Police Investigations 101
Guidance from Shakespeare’s The Two Gentlemen of Verona
Gilles Renaud | Ontario Court of Justice[1]
Introduction
In this article, I document the various elements of guidance and instruction from Shakespeare’s play The Two Gentlemen of Verona that lead to excellence in investigative work.[2] Most of my comments will be under the general title of “Investigation - the ABCs of excellence in”. This rubric was inspired by a reference in Act 2, sc. i, l. 19, wherein Speed notes: “… to sigh, like a schoolboy that has lost his A B C …”
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]
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 by analyzing this excellent play.
Discussion
The ABCs of excellence in investigation – an alphabetical and thematic analysis
Bias, from a desire to acquire wealth
Note Verona, 3-i-357: “Speed. 'And more wealth than faults.' Launce. Why, that word makes the faults gracious…” The careful investigator will recall that most French language detective stories or movies include the words “Cherchez l’argent!” Thus, you will be on the alert for the presence of any such bias, potentially distorting the information you received.
Bias, from distrust as between certain individuals arising from other litigation
The Two Gentlemen of Verona, 4-ii-90 and following set out what follows as to the possibility of deep enmity emerging from a strained situation or relationship, a police investigation in cases involving investigators, that obviously imperils the reliability of information:
Silvia
… Thou subtle, perjured, false, disloyal man!
…That hast deceived so many with thy vows?
Return, return, and make thy love amends.
For me, by this pale queen of night I swear,
I am so far from granting thy request
That I despise thee for thy wrongful suit,
And by and by intend to chide myself
Even for this time I spend in talking to thee.
[Emphasis added]
Investigators must scrutinize any allegations of bias (or the possibility that it is present) in cases in which a potential witness to criminal acts apparently committed by the suspect/accused, is involved in other forms of litigation. The most notable example surrounds parties to a family law file, but investigators are called upon to ascertain the true facts of disputes involving neighbours as to fences, hedges, etc. and family members arguing in court about a will or the disposition of assets by someone who requires a trustee.
Bias, from friendship, and the potential to distort the soundness of the witness’ statement
“… The law of friendship bids me to conceal …” are the words that Proteus utters to the Duke almost at the outset of Act 3, sc. i of the play. Investigators must be concerned that an individual in such situations might not qualify as a disinterested party whose only motivation is to help the police with their inquiries.
Bias, from jealousy, and the potential to distort the soundness of the witness’ statement
No explanation is needed in support of the suggestion found in Verona, 2-iv-173: “Valentine. … For love, thou know’st, is full of jealousy.” And, of course, that jealousy leads potentially to biased or, at the very least, less than reliable testimony. When jealousy is involved, love might have been present earlier in the relationship. Apposite is the following: “To plead for love deserves more fee…” See 1-ii-47. I suggest to investigators that this refers to the human costs associated with such conflicts, and this might tip the scale as between fair, though favourable testimony to an investigator, and unfair and self-serving information designed to harm without justification the suspect/accused. Recall as well that in Verona, Act 2, sc. vi, l. 3-6 and 9-10, these remarks are found: “Proteus. … And ev’en that pow’r which gave me first my oath Provokes me to this threefold perjury: Love bade me swear, and Love bids me forswear … Unheedful vows may heedfully be broken …”
I conclude this section by reminding investigators of the following time-honoured belief: “Love is blind …” See Speed, in Verona, 2-i-63, and his related comment, found in 2-i-61: “If you love her, you cannot see her.” in the sense that you will fail to perceive any faults.
Circumstantial evidence – in general
The Two Gentlemen of Verona, Act 1, sc. i, l. 84 reads: “Speed. Nay, that I can deny by a circumstance.”
In the realm of the adversarial system, the lawyers must be prepared to demonstrate (or to undermine) the soundness of certain factual contentions by means of circumstantial evidence. In a case in which I defended an adolescent female falsely accused of manslaughter, involving Dr. Charles Smith, the so-called Timmins babysitter prosecution, the timing of certain bruises was of signal importance in demonstrating that Dr. Smith was totally wrong in conclusions he reached. From the perspective of the defence, it was essential to demonstrate that certain needle pricks predated the controversial bruises, as this wholly negated the suggestions by Dr. Smith as to the sequence of injuries. In other words, since the bruises in question had healed to a point that clearly indicated they pre-dated known inoculations administered on a later date, then the prosecution was wholly incorrect to suggest they were caused by assaultive actions by the babysitter days later.[5]
One common circumstance often important to successful investigations involves the flight of a suspect, apparently to avoid being interviewed or arrested. Consider “Valentine. … With all the cunning manner of our flight …” Verona, Act 2, sc. iv, l. 176. I urge investigators to be cautious as there are many reasons why persons remove themselves from a complex situation.
With that introduction in mind, it will suffice if I refer to only one case, R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30:
30 It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [Emphasis added]
From the perspective of the investigators, the Supreme Court of Canada teaches that it is necessary to delve deeply into any factual controversy and never to jump 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.
At the end of the day, 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.
Reversing the proposition
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:
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!
