POLICE INVESTIGATIONS 101

GUIDANCE FROM SHAKESPEARE’S HENRY IV Part 1

Gilles Renaud | Ontario Court of Justice[1]

INTRODUCTION

In this article, I document the various elements of guidance and instruction from the play Henry IV (Part 1) that lead to excellence in investigative work.[2] Most of my comments will be under the general title of “Investigation 101”, inspired by the title of most first-year survey courses in any number of fields of study, often the most valuable of all my classes in my experience.

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 the late 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 cannot all find close around... For this learning he [or she] must go to fiction which is the gallery of life's portraits.”[3] If this proposition is sound, and surely it is, then detectives are in the same situation as lawyers, for they also must understand humanity, flawed and at times violent and or scheming, and why not turn to fiction?[4]

I have organized my thoughts along thematic lines and within three broad rubrics: police interviewing techniques and skills, judgment to be exercised by the police interviewer and, lastly, professionalism in policing. Thus, my goal is to assist investigators to excel in their difficult but so vital work in bringing offenders to justice and in helping to exonerate those thought to have offended, whether suspects or already accused. My objective is achieved, in part at least, by analyzing this excellent play.

DISCUSSION

INVESTIGATIONS 101 – INTERVIEWING SKILLS AND TECHNIQUES

In each of the points discussed below, the reader will take for granted that I am referencing an interview of a potential witness to be called at trial by the prosecution and possibly the suspect, as that person’s “quality” as the offender has not yet been established and may not be until the conclusion of all interviews. I seek to highlight challenges to information gathering, skills and techniques and general elements of information gathering, notably the complex issue of the demeanour of those you interview.

As you begin your review of my instruction, I urge you to always consider the view that Shakespeare had Falstaff communicate in Act 5, sc. iv, l. 179: “… Lord, how this world is given to lying!” A few lines later, Prince Henry states: “For my part, if a lie may do thee grace, I’ll gild it with the happiest terms I have …”

Objective in interviewing witnesses – Gain valuable information

Admission by a party as to a fact, example of

“King Henry. Did I ever call for thee to pay thy part? Falstaff No, I’ll give thee thy due, thou hast paid all there.” Act 1, sc. ii, l. 49.

Admission by a party as to a fact, danger of - Admission of being corrupt

“Falstaff … I am a villain …”. Act 1, sc. ii, l. 197. That comment, without more, says nothing about whether the speaker agrees to having committed a criminal act, much less the one being investigated.

On a somewhat lesser scale are the comments that follow that make plain a lack of honesty: “Hostess - There's neither faith, truth, nor womanhood in me else.” See Act 3, sc. iii, l. 124-125.

Answer in an indirect fashion

“Hotspur … This bald unjointed chat of his, my lord, I answer'd indirectly, as I said …” Act 1 – sc. iii, l. 64. The fear is that the witness, if not asked to provide a more direct response, will be able to repudiate the response at trial, in whole or in part.

Best time for interview -

“Worcester … I'll talk to you When you are better temper'd to attend.” Act 1, sc. iii, l. 232. It is always wise to do so if time and the circumstances permit. On the question of the ideal time, consider as well: “Worcester … When time is ripe, which will be suddenly …” Act 1, sc. iii, l. 294.

Beware simple propositions that are 100 % in one direction – no nuances

Consider this example as it illustrates the concern that a lack of nuances equals a lack of correct information: “Westmoreland. … This is his uncle’s teaching. This is Worcester malevolent to you in all Aspects: Which makes him prune himself and bristle up the crest of Youth against your Dignity.” Act 1, sc. i, l. 96-100.

Clarify possibly double meaning – “Hang a thief, as the King”

“Falstaff. … Do not thou, when thou art a King, hang a thief.” Act 1, sc. ii, l. 58. The subsequent debate clarifies what is meant, but without further information, it would have been impossible to understand fully what the parties were intending by their words.

Details, when interviewing – obtain as much information as possible

“Gadshill … thou lay’st the plot how?” Act 2, sc. i, l. 57.

Direct evidence – Heard with own ears

“Northumberland. He did; myself did hear it.” Act 1, sc. iii, l. 157. This is often quite valuable information and you may wish to obtain information to demonstrate that circumstances enhanced opportunity to hear the comment well.

