Police Investigations 101
Lessons for Prosecutors from William Deverell’s Kill All the Lawyers
Gilles Renaud | Ontario Court Of Justice (Retired)
Introduction
William Deverell’s career saw him prosecute several prominent cases, including appeals[1], and defending scores of defendants in leading cases at all levels of court. But, his success as a litigator is now obscured by his fame as a writer. Writing dozens of highly acclaimed legal novels will do that for your reputation! If you have not had the pleasure of reading one of his books, please go to the library, the bookstore or one of those computer sites that permits you to have this, and other great titles, in your hands overnight. Indeed, anyone wishing to make the best of an otherwise dull flight, or train trip or long wait, should obtain one of his books and read for hours of pleasure. Moreover, if you are a litigation lawyer, I suggest that you keep a pencil handy, as I do, and underline every useful illustration of trial tactics, cross-examination, and instruction on human nature, not to overlook the means of “judging” judges, lawyers, police officers and witnesses in general, that his writings provide in abundance.
In addition, since his books generally follow the ordained dénouement of a successful defence, they are quite useful to prosectors wishing to understand fully tactics that their colleagues might employ. This book, Kill All the Lawyers, [Ballantine Books, Toronto, 1995], is no different from other “whodunits” and perhaps is better than most other titles penned by defence lawyers in Canada. Of course, the title reminds us of the classic passage from Henry the Sixth, Part Two, Act IV, sc. ii, ll. 76-77, and this book is my favorite of all the great titles flowing from Mr. Deverell’s skilled pen. Why? Because it includes a fascinating “story within the story”[2] of how to write the great Canadian crime novel.[3] I cannot tell you more as to the intrigue without marring the challenge you face in attempting to unravel the identity of the killer(s), but the paragraphs that follow will provide a thematic guide to the lessons for Crown litigators that the author provides together with laughs, adult entertainment and lessons in psychology that are invaluable at all stages of our careers.
Discussion
“Argumentative” by way of objection
I have never seen anyone raise that type of objection, save on American television or movies. When one of Mr. Deverell’s characters raises it on page 53, the presiding judge simply directed the witness to continue to respond. In this vein, nothing prohibits Crown counsel from revisiting the issue in final submissions to invite the Bench to discount the testimony due to poorly selected and unfair questions, if there is a foundation for this submission
Citizenry may be outraged at the work of criminal defence lawyers
This theme is highlighted at page 2 and pursued throughout the novel (and the author’s other writings, notably the later titles starring Mr. Arthur Ramsgate Beauchamp[4], Q.C. who appears in a cameo at page 51 and later at page 280) and newly minted Crown counsel must learn not to allow such pressures to influence their decision making, tactical choices or career options. Moral courage is fundamental to a satisfying career for both Crown and defence counsel! In addition, the pressures of all types of litigation work may lead to difficulties such as substance abuse. Indeed, the police say of Mr. Beauchamp that he is best lawyer in the world when “off the sauce”.
“Consciousness” of innocence
So much ink is spilled discussing actions that are inconsistent with innocence that it will be relevant to point to the opposite situation. As we read at page 153, “… in an act of telling innocence, ordered him to fetch the police …” which a guilty person would avoid wishing to meet. Of course, if one reverses the proposition, as a good advocate must, the result is a Crown submission to the effect that one who knows that the “noose is tightening around one’s neck: might well roll the dice and engage in an action that seems an indication of guilt, but only on first impression…
Counsel’s courage
Page 28 includes a signal example of a lawyer pointing out that the trial judge has elected to look at the front wall after pivoting their chair and this is a relevant remark to be put on the record of the proceedings. I recall such an episode in Chapleau, Ontario, and defence counsel then objected to then be told by the Court: “I must hear the trial, not see it.” What all counsel are entitled to is what we read at page 52: a judge who acts with utter sang-froid no matter the conduct of either counsel, witnesses, the public.
Counsel’s ill-humour
“I agree that counsel must leave their ill humour behind them in the courtroom…” is what we read (and must heed) at page 63.
