POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S Much Ado About Nothing
Gilles Renaud | Ontario Court of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from the comedy Much Ado About Nothing 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 persons you know well
The Merry Wives of Windsor, Act 1, scene iii, l. 42-44, includes these words: "Falstaff. I can construe the action of her familiar style; and the hardest voice of her behavior." This passage suggests clearly that one may better (or best?) construe the actions of others if one is familiar with the person. But, for investigators, the witnesses are often strangers, with the possible exception of police officers in the smaller centres. That is why Pistol adds to what Falstaff has just stated: "He hath studied her well." See line 46 of scene iii.
Demeanour - Further dangers of demeanour evidence
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
Introduction – the contributions from Othello
It is suggested that a good introduction to this subject is found in Othello, Act 1, scene i, l. 60-65:
o Iago
Heaven is my judge, not I for love and duty
But seeming so, for my peculiar end:
For when my outward action doth demonstrate
The native act and figure of my heart
In compliment extern, 'tis not long after
But I will wear my heart upon my sleeve
For daws to peck at: I am not what I am.
In effect, the speaker is conscious of the fact that people generally expect that the outward appearance of the face and person will "testify" as to the internal thoughts. Thus, if Iago appears to be loyal and loving to his superior, it is feigned in order better to deceive his intended victim. This is the challenge posed by demeanour evidence: is the "external" Iago hiding what he is at bottom? Indeed, consider some later lines, starting at 169 of the same scene: "Iago ... Yet, for necessity of present life, I must show out a flag and sign of love, Which is indeed but sign ..." In few words, I am not sincere! In the same vein, we read: "Iago. Men should be what they seem; Or those that be not, would they might seem none!" Refer to Act 3, scene iii, l. 130-131. Since they are not, we look to demeanour evidence to assist us in judging if they are sincere and reliable.
Noteworthy as well is the following passage, found in Act 5, scene i, l. 106-110: "Iago. Stay you, good gentlemen. Look you pale, mistress? Do you perceive the gastness of her eye? Nay, if you stare, we shall hear more anon. Behold her well; I pray you, look upon her: Do you see, gentlemen? nay, guiltiness will speak, Though tongues were out of use."
Demeanour - Is “reading” of the face trustworthy?
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour evidence – The Grey’s Anatomy examination
Demeanour: Assuming a guise
I now quote from Much Ado About Nothing, at Act II, scene III:
DON PEDRO
It is the witness still of excellency
To put a strange face on his own perfection…
Refer as well to Act II, scene III:
LEONATO
O God, counterfeit! There was never counterfeit of passion came so near the life of passion as she discovers it.
Further yet, on the related subject of “showing reverence to hide deception”, I note from Act II, scene III:
BENEDICK
I should think this a gull, but that the white-bearded fellow speaks it: knavery cannot, sure, hide himself in such reverence.
Demeanour – Blush
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour: Brows
Much Ado About Nothing, Act I, scene I, includes these remarks: “BENEDICK Yea, and a case to put it into. But speak you this with a sad brow…” A further example of this type of situation is seen in Much Ado About Nothing, Act III, scene V:
DOGBERRY
… Goodman Verges, sir, speaks a little off the matter: an old man, sir, and his wits are not so blunt as, God help, I would desire they were; but, in faith, honest as the skin between his brows.
VERGES
Yes, I thank God I am as honest as any man living that is an old man and no honester than I.
Demeanour: Eye, fire shows innocence
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour: Face, a February, full of storm
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene IV:
DON PEDRO
Good morrow, Benedick. Why, what's the matter,
That you have such a February face,So full of frost, of storm and cloudiness?
Demeanour – Facial “shames”
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour – Pallour
I now refer the reader to Act V, scene I, of Much Ado About Nothing:
DON PEDRO
As I am an honest man, he looks pale. Art thou sick, or angry?
Demeanour: Tears
Much Ado About Nothing, Act I, scene I, illustrates this subject briefly:
LEONATO
Did he break out into tears?
Messenger
In great measure.