Interview – Benefits and drawbacks – evaluate all the information

Act 3, sc. iii, l. 14-20 of the play King Henry IV (Part 1) includes these remarks: “Falstaff – Why, there is it: come sing me a bawdy song; make me merry. I was as virtuously given as a gentleman need to be; virtuous enough; swore little; diced not above seven times a week; went to a bawdy-house once in a quarter--of an hour; paid money that I borrowed, three of four times; lived well and in good compass: and now I live out of all order, out of all compass.”

Interview - Brief questions better

“King Henry “Wilt thou rob this leathern-jerkin, crystal-button, nott-pated, agate-ring, puke-stocking, caddis-garter, smooth-tongue, Spanish-pouch …” Act 2, sc. iv, l. 78-80. This is an illustration of the dangers associated with long, drawn out questions.

Interview – Point, get to the

Act 4, sc. iii, l. 85 reads: “Hotspur … Then to the point.” Always good advice.

Interview - Keeping track of the number of persons involved – An example of exaggerations

What follows illustrates how easily some persons being interviewed exaggerate:

Falstaff. Nay, that's past praying for: I have peppered two of them; two I am sure I have paid, two rogues in buckram suits. I tell thee what, Hal, if I tell thee a lie, spit in my face, call me horse. Thou knowest my old ward; here I lay and thus I bore my point. Four rogues in buckram let drive at me—

King Henry. What, four? thou said’st but two even now.

Falstaff Four, Hal; I told thee four.

Pointz Ay, ay, he said four.

Falstaff These four came all a-front, and mainly thrust at me. I made me no more ado but took all their seven points in my target, thus.

King Henry Seven? why, there were but four even now.

Falstaff In buckram?

Pointz Ay, four, in buckram suits.

Falstaff Seven, by these hilts, or I am a villain else … O monstrous! eleven buckram men grown out of two! Act 2, sc. iv, l. 210-230.

Interview – Leading questions – cannot

“King Henry … the sugar thou gavest me,'twas a pennyworth, wast't not?” Act 2, sc. iv, l. 66-67. In effect, when we tell a witness what to say, we can expect that they will agree with our suggestion, and thus cause it to lose all value.

Interview – Person responds without concentration

“Hotspur … To be so pester'd with a popinjay, Out of my grief and my impatience, Answer'd neglectingly I know not what, He should or he should not; for he made me mad …” Act 1, sc. iii, l. 51-53. The concern is that the responses at trial will be contradicted by the witness who will then claim that did not care about accuracy.

Interview - Self-depreciation – Example of

“King Henry – What, fought ye with them all? Falstaff All? I know not what you call all; but if I fought not with fifty of them, I am a bunch of radish …” Act 2, sc. iv, l. 204-207. At times, this may be seen as proof of integrity as we do not tend to be unreliable in such situations.

Interview – Challenging questions are allowed KING HENRY IV

“You have not sought it! how comes it, then?” is what we read in Henry IV (Part 1), Act 5, sc. i, l. 24-25.

Interview – Well spoken persons

“Mortimer … And as wondrous affable and as bountiful As mines of India.” Act 3, sc. i, l. 168. The veteran investigator will draw out as much information as possible, even on details that amount to very little, in order that the prosecution at trial is able to compare and contrast if this person now demonstrates a “poor ability to speak” and a reduced ability to help justice.

Loose lips sink ships

“Northumberland. Before the game is afoot, thou still let'st slip.” Act 1, sc. iii, l. 279. In other words, some persons will be mindful of need not to implicate themselves only when think are under scrutiny which is why so many investigators troll the social media pages for admissions.

Lying during an interview – ask point blank if what told is true or a joke

“Lady Percy … Nay, tell me if you speak in jest or no.” Act 2, sc. iii, l. 104. It cannot be avoided if you have any doubts that you are being taken for a fool.

Praise and condemn in the same breath, example of

“Falstaff. Thou hast the most unsavory smiles; and art indeed the most comparative, rascallest sweet young Prince…” Act 1, sc. ii, l. 89-90.

