” This well-known expression is featured in The Merry Wives of Windsor, in Act 2, scene i, l. 3-5: "Mistress Page. 'Ask me no reason why I love you; for though Love use Reason for his physician, he admits him not for his counsellor." In addition, I note this passage from Act 2, scene ii, l. 186-189: "Ford … Love like a shadow flies when substance love pursues; Pursuing that that flies, and flying what pursues.” Obviously, detectives must be cautious when seeking out information from persons in a relationship.
Character witnesses, assessing correctly
"Page. I will not believe such a Cataian though the priest o' th' town commended him for a true man." Refer to the play at Act 2, scene i, l. 1. 128-130. Investigators must be scrupulous in assessing information they receive from third parties as the potential character witness may be biased, of course, but care must be taken not to dismiss too readily potentially valuable information.
“Cherchez l'argent!”
It is always a sound tactic for investigators to assess who may profit from the testimony that is being advanced, as detective stories typically draw attention to the love interest or profit motive in play. The Merry Wives of Windsor, Act 2, scene ii, l. 13 reads: "Falstaff. Think'st thou I'll endanger my soul gratis?”
Collusion – be fearful that witnesses might have been coached
The Merry Wives of Windsor, Act 4, scene iv, l. 63-66, is of ssistance in this respect: "Ford The children must Be practis'd well to this or they'll nev'r do t." This quote might apply to anyone and any group.
Common sense
The Merry Wives of Windsor, Act 1, scene iv, l. 65-68, illustrates the rugged common sense possessed by individuals who will not be hoodwinked by others: "Doctor Caius What shall de honest man do in my closet? dere is no honest man dat shall come in my closet."
Context is vital in assessing the merits of any potential testimony or exhibit
In the play, Mrs. Ford states a number of reasons for her belief, tentative as it appears, that the statement she holds is reliable, to then suggests why it is not:
… to make difference of men's liking: and yet he would not swear; praised women's modesty; and gave such orderly and well-behaved reproof to all uncomeliness, that I would have sworn his disposition would have gone to the truth of his words; but they do no more adhere and keep place together than the Hundredth Psalm to the tune of 'Green Sleeves.'
Refer to The Merry Wives of Windsor, Act 2, scene i, l. 48-53.
Error of fact or error of law?
Generally, an error of law leads to culpability; an error of fact might lead to a finding of not guilty. Hence, investigators take pins to get as much information as is available to provide the prosecution with a fair chance of making the ideal determination. The Merry Wives of Windsor, Act 2, scene ii, l. 195-197 informs us of the following: "Falstaff Of what quality was your love, then? Like a fair house built on another man's ground; so that I have lost my edifice by mistaking the place where I erected it."
Exaggerations, be wary of
As illustrated in The Merry Wives of Windsor, Act 1, scene i, l. 68-69, it is not uncommon that witnesses begin to embellish an original account if it is thought by the witness that a little "extra mustard", if you wish, might help. The example sees Evans state "… that peradventures shall tell you another tale, if matters grow to your likings." Hence, investigators must be watchful for this type of situation.
Examine closely your witnesses
An example of this responsibility which must also be discharged by the investigator is found in The Merry Wives of Windsor, Act 1, scene iii, l. 57-58: "Falstaff. who even now gave me good eyes too, examined my parts with most judicious oeillades.”
Human nature – blame others
Consider this example found in the play in Act 1, scene i, l. 113-114: "Slender. They carried me to the tavern, and made me drunk ...” an early example of the phrase "The Devil made me do it!"
Human nature – doubting oneself, honest people may end up in this situation
These are the relevant remarks found in The Merry Wives of Windsor, Act 2, scene i, l. 75-76: "Mrs. Page. I know not: it makes me almost ready to wrangle with mine own honesty. I'll entertain myself like one that I am not acquainted withal; for, sure, unless he know some strain in me, that I know not myself …" In my experience, some honest and reliable witnesses do come to doubt themselves.
Human nature – egoism as a foundational element in our decision-making
The Merry Wives of Windsor, Act 2, scene ii, l. 4-5 reads: "Pistol Why, then the world's mine oyster. Which I with sword will open." In other words, people will accomplish their aims as they view them as essential in a selfish way and with the tools that they possess. The investigator must be mindful of the dangers of such potentially distorted thinking.