Consider how things have evolved in reaching conclusions of fact
In Verona, Act 1, sc. ii, l. 48, Shakespeare wrote:
“Duke. There is a lady in Verona here
Whom I affect; but she is nice and coy
And nought esteems my aged eloquence:
Now therefore would I have thee to my tutor--
For long agone I have forgot to court;
Besides, the fashion of the time is changed--
How and which way I may bestow myself
To be regarded in her sun-bright eye. [Emphasis added]
I was involved for about three years as a prosecutor in investigations touching upon Second World War atrocities and the investigators on our team had to be mindful of how many things had changed over the decades since the witnesses experienced the many tragedies they endured. The passage of time harmed memories and it is far from clear that the passages that follow are true in the minds of many victims: Act 3, sc. i, l. 244: “Proteus. … time is the nurse and breeder of all good…” and Act 3, sc. ii, l. 14: “Duke. A little time, my lord, will kill that grief.”
In addition, one must be mindful of prejudicial lines of thinking such as the misogyny that is described in the two passages below:
Valentine
A woman sometimes scorns what best contents her.
Send her another; never give her o'er;
For scorn at first makes after-love the more.
If she do frown, 'tis not in hate of you,
But rather to beget more love in you:
If she do chide, 'tis not to have you gone;
For why, the fools are mad, if left alone.
Take no repulse, whatever she doth say;
For 'get you gone,' she doth not mean 'away!'
Flatter and praise, commend, extol their graces;
Though ne'er so black, say they have angels' faces.
I now invite the reader to refer to Act 3, sc. i, l. 92-103, and l. 326-329, for further examples of tell-tale speech revealing prejudice and unreliable beliefs:
SPEED
'Item: She is slow in words.'
LAUNCE
O villain, that set this down among her vices! To
be slow in words is a woman's only virtue: I pray
thee, out with't, and place it for her chief virtue.
Demeanour evidence and carefully considered investigations[6]
Valentine states in Verona, 1-i-27: “To be in love, where scorn is bought with groans; Coy looks with heart-sore sighs; one fading moment's mirth…” This phrase refers to two common elements of demeanour evidence: “groans” and “coy looks”. In the first case, reference is made to the type of verbal communication typically not captured by the record of whatever interview you conducted, given its indistinct nature, unless it is fully audio-video taped, and yet it might have a decisive impact on the fact finder. In the second case, touching upon the “looks” evident on the face of the person being interviewed as a potential witness, the concern that I raise is that our present-day sound recording systems, without video, will fail wholly to capture any demeanour evidence accompanying the words of the witness during the interview.
Having identified the general context, it will be useful to illustrate for investigators precise examples of demeanour evidence. The eyes of the witness being interviewed at the police station, the side of the road, etc., are typically assigned the greatest degree of importance in assessing the non-verbal testimony, as is the case in courtrooms. Thus, Verona, Act 2, sc. iv, l. 139 includes this phrase: “Proteus … I read your fortune in your eye…” As for me, I doubt that I have ever seen much in the eyes of a witness save for sleep deprivation and evidence of a lot of drinking… Be that as it may, careful investigators should ensure a very good camera angle and definition, if the subtle elements of demeanour are to be captured. It is very difficult at the best of times to show a wink from the witness, and to demonstrate what was meant, as it might be a nervous tick, but a totally inadequate film will doom that part of the investigation.
And what of smiles? Note the example in the play at Act 3, sc. i, l. 158: “Duke … Bestow thy fawning smiles on equal mates …” How does a Court enjoy any degree of confidence as to the meaning of such a movement of the lips and teeth?
Further, how does one correctly assess movements of the head accompanied by sounds such as “sad sighs”, “deep groans” and “silver-headed tears”, all described at 3-i-229? The same question arises of the phrase “… I gave him gentle looks …” found at 3-i-331. Once more, consider what sense to give to the words “Proteus. … Wringing her hands, whose whiteness so became them…” See 3-i-227.
It is also worthy of note to underscore that very often, there is a subtle interplay of different manifestations of demeanour, as we see below: “Proteus. … You sacrifice your tears, your sighs, your heart …” See the play at Act 3, sc. ii, l. 73. This only renders the analysis more complex.
Based on the foregoing, without more, it is far from evident that any parcel or element of this type of evidence is worthy of any credit as it is subjective in the extreme, culturally complicated, and made more complex as a witness at trial is prepared for the event, though they may be quite anxious. A witness called upon to assist the police may be caught unawares, significantly augmenting their anxiety and potentially making their outward nervous manifestations far more important than the logic, reliability, and sincerity of what they purport to state to investigators.
Nonetheless, I propose to continue to “mine” this play to draw out all relevant illustrations of demeanour evidence, good, bad, or indifferent, the better to guide investigators as to their important duties.
On the not positive side of the equation, demeanour evidence is often decried as being far too subjective to be worthy of any true testimonial credit. For example, in Verona, 1-ii-31, Julia states “They do not love that do not show their love.” Is this a universal truth? Far from it, will say all bashful Romeos! Investigators must be prudent lest they fall prey to stereotypical beliefs about behaviour.
Leaving aside the subjective nature of demeanour evidence, a further winning argument against its reception is that many persons are skilled actors, fully capable of manipulating their appearance to deceive. Consider what Julia states in Act 1, sc. ii, l. 63-64: “… How angerly I taught my brow to frown, When inward joy enforc’d my heart to smile!”
I suggest that a further issue with demeanour evidence is the ease with which one may assume a guise, be it happy or sad, by means of which to trick the investigator in the pre-trial process and the judge subsequently. Consider this example, taken from The Two Gentlemen of Verona, 2-iv-10:
Silvia
Servant, you are sad.
Valentine
Indeed, madam, I seem so.
