Introduction
In the course of prior writings, I have sought to point out how criminal law advocates and prosecutors in particular may profit immensely from the many plays penned by the Bard.[1] This summer, my interest in this subject has been rekindled by reason of excellent local productions. Accordingly, I offer these observations on the subject of persuasion,[2] based on Macbeth, in the expectation that it may prove profitable to counsel.
Discussion
Reversing the proposition: The building block of a successful argument
I have argued elsewhere, and in great detail,[3] that one of the fundamental tools with which to form a successful submission is the technique of reversing the proposition. If the defence, for example, were to submit that the account of the event advanced by a prosecution witness does not dovetail well with the testimony of a second Crown witness, it should be stressed that incidental errors and inconsistencies support the credit of the supposedly mistaken witness. After all, his account was not suspiciously “too pat”.
Hence, counsel must be alert to the possibility of “flipping” any theory and certainly any argument - the famous phrase uttered by the three “weird” sisters in Act I, scene I of Macbeth, “Fair is foul, and foul is fair” should serve as an easy mnemonic in this respect. What is fair and what is foul in any given situation depends on a subjective view, and is often tributary to one’s wishes and needs. A terrible snowstorm is always a welcome event in the lives of schoolchildren wishing a break from their responsibilities, more so in the case of those delinquent with an assignment, and thus a mention in a report that a witness was enjoying herself at home one day during a blizzard might be explained by the context, and thus a potential area of impeachment may be foreclosed with a bit of preparation.
An even handed account will win your witness favourable credit
In Macbeth, Act I, scene II, a Sergeant states, in response to a question as to the way the battle was fought, “… Doubtful it stood; As two spent swimmers, that do cling together And choke their art…” In other words, the witness undertook his testimony by making plain that the subject matter is not without controversy and the ultimate answer depended on a review of all of the information. If one reverses the proposition, and puts these words in the mouth of the Sergeant, “… I knew all along we would win! ...”, one may doubt that the judge or trier of fact will view the evidence with the same degree of consideration. Thus, it may well be wise to instruct a witness to make sure that they refer to the good and the bad in whatever they viewed and are called upon to describe. If a prosecution witness, for example, was consuming narcotics at the relevant time, this should be drawn out from the witness at the outset.
Make allowance for any idiosyncrasies in how a witness speaks
Counsel must always be alert, at the stage of preparation, for any particular elements in the manner or fashion by which a witness communicates in order to forestall any unnecessary lack of credit that might be assigned to the testimony in question. Macbeth includes this passage, at Act I, scene II, wherein the King asks if Macbeth was worried when the enemy was able to count on reinforcements: “Duncan: Dismay'd not this Our captains, Macbeth and Banquo? Sergeant Yes; As sparrows eagles, or the hare the lion…” Stated otherwise, some persons have a very particular way of communicating, and questions should be framed in order to lessen any potential concerns in the minds of fact finders. In the case under study, the witness was ironic and if that is the typical form of response, it must be addressed, if possible.
Witnesses collaborating in the recitation of their understanding of the events
Quite often, the prosecution’s case will be impugned on the basis that the witnesses had an opportunity to “rehearse” their testimony when they discussed what had happened quite soon after the event, with a view to planting the seed of contamination. Often, defence counsel seek to underscore how police officers consulted prior to, or during, the writing of their notes. And yet, it may be that the manner by which the witnesses reviewed the event, let us say what happened as the third party driver, and later accused, sought to overtake another vehicle, ensures a correct understanding and a clear “anchor” to a sound memory. This is illustrated in Macbeth, Act I, scene III, after the sisters have advanced a number of predictions:
BANQUO: Were such things here as we do speak about?
Or have we eaten on the insane root
That takes the reason prisoner?
MACBETH: Your children shall be kings.
BANQUO: You shall be king.
MACBETH: And thane of Cawdor too: went it not so?
BANQUO: To the selfsame tune and words. Who's here?