Proof, desire t accumulate sufficient proof is goal

“King Henry. … O that it could be prov'd That some Night-tripping-Faiery, had exchang'd In Cradle-clothes, our Children where they lay …” Act 1, sc. i, l. 85-86, provides an excellent initial description of the goal of interviewing witnesses and of acquiring skills and techniques to gain such information.

Rogues may provide valuable information

“Falstaff. You rogue … there is nothing but roguery to be found in villanous man…” Act 2, sc. iv, l. 137-138. To the contrary, they may possess great information based on those they associate with. Later, at l. 187-188, Falstaff added: “… Let them speak: if they speak more or less than truth, they are villains and the sons of darkness.” The point that he missed but that the careful investigators ought not to is that one cannot be confident as to what is the truth until a full investigation has been completed.

Speak truly – example of

“Falstaff … and now I am (if a man should speak truly) little better then one of the wicked... Act 1, sc. ii, l. 105-106.”

Voluntariness voir dire – fear of violence

Act 4, sc. iii, l. 113 of the play reads: “Douglas … You speak it out of fear and cold heart.” If there is fear at the heart of the statement taking exercise, a court might well reject the statement as not being the product of an operative mind.

Voluntariness voir dire – threats of violence

“Lady Percy - Come, come, you paraquito, answer me Directly unto this question that I ask: In faith, I'll break thy little finger, Harry, An if thou wilt not tell me all things true.” Act 2, sc. iii, l. 88-91. Later, in Act 3, sc. i, l. 241-242, we read: “Lady Percy Wouldst thou have thy head broken?” No comment is required other than these threats will destroy any hope of the court finding the statements to be voluntary.

Voluntariness – No absolute rule that detainee may order investigator to cease questions

“Hotspur … But hark you, Kate; I must not have you henceforth question me…” Act 2, sc. iii, l. 107. Of course, if witness asks if bound to answer, and you inform them that they have no choice, there is little likelihood that interview will become admissible if the person later becomes a suspect, especially if the incriminating response was obtained as a result of that “no choice” question.

Voluntariness voir dire – soft approach

“Hotspur … With many holiday and lady terms He question'd me …” Act 1, sc. iii, l. 46-47. I might never have chosen that language, but it does illustrate the situation.

Challenges in assessing statements – Demeanour

Demeanour – the investigator must assess the non-verbal information that the witness communicates

An overview of the case law follows, to assist in introducing this vexing element of police interviewing techniques and challenges to your skill in “reading” the body language of the witnesses. I have set out below a few key passages from the case law to further the investigator’s understanding of this controversial subject, taken from R v Batchelor, [2022] OJ No 560 (Sup. Ct.), a well-reasoned judgment of Roger J.

50 Caution is required in considering favourable or unfavourable demeanour evidence. As indicated in R. v. M.M., 2016 ONSC 5027, at para. 59, and R. v. D.M., 2016 ONSC 7224, at para. 23, whether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted. As noted in R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27, demeanour evidence has been known to play a role in wrongful convictions. Indeed, demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as "the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses" and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence: R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at p. 314, citing Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C. C.A), at p. 357.

51 More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions) and improbabilities (exaggerations or illogical propositions). However, inconsistencies vary in their nature and importance; some are minor or concern peripheral subjects, others are more important or involve a material issue or something material.

52 Demeanour evidence is however not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, hesitations, challenging counsel, or run-on and unresponsive answers, may in certain circumstances be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence: see e.g., Hull, at paras. 8-9; R. v. Boyce, 2005 CarswellOnt 4970 (C.A.), at para. 3. Regardless, trial judges should not unduly rely on demeanour to make credibility findings, and any reliance on demeanour must be approached cautiously because looks can be deceiving. Importantly, a witness' demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: see R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45. Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours: see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 99, 101. Demeanour is therefore often of limited value because it can be affected by many factors, including the background of the witness, stereotypical attitudes, and the artificiality of, and pressure associated with, a courtroom or virtual courtroom. A perceived positive demeanour can equally be difficult to assess.[5]

Demeanour of the witnesses during their interview – Introductory guidance drawn chiefly from Macbeth

Having examined an overview of the case law, it will be of assistance to note that 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.[6] Perhaps the best known of these examples is found in Act 1, sc. iv, l. 12 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 1, sc. vii, l. 81: “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 2, sc. iii, l. 135 of Macbeth. Finally, I quote a rather celebrated expression of demeanour evidence is found in Julius Caesar, Act 1, sc. ii, l. 192: “CAESAR Let me have men about me that are fat; Sleek-headed men and such as sleep o' nights: Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous.”