Courtroom instincts
Note the passage found at page 297: “… a blunderbuss, but with keen courtroom instincts – had tuned into the guilty vibrations between [so and so]” One cannot overestimate the importance of reading transcripts and of viewing trials to gain this skill – do not sit outside of the courtroom waiting for your trial. Thus, if a Federal prosecution is called first, and you are “free to leave”, stay and soak in all of the hearings you can take in …
Cross-examination based on a sound basis in fact
Consider the example found at page 72 where the witness stated she heard “I love you” and the suggestion by opposing counsel includes the words: “I love this…”
Cross-examination involves “rolling the dice” at times
That this course of conduct might be fit is illustrated at page 140, especially when you have exhausted sound avenues of impeachment that were well prepared. Crown counsel does not get disclosure of what the defendant may say, if called, and thus this tactic might be more often at play, but it only makes sense if you master the facts that your investigators have put together.
Dogged determination in serving victims or defendants before the criminal courts
Chapter 1, “The Last Summer of Arthur Besterman”, paragraph 2, page 1, begins with the words, “He was a dogged lawyer …” There is no higher praise for so many of us who toil (or did so previously) in the criminal law trenches. Truly, the challenges are great in number and the rewards few when expressed in dollar signs, but the satisfaction of ensuring that justice be done, “though the heavens fall…”, as I was taught by the late Clarey B. Sproule Q.C., in his Clinical Legal Aid class at the University of Ottawa in 1981, cannot be exaggerated. As we read at page 6, you must “be idealistic and want to fight for [the] rights” of victims or defendants, as the case may be. The example found at page 17 is also useful: we read of a determined young counsel dedicated to obtaining a favourable result from a prosecutor so that the client might avoid a criminal record, and the nuance is worth highlighting: you need not succeed in getting the Crown to join you on a form of discharge but there is no dishonour in obtaining their agreement not to oppose such a result. From the perspective of Crown counsel, there is no shame in resolving a case on favourable terms for a first offender as that might well bring about a cessation of anti-social activity, while sparing the victim from testifying and “freeing up” valuable Court time.
Expert “guesswork”?
Deverell summarizes this concern ably at page 2: “… The coroner guessed a baseball bat, or something similar.” Counsel, be they for the Crown or defence, must be vigilant to discern what is scientific, and what is not, and seek to provide support for the latter based on dogged determination and preparation.
False confessions
Chapter 20, “Untrue Confessions”, at pages 132-142, provides a few insights into a situation one hopes you avoid, that of prosecuting a person who, as set out at page 137, “… was a congenital claimer of crimes he did not commit.” Of course, as we read at page 333, perhaps the person who confesses and who appears to be a publicity seeker might be, in fact, guilty!
Identifying with your clients
I leave it to your defence colleagues to decide whether this is ever a sound strategy, as asserted on page 62, as opposed to being the representative who stands resolutely by their side as they face the ordeal of a trial, or the early investigation, arrest, etc. What you should avoid is to attack counsel’s efforts as they have a duty to ensure that justice is served. Your role to support and protect victims is no less critical or complex, requiring judgment and discretion.
“Intimidating distance” from the witness
Page 9 illustrates the oft discussed and controversial tactic of attempting to crowd near a witness and “be close enough to smell the staleness of their breath…” For my money, this is rarely an ideal step as it serves only to draw out an objection from the witness, from defence counsel and at times, the trifecta of the presiding judge also remonstrating with you. I do not suggest that you follow the English practice of being welded to counsel’s table or podium but your distance allows you to exploit certain other tactics, notably to request that a quite favourable response be repeated on the foundation that your distance from the witness detracted from your ability to make a complete note.
Prior to leaving this area, note the example consigned at page 57: “… the judges had told [the Crown] they did not want to hear from him further, a coded message for which the true meaning was, ‘We have already made up our minds, but propriety demands that we go through the motions of listening to the opposing counsel.” The fact remains that most experienced litigators can point to situations where that occurred and yet, the court or panel seemingly flipped a switch after hearing some submission that had been overlooked or misunderstood. In effect, victory snatched from the jaws of defeat… In my case, I stood to present final submissions in the case of a self-represented defendant in a refusal to take a screening device demand case and the judge waved me down, stating I need to hear what this person has to say before I even think of asking you to respond. His Honour heard the defendant, told me to remain seated, and then proceeded to find the lady not guilty!
Jacob v. R., (1996), 31 OR (3d) 350 (C.A.)