Human nature - emotions evolve over time
Act 5, scene i, l. 7, of the play includes the phrase “… time wears…”, uttered by Falstaff. Investigators must be wary of the time period between when witnesses are first interviewed and trial, for emotions may have run their course, to the disadvantage of the prosecution. For example, a resentful former romantic partner may have met a new “love of their life” and not wish to repeat in Court information provided earlier for fear of embarrassment or of jeopardizing the new relationship.
Human nature – familiarity grows contempt
On occasion, the investigator is wise to continue to question a witness though the information he or she advanced is of little importance in order that the contempt the witness has for the police or the investigation becomes quite evident. An example of that line of thinking is found in The Merry Wives of Windsor, Act 1, scene i, l. 222-226:
Slender… "I will marry her, sir, at your request; but if there be no great love in the beginning, yet heaven may decrease it upon better acquaintance, when we are married and have more occasion to know one another. I hope, upon familiarity will grow more contempt."
Human nature – hope
In this context, consider "Ford. Well, I hope it be not so. Hope is a curtal dog in some affairs" [Curtal in the sense of brief] See The Merry Wives of Windsor, Act 2, scene i, l. 97-98.
Human nature – pride
The Merry Wives of Windsor, Act 4, scene v, l. 108, provides an example of such a proud person: "Falstaff … but that my admirable dexterity of wit … delivered me."
Preferences, none or quite restrictive ones
"Pistol. He woos both high and low, both rich and poor, Both young and old, one with another." These lines appear in The Merry Wives of Windsor, Act 2, scene ii, l. 101-102. From an investigator's perspective, this is a very thorny situation as there is no "type" that the witness prefers. Thus, it might make it very difficult to "box in" that person. If, on the contrary, the witness never drinks beer save for brand "x", the presence of brand “y” within the vehicle may support the view that the witness was not drinking it on the night in question. That said, the lines that follow, at 109-11, "Pistol. Take heed, have open eye, for thieves do foot by night…" remind us that this belief is not invariably true, and there are many exceptions; thieves my well act at night, but many also steal during the day.
Rationalizations, beware of
Consider the passage found in The Merry Wives of Windsor, Act 2, scene ii, l. 220-221: "Ford. … my desires had instance and argument to commend themselves." A second example is consigned at Act 1, scene i, l. 162-166: "Slender. I'll ne'er be drunk whilst I live again, but in honest, civil, godly company. If I be drunk, I'll be drunk with those that have the fear of God." In few words, the resolve was lost before it took shape, it seems, and the investigator must be vigilant in seeking out such inconstancies.
Reversing the proposition - What cannot be eschew'd must be embraced
In essence, reversing the proposition refers to the investigator pointing to the less obvious, but not unreasonable, other side of the coin during questioning. If the Crown, for example, were to point out to you that the account of the event advanced by a witness does not dovetail well with the testimony of a second witness, it should be stressed that incidental errors and inconsistencies support the credit of the supposedly mistaken witness. After all, his or her account was not suspiciously "too pat". Put shortly, what does a judge conclude of an account, for example, that the accused was found bent over the body of a stabbing victim whilst holding the bloody knife? That the defendant stabbed the victim or happened to be the first person to stumble across the body? In effect, you are invited to look at both sides of an issue, and to all possible facets, prior to making a decision.
A fine illustration of this dynamic is seen in Romeo and Juliet, Act II, scene V:
Nurse
Jesu, what haste? can you not stay awhile?
Do you not see that I am out of breath?
JULIET
How art thou out of breath, when thou hast breath
To say to me that thou art out of breath?
Consider as well the “virtue into a vice” type of scenario. Indeed, Romeo and Juliet, Act II, scene III, records these observations:
·
FRIAR LAURENCE
·
And flecked darkness like a drunkard reels In herbs, plants, stones, and their true qualities: For nought so vile that on the earth doth live But to the earth some special good doth give, Nor aught so good but strain'd from that fair use Revolts from true birth, stumbling on abuse: Virtue itself turns vice, being misapplied;
And vice sometimes by action dignified.