Demeanour – a simple illustration of demeanour that is non-controversial - breath affected by effort, not emotions

“King Henry. So shaken as we are, so wan with care,
Finde we a time for frighted Peace to pant,
And breath shortwinded accents of new broils.” Act 1, sc. i, l. 1.

Few investigators, lawyers or judges would question that emotions may “honestly” affect the appearance of a witness or that recent physical exertion, such as running to the police station due to an error as to the time of the interview, might explain a racing heart. But what if the witness is panting, short of breath and appears terribly out of sorts but with no obvious explanation save for the anxiety caused by the questions put by the police? Might the investigator conclude correctly that the demeanour is indicative of fear of discovery?

Demeanour – a rare illustration of demeanour that is quite controversial – hair turns white!

Act 2, sc. iv, l. 393-394 reads: “Falstaff … thy father's beard is turned white with the news…”

Demeanour – classic elements of facial presentation - brow

“King Henry… And majesty might never yet endure The moody frontier of a servant brow …” Act 1, sc. iii, l. 17-18

“Hotspur … This seeming brow of justice, did he win …” Act 4 – sc. iii, l. 82.

Again, what does one make of the observations of the brow of the airline ticketing agent when we are informed that there is a “slight delay” in locating our luggage or confirming our seat, and this comment is accompanied by a “servant brow”? Does this type of observation count for more, or less, if made in an interview with someone who claims to have seen a crime?

Demeanour – classic elements of facial presentation - eyes

King Henry. … Nor bruise her Flowrets with the Armed hoofes
Of hostile paces. Those opposed eyes … Act 1, sc. i, l. 8

King Henry. Worcester, get thee gone; for I do see Danger and disobedience in thine eye …” Act 1, sc. iii, l. 14-15.

“Hotspur - … And on my face he turn’d an eye of death …” Act 1, sc. iii, l. 143.

“King Henry … When it shines seldom in admiring eyes …” Act 3, sc. ii, l. 80.

“Hotspur … And to the fire-eyed maid of smoky war …” Act 4, sc. i, l. 113.

The investigator must pay careful attention to the eyes of the person being interviewed, as one would in so many other areas of human conduct, but in few other areas are the consequences of deceit that goes unnoticed so potentially grave.

Demeanour – classic elements of facial presentation - face – strange motions

“Lady Percy … And in thy face strange motions have appear'd …” Act 2, sc. iii, l. 63.

Demeanour – classic elements of facial presentation - frown

Act 3, sc. ii, l. 127 consigns this observation: “King Henry … To dog his heels and curtsy at his frowns…”

Demeanour – classic elements of facial presentation - lip – hanging of

“Falstaff … and a foolish-hanging of thy nether lip…” Act 2, sc. iv, l. 446.

Demeanour – classic elements of facial presentation - looks – bloody

Act 1, sc. iii, l. 104 of the play reads: “Hotspur … Who then, affrighted with their bloody looks…” Again, the investigator must note whatever non-verbal communication might strengthen or undermine the veracity of the words spoken.

Demeanour – classic elements of facial presentation - looks – cheerful

“Falstaff … A goodly portly man, i' faith, and a corpulent; of a cheerful look …” Act 2, sc. iv, l. 465-466.

Demeanour – classic elements of facial presentation - looks – interpretation of, can they be “understood”?

“… The lady speaks in Welsh – Mortimer I understand thy looks …” Act 3, sc. i, l. 201-202. In such cases, is the investigator unable to understand the words and is thus attempting to interpret them solely through demeanour? For example, what is meant by the phrase that follows, found at Act 3, sc. ii, l. 165: “King Henry How now, good Blunt? thy looks are full of speed.”

Demeanour – classic elements of facial presentation - looks – love

“Worcester … To make us strangers to his looks of love …” is consigned in Act 1, sc. iii, l. 290. I confess that to interpret this look, of love, appears less daunting than does the correct interpretation of other looks one reads about, and perceives in everyday life.