LEONATO
A kind overflow of kindness: there are no faces truer than those that are so washed. How much better is it to weep at joy than to joy at weeping! [Emphasis added]
I question whether any sound investigator is so quick to reach such a conclusion.
Demeanour: Eyes express scorn and disdain
Much Ado About Nothing, Act III, scene I, includes these remarks: “HERO … Disdain and scorn ride sparkling in her eyes…”
Instruction for investigators in the fact finding process
Fact finding: Bias – Love – this emotion may affect credit and reliability
Much Ado About Nothing, Act II, scene I, includes this passage:
CLAUDIO
Thus answer I in the name of Benedick,
But hear these ill news with the ears of Claudio.
'Tis certain so; the prince wooes for himself.
Friendship is constant in all other things
Save in the office and affairs of love:
Therefore, all hearts in love use their own tongues;
Let every eye negotiate for itself
And trust no agent; for beauty is a witch
Against whose charms faith melteth into blood.
All that being said, what is the degree of reliability of those who eschew romance? In this context, Much Ado About Nothing, Act I, scene I, includes these remarks on that subject:
BEATRICE
A dear happiness to women: they would else have been troubled with a pernicious suitor. I thank God and my cold blood, I am of your humour for that: I had rather hear my dog bark at a crow than a man swear he loves me.
Fact finding: Bias – Revenge the objective being pursued
The play we are studying includes this valuable illustration in Act II, scene I: “BENEDICK … it is the base, though bitter, disposition of Beatrice that puts the world into her person and so gives me out. Well, I'll be revenged as I may.” The underlined passage must lead the careful investigator to underscore in any report the dangers of relying upon such a witness, unless confirmatory information is identified.
Fat finding - Blow with the wind?
Much Ado About Nothing, Act I, scene I, includes this observation:
BEATRICE
… he wears his faith but as the fashion of his hat; it ever changes with the next block.
My “take” on this phrase is that the witness so described is one that is dangerous, as being unsuited for a principled stance when providing objective information. Care must be taken not to assign undue weight.
Fact finding: Comparisons are not necessarily reliable
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene V:
VERGES
Yes, I thank God I am as honest as any man living that is an old man and no honester than I.
DOGBERRY
Comparisons are odorous: palabras, neighbour Verges.
Fact finding: “Different” way of speaking may reveal great truths
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene I:
DOGBERRY
Marry, sir, they have committed false report; moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things; and, to conclude, they are lying knaves.
Fact finding: Do nothing - At times, best course for police is to do nothing
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene III:
DOGBERRY
… Well, you are to call at all the ale-houses, and bid those that are drunk get them to bed
Watchman
How if they will not?
DOGBERRY
Why, then, let them alone till they are sober: if they make you not then the better answer, you may say they are not the men you took them for.
Fact finding: Emotions evolve with time
Much Ado About Nothing, Act II, scene III, teaches us what follows:
BENEDICK
[Coming forward] This can be no trick: the
conference was sadly borne. They have the truth of
this from Hero. They seem to pity the lady: it
seems her affections have their full bent. Love me!
why, it must be requited. I hear how I am censured:
they say I will bear myself proudly, if I perceive
the love come from her; they say too that she will
rather die than give any sign of affection. I did
never think to marry: I must not seem proud: happy
are they that hear their detractions and can put
them to mending. They say the lady is fair; 'tis a
truth, I can bear them witness; and virtuous; 'tis
so, I cannot reprove it; and wise, but for loving
me; by my troth, it is no addition to her wit, nor
no great argument of her folly, for I will be
horribly in love with her. I may chance have some
odd quirks and remnants of wit broken on me,
because I have railed so long against marriage: but
doth not the appetite alter? a man loves the meat
in his youth that he cannot endure in his age.
Shall quips and sentences and these paper bullets of
the brain awe a man from the career of his humour?
