Police Investigations 101

Guidance from Shakespeare’s The Tempest

Gilles Renaud - Ontario Court of Justice[1]

Introduction

I suggest that investigators can profit greatly from reading and re-reading the plays of William Shakespeare and the works of other illustrious writers of fiction. In this vein, Dean Wigmore wrote: "The lawyer must know human nature. He [or she] must deal understandingly with its types and motives. These he cannot all find close around... For this learning he [or she] must go to fiction which is the gallery of life's portraits."[2]  If this advice rings true for lawyers, and it surely is correct, then it rings true no less for police officers who are called upon to solve mysteries by resort to several skills, notably a full understanding of human nature,[3] amongst other elements of our basic condition. 

In this contribution, I review the many benefits for investigators to be drawn from a review of the play The Tempest. Please note that the various points are discussed along narrow thematic lines, in alphabetical order, to enhance the reader’s ability to cross-reference the various points later.[4]

Discussion

“Begging the question” - Interviewing witness after time for preparation – a question that ought to be considered well in advance

The Tempest, Act 1, sc. ii, l. 139, reads: "Prospero ... My tale provokes the question ..." One often sees well-prepared counsel state at trial, in response to an answer: “If that evidence is correct, it begs the question ...” What often follows is a devastatingly incisive question that does not admit of any response but one most favourable to counsel who is cross-examining, be it for the prosecution or the defence.  

Doubtless, many such situations arise by reason of counsel's cleverness and powers of concentration, but I am of the belief that experienced advocates often provoke these situations by dint of perspiration rather than inspiration. Consider this situation: the plaintiffs seek an injunction to have a fence that was built in violation of a by-law taken down or made to conform to the regulations. The defendant states during discovery that he obtained guidance from the sellers of the fence who assured him that his proposed structure would conform to the by-law. Opposing counsel should then retort: "That begs the question how the fence seller would know where you live and what precise Township by-law governs ... " This will only be effective if counsel has previously taken pains to consider how much money was spent on the materials, the cost of labour, the professionalism of the defendant in terms of respect for rules of organized society, etc. and most importantly, to ascertain if the defendant consulted with the municipal government to obtain the green light to build the fence as proposed.

The same situation applies to the work of investigators.  If you have received a complaint as to such a fence and must inquire whether it conforms to the relevant by-law, you must apply your skill and perseverance in obtaining all relevant objective information in the nature of height, length, building materials, “good neighbour” materials, etc., to then collect the pertinent data respecting the prior situation, such as the existence of a hedge it replaced, the survey reports, and so on.  And, of course, information from the municipal authorities as to any efforts to obtain a by-law and assurances respecting the proposed fence to be built.  Once you have all the information fully organized and understood, you will be prepared to ask highly focused questions.  For example, if the homeowner who built the fence states that it was built higher than permitted with a view to helping the neighbour enjoy a greater degree of privacy, as a form of justification for the apparent breach of the building code, you will be in a position to state: “If you suggest you were concerned to ensure that your neighbour not have to see your side of the property, to augment their privacy, then that answer begs the question why did you not build it further down to ensure that your windows that look down onto their yard not also be blocked from view?”  This will only be an available challenge if you have investigated the relevant site and have photos, etc. 

Careful witness

Gonzalo is careful not to too readily vouch for a proposition, as seen in The Tempest, Act 5, scene I, l. 123: “Whether this be Or be not, I'll not swear.”  This is a valuable illustration for careful investigators.  Consider also the suggestion by Prospero in The Tempest, Act 5, scene I, l. 123-125: “You do yet taste Some subtilties o' the isle, that will not let you Believe things certain…”

Case for the Crown is miserable - the situation to be avoided with a thorough investigation

The Tempest, Act 1, sc. i, l. 24, records Gonzalo saying: “... our case is miserable”. This observation comes to the lips of many Crown counsel at some point in many trials, especially since Covid as quite intense trial management conferences and counsel (and later judicial pre-trials) are scheduled with a view to resolving a quite impressive number of accusations, leaving mostly cases that are difficult to prove to be set down for hearing.  In other words, if the defence wishes to avoid a trial, it is highly likely that all such prosecutions will be resolved.