In truth, by reviewing the words of the three sisters immediately after such a dynamic event, in this strict fashion, the two witnesses have ensured that neither would labour under any misunderstanding. By contrast, the passage consigned in Act I, scene III, “Give me your favour: my dull brain was wrought With things forgotten…” illustrates the opposite situation.
The dangers of demeanour evidence
The works of Shakespeare, and Macbeth in particular, contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of “testimony”, a subject that I have discussed critically in extra-judicial writings.[4] Perhaps the best known and the one that counsel should resort to most often, given its universal understanding, is found in Act I, scene IV: “Duncan: There's no art To find the mind's construction in the face…” The companion reference that is best suited to underscore this point is set down in Act I, scene VII: “Macbeth … Away, and mock the time with fairest show: False face must hide what the false heart doth know.”
I note as well the oft quoted observation, from Macbeth, Act I, scene V: “Your face, my thane, is as a book where men May read strange matters…” In fact, Macbeth’s features made plain his anxiety. In this vein, noteworthy also is this passage from Macbeth, Act III, scene II: “Macbeth: … Present him eminence, both with eye and tongue: Unsafe the while, that we Must lave our honours in these flattering streams, And make our faces vizards to our hearts, Disguising what they are.”
Of further interest on the question of demeanour evidence is the following passage, in which the son of the slain king states that he has not yet had time to weep in sorrow, in light of the circumstances: “… Let 's away; Our tears are not yet brew'd.” See Act II, scene III. Drawing further attention to the concern that certain witnesses may be adept at feigning emotions, consider the words found at Act II, scene III of Macbeth: “… Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy…”
A great number of further examples might be offered in attempting to demonstrate the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions, but I will limit myself to these. On the issue of interpreting smiles, Act II, scene III, of Macbeth includes the words: “… There's daggers in men's smiles…” What of the expression “goose look” found in Macbeth, Act V, scene III: “Macbeth The devil damn thee black, thou cream-faced loon! Where got'st thou that goose look?”
At all events, it is relatively simple for one to adopt a guise that may well hide the true nature of one’s thoughts and actions. In this context, Justice O’Halloran cautioned against the fear that a good actor might hoodwink the Court. Refer to Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10, and to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91:
46 There are a number of cases which caution judges not to rely too heavily on demeanour in determining credibility. As stated by O'Halloran J.A. in the frequently cited case from this Court, Faryna v. Chorny, [1952] 2 D.L.R. 354 at paras. 10 and 11:
[10] If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
Circumstantial evidence: A good example of
The passage found at Act II, scene III, in which Lady Macbeth sets out how she will incriminate the King’s chamberlains by smearing them with blood affords a well-known example of circumstantial evidence by means of which innocent persons stand accused most foully. As we read: “… Give me the daggers: the sleeping and the dead Are but as pictures: 'tis the eye of childhood That fears a painted devil. If he do bleed, I'll gild the faces of the grooms withal; For it must seem their guilt.” Later on, we note her counsel at Act II, scene II: “… Go get some water, And wash this filthy witness from your hand. Why did you bring these daggers from the place? They must lie there: go carry them; and smear The sleepy grooms with blood.”
Circumstantial evidence: The dangers when raising “flight” against an accused
Case law abounds with illustrations of persons who are innocent who took flight upon the discovery of a crime, for a variety of innocent reasons, and prosecutors must always be wary of such circumstances. One example found in the world of fiction arises in Macbeth, Act II, scene IV: “… Malcolm and Donalbain, the king's two sons, Are stol'n away and fled; which puts upon them Suspicion of the deed.” And yet we know that they were innocent and we also know that they had good reason to fear that unjust suspicion would arise against them. Consider as well these passages, from Macbeth, Act IV, scene II: “Lady Macbeth … His flight was madness: when our actions do not, Our fears do make us traitors. Ross You know not Whether it was his wisdom or his fear.”[5]
One ought not to expect that each person will react the same to the same situation
An advocate is often confronted with a situation in which different persons have reacted differently to the same factual situation, let us say the reaction to an armed confrontation in which one or more flee whilst another does not. In seeking to make plain that the response of the one who remained was, amongst other things, not proportionate, it must be expected that the defence will raise the suggestion that different reactions are not only common, but to be expected, in situations of stress. As illustrated in Macbeth, Act II, scene II, Lady Macbeth states: “That which hath made them drunk hath made me bold; What hath quench'd them hath given me fire.”