This case comes to mind when ones reads: “Men bare their breasts quite legally…” at page 179 when a female wishes to sunbathe without a top. Other references include 142 DLR (4th) 41, 95 OAC 241, 112 CCC (3d) 1, 4 CR (5th) 86, 40 CRR (2d) 189, [1996] OJ No 4304 (QL), 1996 CanLII 1119 (C.A.).
Judicial advice
Page 105 reports that a lawyer would often seek out the advice of a senior judge as to what to do when a challenging situation arose in practice and some readers might see that as a stretch, but I recall more than one senior lawyer telling me that this was not uncommon during the early part of their career.
Judicial leanings might be on display if you pay attention
The author makes plain at page 9 that a judicial officer, even while rebuking you for some faux pas, might be telegraphing (or should we say texting?) you a message by the tone of voice, etc. Of course, as shown at page 10, if it appears that the jury wants to leave early to get their Christmas shopping started, your defence friend might wish to not call a shaky defendant if that was their strong “leaning” and they have those instructions.
“Late entries” in the police officer’s notebook
An interesting example is found at page 58. When asked by defence counsel, “You made a note of his words?” (at a time when recording was not required) the officer responded: “Afterwards, yes”. This elicited the response, as opposed to the question: “Two days after, according to your notebook.” Since the officer agreed with the suggestion, there was no issue but one must obtain a reply to any question worth being put to a witness. You then have to consider the issue of re-examination, well knowing that you did not introduce this subject in your examination-in-chief.
Miscarriage of justice
This is how the author referenced that issue: “Wrong man prosecuted.” “Probably happens a lot more than we think.” Two judges of the Supreme Court of Canada are discussing this issue, at page 326.
Motive to assist the other side?
Litigators must be vigilant to spot an opening when a witness might be willing to flip, so to speak, and to advance useful information for the lawyer who did not call them. Consider the example found at page 111.
Notes, contemporaneous recording of
“… The first thing one must do is record one’s observations, for later it is often necessary to refresh one’s memory from notes before giving evidence …” See page 149. Counsel for the prosecution, no less than for the defence, has the duty to challenge the degree of detail, the time that elapsed prior to making the notes, the vagueness of the information, etc. as in cases involving expert evidence such as accident reconstruction or mental disorder. In the celebrated case of R. v. Heffer, [1069] M.J. No. 13, 11 D.L.R. (3d) 229, 71 WWR 615, [1970] 4 CCC 104, 10 CRNS 103, Dickson J.A., the future Chief Justice of the Supreme Court of Canada, recorded at para. 3 these observations that we look to on the issue of police notes:
3 … The witnesses were the arresting detective and Mr. Heffer. Mr. Heffer testified that at the Public Safety Building he attempted to show the detective the pink Unemployment Insurance Card and the other piece of paper obtained by him at the Unemployment Insurance Office but the detective refused to look at either paper. The detective admitted Mr. Heffer may have produced those pieces of paper but said he was sceptical of the pink cards because they are easy to obtain, and could not recall the other piece of paper. … [Emphasis added]
In effect, without notes, the testimony was not very reliable, but it must be recalled that the trial was 3 days after arrest!
Publicity
Litigation lawyers must be mindful of publicity and in this vein, note the following: “… the case could mean lots of ink – that opiate of the legal profession …” See page 162.
Record of what is said as transcribed and record of what is said actually
Counsel should always be wary of a transcript and avoid reference to one if the audio-recording of what was said is available. Consider this example from page 227: “I … was sure I closed it.” Without the audio, how do we know the transcriber rendered what was said faithfully? Of interest, we read later at page 298: “I have been asked so many times [that question] I don’t really know.”
Read Father Brown detective stories, as well as Maigret, Holmes, Poirot
Mr. Deverell wrote at page 14 that the defence lawyer might well have shelves bulging with detective stories. I suggest that Crown counsel is in the same position. There are no disadvantages and many benefits to reading the interesting titles featuring fictional detectives so long as they teach you some lessons about human nature and basic psychology. As Dean John Wigmore wrote: "The lawyer must know human nature. He [or she] must deal understandingly with its types and motives. These he [or she] cannot all find close around ... For this learning he [or she] must go to fiction which is the gallery of life's portraits.” Refer to “A List of One Hundred Legal Novels" (1922), 17 III. L. Rev. 26, at p. 31. 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. ...”