That being expressed, if the factual and legal issues have been identified and analyzed with care by the investigators in putting together the brief, this momentary sense of doom experienced by the prosecutors may well be avoided and if not, overcome in the final analysis.

In this context, consider the subsequent passage, at line 52, wherein Gonzalo states: “... For our case is as theirs”, which I take that to mean that both sides have an equal chance to win most litigation in that most often, the outcome is in some doubt. What differentiates successful trial counsel appearing for the Crown from those who merely did their best is the expenditure of hours by investigators, and later by Crown counsel, prior to reaching the Courthouse.

I began to appear in the criminal courts as a law student in 1979, three full years before the Charter and a decade before the modern disclosure rules came into effect.  At that time, save for major trials, there was almost no contact between police investigators and prosecutors and the disclosure that the Crowns received was quite limited, at best.  Impaired briefs read as follows on occasion: “The driver was behind the Municipal buildings and was stopped for a routine check, was arrested as he appeared drunk, and he blew over 150.”  This historical reality is quite important in trying to understand fully the present situation of much more “linked in” investigations and the future, at least that I prophesy, of greater American style mutually conducted investigations with the prosecutors taking a direct part.

Charm to be resorted to during an investigation

It is a self-evident proposition that a police interviewer seeking to gain information from “favourably-inclined witnesses”, including those thought to be victims of an offence, and even involving those disinclined to assist the authorities, may be more successful if some charm and tact are present. Thus, investigators ought to consider the lessons found at Act 5, sc. i, l. 1-2 and 52-53: “Prospero Now does my project gather to a head; My charms crack not ... To work mine end upon their senses that This airy charm is for ...”  Of course, Shakespeare meant to identify a form of spell, to be cast by the character, which is beyond any of our powers… Nonetheless, successful investigators succeed by drawing out from persons whom they interview valuable information, and this is not achieved unless you are capable of putting them at their ease, and this result presupposes that you are professional at all times, and charming as often as not.

Conscience, does potential witness possess a form of

Consider the words found in The Tempest, Act 2, scene i: “But for your conscience – ANTONIO … where lies that? … but I feel not This deity in my bosom…”

Constancy in testimony

The gold standard from the perspective of the prosecution is a witness who, in the words of Act 1, sc. ii, l. 208-209, is "... so firm, so constant ... ", as noted by Prospero. Of course, one must be wary of too much constancy. A witness who will not accept the soundness of an adverse proposition put to them on the stand, when fully justified, especially in reference to the investigator, is demonstrating a lack of reliability.  On occasion, the defence have in their possession irrefutable evidence that shows that the police were misled by one or more witness for the prosecution.

In this context, we read in Leola Purdy, Sons Ltd. v. Canada, [2009] T.C.J. No. 12, 2009 TCC 21, [2009] 4 C.T.C. 2041, 2009 D.T.C. 1042, per Rip, C.J.T.C.:

29 It is only “a foolish consistency [that] is the hobgoblin of little minds ...” wrote Ralph Waldo Emerson. Where there is a sound and practical reason to assess in a consistent manner that is not prohibited by statute, the Minister should not fear doing so.

This passage from the pen of the former Chief Justice of the Tax Court of Canada makes plain that consistency by investigators and officials in deciding upon the merits of the words and actions of those investigated is to be encouraged, for obvious reasons.  Indeed, a lack of consistency in the approach of investigators, of an even-handed approach in other words, might well lead to a serious accusation of a discriminatory perspective.  Of course, as noted, troubling consistency is also suspect as in the case of one who always intercepts vehicles bearing Montreal Canadiens logo and never those suggesting the operator is a Leafs’ fan…

Demeanour

At the heart of demeanour evidence is the belief that one may succeed in demonstrating that the face of the person being interviewed, or the witness at trial, will prove that what is being said is not reliable. For example, in the play, at Act 2, sc. i, l. 197, we read: “Antonio ... And yet methinks I see it in thy face ....” Shortly after, at line 2180220, Sebastian states: “Prithee say on. The setting of thine eye and cheek proclaim A matter from thee ...” Consider this evocative phrase as well: “Prospero ... and scarce think Their eyes do offices of truth ...”  See Act 5, sc. i, l. 155-156.