Thurio
Seem you that you are not?
Valentine
Haply I do.
Thurio
So do counterfeits. [Emphasis added]
An additional concern of note for investigators is the lack of a consistent baseline definition for any such supposed evidence. After all, what constitutes the essence of a frown, a blush, or a wink? How are they to be defined or contrasted? In this vein, Verona, Act 1, sc. ii, l. 140 reads: “Lucetta. … I see things too, although you judge I wink.” If it is far easier to assess whether the proposed testimony as captured in an interview was sad, as in Act 1, sc. iii, l. 1 wherein Antonio states: “… what sad talk was that…” in that the constituent elements of the words spoken may be parsed objectively and with a dictionary, how may a police officer (and later a judge) fairly assess a sign? Think as well of the witness who appears to pale or to redden during the interview. For example, “Silvia. What, angry, Sir Thurio! do you change colour?” See Act 2, sc. iv, l. 24. What does that mean?
Further, I suggest that the most glaring concern for investigators touching upon demeanour is that you are being called upon to judge strangers, and not members of your family and friends whose manner of speaking and behaving is known to you. Consider Eglamour: “This is the hour that Madam Silvia Entreated me to call and know her mind …” In effect, one knows not either the mind or the non-verbal communication methods of witnesses that you have just met. See Act 4, sc. iii, l. 1-2 and sc. iv, at l. 67-68: “Proteus. … But chiefly for thy face and thy behavior, Which, if my augury deceive me not, Witness good bringing up, fortune and truth…” Unless, of course, his augury deceived him as a matter of fact …
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.[7]
Experience versus an investigator’s youth
The Two Gentlemen of Verona, Act 2, sc. iv, l. 65-66 includes these apt remarks:
“Valentine. … Made use and fair advantage of his days;
His years but young, but his experience old;
His head unmellow'd, but his judgment ripe…”
There is no rule that inexperience results in lack of judgment or inability to satisfy all the requirements of a challenging case, but it is often necessary for a novice but wise investigator to seek the guidance of more experienced colleagues. Speaking of youth, recall these words by Julia, 2-vii-4:
“… To be fantastic may become a youth Of greater time than I shall show to be.”
Human nature – Act like sheep
Investigators must always be mindful of the various manifestations of human nature, including the fact that we humans might emulate the actions of sheep. Thus, we read at 1-i-74:
“Proteus. … Indeed, a sheep doth very often stray,
An if the shepherd be a while away.”
Human nature – Cure worse than illness
Consider the words found in Verona, 1-iii-77: “Proteus Thus have I shunn'd the fire for fear of burning, And drench'd me in the sea, where I am drown'd.” In effect, experienced investigators will scrutinize the actions of the individuals they suspect of offending by, at times, examining their actions after they ascertain that they are in peril. The most notable example is in the case of cover-up crimes, such as the ones former President Nixon of the United States engaged in rather than admit he was guilty of bad judgment for hiring persons capable of committing crimes that he knew nothing about.
Human nature – Confessions as especially sound indicators of trustworthiness
Pursuing the subject of circumstantial evidence, I suggest that the play, at Act 2, sc. iv, l. 132, illustrates well why the courts assign great value to the confessions of persons when these admissions are truly spontaneous. The reasoning is that individuals do not say things that are against their interest, or not flattering, indeed humiliating, etc., unless it is thought to be accurate. Thus, “Valentine. … O gentle Proteus, Love's a mighty lord, And hath so humbled me, as, I confess …”
Of course, we are fond of saying “I lie” when we realize we have made a mistake – that is not a true example of a reliable admission all things being equal.
Human nature - Modesty or self-depreciation demonstrated by the witness versus braggadocio
Verona, 1-ii-8, demonstrates how Lucetta, when asked her opinion on a difficult and important issue, refers to herself as someone possessing a “… shallow simple skill”, thus demonstrating that she is not a braggart or full of herself. Beware the too-confident witness and be content with self-effacing individuals who understand that their role as a potential witness is to assist the authorities to solve a factual issue, not for them to “look good” in helping that result.
Human nature - Oaths may not be worth much!
Verona, Act 2, sc. vi, l. 3-6 and 9-10, includes these remarks: “Proteus. … And ev’en that pow’r which gave me first my oath Provokes me to this threefold perjury: Love bade me swear, and Love bids me forswear … Unheedful vows may heedfully be broken …” Any casual reader of the Bard’s plays will soon notice that oaths meant little to the characters he created or borrowed from History. A further example follows, from Act 4, sc. ii, l. 125-127: “Julia. … And full of new-found oaths, which he will break As easily as I do tear his paper.” A last one is found in Act 5, sc. iv, l. 48-49: “Silvia. … then rend thy faith Into a thousand oaths; and all those oaths Descended into perjury, to love me…”
Human nature – Opposite behaviour to what is best for us
Shakespeare explained in this play, in Act 1, sc. ii, l. 55-56, that human nature is such that “… like a testy babe, will scratch the nurse, And … kiss the rod!” In other words, we may harm the people trying to help us, while potentially embracing that which might harm us and any police officer has experienced the paradox of a victim of crime protecting the offender.
Identification evidence, mask
Verona, at 5-i-39, records: “Duke … As he in penance wander'd through the forest; Him he knew well, and guess'd that it was she, But, being mask'd, he was not sure of it …” Care is required to draw out all that is available by way of identification evidence, and the use of masks during the pandemic made your investigative work more challenging, did it not?