Demeanour – classic elements of facial presentation - looks – misquoting what they communicate

“Worcester. … Look how we can, or sad or merrily, Interpretation will misquote our looks … Henry IV (Part 1), Act 5, sc. ii, l. 12-13.

Demeanour – classic elements of facial presentation - looks – pallor - cheek

“Hotspur - … And when I urged the ransom once again Of my wife's brother, then his cheek look'd pale…” Act 1, sc. iii, l. 143.

Demeanour – classic elements of facial presentation - looks – virtue to be seen

“Falstaff … I see virtue in his looks …” Act 2, sc. iv, l. 465-466.

Demeanour – classic elements of facial presentation – tears – showing innocence!

“Hotspur … With tears of innocency and terms of zeal …” Act 4, sc. iii, l. 64. I have yet to ever hear of such a submission being advanced. On the one hand, the innocent person who is suspected might well cry out of anxiety; on the other, the guilty one might well cry, fearing that justice will prevail and jail will result.

Demeanour – classic elements of facial presentation – trembling

“Hotspur - … Trembling even at the name of Mortimer.” Act 1, sc. iii, l. 144. This is not limited to trembling of the face, but it is often thought of as a “tell tale” sign of non-verbal communication. Of course, what it denotes is difficult to determine at the best of times.

Demeanour – Ability of person to adopt a pose - faking tears

“Falstaff … Give me a cup of sack to make my eyes look red, that it may be thought I have wept…” Act 2, sc. iv, l. 423. One cannot overlook this very real possibility.

Challenges in assessing statements of witnesses – In general

Emphasis, words interpreted in accordance with … - irony, sarcasm, how to ensure accuracy?

Consider this general example: “King Henry. … And is not this an honourable spoil? A gallant prize? Ha Cousin, is it not?” Act 1, sc. i, l. 74-75. How does one correctly assess the emphasis? One more reason to record fully with excellent audio all witness statements.

INVESTIGATIONS 101 – JUDGMENT IN INVESTIGATING CRIMES

Human nature – Confidence of the witness often unjustified

“Lady Percy … In faith, I'll know your business, Harry, that I will…” Act 2, sc. iii, l. 84. I advise great caution, especially in situations such as involving identification evidence.

Human nature – Exaggerations, if not outright lies, as a normal tendency when giving explanations

“King Henry. These lies are like their father that begets them; gross as a mountain, open, palpable. Why, thou clay-brained guts, thou knotty-pated fool, thou whoreson, obscene, grease tallow-catch …” Act 2, sc. iv, l. 249-253.

Human nature – Fatalism

Henry IV (Part 1), Act 5, sc. v, l. 11: “Worcester. What I have done my safety urged me to; And I embrace this fortune patiently, Since not to be avoided it falls on me.”

Human nature – Flattery, susceptibility to flattery

Act 4, sc. i, l. 1 of the play reads: “Hotspur Well said, my noble Scot: if speaking truth In this fine age were not thought flattery…” Judgment is seen in our ability to resist rank flattery. Of course, some pretend to possess no ability to engage in this practice. Refer to “Hotspur … By God, I cannot flatter …”, found at Act 4 – sc. i, l. 8.

Human nature - Give the Devil his due

“King Henry … the devil shall have his bargain; for he was never yet a breaker of proverbs: He will give the devil his due.” Act 1, sc. ii, l. 133-134. In other words, if you find you were provided with false information, you must react in the only fashion possible and “saving face” cannot play a role.

Human nature – Lying

Human nature - Oath – Invoking divinity to support a claim, be wary of witness prone to

“Falstaff. By the Lord, Thou say'st true Lad…” Act 1, sc. ii, l. 37.

Human nature – Oath – trustworthiness may be lacking

Consider this example of too many oaths to be trustworthy!

Worcester. I told him gently of our grievances,
Of his oath-breaking; which he mended thus,
By now forswearing that he is forsworn:
He calls us rebels, traitors; and will scourge
With haughty arms this hateful name in us.

Henry IV (Part 1), Act 5, sc. ii, l. 38-39.