No, the world must be peopled. When I said I would
die a bachelor, I did not think I should live till I
were married. Here comes Beatrice. By this day!
she's a fair lady: I do spy some marks of love in
her. (Emphasis added)
In this vein, I note the following, from Much Ado About Nothing, Act III, scene IV:
MARGARET
… Yet Benedick was such another, an now is he become a man: he swore he would neve marry, and yet now, in despite of his heart, he eat his meat without grudging…
Fact finding: Emotions may be mixed
Much Ado About Nothing, Act I, scene I, includes this passage:
Messenger
I have already delivered him letters, and there appears much joy in him; even so much that joy could not show itself modest enough without a badge of bitterness.
These types of concerns must be assessed.
Fact finding: Estimations of time advanced by witnesses when in love
Much Ado About Nothing, Act II, scene I, includes this observation on thus subject: “Claudio … time goes on crutches till love have all his rites.” In other words, one experiences difficulties in this area.
Fact finding: Flight
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene I:
LEONATO
No, not so, villain; thou beliest thyself:
Here stand a pair of honourable men;
A third is fled, that had a hand in it.
Fact finding: Hoist on own petard
Much Ado About Nothing, Act II, scene III, includes these remarks:
BENEDICK
… I do much wonder that one man, seeing how much another man is a fool when he dedicates his behaviors to love, will, after he hath laughed at such shallow follies in others, become the argument of his own scorn by failing in love: and such a man is Claudio…
Investigators must be mindful of common human experience to the effect that we tend to experience what we mock in others, as the Gods love to hear our foolish words and to turn them against us. The saying is “When the Gods wish to destroy us, first they make us proud!”
Fact finding: Impairment
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene III:
DOGBERRY
… Well, you are to call at all the ale-houses, and bid those that are drunk get them to bed
Watchman
How if they will not?
DOGBERRY
Why, then, let them alone till they are sober: if they make you not then the better answer, you may say they are not the men you took them for.
Fact finding: Plain speaking
Much Ado About Nothing, Act II, scene III, provides this guidance to investigators about how people express themselves and the worth of their words:
BENEDICK
… He was wont to speak plain and to the purpose, like an honest man and a soldier; and now is he turned orthography; his words are a very fantastical banquet, just so many strange dishes…
Fact finding: Pride shown by a witness may lead to downfall
Much Ado About Nothing, Act III, scene I, includes these remarks:
BEATRICE
What fire is in mine ears? Can this be true?
Stand I condemn'd for pride and scorn so much?
Fact finding - Reliability of a contemporaneous record
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene V:
DOGBERRY
We will spare for no wit, I warrant you; here's that shall drive some of them to a non-come: only get the learned writer to set down our excommunication and meet me at the gaol.
Fact finding - Scorn shown by a witness may lead to downfall
Much Ado About Nothing, Act III, scene I, includes these remarks:
BEATRICE
What fire is in mine ears? Can this be true?
Stand I condemn'd for pride and scorn so much?
Fact finding: Speak mirth, not matter
BEATRICE … I beseech your grace, pardon me: I was born to speak all mirth and no matter.” An investigator must be conscious of this possibility, as illustrated in Much Ado About Nothing, Act II, scene I. After all, witnesses such as Forrest Gump may be the best ones that might be imagined, once one understands that they speak of matter, couched in mirth and myth…
Fact finding: Speaking “poniards”
Much Ado About Nothing, Act II, scene I, includes this observation on the ability, of facility, of a witness speaking daggers: “BENEDICK … She speaks poniards, and every word stabs…” In a proper case, the detective must seek to note this tendency and to judge whether the proposed evidence that is advanced is reliable. In a given case, this may give way to a finding of lack of credit.
Fact finding: Youth is capable of great things
Much Ado About Nothing, Act I, scene I, includes this passage:
Messenger
Much deserved on his part and equally remembered by Don Pedro: he hath borne himself beyond the promise of his age, doing, in the figure of a lamb, the feats of a lion: he hath indeed better bettered expectation than you must expect of me to tell you how.
Investigators are well advised to examine how any individual youth, or senior for that matter, is behaving as a potential witness and not to rely upon any stereotype, favourable or otherwise. An example of this type of situation is seen in Much Ado About Nothing, Act III, scene V:
DOGBERRY
… Goodman Verges, sir, speaks a little off the matter: an old man, sir, and his wits are not so blunt as, God help, I would desire they were; but, in faith, honest as the skin between his brows.