Idiosyncratic or novel ways that a witness chooses to communicate
Consider this example in the play, at Act 2, sc. vii, l. 17: “Julia. … Thou wouldst as soon go kindle fire with snow …” The important thing is to obtain valuable information, not to be concerned with how it is stated. I recall a detainee who testified at a bail hearing and being asked by his lawyer whether he would escape if released and he stated: “I have a bad record, but I am not ‘an scapegoat!’” He was released.
Interviewing skills – Ascertain why a certain question elicited an excited response
Julia asked Lucetta “How now! what means this passion at his name?”, a question designed to discover if the excited response demonstrates bias for or against. What matters for the careful investigator are the facts, and this is a crucial one. Indeed, what moved the emotional needle, so to speak, may demonstrate lack of judgment and fairness in the heart and mind of the witness. Refer to Act 1, sc. ii, l. 16 of Verona.
Interviewing skills - Blame for not understanding an answer may be assigned to the investigator, not the person interviewed
Refer to Verona, 2-v-23: “Speed. What an ass art thou! I understand thee not. Launce. What a block art thou, that thou canst not! My staff understands me.” There is no point in attempting to blame the person interviewed for any difficulties in understanding. Of course, if a person is deliberately refusing to understand simple questions, the best course is to continue to ask simple questions and to accumulate unresponsive replies to then permit the prosecutor to demonstrate at trial that the witness was not being full or frank. For example, in the same scene, at l. 36-40, Shakespeare wrote: “Speed. … But, Launce, how sayest thou, that my master is become a notable lover? Launce. I never knew him otherwise. Speed. Than how? Launce. A notable lubber, as thou reportest him to be.” Note that a lubber is another work for a person who ats in an aggressive fashion, typically by reason of alcohol abuse.
Interviewing skills - Brevity
“Proteus. Come come, open the matter; in brief, what said she?” is a phrase we encounter in the play at 1-i-121. In my view, it is a mistake to encourage a witness to state in brief anything of importance, especially during a formal interview when you should command both time and the depth of detail.
Interviewing skills - Care with which the witness you interview undertakes the sharing of information should be notable
In Act 1, sc. ii, l. 48, Julia and Lucetta engage in this discussion: “Julia. But say, Lucetta, now we are alone, Wouldst thou then counsel me to fall in love? Lucetta. Ay, madam, so you stumble not unheedfully. Julia. Of all the fair resort of gentlemen That every day with parle encounter me, In thy opinion which is worthiest love? Lucetta. Please you repeat their names, I'll show my mind According to my shallow simple skill.”
In effect, Lucetta does not rush ahead and state her opinion without verifying the parameters of what is being sought and wishes to ensure that she will be providing useful information. At the same time, her need for further information teds to illustrate the obvious fact that there is no obvious “total babe” that so stands out that any further information is superfluous. By asking for names, the potential witness answers the question in part by noting that there is no easy response. The careful investigator wishes to weigh not only the ultimate response, but how the witness arrived at that conclusion.
Interviewing skills – Counsel suggests to client not to answer
Consider this example, taken from The Two Gentlemen of Verona, Act 2, sc. ii, l. 13: “Proteus. … answer not …” There is no point in arguing with the lawyer, who is present as of right as in the case of a young person, or by reason of the request of the suspect who will not answer further if the request is not met. The prudent investigator will then move on to other areas and return to the vital question at the end of the interview. In this context, the English practice we see on television and movies sometimes is adopted by the court in the precise situation: “If you fail to provide information now that you later disclose, this may lead to the court rejecting the value of that undisclosed information”.
Interviewing skills - Degree of forcefulness in questioning witnesses, especially apparently adverse ones
It is quite difficult to estimate how forceful investigators should be when questioning potential witnesses, and notably those thought to unfairly be helping the suspect/accused by slanting their views or by omissions. Thus, the words found in Verona, Act 2, sc. i, l. 11-12 are apt: “Valentine. Well, you’ll still be too forward. Speed. And yet I was last chidden for being too slow.” In other words, at times the investigator might be criticized for not being forceful enough; at others, for being too forward and thus, assuming the guise of a bully. It is an unfortunate part of the work undertaken by police officers.
At times, there is no choice open to the investigator in that what is said must be subject to clarifying questions, such as the words exchanged prior to sexual violence. On other occasions, you may elect to leave alone a tortured interpretation of an event put forward by a potential witness. For example, the words found in the play [3-i-100]: “Valentine. … Take no repulse, whatever she doth say; For “Get you gone’, she doth not mean ‘Away!’” In such a case, your judgment and experience may well dictate that you accept the explication as provided.
On occasion, when pressing forward, investigators will choose to disclose to the witness, including the potential accused, some elements of information to ascertain how that fact may influence their outward presentation and further responses. For example, we read in Verona, Act 1, sc. i, l. 83-84: “Speed. Nay, that I can deny by a circumstance. Proteus. It shall go hard but I'll prove it by another.” If you elect to attempt to prove your belief by another “bit of proof” there is always the concern that it will be argued that this served to contaminate the witness.