Restraining your witness
You wish to avoid the scenario described at page 117, of a client who “rambled endlessly when you gave him a chance …” Careful preparation is often the key and this involves both police and non-police witnesses.
Reversing the proposition – when one suspects “turns” in this fashion
Consider the example found at page 270 when a potential accused responds to an accusation: “I am just thunderstruck. I protect him and he turns on me like a snake. He told the story backwards, fellas. I woke up in the dorm when he came back after killing … I saw blood on his clothes that night … I was horrified …” [Emphasis in original]
“Run” with any opening you get from the witness
Consider this example from page 54: Police I do not commit perjury that easily …” Defence “No. I know. You usually put some real effort it it.” You must object to this characterization, however, in most cases.
Silence by judges may not mean you are winning or losing a point
The author makes plain at page 2 that one never knows whether the silence of the judiciary during your submissions at any stage may not be indicative of any penchant and you ought not to be too concerned… Go ahead and complete your submission as you planned to. In the novel, the Crown submits a two-day argument, to a world of judicial silence, to be then told that the submission was without merit.
Of course, one must follow the 11th Commandment of advocacy: “Know thy judge!” If your judicial officer is typically garrulous, and is now taciturn, you may wish to ask for a brief recess to reconsider. A further point: during the early part of my career on the Bench, I had the largely unconscious habit of only asking the losing party tough questions during closing submissions, as if I was attempting to balance the poor outcome that was to be experienced by the other side.
In this context, that of “knowing thy judge!”, allow me to quote from an article entitled “Classics from the vault: Some observations on the art of advocacy”, found in (2023), 42(1) The Advocates' Journal 40-44, edited by Joanie Lapalme and Michael Short, presented by Lord Macmillan of the House of Lords:
3 After all, the problems of pleading are all problems of psychology. One mind is working on another mind at every point and all the time. The judicial mind is subject to the laws of psychology like any other mind. When the Judge assumes the ermine he does not divest himself of humanity. He has sworn to do justice to all men without fear or favour, but the impartiality which is the noble hall-mark of our Bench does not imply that the Judge's mind has become a mere machine to turn out decrees; the Judge's mind remains a human instrument working as do other minds, though no doubt on specialised lines and often characterised by individual traits of personality, engaging or the reverse. It is well, therefore, for the advocate not only to know his case but to know his Judge in the sense of knowing the type of mind with which he has to deal. [Emphasis added – apologies for the assumption that judges are all male]
“Size up” the police
In the same fashion that defence counsel must keep a “book” on the judges, you ought to always keep tabs on the police officers you have examined (or observed to testify) as their tells, so to speak, might be useful in structuring your future examination-in-chief. You need to know in a major case if the police officer is the twin of the one described at page 3: “… with caustic togue, a pipe-smoker in rumpled tweed, some kind of nosy, cozy Hercule Poirot…” Noteworthy as well is the passage at page 51: “Lars Nordquist was Max’s favourite cop … of the old breed, formal in manner and expression, gentlemanly…” This officer famously stated: “They watch too many police shows. They think it is fun being a police officer.”
Conclusion
I invite both Crown and defence counsel to read this book, and then all the other great books by Mr. Deverell, to assist them in honing their skills. If he has nothing to teach you, which would be quite surprising, you will nonetheless be highly entertained.
[1] A few of his reported cases include R. v. Heppner, [1975] B.C.J. No. 1039, 28 C.C.C. (2d) 23 (C.A.), R. v. Barnier, [1977] B.C.J. No. 1160, 37 C.C.C. (2d) 508 (C.A.), R. v. Rivera, [1974] B.C.J. No. 879, 22 C.C.C. (2d) 105 (C.A.) and R. v. Handy, [1978] B.C.J. No. 1138, 45 C.C.C. (2d) 232 (C.A.).
[2] Page 3 refers to “The Art of the Whodunit” by Mr. Widgeon for $24.95. In fact, The Widow, [DoubleDay, N.Y., 2025] is John Grisham’s latest novel, and it represents his first attempt at this genre.
[3] I have written an earlier book review in respect to the title, Sing a Worried Song, by Mr. Deverell, posted in Mack’s Criminal Law blog – May 27, 2015 ( http://dallas-mack-4x7v.squarespace.com/law-blog/2015/5/27/book-review-sing-a-worried-song
[4] Pronounced “Beech’m”, à l’anglaise.