As Doherty J.A. said in R. v. Trotta, sub nom R. v. T. (M.), 2004 CanLII 34722, [2004] O.J. No. 4366, 190 C.C.C. (3d) 199 (C.A.), at para. 41, reversed by the Supreme Court of Canada but without any adverse comment on this point: “41 The circumstances surrounding the proffered evidence must be such as to make that evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind.”

Consider the case of R. v. Wall, 2005 CanLII 80695, 77 O.R. (3d) 784 (Ont. C.A.), at paras. 49-50.

[49] Concerns about the value of demeanour evidence are based on two assumptions that are now known to be questionable. First, the reception of such evidence is based on the invalid assumption that an individual confronted with allegations will react in a "normal" manner. Second, it wrongly assumes that an individual's outward reaction accurately reflects his or her inner emotional reaction.

[50] Because these assumptions are dangerous, demeanour evidence will only be admitted with caution, and only if its probative value outweighs its potential prejudice. The evidence must be sufficiently clear to render its admission of value. [Reference is then made to the passage from Justice Doherty noted above.]

From the perspective of the investigator, the question is: “How does one interpret the gestures of a virtual stranger? When one is said to have displayed a “... strange stare ...” as in The Tempest, Act 3, sc. iii, l. 94. Or in the case of “Sour-ey'd disdain...”? [Act 4, sc. i, l. 20] That being said, I do not doubt that the words “... harmless looks ...” may be interpreted easily, as found in the same scene, at l. 127.

One example of non-verbal communication that a prudent investigator might find of assistance in assessing the value of information obtained during an interview of a witness is found in Act 1, sc. ii, l. 223: “Ariel ... sitting His arms in this sad knot.” Whether a judge might assign any real weight to this element of demeanour evidence remains controversial, to say the least, as is the issue in each case in which an investigator must assess whether a person’s outward expressions are consonant with their inner thoughts.

Difficult witnesses 

When confronted with the type of interviewee found in Act 1, sc. ii, l. 307-308, one who “… never Yields us [a] kind answer”, per Prospero, the wise investigator might simply choose to put aside the important questions and instead, elect to ask rather secondary questions. If the person interviewed remains obstinate in their refusal to yield but the most basic information, the investigator should note this for the electronic record of the witness interview.  Thereafter, the investigator will return to the list of important questions as they must be asked and answered.  In the result, Crown counsel at trial will possess adequate, if not abundant, means of demonstrating before the Court that the interviewee did not seek to provide a full and fair account of what they saw and heard, should that person seek to advance “new” information or “twist” the existing account provided during the investigation.

Duty to investigate popular individuals or those suspected of “Robin Hood” crimes

Recall that The Tempest, Act 1, sc. ii, l. 460, records the objection of Prospero that another wished to intervene on behalf of one described as a traitor: “... Speak not for him...” was the injunction to prevent this intervention. Of course, no authority is required to support the view that investigators seek to prepare cases for prosecution if the requisite standard is met, during a professional investigation, no matter who is being investigated or the nature of the suspected wrongdoing. 

Express testimony clearly, witness should take pains to

At times, a witness will be doing their utmost to respond fully and fairly to a question, but their language skills may fail them, or they are tired and mumbling to the point of non-communication, or some other similar obstacle presents itself. At trial, Crown counsel will respond and request a recess, or return to these responses in re-examination, or address these deficiencies in some fashion. In this vein, recall that Act 1, sc. ii, l. 336, records how Miranda referred to another "… who knows thine own meaning" but who was gabbling. If the Court cannot understand testimony, it cannot credit it in any meaningful fashion. 

Thus, early in the interviewing process, the careful investigator is guided by the same concerns that promote useful testimony and that limit needles obstacles to a full opportunity to assist the court and the community later.  Every effort must be made to assist the witness and any difficulties are to be addressed, including the use of breaks, and employing family or friends to ensure as relaxed a situation as possible. 