Whether you, as the investigator, should press forward in any given case to obtain further information is a difficult question. What is clear is that you typically cannot refuse to record whatever a witness states, after you have requested that they be interviewed. Having asked for information, you must record what is provided by way of information. Verona, Act 3, sc. i, l. 168 and 203-205 offers examples of unjustified refusal to entertain information, especially if it goes against the grain of the case that is being pursued. In the first instance, the Duke states: “… I will not hear thy vain excuse …”; in the second, Valentine remarks: “… My ears are stopped and cannot hear good news, So much of bad already hath possess’d them.” Moreover, an investigator may not tell a witness what Proteus stated in the play [1-i-79]: “A silly answer and fitting well a sheep.”
I wish to add that there should rarely be an issue when you implore a witness to be frank. To say, as did Valentine “… Then speak the truth by her; if not divine …” See Act 2, sc. iv, l. 146.
I end this sub-section by pointing out the infrequent situation in which your partner may intervene in an interview to stop you from going ahead along a dangerous path. Thus, as suggested in Verona, Act 2, sc. iii, l. 39-41: “Panthino. … Why dost thou stop my mouth? Launce. For fear thou shouldst lose thy tongue…”
Interviewing skills - Deliberation prior to deciding how and when to interview important witnesses in important cases
In this light, consider “Proteus. My Lord … Please you, deliberate a day or two.” Refer to Act 1, sc. iii, l. 73-74 of the play. As the investigator, if you are called upon to interview a witness, and we assume it is a very important case and a very important witness, you must consider fully if putting the matter over a day or two will assist in formulating precise questions and in being better able to “respond” to the answers. If you delay without reason, you face the inevitable criticism that the witness would have been more accurate if interviewed earlier and, it goes without saying, if you are seen to have rushed ahead, the criticism will be that you ought to have been more deliberate… One factor is the objective cleverness of the person to be interviewed. Some persons can, and some cannot, conjure great explanations if given a good deal of time, and this may be a factor to be weighed. Consider Act 2, sc. vi, l. 44: “Proteus. … As thou hast lent me wit to plot this drift [in the sense of a scheme]”.
Leaving aside the inevitable “you can’t win” thought that surely crosses your mind, capable investigators must have taken some time to weigh this type of question. In addition, careful notetaking of when and for how long you weighed this issue is always helpful. Further yet, I do not suggest that only important witnesses in important cases warrant this type of consideration, merely that investigators only have so much time available to them…
Interviewing skills – clarify information to identify sarcasm versus a profound degree of meaning
Consider this example, taken from Verona, Act 2, sc. i, l. 123-125:
Speed.
O jest unseen, inscrutable, invisible,
As a nose on a man's face, or a weathercock on a steeple!
Either the witness is being sarcastic or seeking to pronounce a great truth that is far from self-evident. The prudent investigator seeks to ascertain the meaning of the words and the intent of the speaker.
Interviewing skills – Error – does the person too readily admit to an error?
In Verona, 2-i-7, we find the following dialogue:
Speed.
She is not within hearing, sir.
Valentine.
Why, sir, who bade you call her?
Speed.
Your worship, sir; or else I mistook.
In such a case, the prudent investigator will enquire what circumstances brought about so quick an admission of error, as it appears suspicious.
Interviewing skills - Leading witnesses is not permitted and is far more dangerous in pre-trial interviews than at trial
Verona includes these remarks at Act 1, sc. iii, l. 1-2: “Antonio Tell me, Panthino, what sad talk was that Wherewith my brother held you in the cloister?” This type of question cannot be formulated when questioning a witness as it suggests a response. Careful investigators ask open ended questions, that typically cannot be answered by means of a yes or no. In the same vein, careful investigators wait to hear the full response when the question asked is not leading, as one never knows what the witness would have said. In effect, it amounts to leading to deny a potential witness the opportunity to state what they mean to communicate. For example, “Sylvia. A pretty period! Well, I guess the sequel …” See 2-i-105.
Interviewing skills – Mind reading not possible!
Verona, 2-vii-1 includes a valuable illustration of this impossible ability to call upon to help with your investigations:
Julia. Counsel, Lucetta; gentle girl, assist me;
And even in kind love I do conjure thee,
Who art the table wherein all my thoughts
Are visibly character'd and engraved,
To lesson me and tell me some good mean
How, with my honour, I may undertake
A journey to my loving Proteus. [Emphasis added]
The highlighted part is the power no investigator possesses, though hard work and imagination may address much of the knowledge gap.
Interviewing skills – Multiple questions at once to be avoided
In The Two Gentlemen of Verona, Act 2, sc. i, l. 52 , we find the following dialogue: “Valentine. How painted? and how out of count?” The double question follows upon prior responses and are not unfair from that perspective, but the danger is that the judge or defence counsel will conclude at trial that the answer provided dealt with only one of the two parts but references the incorrect one. The golden rule is one question at a time.
Interviewing skills - Record precisely what the witness stated and clarify any ambiguity
The Two Gentlemen of Verona makes plain at Act 2, sc. iii, 37-45 the need to be precise and to avoid the possible selection of homonyms that may serve to confuse:
PANTHINO.
Tut, man, I mean thou'lt lose the flood, and, in
losing the flood, lose thy voyage, and, in losing
thy voyage, lose thy master, and, in losing thy
master, lose thy service, and, in losing thy
service,--Why dost thou stop my mouth?
LAUNCE.
For fear thou shouldst lose thy tongue.
PANTHINO
Where should I lose my tongue?
LAUNCE
In thy tale.
PANTHINO
In thy tail!
One easily understands how the words tail and tale may confuse the listener, and the careful investigator must avoid any confusion. Noteworthy as well is this troublesome exchange:
SPEED
How now, Signior Launce! what news with your
mastership?