Instruction for interviewers
Asking a question too often may be providing an answer
The play Much Ado About Nothing, Act I, scene I, includes these remarks:
DON PEDRO
You embrace your charge too willingly. I think this
is your daughter.
LEONATO
Her mother hath many times told me so.
BENEDICK
Were you in doubt, sir, that you asked her?
For present purposes, the investigator might profit from asking a witness why he or she sought information, and as often or as intently as they did, unless it is a fact that they doubted the accuracy or reliability of what they heard r read.
Blurting out answers: Witnesses may not be able to resist blurting out damaging information
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene II:
DON PEDRO
… he hath a heart as sound as a bell and his tongue is the clapper, for what his heart thinks his tongue speaks.
Enigmatic response
Benedick states “Your answer, sir, is enigmatical…” at Act V, scene IV of the play. I suggest that there is noting improper in doing so, in order to allow the witness to express themselves fully.
Hearing fully the witness
Refer to Much Ado About Nothing, Act V, scene I:
DON PEDRO
I will not hear you.
This is an action that no investigator may undertake, in fairness.
Intimidate the witness so badly that Court begins to take pity
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene II:
BENEDICK
Thou hast frighted the word out of right sense, so forcible is thy wit…
Patience in listening to a party or witness
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
Hear me a little;
For I have only been silent so long…
Later on, in the same scene, we read how Friar Francis states: “Pause awhile And let my counsel sway you in this case…”
Reliability of a statement of a witness “encouraged” by person in authority who is not a peace officer
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
CLAUDIO
Let me but move one question to your daughter;
And, by that fatherly and kindly power
That you have in her, bid her answer truly.
Skirmish of wit – your task is to obtain valuable information, not to show your superior intelligence
Much Ado About Nothing, Act I, scene I, includes this relevant observation:
LEONATO
You must not, sir, mistake my niece. There is a kind of merry war betwixt Signior Benedick and her: they never meet but there's a skirmish of wit between them.
But the duty of the investigator is to analyze the case, not win such a contest.
Silent too long – The witness wishes to state the facts as they view them
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
Hear me a little;
For I have only been silent so long…
Judgment in investigative work
Admission against interest
Much Ado About Nothing, Act I, scene III, includes these remarks:
DON JOHN
I had rather be a canker in a hedge than a rose in his grace, and it better fits my blood to be disdained of all than to fashion a carriage to rob love from any: in this, though I cannot be said to be a flattering honest man, it must not be denied but I am a plain-dealing villain... (Emphasis added)
When a person states that they are “generous, loving and they own a luxury boat”, you might not believe any of the three statements; consider how you judge the veracity of someone who states: “I am cheap, mean and I hate people who own a boat!” The law and common sense encourage caution in accepting self-praise and encouragement in finding that people’s negative self-descriptions are likely true.
The entire discussion might be expressed as follows: “May credit be assigned to one who professes honesty?” An example of this type of situation is seen in Much Ado About Nothing, Act III, scene V:
VERGES
Yes, I thank God I am as honest as any man living that is an old man and no honester than I.
Baiting the witness - Psychology may require you to …
Much Ado About Nothing, Act III, scene II, includes these remarks:
DON PEDRO
Nay, that would be as great a soil in the new gloss of your marriage as to show a child his new coat and forbid him to wear it.
Bending yourself into a pretzel to divine what is (or not) present in the statement of proposed witnesses
Much Ado About Nothing, Act II, scene III, illustrates this proposition :
BENEDICK
Ha! 'Against my will I am sent to bid you come in to dinner;' there's a double meaning in that 'I took no more pains for those thanks than you took pains to thank me.' that's as much as to say, Any pains that I take for you is as easy as thanks. If I do not take pity of her, I am a villain…
Sometimes, nonsense is merely that, nonsense.
Hearsay may wound
Much Ado About Nothing, Act III, scene I, includes these remarks:
Hero
… My talk to thee must be how Benedick
Is sick in love with Beatrice. Of this matter
Is little Cupid's crafty arrow made,
That only wounds by hearsay.