Fear of failure

The Tempest, Act 2, sc. ii, l. 95 includes the words "... be not afeard ..." Trinculo's advice is well advanced for fear of failure will paralyze the investigator seeking to ascertain the truth from fiction. Fear is a useful motivator, nonetheless, when it leads professional officers to work hard and well prior to trial, to avoid failure.

Game plan, devise one and follow it

Consider the wisdom of the cliché, "if you fail to plan, you plan to fail ... " Act 3, sc. iii, l. 12-13 instructs us in this regard: "Antonio ... Do not, for one repulse, forgo the purpose That you resolv'd t' effect." In sum, do not allow any one to goad you into abandoning a well-conceived plan to respond foolishly for what seems a momentary advantage.

Of course, "the keep it simple" admonition remains a truly valuable guide, especially if you recall The Tempest, Act 3, sc. iii, l. 66-67: "Ariel ... Your swords are too massy for your strengths...", words that I interpret as advocating do not have too many weapons for undermining factual controversies apparently harming the case.  In other words, if you are letting yourself swamped by running after every loose thread, you may forget what you were seeking to prove, and how to achieve that vital goal. 

Hide not what is visible

The Tempest, Act 3, sc. i, l. 80-81 reads: "Miranda ... And all the more it seeks to hide itself, The bigger bulk it shows ... " From the perspective of the investigator, it makes sense to discuss openly in your interviews what might be seen as damaging. If your chief witness has a criminal record for crimes of dishonesty, bring out the details in the interview, and explain the matters fully, as it demonstrates professionalism to disclose all the relevant information, good, bad, or indifferent.   

Improving one's mind

Retirement parties for able and successful investigators often include speeches by those honoured who lavish praise on those who trained them, and who recommended they read the latest training articles or view the most recent “how to” videos on the emerging techniques and legal issues.  In few words, they owe their success to constant study. As did Prospero in Act 1, sc. ii, l. 90, they sought "the bettering" of their mind. Later on, in the same scene, we read at l. 166-167: "... Knowing I lov'd my books, he furnish'd me From mine own library with volumes that I prize above my dukedom."  Many of the seminars and continuing education courses are available on-line and I wonder how often police officers waiting to testify “log onto” these valuable training tools to pass the time in a constructive way.

In the final analysis, investigators must draw a lesson from Act 3, sc. ii, l. 87 as it counsels all of us indirectly, and none too nicely, on the importance of study to achieve success in all activities: "Caliban ... Remember First to possess his books, for without them He's but a sot, as I am...” 

"Mar our labour" -- Investigators and Crown counsel working at cross purposes

Act 1, sc. i, l. 13 of the play includes a useful reminder to police officers to not allow any needless controversies to mar their own labour, so to speak. Indeed, investigators must take pains to ensure that “excluded” witnesses have a full understanding of the duties and responsibilities that govern their conduct while awaiting their turn to testify, including not disseminating documentation.  There must be little more frustrating for a hard-working investigator than to see a great deal of hard work be undermined by reason of a witness who contaminates the memories of others, especially if it is obvious that they are not “natural rule flowers” and that extra instruction is warranted.

Memory - a dream?

"Miranda. Tis far off, And rather like a dream than an assurance That my remembrance warrants ...”  These words are found in Act 1, sc. ii, l. 44-45.  Although not a common place event, one does see witnesses who appear to wish to prevaricate by invoking a dream in order to explain away, so to speak, damaging testimony. The example that best comes to mind involves the drinking buddy who reported to police that the accused driver consumed an excessive volume of alcohol, to then claim at trial that the evening's events more closely resemble a dream than a memory. In such cases, the phrase found in Act 1, sc. ii, l. 101-102 of The Tempest is most apt: "... Made a sinner of his memory, To credit his own lie ... " There is little that the prudent investigator can do save to have impressed upon witnesses from the start that the business of providing potential trial testimony is quite serious, and thus quite heavy penalties discourage any lack of seriousness in providing information to investigators.  If the witness was interviewed fully and properly, there ought to be little room for a witness at trial to invoke “a dream” as the foundation for the information contained in their statement. In this context, to exhaust the advice found in The Tempest in this regard, refer to Act 5, sc. i, l. 228-230: "Boatswain If I did think, sir, I were well awake, I'd strive to tell you. We were dead of sleep ...” In other words, unless the witness expressed some sort of reason such as this, i.e., being dead of lack of sleep at the relevant time, there ought to be no room to invoke a lack of correct recall due to a dream later…

Memory - how to make it sharp!