LAUNCE
With my master's ship? why, it is at sea.
SPEED
Well, your old vice still; mistake the word. What
news, then, in your paper?
See Act 3, sc. i, l. 279-281.
Interviewing skills - Shelter record of interview in terms of non-verbal information not described as demeanour
“Proteus. But what said she? Speed. [First nodding] Ay.” Refer to The Two Gentlemen of Verona, Act 1, sc. i, l. 106-107. The electronic record of the interview must include some comment setting out that this is an affirmative nod if such be the case.
Interviewing skills – Special situations – tricks, resort to
“Proteus. … For Thurio, he intends, shall wed his daughter; But, Valentine being gone, I'll quickly cross By some sly trick blunt Thurio's dull proceeding…” The difficulty is that sly tricks may be allowed but the line that reaches prohibited dirty tricks is not self-evident. The Two Gentlemen of Verona, Act 2, sc. vi, l. 41.
Interviewing skills - Verbatim account of an interview, unaided by technology
The former gold standard when it came to a witness, for example an investigator at trial during a Canada Evidence Act s. 9(2) application, quoting the words of another, is the production of a verbatim account, unaided by machinery. It is exceedingly rare today and such instances are now depreciated by reason of the rise of technology. For old school purists, allow me to quote from The Two Gentlemen of Verona, Act 4, sc. iv, l. 22 to 36:
Launce … 'Out with the dog!' says one: 'What cur is that?' says another: 'Whip him out' says the third: 'Hang him up' says the duke. I, having been acquainted with the smell before, knew it was Crab, and goes me to the fellow that whips the dogs: 'Friend,' quoth I, 'you mean to whip the dog?' 'Ay, marry, do I,' quoth he. 'You do him the more wrong,' quoth I …
That said, almost invariably, the failure to resort to an audio-visual recording will bring about a great deal of criticism!
Motions to obtain directions from the court, to prove similar fact evidence, under s. 9(2) CEA, etc.
Speed in Verona, Act 2, sc. i, l. 85, states: “O excellent motion! …” Investigators wish to hear that prosecutors have been praised by judges for the motions they have put forward to achieve evidentiary goals. For example, proof of the existence of similar fact or tactical ones such as an order from the court that something be tested or that a document is not privileged as a result of an outstanding bit of analysis, research and good old shoe-leather being expended by detectives. Or, as expressed by Lucetta: “Alas, the way [to a successful investigation] is wearisome and long!” To which Julia replies: “A true-devoted pilgrim is not weary To measure kingdoms with his [or her] feeble steps…”
Necessity, to make a virtue out of
Act 4-i-63 of the play reads: “2 Outlaw … To make a virtue of necessity …” From the perspective of the investigator, what matters is your ability to make something out of nothing (or next to nothing) during an investigation – to find the proverbial needle in the haystack.
Notes, taking careful
The Two Gentlemen of Verona, Act 2, sc. vii, l. 84 includes these words: “Julia. … To take a note of what I stand in need of…” to illustrate the need for careful notetaking. As a judge, I find that the most common mistake surrounds the absence of thorough notes and the most notable error is the apparent refusal to set out the precise time of the entry of the notes, leading to the highly vague “my notes were made at the time of the event or shortly thereafter” when the precise time and place of the note making takes but a few seconds.
Professionalism - Delay may lead to a stay
The following words, found in Verona, Act 2, sc. iii, l. 33, are apt: “Panthino. … You’ll lose the tide if you tarry any longer.” Not unlike the phrase suggests, careful investigators are mindful of the need to take advantage of the tide to obtain information, exhibits, and the cooperation of other agencies, etc. The opposite situation, lack of diligence in your work, may lead to a successful delay argument pursuant to s. 11(b) of the Charter and a ruling that the defendant was not tried within a reasonable time.
Professionalism - Examine a statement in detail to verify the merits of the conclusions
The bald statement put forward at the outset below typifies the need for verification of the elements that justify, or not, the conclusion advanced. See Verona, 1-i-125 to 140:
PROTEUS
Well, sir, here is for your pains. What said she?
SPEED
Truly, sir, I think you'll hardly win her.
PROTEUS
Why, couldst thou perceive so much from her?
SPEED
Sir, I could perceive nothing at all from her; no,
not so much as a ducat for delivering your letter:
and being so hard to me that brought your mind, I
fear she'll prove as hard to you in telling your
mind. Give her no token but stones; for she's as
hard as steel.
PROTEUS
What said she? nothing?
SPEED
No, not so much as 'Take this for thy pains.' To
testify your bounty, I thank you, you have testerned
me; in requital whereof, henceforth carry your
letters yourself: and so, sir, I'll commend you to my master.
PROTEUS
Go, go, be gone, to save your ship from wreck,
Which cannot perish having thee aboard,
Being destined to a drier death on shore.
In effect, the information put forward is virtually useless and the original conclusion without support or justification. The careful investigator will take pains to avoid accepting opinions without a factual background and conclusions without support.
Consider this brief example: “Lucetta. Then thus: of many good I think him best. Julia. Your reason?” Refer to Act 1, sc. ii, l. 21-22 for an excellent example of this process, and do not forget the answer, that makes plain that there is no evidence in support of the conclusion: “Lucetta. I have no other, but a woman's reason; I think him so because I think him so.”