Human nature - Age and bragging
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene I:
LEONATO
Tush, tush, man; never fleer and jest at me:
I speak not like a dotard nor a fool,
As under privilege of age to brag…
Human nature - Wisdom – One out of Twenty…
In Much Ado About Nothing, Act V, scene II, we read:
BEATRICE
It appears not in this confession: there's not one wise man among twenty that will praise himself.
Human nature - Witness may praise another person inconsiderably
Much Ado About Nothing, Act III, scene I, includes these remarks:
HERO
Now, Ursula, when Beatrice doth come,
As we do trace this alley up and down,
Our talk must only be of Benedick.
When I do name him, let it be thy part
To praise him more than ever man did merit…
The role of the investigator in such circumstances is to assess the undue element of the praise.
Innocent party refusing to respond to a baseless claim
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
LEONATO
Friar, it cannot be.
Thou seest that all the grace that she hath left
Is that she will not add to her damnation
A sin of perjury; she not denies it:
Why seek'st thou then to cover with excuse
That which appears in proper nakedness?
I refer readers interested in this subject to my article, "Demeanour Evidence and Eyelid Turns': Guidance from the Manitoba Court of Appeal and Anthony Trollope", found in Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-293, dated April 27, 2020. For present purposes, it will suffice to quote the following passages:
14 Chartier J.A., now the Chief Justice of Manitoba, refers to classical authorities in the case of R. v. Scott, 2013 MBCA 7 ... and para. 11 reads:
11 The fundamental principles surrounding the law of adopted or implied admissions, and approved in the two above-referenced Supreme Court of Canada decisions, originally came from the House of Lords in Rex v. Christie, [1914] A.C. 545. In Christie, the House of Lords generally discussed when statements made in the presence of an accused will be admissible against the accused, and the procedure a court should follow when faced with such evidence. Lord Atkinson stated as follows (at pp. 554-55):
12 [T]he rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. ... . He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct, or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgement may be inferred by them. [Emphasis added]
43 Of interest, para. 13 then quotes Anglin C.J.C. in R. v. Stein, [1928] S.C.R. 553, as follows:
·
13 The Supreme Court of Canada first considered Christie in Stein. In that case, a police officer explained that the accused was present during the questioning of two thieves who implicated the accused as the recipient of stolen goods. The officer testified that the accused said nothing in response to the accusation. Anglin C.J.C., after referring to Christie, stated (at p. 557-58):
·
... It is only when the accused by "word or conduct, action or demeanour has accepted what they contain, and to the extent that he does so, that statements made by other persons in his presence have any evidentiary value. In the present case there is no evidence in the record from which a jury might infer anything in the nature of an admission by the accused of the accuracy of what was incriminating in the statements of the thieves given in evidence by [the police officer] ... [Emphasis added]
44 Para. 16 of the Scott decision is also instructive on this question. As we read:
·
16 As far as I am aware, the only other case from the Supreme Court of Canada in which the issue of adopted or implied admissions was discussed is R. v. Hebert, [1990] 2 S.C.R. 151. ... Sopinka J. wrote, in obiter, that the court's historical solicitude for an accused's silence is evidenced by its application of cases such as Christie and Stein. He stated (at p. 198):
·
... . The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused's silence, without more, is not evidence against him: there must be 'word or conduct, action or demeanour pointing to an adoption of the statement by the accused.
45 In this light, consider "The Boscombe Valley Mystery", and this relevant passage:
·
"It appears that his arrest did not take place at once, but after the return to Hatherley Farm. On the inspector of constabulary informing him that he was a prisoner, he remarked that he was not surprised to hear it, and that it was no more than his deserts. This observation of his had the natural effect of removing any traces of doubt which might have remained in the minds of the coroner's jury."
·
"It was a confession," I ejaculated.
·
o
"No, for it was followed by a protestation of innocence."
·
"Coming on the top of such a damning series of events, it was at least a most suspicious remark."