"Alonso ... How sharp the point of this remembrance is!" This phrase appears in the play at Act 5, sc. i, l. 138 and illustrates that a fact finder is far more likely to credit testimony when the memory is anchored in some fashion.  With this thought in mind, I suggest that investigators are wise to draw out from witnesses why they are of the view that the “crash sound” was at 10:30 or the first of the screams was certainly after midnight.  At times, witnesses will say that they were watching the 11:00 o’clock news or that the noon time church bells had just rung.  It is my view that these are the types of “anchors” for memory that might be lost if not drawn out from the witnesses early on in your interview process.  

Memory is quite sharp

Alonzo states in The Tempest, Act 5, scene I, l. 138: “… where I have lost--How sharp the point of this remembrance is!-- My dear son Ferdinand.”

Oaths

Swearing upon a bottle is discussed in The Tempest, at Act 2, sc. ii, l. 116, and it is suggested to be no less capable of binding one's conscience as other means in that lack of respect for oaths appears prevalent in the works of Shakespeare. "... the strongest oaths are straw To th' fire I' th' blood ..." is what Shakespeare teaches us at Act 4, sc. i, l. 53-54. King Henry the Fifth, Act 2, sc. iii, l. 50-52 records these words: "Pistol ... Trust none; For oaths are straws ...”  Leaving all that aside, the absence of any attempt to make the interview appear solemn is always a mistake and an oath or solemn affirmation is required.

Passion

Investigators may not allow their passion for justice to overwhelm their reasoning process. What must be avoided is for a witness you are interviewing to be described aptly in these terns: "... your father's in some passion That works him strongly ...  Never till this day Saw I him touch'd with anger so distemper'd..." Refer to Act 4, sc. i, l. 144-145.  A witness who is speaking while passion is affecting his or her objectivity or recall is a witness who will fail to advance the interests of truth finding. 

Past is prologue: The question of preparation

Note that the play suggests what follows at Act 2, sc. i, l. 243: "... what's past is prologue...", in the opinion of Antonio. In the courtroom, I suggest that this is true in that the work done prior to trial by the investigators may well be decisive.

Patience

The successful police officer, in the words of Gonzalo, is the one who is "patient", and who waits for the right moment, even in the storm that is at the heart of the opening scene in Act 1 of The Tempest. Not unlike a trial at its most perilous moment, a storm may become more intense, or a lull may occur, but whatever does take place, the investigator must have prepared for the eventuality. As the boatswain suggest at line 20-22, the investigator is a form of "... counsellor ..." who may command the elements around him or her to silence in the correct use of authority.

Consider this passage as well: “… their great guilt, Like poison given to work a great time after, Now ‘gins to bite the spirits …”  See Gonzalo’s remarks in the closing lines of Act 3, scene ii:

Prattle not

In terms of successful preparation, one must not be guilty of emulating Miranda who states "... But I prattle ..." in Act 3, sc. i, l. 57. 

Preparation of the witnesses

Crown counsel who enjoys success will not shirk their responsibility to prepare their witnesses carefully and fully for examination in chief, cross and re-examination, often in collaboration with the investigators. In doing so, they track the language of Miranda consigned at Act 1, sc. ii, l. 353 who "... Took pains to make thee speak, taught thee each hour One thing or other ... "

Pride cometh before the fall

There are hundreds of variations to this Biblical invocation but for the advocate, it is best thought of in these terms: "Do not get too big for your uniform allowance!" Indeed, a too inflated opinion of our talent may lead to critical mistakes, and this is true of everyone. The applicable Shakespearean passage is taken from Act 2, sc. i, l. 7-8: "Gonzalo ... few in millions Can speak like us ... " That may be so, in terms of the best police witnesses in our country, but the fact remains that humility never leads one astray.