Human nature – Self-centered individuals – cannot be persuaded to cooperate

“Glendower … a peevish self-wind harlotry, one that no persuasion can do good upon.” Act 3, sc. i, l. 200. In such cases, the prudent investigator must assess how much time and how many resources are to be invested with little hope of gain. In the same vein, of interviewing witnesses who are not interested in helping their community, consider Act 3, sc. i, l. 260: “Hotspur … To velvet-guards and Sunday-citizens.” In other words, they might or might not be helpful in your enquiries as not wedded to good citizenship.

Human nature - Transformation from good to evil

“King Henry. I see a good amendment of life in thee: From Praying, to Purse-taking.” Act 1, sc. ii, l. 116-117. The investigator may wish to comment that a person being addressed has made progress.

Human nature – Shame, acts giving rise to are not universal

“Westmoreland. … done, as may not be
(Without much shame) re-told or spoken of …” Act 1 – sc. i, l. 44-45

This element of human nature is increasingly in the minds of investigators by reason of so-called “honour crimes” that would be better described as “lack of honour crimes.”

Human nature – Strange tales might yet be true – You be the judge!

“Lancaster. This is the strangest tale that ever I heard.” Act 5, sc. iv, l. 157.

Human nature - Truth is the truth

“Falstaff. What, art thou mad? art thou mad? is not the truth the truth?” Act 2, sc. iv, l. 254-255. I see this as an absolute value, but depending on one’s angle and perception, there may be more than one truth… Consider impaired investigations wherein the two officers describe different events, or at least it seems so on occasion.

Human nature – Winning is everything

Henry IV (Part 1), Act 5, sc. i, l. 8-9 reads: “KING HENRY IV Then with the losers let it sympathize, For nothing can seem foul to those that win…”

Human nature - Youth is wasted on the young

Act 2, sc. iv, l. 440-441 of the play includes these words: “Falstaff … the more it is trodden on the faster it grows, yet youth, the more it is wasted the sooner it wears …” It is a common element of human nature for everyone not a youth to entertain this belief! In addition, consider “Worcester. … it hath the excuse of youth and heat of blood …” Henry IV (Part 1), Act 5, sc. ii, l. 17-18.

Interviewing witnesses – get them to lose their composure, not!

“Worcester … To put him quite beside his patience. You must needs learn, lord, to amend this fault …” Act 3, sc. i, l. 178-180. I suggest that the sound investigator collects information, assesses strengths and weaknesses, and develops an opinion on how best the deceitful witness, if this be the case, may be successfully discombobulated by the prosecution, at the trial.

Judging circumstantial evidence – Articles in one’s possession

Act 3, sc. iii, l. 178-180 of the play read: “Prince Henry … if there were anything in thy pocket but tavern-reckonings, memorandums of bawdy-houses …” One must be careful as circumstantial evidence is held to a strict form of scrutiny by the courts.

Judging degrees of negligence, including self-inflicted harm

Cases in which it is suggested that a wilful attack on the victim took place must be judged with an understanding that negligence resulting in injury may be a civil tort and does not rise to the degree of negligence giving rise to criminal responsibility. Of course, there are many cases in which self-inflicted injury occurs with a goal of placing blame upon an innocent person. In this context, of judging whether there was mere negligence or a crime, or self-inflicted injury by reason of negligence, consider “King Henry. … The edge of War, like an ill-sheathed knife, No more shall cut his Master.” Act 1 – sc. i, l. 16.

Judging immediate denials –

A denial of an accusation on the spot, without a chance to think about it, is something that must be assessed fully. For example, “King Henry … Who, I rob? I, a thief? Not I, by my faith.” Act 1, sc. ii, l. 153-154.

Judging self-defence

Henry IV (Part 1), Act 5, sc. v, l. 11: “Worcester. What I have done my safety urged me to; And I embrace this fortune patiently, Since not to be avoided it falls on me.”

Judging what you hear during interview - Belief in …

“Falstaff Well, God give thee the spirit of persuasion and him the ears of profiting, that what thou speakest may move and what he hears may be believed, that the true prince may, for recreation sake, prove a false thief; for the poor abuses of the time want countenance…” Act 1, sc. ii, l. 170-175. You must exercise sound judgment, but you cannot dismiss all that you hear simply because it does not “fit” your theory of the case or the identity of the source of the information.

