POLICE INVESTIGATIONS 101
Guidance for Police Witnesses drawn from Perry Mason’s “The Case of the Deadly Toy”
written by Erle Stanley Gardner
Justice Gilles Renaud | Ontario Court of Justice
Introduction
Erle Stanley Gardner wrote nearly one hundred novels featuring a criminal defence lawyer named Perry Mason who never seemed to have lost a murder trial. His success rested upon his thorough cross-examination of the witnesses, notably the investigating officers, based on detailed preparation, and a sound knowledge of correct police procedures. My objective is to point out the lessons present-day police officers may draw from stories such as the “Deadly Toy”, in terms of adopting the best practices in testifying and in investigating offences, based on my experience in criminal court as a defence counsel, prosecutor or trial judge.
Discussion
Brief overview of the plot
Briefly, a man is found dead in his car, having been shot to death, and the police charge his former fiancée, notably because of the motivation she had to put an end to his apparent unrelenting campaign of violence in retaliating for her decision to break their engagement. As is standard for this type of novel, circumstantial evidence abounds against the accused, leading to accusations of police tunnel vision. Further, other potential suspects come to the attention of the authorities, and of Mason, based mostly on their own wish to harm the deceased. The reference to a deadly toy is in the context of the son of the shooting victim having a real handgun to play with, together with bullets!
The non-courtroom elements of police controversy
Lt. Tragg’s first involvement – general description
Detective Arthur Tragg appears at page 50, and jumps to a number of conclusions, which will be described below. Prior to doing so, it might be wise to describe this hapless officer. Tragg is most often the detective who makes the arrest for murder in this collection of police stories, but he is always wrong, mostly by jumping to conclusions. Indeed, some police force somewhere must have a standing joke that a slip-shod investigation involving undue haste to arrest is referred as a “traggedy”, or words to that effect, based on the books and the long-standing television show. [Of course, the District Attorney named Hamilton Burger never got a guilty verdict, but both kept their jobs nonetheless …]
Leaving aside his reputation, it will be useful to address his errors in this investigation as more often than not, Mason drew them out in his cross-examination of both Tragg and the other police officers.
Rushing into a private dwelling without invitation or obvious safety concern
Firstly, the Detective appears to be impatient at his arrival at the address of a potential witness, and is upset that Mason is present, interviewing someone before the arrival of the police. As we read at page 50, Lt. Tragg “didn’t wait for an answer [to his request to enter] but pushed his way into the interior of the house …” Though no Charter concerns arose in 1950’s Los Angeles, present-day officers would do well to assess the situation more carefully in light of the case of Feeney, decided by the Supreme Court of Canada and reported at [1997] 2 S.C.R. 13. For present purposes, what matters the most is that an error by the police as to procedure leads to a lengthy challenge in cross that always serves to embarrass the police witness, at the very least.
Disclosing the fruits of the investigation too early in the case
The expression “the fruits of the investigation” is found in the leading case on disclosure, that of Stinchcombe, [1991] 3 S.C.R. 326. In effect, the police by means of the prosecution must provide accused persons all of the information gathered during the investigation. The tricky question is whether a suspect is to be told of the investigation up until the point that they are charged or detained. Once that step has been reached, sections 10(a) and 10(b) of the Charter command that information be provided as to the reasons for the restraint on their liberty and as to their right to consult a lawyer free of charge.
The “Deadly Toy” novel is of interest in this vein because Lt. Tragg informs Mason and his private investigator at page 50 of the existence of a murder and of a number of the apparent objective facts of the crime. His justification? That they would read about it in the morning papers! Once again, sound police work would be compromised by such disclosure, especially as it might be heard by the potential witness, leading to “contamination” concerns. Further, it opens the way to cross-examination based on early and probably unreliable secondary information that necessarily will be exploited on the grounds of tunnel vision.
Threatening to remove a witness from their home to the police station
Lt Tragg’s next police faux pas is found at page 51, in Chapter six. When it appears that Mason wishes to continue to speak to a member of the public who may have information about the presence of blood near his home, miles from the so-called murder site, a helpful fact to the interests of the eventual accused, the detective threatens to “bundle up” the witness and remove him to the station to be interrogated. In light of the present-day disclosure rules, all of this would be grist for cross-examination. Of course, no police officer wishes to have a witness speak to third parties before they are interviewed, if they have valuable information. The logical difficulty is the following: if the police meet a “witness” who is discussing blood like stains kilometres from the suggested crime scene, they must keep an open-mind to investigate but if they appear to be attempting to “hide” a witness and to deflect potentially exculpatory information, the cross-examination will be lengthy and quite negative in tone and nature.