“Quit while you are ahead: Avoid the one question too many” is a truism for lawyers, not for investigators

"... . Here cease more questions ... " is what Prospero states at l. 184 of The Tempest, Act 1, sc. ii. For counsel, the issue is always when to cease to question, whether one's own witnesses or those of opposing counsel. The fundamental premise must be that one cannot strike gold with each attempt, and that eventually the questions lead to base metal which is only harmful in losing momentum and, ultimately, one hits a vein of harmful, if not lethal, information. Best to quit while ahead of the game!  This type of reasoning is not very useful for investigators as they need to know what lies below the surface and whether it is good, bad, or indifferent to the investigation. 

Rare events, more difficult for Court to credit

As a matter of common sense and common experience of humankind, the less frequently an event takes place, the more challenging it is to convince the trier of fact that it took place on the day in question. Consider the advice found in Act 2, sc. i, l. 55-56: "But the rarity of it is, which is indeed almost beyond credit." As an investigator, you simply must accept that lightning does not strike twice, and judges and juries believe that, except it does! 

Relaxation before the trial

All police officers may profit from a walk in the morning before a trial, and during the lunch break, and after court, as suggested in The Tempest, Act 4, sc. i, l. 162-163: "Prospero ... I'll walk To still my beating mind."

Reversing the proposition

The Tempest, Act 3, sc. i, l. 4 reads: "Ferdinand ... some kinds of baseness Are nobly undergone, and some poor matters Point to rich ends ..."  In other words, on occasions, investigators end up with the opposite of what they expected. 

In this context, I wish to point out helpful passages from other plays by Shakespeare to highlight one aspect of interviews of potential witnesses to warn investigators not to assign too great or too little credit for certain observations.  Consider firstly this passage: “DUCHESS … That which in mean men we intitle patience Is pale cold cowardice in noble breasts…”  See KING RICHARD II, Act 1, sc. ii, l. 33-34.  By means of these words, the Bard indicates to the careful investigator that a double standard might be at play in that we judge the actions of others according to a different standard in accordance to non-objective criteria.  For example, we judge drivers in accordance with the same objective standards if they possess a licence, but we allow more leeway to less experienced individuals in terms of judging their subjective conduct such as whether they were negligent in terms of skiing or skating.  The fact that one crashes into another on the ski hill, or the skating ring may be a factor of inexperience, for which different standards apply as an unlicensed activity.

In addition, note this humorous anecdote.  The Paris-Match edition of December 8 to 14, 2022, includes this exchange as between former President Barrack Obama and the former First Lady: “[Translation] You know, without me as President, you would not have enjoyed all of these great opportunities…” “Dear, you have it all wrong, without me, you would not have become President!” See pages 34-35. 

From the perspective of the investigators, I caution against jumping to the first available and obvious conclusion.  One helpful test that investigators might apply is to consider whether what appears to be the correct circumstantial fact may too easily be reversed or flipped.  Recall that in Macbeth, Act 1, sc. i, l. 10, the three witches shout: “Fair is foul, and foul is fair…” while Macbeth tells Banquo “So foul and fair a day I have not seen.”  Refer to Act 1, sc. iii, l. 38. 

Thus, if one cannot know which of the two choices is correct, then the investigator is no further ahead as this kind of circumstantial evidence cannot justify a finding beyond a reasonable doubt.  Consider the classic case of the person who is kneeling next to the stabbing victim and who is holding the bloody knife – a too quick conclusion that this is the person stabbing might be defeated when one flips the facts to see that the ‘suspect’ has no blood on their clothing and that the CCTV shows that person having left the subway 60 seconds earlier, and that the deceased was struck down 60 minutes earlier.