·
"On the contrary," said Holmes, "it is the brightest rift which I can at present see in the clouds. However innocent he might be, he could not be such an absolute imbecile as not to see that the circumstances were very black against him. Had he appeared surprised at his own arrest, or feigned indignation at it, I should have looked upon it as highly suspicious, because such surprise or anger would not be natural under the circumstances, and yet might appear to be the best policy to a scheming man. His frank acceptance of the situation marks him as either an innocent man, or else as a man of considerable self-restraint and firmness. As to his remark about his deserts, it was also not unnatural if you consider that he stood beside the dead body of his father, and that there is no doubt that he had that very day so far forgotten his filial duty as to bandy words with him, and even, according to the little girl whose evidence is so important, to raise his hand as if to strike him. The self-reproach and contrition which are displayed in his remark appear to me to be the signs of a healthy mind rather than of a guilty one."
·
I shook my head. "Many men have been hanged on far slighter evidence," I remarked.
·
"So they have. And many men have been wrongfully hanged." [Soulignement ajouté.]
46 The lesson for investigators is that such a rule of admissibility is quite complex, and it would be wise to consult with prosecutors - that said, it is certainly within your power and prudent to record whatever is said (and not said) in these circumstances immediately and not to wait for a later opportunity. The ubiquitous phrase "shortly thereafter", if applied, risks a finding by the Court that the record of what took place is not satisfactory in the circumstances.
Malapropism not necessarily a reason to reject testimony
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene II:
DOGBERRY
O villain! thou wilt be condemned into everlasting redemption for this.
In effect, the investigator attempts to both condemn the witness for the treachery he participated in and that has been fully admitted and, at the same time, praising his remorse and responsible behaviour in so confessing.
Malapropism
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene II:
DOGBERRY
O villain! thou wilt be condemned into everlasting redemption for this.
In effect, the investigator attempts to both condemn the witness for the treachery he participated in and that has been fully admitted and, at the same time, praising his remorse and responsible behaviour in so confessing.
“Never say never…”
I suggest that the only absolute rule in police work is that nothing is ever the same always. In other words, the only absolute rule is that there are no absolute rules. As we read in the play at Act II, scene III: “… One foot in sea and one on shore, To one thing constant never…”
Patience, defend request for or attack it
An example of this type of situation is seen in Much Ado About Nothing, Act V, scene I:
LEONATO
… Bring me a father that so loved his child,
Whose joy of her is overwhelm'd like mine,
And bid him speak of patience;
Measure his woe the length and breadth of mine
And let it answer every strain for strain,
As thus for thus and such a grief for such,
In every lineament, branch, shape, and form:
If such a one will smile and stroke his beard,
Bid sorrow wag, cry 'hem!' when he should groan,
Patch grief with proverbs, make misfortune drunk
With candle-wasters; bring him yet to me, And I of him will gather patience.
Consider as well the subject of patience and toothache, as seen in Much Ado About Nothing, Act V, scene I:
LEONATO
I pray thee, peace. I will be flesh and blood;
For there was never yet philosopher
That could endure the toothache patiently,
Poor analysis leading to poor results
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene IV:
MARGARET
… and bad thinking do not wrest true speaking, I'll offend nobody…
Stereotypical judgments - Men are deceivers
Investigators must be wary lest they fall into the trap of neglecting judgment and analysis and substituting mere prejudice. For example, Shakespeare has Balthasar state: “… Sigh no more, ladies, sigh no more, Men were deceivers ever…” The investigator must ask himself the question: “Was this man, in fact, guilty of deceit?” As well, did this witness, in this instance a male, deceiving me in my investigation?
Succeed with arrows or traps, as case may be
Much Ado About Nothing, Act III, scene I, includes these remarks:
HERO
If it proves so, then loving goes by haps:
Some Cupid kills with arrows, some with traps.
In other words, on occasion the advocate must resort to a barbed or otherwise formidable arrow, so to speak, to attack the untruthful or unreliable witness; on other occasions, counsel must resort to a trap within which to take in such a witness.
Truth is complicated
I note the relevant remarks from the play found in Act III, scene I:
HERO
… And never gives to truth and virtue that
Which simpleness and merit purchaseth.