Adopting a gruff exterior
Page 51 also contains this interesting observation by Mr. Mason to the potential witness: “You’ll find Lieutenant Tragg likes to adopt a hard-boiled exterior. He barks and he growls, but he really doesn’t bite.” To which Gardner added: “’On your way’, Tragg said gruffly.” This is a highly subjective element of police procedure and there are ma
Attending a lawyer’s office to apprehend a witness
Page 60 and follows of the book at chapter 7 sets out how Lt. Tragg went to Perry Mason’s office with the objective of interviewing a potential witness and of arresting him, if necessary, in order to ensure his cooperation. The interplay as between the detective and the witness, the boy-friend of the accused, makes plain that the police intended to project authority and physical force if required to ensure the assistance of the male who was seeking legal professional advice from Mason at Mason’s office. One phrase sets out that Lt. Tragg was angry with the lawyer and another how he grabbed the potential witness by the elbow to escort him away from the lawyer to the station. Modern-day detectives in Canada would hesitate greatly prior to entering a lawyer’s office, even if after seeking admission, if it interfered with the giving of advice and, in addition, would not seek to remove a client receiving legal advice unless the person was committing a crime.
Consider the classic case of the so-called “smoking gun”. According to legal legend, the client arrives at a lawyer’s office holding a gun that still emits a telltale trail of smoke, showing it has been fired within minutes. The lawyer faces a number of moral and legal issues but the police officer is perfectly free to apprehend one moving about in public with a handgun in their possession and, moreover, is free to remove the weapon from a lawyer’s possession if this person is seen in public and is not legally entitled to display a firearm in this fashion.
Authority –police look like bankers
Pages 104-105 at Chapter 11 records these opinions advanced by Perry Mason: “They acted with that unmistakable air of authority … Good police detectives look like bankers or sales executives.”
Human nature – admitting to one drink equals a bunch!
Chapter 12 , page 114, includes an interesting comment by Perry Mason as to how police officers and members of a jury might view an admission of having consumed one cocktail: “Yeh, the guy admits to having one. That means he must have had a dozen.”
Identification line-up – pointing to the suspect!
Pages 196-197 of Chapter 17 illustrates a poor police procedure during an attempted line-up for identification purposes in that the witness is being “informed” to look in one direction prior to the formal procedure such that she cannot help but note the person the police suspect.
The courtroom elements of police controversy – cross-examination
The importance of recalling all of the details
Chapter ten of the book includes some insight as to courtroom impeachment that is of assistance today to police officers who will be cross-examined. As we read, Perry Mason explains to a potential defence witness that she will not be mixed up in cross-examination if “… you’ll just try to think over the events of the last day or so – just so someone doesn’t get you mixed up on cross-examination.” The first lesson is thus to prepare for this step in the process by reviewing the information you possess and by focusing on the task. Mason then adds that it is far less of an ordeal if you tell the truth and “… if you remember all the details and don’t get confused…”
Prosecutors will ask you a series of questions in chief – without leading
Since we are discussing cross-examination, it will be useful to point out the major difference surrounding how prosecutors’ question police officers they call as witnesses and how defence lawyers will put their questions. Lawyers calling witnesses generally are taken to vouch for their integrity and reliability and are thus not to suggest answers: questions are to elicit information by means of general questions not typically to be responded to by means of “yes” or “no” responses. By way of contrast, when Perry Mason asks questions, he will seek to obtain yes or no responses and will suggest information that he wishes to be confirmed. That is why page 129, Chapter 14, records the District Attorney acting in a determined manner with crisp efficiency.
Cross-examination – Example of getting police to admit information
Chapter 14 also includes this valuable example of getting a police officer to make concessions he or she does not wish to make, though the example involves a police scientist, a coroner, and not an investigator:
“With reference [to the movements of the victim] it is then possible that the decedent had sustained the fatal wound at some other place and had driven the car to the place where the body was found?”
“It is possible but not probable.”
“It could have been done”
“I have said that it was possible.”
This illustrates the technique of confirming what you have stated, to avoid any “squirming”, so to speak, later on.
The next example is called by lawyers and judges “squeezing the wineskin” for a further drop.
“Would you say that the interval between the time the fatal wound was sustained and death could not have been more than ten minutes?”
“It could have been as much as ten minutes.”
“Could it have been more?”
“I don’t think so.”
“Could it have been eleven minutes?”
“Well, yes. When I say ten minutes I am not referring to an interval which I time with a stop watch.”
“… Now you say it could have been eleven minutes.”
“It could have been.”
“Twelve?”
“Possibly.”
“Thirteen?”
“Well, yes.”
“Fourteen?”
“I can’t fix the time exactly, Mr. Mason.”
“Fifteen?”
“I’m not going to say that it could not have been fifteen minutes.”
“Twenty?”
“I doubt very much if it was twenty minutes.”
“It could have been?”
“It could have been.”
Just as a matter of interest, when I was a prosecutor involved in impaired driving prosecutions, I loved to ask defence witnesses about how many drinks they had out of a pitcher of beer, or two, or three, during a night of drinking. It was the same game, and it is always fun to see persons state “I never have more than 2, or 3, or 12!”
Cross-examination – Example of police officer displaying pride
The author of the Perry Mason books, Erle Stanley Gardner, loved to characterize police officers as being haughty on the stand, or prideful, or triumphant, as was the expression found at page 131 of Chapter 14. “Sgt. Holcomb glanced triumphantly at Perry Mason…” Be careful. You are a professional whose task is to advance justice, not your pride or personal importance.