That said, not every proposition of fact that may be flipped is necessarily worthless in building a case.   Consider the more dated but none the less interesting example of the Berlin Wall.  When the East German government was criticized for erecting a structure of such dimensions to ensure that no one could leave the Communist country, senior leaders stated that the Wall was needed to prevent capitalists from West Germany from flooding into the heaven that was the communist side!  The exercise of reversing the proposition requires a serious examination of the merits of the two sides of the coin.

In my experience, careful investigators who have considered fully all aspects of a disputed factual controversy may ultimately conclude that the circumstantial evidence is consistent with guilt.  One must not confuse the test for arrest, at an earlier stage of the investigation, with that for a finding of guilt after trial, but one must not rely too easily on easily disputed circumstantial evidence.

Further, The Two Gentlemen of Verona, Act 2, sc. iv, l. 90-92, sets out an excellent example of this technique, resorted to daily by defence counsel, and that all investigators must understand and apply as they consider the fruits of their investigation: “Valentine. Why, lady, Love hath twenty pairs of eyes. Thurio. They say that Love hath not an eye at all.”

Consider this statement and retort as well:

Launce.

I will try thee. Tell me this: who begot thee?

Speed.

Marry, the son of my grandfather.

Launce.

O illiterate loiterer! it was the son of thy
grandmother: this proves that thou canst not read.

Refer to Act 3, sc. i, l. 287-290.  In effect, this technique seeks to demonstrate that the witness, including the investigator, reached a totally wrong result by failing to look at the other side of the coin, the proper one, so to speak. For investigators, your task is to testify that you did, in fact, look at not just the two sides of the coin, so to speak, but to all sides of any other possible coins and whether the coins could stand on their side![5] 

Rush to defend

Careful investigators will not act with alacrity if it potentially harms the case being “put together”. Recall that in The Tempest, Act 1, sc. ii, l. 467, we read: "Miranda ... Make not too rash a trial of him ..."

Self-serving mention of one’s honesty

Witnesses often claim to be telling the truth when speaking to investigators and careful police officers should be wary of accepting such statements at face value. Thus, beware of those such as Ariel in The Tempest, Act I, scene II: “… I have … Told thee no lies …”

Sense or direction of interview, adverse witness must see the sense of what is proposed

Act 2, sc. i, l. 99-100 reads: "Alonso You cram these words into mine ears against The stomach of my sense." Stated otherwise, a witness might be more easily convinced to adopt a proposition if it is made to appear to them to be a sensible one, even though they did not enter your police station office as a proponent of this point of view. Stated in reverse, persons are loath to be seen to refuse to accept what will appear as sensible once it is explained.

Show of a guilty mind, any outward signs of

A passage found in The Tempest, Act I, scene II, suggests that a careful investigator may find outward signs of mendacity. Thus, “PROSPERO … Who mak’s a show, but dar’st not strike, thy conscience Is so possess’d with guilt…”

Silence is golden at times when you are testifying

On occasion, it is best to say nothing more than what is strictly required to answer the question put to you in court.  In this context, consider Act 2, sc. ii, l. 71: "Stephano He's in his fit now, and does not talk after the wisest ..." Refer as well to lines 161: "Stephano ... lead the way without any more talking ..."  In effect, if you have responded fairly, you have responded fully.  Of course, at times, you may wish to respond less coarsely than your simple response requires, in the sense of not adding pointless and pejorative information. 

All that having been said, the relevant passage from literature is taken from The Tempest, Act 2, sc. i, l.130-134: "Gonzalo ... The truth you speak doth lack some gentleness ... you rub the sore, When you should bring the plaster ...”

Speak too freely, get those witnesses not inclined to help the Crown to

The Tempest, Act 2, sc. i, l. 19-20 sets out one of the fundamental goals asking questions of witnesses, to succeed in getting persons to speak quite openly and potentially drop their guard if they are not telling the truth, the whole truth and nothing but the truth. In this vein, the passage from Gonzalo referred to above is "... you have spoken truer than you purpos'd." A few lines later, at 23, Antonio states: "... what a spendthrift is he of his tongue."