Professionalism - Hard work is essential!
Note that Act 1, sc. iii, l. 22 of the play reads: “... Experience is by industry achiev’d…” which clearly supports the opinion that one becomes a successful investigator by reason of hard work. In this context, there are countless examples of quite excellent young investigators that I have observed over 28 years as a judge, and 12 as a defence counsel and later as a prosecutor, by reason of a ton of experience gained by not turning down any opportunity to support the efforts of others. This is illustrated in Act 2, sc. iv, l. 65: “… His years but young, but his experience old …”
Professionalism - Keep an even disposition as days rarely end how they began
See Act 1, sc. iii, l. 85-86 of the play follows: “Proteus. The uncertain glory of an April day, Which now shows all the beauty of the sun, And by and by a cloud takes all away!” What I mean to express is that the reliable investigator never forgets that what appeared to promise to be an eventful day may end up a disaster, if one thing changes, and that apparently terrible days might conclude with a significant break.
Professionalism – Leaps in logic are to be avoided as you interpret the responses you receive
An example follows: “Speed. But tell me true, will't be a match? Launce. Ask my dog: if he say ay, it will! if he say no, it will; if he shake his tail and say nothing, it will.” In few words, do not jump forward at any possible occasion, claiming success… See Verona, 2-v-31. Consider this passage as well: “Valentine. … To bear my lady's train, lest the base earth Should from her vesture chance to steal a kiss…” is a phrase we encounter at Act 2, sc. iv, l. 155. Be careful in assigning too much importance to any such commentary.
Professionalism - Obtain proof upon proof
In this vein, the play offers this illustration: “Speed. Such another proof will make me cry ‘baa’”. See 1-i-91. This may be likened to an interview in which evidence is brought forward in a systematic fashion. We also read in Act 1, sc. i, l. 1: “Valentine. Cease to persuade…” seeking to demonstrate how a defence lawyer might respond to such a successful question and answer session.
Professionalism - Paying for a witness statement or discussing a potential reward
Verona, Act 1, sc. i, l. 132-133 follows:
“Proteus. … what said she?
Speed. Open your purse, that the money and the matter may
be both at once delivered.”
It is unethical to pay for proposed testimony, and likely results in information that is not reliable and probably incomplete with the hope of further payment, and the question of a reward might be best addressed by indicating that this award is not in your hands and ought to be ignored totally.
Professionalism - Turning over rocks after rocks to see what might be found under them
I do not suggest that the successful investigator requires a certificate as a mining engineer. What I do suggest is that in keeping with Julia’s statement, “I would I knew his mind”, the police officer who is prepared to read all the words of the potential witness in this social media world, by way of limited example, will be able to read that person’s mind and provide the prosecutor with a most thorough brief. In essence, look under rocks and then under even more… See Verona, Act 1, sc. ii, l. 33.
Provide the prosecution with the best possible advice as to the merits of the case – are the opposing elements equal?
At times, one may encounter a situation where it seems that two diametrically opposed factual possibilities exist, typically in cases of circumstantial evidence. As noted earlier, consider the classic case of a person being discovered holding on to the hilt of a knife that is within the body of the deceased, and that the suspected person is stained by blood. Is this the assailant, caught red-handed in the real sense of the word, or an innocent passer-by who stopped to render assistance that s/he mistakenly thought was possible?
As the investigator weighs the competing factual possibilities, it appears that one conclusion emerges, be it favourable or not to a prosecution, and minutes later, further consideration upsets that initial opinion. The image that comes to mind is best described by Sir Walter Scott in his novel Ivanhoe with reference to Robin Hood, who succeeds in splitting an arrow that was already embedded in the center of the target.[8] A similar situation is described in Verona, 2- iv-189: “Proteus. … Or as one nail by strength drives out another …”
In effect, the Crown is entitled to the best possible advice as to the merits of the potential prosecution and that may include, of course, that no firm conclusion tending to culpability can be discovered on the information available. In your quest for the truth, be mindful that the truth is often elusive. Thus, the play at Act 2, sc. ii, l. 17-18 suggests that “… truth hath better deeds than words to grace it.”
Secrecy, not possible, unless the person interviewed is a confidential informant
“Duke. Sir Thurio, give us leave, I pray, awhile; We have some secrets to confer about.” Unlike this passage found at 3-i-1 of the play, the police interviewer is not able or permitted to promise secrecy as to the nature of the discussions, unless the individual is a confidential informant.
Sound thinking or prejudice.
One must ever be careful that prejudice is not seen as sound thinking, such as perceived truths about children, as llustrated in Verona, Act 3, sc. i, l. 123-125: “Duke. This very night; for Love is like a child, That longs for everything that he can come by.”
Testifying in court – do not battle with defence lawyers or the judge
In Verona, Act 1, sc. i, l. 87, Proteus remarks: “… Made me neglect my studies, lose my time, War with good counsel …” Defence counsel are duty bound to assess fully and fairly the strengths of the case presented by the Crown and to challenge it vigorously, a duty you will appreciate fully if you are ever the victim of a false accusation put forward by someone hoping to discredit you, either before a professional standards tribunal or the criminal courts. They may be called upon to question your credit or reliability, on instructions that require a good faith basis, in our adversarial system, but you cannot respond in the same fashion, far from it. Your duty is to honour your oath and to seek out and disclose all information available, be it favourable or not to the prosecution, and to answer without passion any suggestions, no matter how you consider them a challenge to your integrity.