Judging what you hear during interview - Spinner of tales?

Act 3, sc. ii, l. 24-26 of King Henry IV (Part 1) reads: “King Henry … in reproof of many tales devised …”

Judging what you hear - Disbelief in … Practising an answer

“Falstaff … if thou love me, practise an answer.” Act 2, sc. iv, l. 411. The serious investigator will not overlook this possibility, especially in cases in which there are family or amorous links.

Judgment in asking questions during an interview - In general

“Falstaff … a question not to be asked …” Act 2, sc. iv, l. 450. As in most things leading to excellence, investigators who work hard in their preparation typically demonstrate sound judgment when asking questions.

Judgment in asking questions during an interview - interpreter

Act 3, sc. i, l. 193, records the following: “Mortimer. My wife can speak no English, I no Welsh.” In such cases, the investigator ensures that a qualified interpreter is available.

Judgment in investigations - Suspects – no one is above suspicion

“Falstaff … Shall the sun of England [i.e., the King] prove a thief and take purses? A question to be asked …” Act 2, sc. iv, l. 451-452. I truly believe that not considering all suspects is truly rare…

Mental illness - Examination of suspect – this condition may not be apparent

“Falstaff … thou art essentially mad, without seeming so.” Act 2, sc. iv, l. 540-541. Great caution must be exercised and sound judgment often requires a great deal of consultation involving a multi-person approach.

Repetition does not lend credit to a statement

Hotspur … This bald unjointed chat of his, my lord, I answer'd indirectly, as I said …” Act 1, sc. iii, l. 64.

Say no more – impeding witness from expanding or explaining statement

“Worcester … say no more …” A few lines later, at 211, Shakespeare wrote: “Worcester … give me audience for a while …” One should give an expansive audience in the sense of a generous opportunity to explain oneself.

Trust – investigator wary of those who are cunning like foxes

““Worcester … For treason is but trusted like the fox …” Act 5, sc. ii, l. 7-8.

Voice identification – danger of trusting too much “voice ID”

“Pointz - O, 'tis our setter: I know his voice.” Act 2, sc. ii, l. 48. Not unlike facial identification evidence, one must be very careful.[7]

INVESTIGATIONS 101 – PROFESSIONALISM OF INVESTIGATOR

Introduction

An interesting passage in Sir Arthur Conan’s Doyle short story, “The Red-Headed League”, featuring Sherlock Holmes, sets out that a successful villain, John Clay, who had royal blood and was educated at Oxford, insisted that the police always refer to him as “sir” and resort to “please” when requesting anything of him. This is not the sort of professionalism I suggest is required, but being polite is not a sign of weakness.

Ability to corrupt a saint

“Falstaff. O, thou hast damnable iteration, and art, indeed, able to corrupt a Saint…” Act 1 – sc. ii, l. 101-102. Many such temptations cross the path of the investigator.

Human nature – Discretion

Falstaff states in Act 5, sc. iv, l. 120 “… The better part of valour is discretion …”

Honour – if one must define it, one has not understood it

Falstaff

'Tis not due yet; I would be loath to pay him before
his day. What need I be so forward with him that
calls not on me? Well, 'tis no matter; honour pricks
me on. Yea, but how if honour prick me off when I
come on? how then? Can honour set to a leg? no: or
an arm? no: or take away the grief of a wound? no.
Honour hath no skill in surgery, then? no. What is
honour? a word. What is in that word honour? what
is that honour? air. A trim reckoning! Who hath it?
he that died o' Wednesday. Doth he feel it? no.
Doth he hear it? no. 'Tis insensible, then. Yea,
to the dead. But will it not live with the living?
no. Why? detraction will not suffer it. Therefore
I'll none of it. Honour is a mere scutcheon: and so
ends my catechism.

Refer to Henry IV (Part 1), Act 5, sc. i, l. 124-142.

Objections just to disrupt the interview of the witness/suspect –

“Hotspur … I'll cavil on the ninth part of a hair…” Act 3, sc. i, l. 140. Professional officers adapt to these stressful situations by demonstrating patience, judgment and a belief in the justice of the system.