Speech may appear in a negative light, but not the content

A recurrent theme in interviewing witnesses is the potentially poor impression that a witness projects in your office when responding to questions but whose information is nonetheless coherent and consistent. In The Tempest, Act 1, sc. ii, l. 497-498, we read "Miranda ... My father's of a better nature, sir, Than he appears by speech ..."

Strange bedfellows: Misery acquaints us with

Act 2, sc. ii, l. 37-38, suggests the following: "Trinculo ... Misery acquaints a man with strange bedfellows ... " From the investigator's perspective, this saying must be taken as directing he or she to seek out all advantages that are available, even if the persons sought to be interviewed might be thought to be generally opposed to the goal sought to be achieved.

Wit is rewarded, or is it?

"Stephano ...  Wit shall not go unrewarded ... " is the lesson we draw from this passage of The Tempest, Act 4, sc. i, l. 239.  In my opinion, the tragic nature of what investigators address each day gives rise to dark humour, as it does in so many other fields of human activity, but everyone must be careful not to be understood as making light of the suffering of others.

Conclusion

In the final analysis, if it is suggested that police officers, lawyers and judges do not currently read and watch Shakespearean plays and are not influenced by them if they do, I reply that one ignores the lessons they contain to one's peril. In fact, the internet has made it far easier for all those vitally interested in studying psychology of fact finding as taught by the Bard to do so at any time and in any location. Indeed, it was said by Mr. Bruce Hutchinson, in praise of the late Chief Justice Wilson of the British Columbia Supreme Court: "And always, without fail, the judge's cloth bag contained, in one volume, now crumbled with much use ... the complete works of Shakespeare, whose every word he has read, whose every play he has pondered ..."[6]

It is not suggested that all wise investigators, lawyers, and judges must be as familiar with Shakespeare as was the late Chief Justice, but no one has ever wasted his or her time in reading the timeless lessons about human nature put forward by William Shakespeare.

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

[2]        See "A List of One Hundred Legal Novel" (1922), 17 III. L. Rev. 26, at page 31. I have studied the general subject of literature and criminal litigation in the course of prior writings, including La plaidoirie – Un juge se livre, Les Éditions Yvon Blais, Cowansville, Québec, 2017, "Crown Advocacy 101: Lessons from Macbeth'" in www.mackscriminallaw.com/lawblog, August 24, 2015, L'évaluation du témoignage Un juge se livre, Les Éditions Yvon Blais, Cowansville, Québec, 2008, Advocacy: A Lawyers' Playbook, Carswell, 2006, "Shakespeare's Instruction for the Advocate: An Overview", June 1999, 21 Advocates' Q. 457-464, "Shakespeare and the art of judging", (Spring 1999) 23 Prov. Judges J. 29-33 and "Shakespeare's Instruction for Defence Counsel", Alan D. Gold Collection of Criminal Law Articles, ADGN/99-190, February 1, 1999.

[3]        Refer to W.H. Hitchler's "The Reading of Lawyers" (1928) 33 Dick. L. Rev. 1, at pp. 12-13: "The Lawyers must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction …”  I suggest that this passage describes the vocation of policing just as aptly as the legal profession.

[4]           For example, a brief description of somnambulism is found at lines 210-220 of The Tempest, Act 2, scene i.  Further, on the subject of judicial notice of sports’ injuries we read at Act 3, scene i, l. 1: “FERDINAND There be some sports are painful…” Further yet, fans of nostalgia are treated to this expression, by Alonso at Act 3, scene ii: “… The best is past…”  I cannot estimate when an investigator might wish to apply the following sentence, but I leave to their imagination: “… I will dis-case me …”  See Act 5, scene i. 

[5]           A personal experience is worth noting, if for no other reason than to permit me to poke fun at myself. I asked an accused person who appeared at three o'clock why he had not been present at nine thirty in conformity with his promise to appear and he responded: “Since everybody else was going to be here on time, I figured you had enough work to keep you busy until I showed up.” When I responded gravely “What if everybody else on the list had decided to show up late by many hours, as you did? What then?” His tart reply was: “If everybody else was going to be late, I would be a fool to show up on time, wouldn’t I!”  A perfect illustration of reversing the proposition!

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