“I think I know” versus “I know I am thinking”
Police officers testifying sometimes get in trouble by taking their hopes for reality. The example I am quoting from is found at pages 133-134 of Chapter 14:
“How long had this cartridge case been in the grass before you picket it up, Sergeant?”
“If it had held the murder bullet, it couldn’t have ben there more than about 12 hours.”
“If it had held the murder bullet?”
“Yes.”
“Had it held that bullet?”
“I think it had.” [Emphasis added]
“Do you know it had?”
“Well, we can prove it by inference.”
“Do you know it had?”
“No.”
“Do you know how long the cartridge case had been there before you icked it up?”
“No, of course not. I wasn’t there when the cartridge was fired …”
“Could it have been there two days, Sergeant?”
“I suppose so.”
“Ten days?”
“I suppose so.”
As you can see, the witness ought to have limited his testimony to what he knew, and allowed the prosecutor to prove the case by inference and not have overreached.
Possibility becomes a probability
On occasion, this is what takes place in court, as illustrated in Chapter 14, at page 135:
“And do you consider that the [object] was placed there at night?”
“I don’t know.”
“It is a possibility.”
“Yes.”
“It is a probability?”
“Yes.”
I recall fondly a witness telling the Crown this response, in reply to the question whether something was possible. “Yes, everything is possible. I could pick up a deck of cards, toss them into the air, and have each card land in order, according to suits, but the fact that this is possible means only that, and we both know that this possibility will never take place!”
Invite defence counsel to ask their client the same question
It is never correct to suggest to a defence lawyer that if they really wish to know the truth about a crime, they ought to ask their client. For example, at page 137 of Chapter 14, the author wrote: “Now, if the defendant had been trying to conceal the printing press, Sergeant, why would she have concealed it so near the scene of the crime?” “You’d better ask her… [the Sergeant replied] …”
Protect witness from cross-examination – Crown will interference to
On occasion, prosecutors will object to a question in order to protect the police officer, sometimes merely to let them catch their breath or shake the cobwebs out, so to speak. As a lawyer for both the Crown and defence clients, I did so often and was admonished by the Court for a needless objection on occasion, but I never regretted doing it. In the novel, we read at page 141, Chapter 14: “[The prosecutor] started to get to his feet and object, then changed his mind and sat back in his chair, quite evidently feeling [Lt. Tragg] could take care of himself [on the witness stand]”.
Careful answers after being stung earlier in cross-examination
“Once bitten, twice shy” is the expression that best explains the attitude you might adopt if your prior experiences in being too cocky, too poorly prepared, too indifferent to the importance of careful responses, etc. in cross-examination have led you to prior difficulties… In this context, I quote from pages 141-142 of Chapter 14: “Having been the victim of some of Mason’s ingenious cross-examination several times in the past, the [officer] was exceedingly careful in answering questions.”
Cross-examining an expert – goals that are pursued
Page 144 of Chapter 14 includes this useful passage: “He is asking that question for the purpose of trying to clarify or modify the opinion testimony of an expert witness…?”
Cross-examination in general – goals that are pursued
“As far as this Court is concerned, the primary function of cross-examination is to test the recollection, the skill and the accuracy of witnesses. Any method, regardless of how unconventional or dramatic that method may be, which tends to bring about the desired object is going to be perfectly permissible in this court. It is far better to resort to the unorthodox and he dramatic than it is to have an innocent defendant convicted of crime.”
Cross-examination – does your theory make sense?
On occasion, a judge will exercise their discretion to allow defence counsel to ask you to speculate in order to test the theory you are putting forth. For example, if you suggest that the driver of a commercial vehicle had to know what was in the smallest of the 10,000 boxes within it, you might be made to submit to a cross-examination in which you are made to discuss if you ever delivered a package for a friend, or drove a friend’s truck, or even put a garbage bag to the street for a neighbour, without knowing what it contained. The example found at pages 147-148 of chapter 14 is to the effect that a careful criminal left the murder weapon under her pillow, even though that might appear difficult to accept.
What you cannot say is that since the witness is guilty, he or she simply did not think they would be caught. What you must state are the facts, such as the finding of the gun under the pillow, letting the other witnesses to set out their information, and allowing the Crown to make final submissions.
Assuming makes you an …
“Never assume” in court – set out what you perceived. As the District Attorney stated at page 169, Chapter 15: “Never mind what you assumed ….”
Conclusions
The foregoing examples were selected in order to illustrate common errors in police procedures and to assist police officers in understanding the dynamics of cross-examination. There is no substitute for experience, of course, but all novice witnesses ought to study the elements of courtroom testimony and to ensure complete notes and a thorough review of them prior to taking the stand.
[1] Ontario Court of Justice, 1995 to 2023, and previously an Assistant Crown Attorney in Ottawa and a Prosecutor with the War Crimes and Crimes Against Humanity Section of the Department of Justice (Canada) for the years 1990 to 1994. In private practice in Timmins, Ontario, from 1983 to 1989. I have written half-dozen books on the subject of evidence, advocacy and judging. Anyone having questions, comments and criticism is invited to contact me at grenaud15943@gmail.com.