As for The Merry Wives of Windsor, we read in Act 5, scene v, l. 222: ". What cannot be eschew'd must be embrac'd…”
Self-praise by way of apparently critical statements?
People are fond of denigrating themselves in the course of a statement, all the while seeking praise by means of the statement. For example, in The Merry Wives of Windsor, Act 2, scene ii, l. 95-96, we read: "Falstaff. … setting the attraction of my good parts aside, I have no other charms." A further example is found in the same scene, a few lines later at number 165-169: "Ford. I shall discover a thing to you, wherein I must very much lay open mine own imperfection: but, good Sir John, as you have one eye upon my follies, as you hear them unfolded, turn another into the register of your own; that I may pass with a reproof the easier, sith you yourself know how easy it is to be such an offender."
Self-serving statements
Investigators must be wary of potential witnesses who profess to abhor lies and mendacity. Consider the example of Sir Hugh Evans in The Merry Wives of Windsor, Act 1, scene i, l. 60-62 who suggests that he is incapable of mendacity? In this vein, I cite: ". Shall I tell you a lie? I do despise a liar as I do despise one that is false, or as I despise one that is not true."
Superlatives in statements
I suggest that we typically put propositions in the superlative, such as "Quickly. I never knew a woman so dote upon a man." See Act 2, scene ii, l. 91 of The Merry Wives of Windsor. The task of the detective is to establish how poorly supported is this type of statement.
Verification of what the witness is stating to you at the scene or at station
On occasion, in my experience, a witness will state something outrageous as if it were a fact, in order it seems that such a ridiculous observation should anchor another observation, no less without merit. In brief, mere filler! Thus, in The Merry Wives of Windsor, Act 2, scene i, l. 68-71, we read: "Mistress Page. I had rather be a giantess, and lie under Mount Pelion. Well, I will find you twenty lascivious turtles ere one chaste man." Investigators are well advised to verify the merits of what is said by means of follow up questions before the situation gets out of hand.
Youthful follies
The Merry Wives of Windsor, Act 4, scene ii, l. 61-62 sets out that Falstaff stated: "Good hearts, devise something; any extremity rather than a mischief." In that vein, note that the young Norman Birkett, who went on to become an eminent judge, is described as "mischievous" three times by his biographer Dennis Bardens within pages 15 to 21, so there might be something favourable to the development of advocacy skills in the commission of mischief. See Lord Justice Birkett, London: Robert Hale Limited, 1962.
Professionalism in investigations
Advice to others
Investigators and your junior colleagues look to you for guidance and advice. In this context, Mrs. Ford states in The Merry Wives of Windsor, Act 2, scene i, l. 35: "O Mistress Page, give me some counsel."
Children are to be protected from needless secondary harm when being interviewed
The Merry Wives of Windsor, Act 2, scene ii, l. 114-115, expresses a sentiment applicable to the need to spare children from secondary harm during police questioning: "Quickly. for tis not good that children should know any wickedness.”
Confidence
Act 2, scene i, l. 168 of The Merry Wives of Windsor, reads as follows: "Ford. A man may be too confident." The investigator will assess ay such trait in witnesses, of course, and will avoid any such faulty behaviour.
Evolution of the law
The careful investigator will take pains to keep current with new developments. In this vein, The Merry Wives of Windsor, Act 1, scene iii, l. 80, reads: "Falstaff … will learn the humour of the age." In other words, what might have been a good ploy a few years ago on behalf of the defence might not succeed in the future. A good example is the case of R. v. Kuzmich, 2020 ONCA 359. We now know that whatever controversy might have existed surrounding the question of the application of s. 276 of the Criminal Code at a preliminary inquiry, it is now settled that the section operates.
Faults – a two-edged sword
Consider this passage found in The Merry Wives of Windsor, Act 1, scene i, l. 284-285, the last lines of the scene: "… I'll rather be unmannerly than troublesome.” A successful investigator may be required to be direct, even rude if the circumstances require it and is only normal that those who dig deep are considered troublesome.