An additional example of the potential for a variety of reactions to a certain situation is seen in Act II, scene III, upon the discovery of King Duncan’s murder and Macbeth’s reaction, that of killing the two guards. When asked why he had acted in this fashion, Macbeth responds: “Who can be wise, amazed, temperate and furious, Loyal and neutral, in a moment? No man…”
Cross-examination
Admittedly, the best-known example of advice on cross-examination advanced by Shakespeare is found in Hamlet, Act II, scene I: “Lord Polonius “… Look you, sir, Inquire me first what Danskers are in Paris; And how, and who, what means, and where they keep, What company, at what expense; and finding By this encompassment and drift of question That they do know my son, come you more nearer Than your particular demands will touch it …” Nonetheless, Macbeth contains some “backwards” advice, along these lines: “Lord He did: and with an absolute 'Sir, not I,' The cloudy messenger turns me his back, And hums, as who should say 'You'll rue the time That clogs me with this answer.'” Stated in direct terms, the advocate must not allow a witness to “clog” the case adversely.
Memory is adversely affected by alcohol and other intoxicants
I doubt very much that any authority is required in support of the proposition that a witness who has consumed intoxicants may well be thought to have perceived events poorly and, certainly, to have retained the memory of the perception less than fully and fairly. But if the occasion does present itself, reference may be made usefully to the following, from Macbeth, Act I, scene VII: “… his two chamberlains Will I with wine and wassail so convince That memory, the warder of the brain, Shall be a fume, and the receipt of reason A limbeck only: when in swinish sleep Their drenched natures lie as in a death…” If you believe that further authority is called for, quote the Porter, at Act II, scene III.
Conclusion
It is the hope and expectation of every advocate that he or she has, in the words found in King Lear, Act V, scene III, succeeded in moving the trier of fact. As Edmund states: “… This speech of yours hath moved me, And shall perchance do good: but speak you on; You look as you had something more to say.” It is my hope that these classic citations will assist the advocate in achieving that ambition and though this article is directed to prosecutors, the essence of advocacy is the capacity to “flip” arguments and defence counsel may well profit as equally from the thoughts penned herein.
Justice G Renaud
END NOTES:
[1] Refer to Advocacy: A Lawyers’ Playbook, Carswell, 2006, and to the following articles: “Shakespeare’s Instruction for the Advocate: An Overview”, June 1999, 21 Advocates’ Q. 457-464, “Shakespeare and the art of judging”, (Spring 1999) 23 Prov. Judges J. 29-33 and “Shakespeare’s Instruction for Defence Counsel”, posted in Alan D. Gold’s Netletter, Quick Law, ADGN/RP-078, January 26, 1999.
[2] On this subject, I commend without reservation Power of Persuasion, Essays by a Very Public Lawyer, by Sir Louis Blom-Cooper Q.C., Hart Publishing, Oxford, 2015. My very favourable book review will appear in (2015), Vol. 39 Crim. L.J. 221-223.
[3] Advocacy: A Lawyers’ Playbook, Chapter 6, at pages 119-161.
[4] Refer to Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008.
[5] In addition, Act V, scene II, of Macbeth provides a good example of circumstantial evidence favourable to the prosecution. Hence: “Angus … now does he feel his title Hang loose about him, like a giant's robe Upon a dwarfish thief.” In other words, clothes that evidently do not fit may well make plain that they were obtained unlawfully.