Trusting the word of witnesses, with hesitation
Much Ado About Nothing, Act I, scene I, includes these remarks:
BENEDICK
That a woman conceived me, I thank her; that she brought me up, I likewise give her most humble thanks: but that I will have a recheat winded in my forehead, or hang my bugle in an invisible baldrick, all women shall pardon me. Because I will not do them the wrong to mistrust any, I will do myself the right to trust none; and the fine is, for the which I may go the finer, I will live a bachelor. (Emphasis added)
It is not wise, or practical, to trust no one, but it is wise and eminently practical to be suitably suspicious of testimony in accordance wit the lack of weight or support it carries and the opposing information. Imagine the cross-examination you might be subject to if you said: “I trust no one, ever, including the witnesses I have interviewed and the Crown is calling.”
Professionalism in police work
Costs to be spent, in the sense of work to be undertaken to solve a case
Much Ado About Nothing, Act I, scene I, includes this observation: “DON PEDRO … the fashion of the world is to avoid cost, and you encounter it.” My modern interpretation is that the world seeks to avoid working hard, it seems, but you as an investigator must not count the human cost of your endeavours as you must turn over stone until you have achieved success in ascertaining the culprit of a crime.
Court may never truly be in the shoes of the complainant
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene II:
BENEDICK
… Well, every one can master a grief but he that has it.
Cunning and ability to be understood – a comment
The play contains this interesting comment, at Act V, scene I:
DON PEDRO
… this learned constable is too cunning to be understood: what's your offence?
Describing a witness in poor terms
Note what Dogberry states in Much Ado About Nothing, Act V, scene I: “Come you, sir: if justice cannot tame you, she shall ne'er weigh more reasons in her balance: nay, an you be a cursing hypocrite once, you must be looked to.” Do not describe anyone as a cursing hypocrite, for obvious reasons.
False quarrel? Recognizing such situations
Much Ado About Nothing, Act V, scene I, provides an example:
BENEDICK
In a false quarrel there is no true valour. I came to seek you both.
Those investigators who fail to consider such matters do so at the peril of their reputation.
Judgment - Strive for true judgment
Much Ado About Nothing, Act III, scene I, includes these remarks:
URSULA
O, do not do your cousin such a wrong.
She cannot be so much without true judgment…
Victim impact statements and police officers
Is insulting a peace officer aggravating, assuming some other offence was committed and is it professional to raise this concern? Consider Much Ado About Nothing, Act V, scene I:
DOGBERRY
Moreover, sir, which indeed is not under white and black, this plaintiff here, the offender, did call me ass: I beseech you, let it be remembered in his punishment.
Wisdom versus passion
Much Ado About Nothing, Act II, scene III, includes these remarks:
LEONATO
O, my lord, wisdom and blood combating in so tender a body, we have ten proofs to one that blood hath the victory...
Wrongful convictions, fear of
An example of this type of situation is seen in Much Ado About Nothing, Act III, scene II:
DON JOHN
If you dare not trust that you see, confess not that you know: if you will follow me, I will show you enough; and when you have seen more and heard more, proceed accordingly.
And consider as well the wise words of Friar Francis, as recorded in the play at Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Conclusion
It is my hope that this contribution has been of assistance in illustrating for investigators a variety of scenarios that teach a great deal about human nature, the foundation of correct fact finding. After all, if the function of the Court is to discover “where truth is hid”,[3] all means of discharging fully this task are to be pursued by the investigators whose task it is to provide the Courts with all relevant information.
[1] See “A List of One Hundred Legal Novels” (1922), 17 Ill. L. Rev. 26, at page 31.
[2] Refer as well to a similar article by Law Professor W.H. Hitchler who published these relevant remarks in "The Reading of Lawyers", (1928) 33 Dick. L. Rev. 1-13, at pages 12-13: "The Lawyers must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction. ...” I could easily replace “lawyers” by “police officers” and the meaning remains correct.
[3] Refer to Hamlet, Act II, scene II wherein Lord Polonius states: “… If circumstances lead me, I will find Where truth is hid, though it were hid indeed Within the centre.”