I do not suggest that being cross-examined is either fair or fun to experience, far from it, as it includes, at times, an experience of “showing off” by some lawyers. Consider that in the play, we read at 4-ii-77: “Proteus … I will so plead That you shall say my cunning drift excels.” By way of contrast, consider Act 2, sc. iv, l. 95, and the difficult and at times frustrating work of the prosecution seeking justice, and to obtain findings of guilt, within a system that legitimately requires proof beyond a reasonable doubt and the presumption of innocence: “Julia. … unhappy … To plead for that which [cannot be obtained …]”
Testifying in court – Nothing is impossible
Defence counsel are fond of asking police officers whether the situation being discussed is impossible and often, witnesses respond: “Nothing is impossible”, as suggested by the play at Act 3, sc. i, l. 360: “Launce. … as nothing is impossible.” I have no advice for the officers save to say that I once heard an expert witness state: “What you say is not impossible, as it is not impossible for a deck of cards to be thrown into the air, and then for all cards to land facing up, each suit in perfect order, but since both examples are so near to being impossible, than it is better to concentrate as what most likely took place, as I have described it!
Testifying in court – Wit, whether a positive or negative element for investigators?
Lawyers who are quick-witted are ideally suited to the courtroom, but the ultimate question in the present context is whether investigators are better or worse off by displaying their wit? In this vein, note Verona, Act 1, sc. i, l. 118: “Proteus Beshrew me, but you have a quick wit.” Of note, Speed goes on to state at l. 123-124: “Open your purse, that the money and the matter may be both at once delivered.” In addition, noteworthy is the passage set out in Act 2, sc. iv, l. 37-39: “Thurio. Sir, if you spend word for word with me, I shall make your wit bankrupt.” Not to be outdone, Valentine responds: “… you have an exchequer of words, and, I think, no other treasure to give your followers …” At the start of the play, we read: “Valentine. Home-keeping youth have ever homely wits…” in the sense of being able to talk well of home matters but lack wit for more bookish forms of intelligent discourse.
I do not think a witness is ever advantaged by displaying wit, but I am sure sound commentators would disagree, but everyone is agreed that if the judge attempts wit, whatever is said was and remains funny.
Time, estimation of, a difficult exercise by potential witnesses
I suggest that in general, persons have difficulties in estimating how long any situation consumed in terms of time and it is suggested that persons in love are poor keepers of time, as made plain in the play, Act 5, sc. i, l. 4-6: “Eglamour. … lovers break not hours Unless it be to come before their time, So much they spur their expedition.” Careful investigators look to anchors as to various time estimates, such as the news just came on, the noon time church bells were ringing…
Voice identification
The Two Gentlemen of Verona, Act 4, sc. ii, l. 84 sets out the advice of Proteus: “… You would quickly learn to know him by his voice.” Be mindful that defence counsel might obtain several “vice foils” and have these innocent persons record the phrase in question that is crucial to the prosecution, to then play them in short order for you during the trial, and then invite you to select the correct person. In other words, be careful to ensure that you can select the person’s voice correctly.
Witness preparation
“Valentine … But wherefore waste I time to counsel thee …” is a phrase we encounter in Verona, Act 1, sc. i, l. 52. It represents the opposite of what good investigators devote themselves to achieve in the pre-trial phase. Indeed, in the absence of sound preparation of witnesses, most cases are unlikely to advance the cause of justice. Not only is it necessary to do so to avoid misunderstandings and poorly considered responses, it enhances the confidence of the witnesses and their trust in the trial system. At bottom, a well-prepared and positive witness may well not respond with “A silly answer”, the words we find at Act 1, sc. i, l. 79.
Indeed, he or she may be far better prepared to point out to defence counsel the error they have committed, as does Speed who stated: “You mistook, sir; I say, she did nod: and you ask me if she did nod; and I say, 'Ay.'” Refer to Act 1, sc. i, l. 107-108.
Youthful witnesses, pros and cons
“Valentine. … Wear out thy youth with shapeless idleness…” This phrase is found in the opening lines of the play and seasoned investigators must be both mindful and wary of stereotypes.
Conclusion
At the end of any day, of any case, and of your career, the most than you can hope to achieve is to look back and take sinful pride in the fact that the members of the Crown’s office were delighted to comment that you put together an excellent file. In this context, The Two Gentlemen of Verona, Act 3, sc. ii, l. 88, records Thurio as stating: “And thy advice … I’ll put in practice …
[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 “Verona” or to “the play”. 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] Readers are invited to consider the detailed review of the case in https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.htm.
[6] I have written a book devoted to this controversial subject, Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008, and have addressed the subject matter at length in two other books: L’évaluation du témoignage Un juge se livre, Les Éditions Yvon Blais, Cowansville, Québec, 2008, and Advocacy: A Lawyers’ Playbook, Carswell, Toronto, 2006.
[7] I invite any readers to contact me at gilles.renaud@ocj-cjo.ca if they require assistance in locating these or any other cases.
[8] The relevant passage is found at Chapter 8: “… And letting fly his arrow with a little more precaution than before, it lighted right upon that of his competitor, which it split to shivers. The people who stood around were so astonished at his wonderful dexterity, that they could not even give vent to their surprise in their usual clamour. “This must be the devil, and no man of flesh and blood,” whispered the yeomen to each other; “such archery was never seen since a bow was first bent in Britain.”