Personal opinions on secondary matters have no role in your work

Poins … I know them to be as true-bred cowards as ever turned back; and for the third, if he fight longer than he sees reason, I'll forswear arms. The virtue of this jest will be, the incomprehensible lies that this same fat rogue will tell us …” Act 1, sc. ii, l. 176. The careful investigator may well justify the opinion that a person is a coward but the slight that he is “fat” has no role to play in an investigation and this only serves to turn the attention of the defence and the Court to the merits of the person who made this comment, and away from the merits of the investigation.

Persuasion – Investigator, at times, judges that witness may be persuaded to provide information

“Hotspur. … Than I, that have not well the gift of tongue, Can lift your blood up with persuasion. Act 5, sc. ii, l. 78-79.

Precedents – find as many as possible

“King Henry … and I'll show thee a precedent.” Act 2, sc. iv, l. 37.

Prejudice – body shaming

“Falstaff … if to be fat be to be hated …” Act 2, sc. iv, l. 518-519. Any officer who permits such negative thinking to influence their analysis is not fit to be a police officer.

Pride goes’t before the fall…

One version of this time-honoured saying is found in this passage: “King Henry … I will from henceforth rather be myself, Mighty and to be fear'd, than my condition; Which hath been smooth as oil, soft as young down, And therefore lost that title of respect Which the proud soul ne'er pays but to the proud.” Act 1, sc. iii, l. 4. In brief, call another saying: “When the Gods seek to destroy us, first they make us proud!”

Shame - Interview – ask suspect (or witness) whether feels shame

“King Henry - … Art thou not ashamed? …” Act 1, sc. iii, l. 118. This comment, in my opinion, may well be justified in an interview.

Shame the Devil – The truth will emerge

“Hotspur And I can teach thee, coz, to shame the devil By telling truth: tell truth and shame the devil…” Act 3 – sc. i, l. 59-60. I suggest that it is the professionalism of the police that will bring truth to light…

Studious work leads to success

“Hotspur … Revenge the jeering and disdain'd contempt
Of this proud king, who studies day and night…” Act 1, sc. iii, l. 185.

Tedium of work

“King Henry … If all the year were playing holidays, To sport would be as tedious as to work …” Act 1, sc. ii, l. 198. Whatever may be the merits of this suggestion, the prudent investigator ensures that holidays, weekends and evenings, when available, are available for relaxation and family time.

Vocation

“Falstaff. Why, Hal, 'tis my Vocation Hal: 'Tis no sin for a man [or woman] to labour in his [or her] vocation.” Act 1, sc. ii, l. 118-119.

CONCLUSION

“Call in the Sheriff” or a police officer is our society’s natural reaction to any situation in which a crime is thought to have occurred, as illustrated in Act 2, sc. iv, l. 553 of the play discussed herein. It is a testimonial to our faith in the police and our need for their excellent services if our society is to remain safe and continue to flourish. My modest hope is that this article will contribute something of benefit to those charged with the great responsibility of protecting our lives and liberty. After all, Act 5, sc. ii, l. 93 reads: “Hotspur … Let each [person] do [their] best” and this might be better achieved with traditional and unusual sources of instruction.

[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 lawyer, 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] For the sake of brevity, I might only refer to “Henry IV” or to “the play”, but most often only references to the citation are required. As for the citations, Act 2, sc. ii, l. 2 is referenced as 2-ii-2. By and large, only the first line reference is included.

[3] See "A List of One Hundred Legal Novel" (1922), 17 III. L. Rev. 26, at p. 31.

[4] Refer as well to a similar article by Law Professor W.H. Hitchler who published these relevant remarks in "The Reading of Lawyers", (1928) 33 Dick. L. Rev. 1-13, at pp. 12-13: "The Lawyers must know human nature. [They] must deal with types. [They] cannot find all them around... Life is not long enough. The range of [their] acquaintances is not broad enough. For this learning, they must go to fiction. ...” I could easily replace “lawyers” by “police officers” and the meaning remains correct.

[5] I invite any readers to contact me at gilles.renaud@ocj-cjo.ca if they require assistance in locating these or any other cases.

[6] Refer to Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008.

[7] Refer to my article, “Voice Identification: An Overview”, posted in Alan D. Gold’s Netletter, Quick Law, ADGN/RP-105, November 21, 2000.