Luck
The Merry Wives of Windsor includes these remarks at Act 5, scene i, l. 2-5: "Falstaff. I hope good luck lies in odd numbers. Away, go; they say there is divinity in odd numbers, either in nativity, chance, or death." Good investigators do not depend upon luck
Open mind
The Merry Wives of Windsor, Act 1, scene i, l. 1, begins with Justice of the Peace Shallow stating a phrase that no investigator may pronounce: "Sir Hugh, persuade me not; I will make a Star-chamber matter of it." Simply put, detectives must ensure that no one is under the impression that they are unwilling to entertain any suggestion or information.
Patience
Professionalism naturally includes this quality. Thus: "Quickly … here will be an old abusing of God's patience and the King's English.” Refer as well to this quote: "Ford. I will be patient …" Refer to Act 2, scene i, l. 1. 114. It is always good advice for investigtors to follow, and certainly better than what one reads at Act 2, scene ii, l. 256: "Ford. My heart is ready to crack with impatience."
Remedy for harm done to others, be careful not to promise too much
The Merry Wives of Windsor, Act 1, scene iii, l. 32 reads: "Falstaff. There is no remedy.” A prudent investigator may promise to work night and day, but not that the culprit will be found. You may only pledge effort, not promise results. At time, unfortunately, no remedy for a wrong will result from your hard work.
Resist the influence of the rich and powerful
Mrs. Page states in The Merry Wives of Windsor, Act 4, scene iv, l. 87-89: "The Doctor is well money'd, and his friends Potent at court.” A respected investigator achieves that status by refusing to be influenced by anyone.
Respectful ways of addressing witnesses you interview
"Peace your tattling’s …” is a phrase stated by Sir Evans in The Merry Wives of Windsor, at Act 4, scene i, l. 22. Disrespectful comments of this nature are never to escape your lips.
Seek advice from prosecutors
Investigators who enjoy successful careers are those who seek out prosecutors for advice. In this vein, note this observation from The Merry Wives of Windsor, Act 4, scene vi, l. 8: "Host. I will, at the least, keep your counsel …”
Self-awareness
“Know thyself, to succeed as an investigator”, is a good philosophy. However, you must be careful in terms of your self-evaluation. In this vein, consider how sanguine Falstaff is: "No quips now, Pistol! Indeed, I am in the waist two yards about; but I am now about no waste; I am about thrift.” Refer to the play in Act 1, scene iii, l. 1. 38-42.
Suspicion without any foundation
The Merry Wives of Windsor, Act 3, scene iii, l. teaches the police officer that he or she must decide whether the suspicion was justified. Thus: "Ford. Pray you, come near: if I suspect without cause, why then make sport at me.”
Wisdom
"Speak scholarly and wisely". This is the advice we find in The Merry Wives of Windsor, Act 1, scene iii, l. 2-3: "Host. Speak scholarly and wisely." For example, you might correctly advise a young person in accordance with this passage: “… his filching was like an unskillful singer…” See Act 1, scene iii, l. 224.
CONCLUSIONS
The expression “bookish knowledge” comes to mind when I consider this quote from The Merry Wives of Windsor, Act 4, scene i, l. 13-14: "Mrs. Page Sir Hugh, my husband says my son profits nothing in the world at his book.” From my perspective, an investigator may well profit from books that contain plays and novels as they illustrate human nature and basic psychology, as set out earlier, and I am hopeful that this article will be of assistance in that regard. Going further long this train of thought, by way of conclusion, I suggest that investigators should be vitally interested in putting forward what I describe as an "evidence-based investigative report" as exemplified in King Lear, Act 3, scene vi, l. 33-34: "I'll see their trial first. Bring in the evidence." Indeed, King Lear proclaimed a judge's ultimate ambition in Act 3, scene ii, l. 85: "... When every case in law is right..."
In the final analysis, successful investigators are often those who embraced this profession as a vocation. Thus, to be successful, they must emulate the example of Bardolph who states in The Merry Wives of Windsor, Act 1, scene iii, l. 18: "It is a life that I have desired …”
[1] See “A List of One Hundred Legal Novels” (1922), 17 Ill. L. Rev. 26, at page 31.
[2] Refer as well to a similar article by Law Professor W.H. Hitchler who published these relevant remarks in "The Reading of Lawyers", (1928) 33 Dick. L. Rev. 1-13, at pages 12-13: "The Lawyers must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction. ...” I could easily replace “lawyers” by “police officers” and the meaning remains correct.