Police Investigations 101
Guidance for Police Officers Based on “Rain”, a Short Story by W. Somerset Maugham
Gilles Renaud | Ontario Court of Justice[1]
Introduction
My broad objective is to assist Canadian investigators to develop further their critical faculties when investigating interpersonal offences that apparently took place over a period and against a background of interactions involving a small group of individuals. The narrow goal is to address critically the evidence of demeanour shown by the various witnesses that police will interview after the crime, to demonstrate the real danger that would-be witnesses will subsequently “assign” a negative form of non-verbal communication to the suspect during the relevant period that mirrors their subjective belief that the suspect was acting in a guilty way throughout. In essence, this contribution serves to warn investigators about the dangers of accepting too readily the guilty facial and bodily cues that the suspect apparently presented prior to the actual offence.
The short story “Rain” was selected as it contains quite vivid dialogue, replete with images of demeanour evidence, that one can easily examine as if it represented the transcript of interviews of various witnesses.
Discussion
Demeanour evidence – the classic elements of non-verbal communication: the face
Allow me to leave the writings of W. Somerset Maugham to quote from William Shakespeare as this immortal playwright contributed greatly to the belief that demeanour is both informative and misleading in informing our daily decisions.[2] Perhaps the best known of these examples is found in Act 1, scene iv, l. 12 of Macbeth: “Duncan: There's no art To find the mind's construction in the face…” The companion reference that is best suited to underscore this point is set down in Act 1, scene vii, l. 82: “Macbeth … Away, and mock the time with fairest show: False face must hide what the false heart doth know.” I note as well how apposite is the passage that follows on the issue whether witnesses may be adept at feigning emotions: “… Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy…” Refer to Act 2, scene iii, l. 135 of the same play. A rather celebrated expression of demeanour evidence is found in Julius Caesar, Act 1, scene ii, l. 192: “Caesar. Let me have men about me that are fat; Sleek-headed men and such as sleep o' nights: Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous.”
Based on these introductory references to the face, I now quote from page 5 of “Rain” wherein we read how American soldiers are “frank of face”. One page earlier, the author wrote: “… Mrs. Davidson scanned his face. She had a dramatic eagerness to see that she had achieved the desired effect…” These two simples phrase illustrate well the classic belief that all, notably investigators, are competent to judge what others think by examining their face, and that some are to be judged to be frank merely on the foundation of their facial appearance.
Demeanour - the classic elements of non-verbal communication: gestures
Page 10 of the short story includes these words: “Mr Davidson stood still. With his tall, spare form, and his great eyes flashing out of his pale face, he was an impressive figure. His sincerity was obvious in the fire of his gestures and in his deep, ringing voice.” I find this example to be superb as we read references to the eyes, the face, and the voice, and to a combination resulting in a judgment of sincerity. On what grounds, however, does the careful investigator find that any or all these factors result in a frank or a sincere account?
Demeanour evidence that might be accepted critically – glances
We read at page 2 “He gave her a sidelong glance … but did not reply”. In my view, unlike much of what is considered subjective demeanour evidence, especially involving the eyes of a potential witness or suspect, an audio-taped recording of this type of glance might well capture this physical action and it is therefore more suitable for serious study.[3] Of course, the better question for an investigator does not concern itself with subjective demeanour elements; it is why the witness did not respond to the question. This might permit the finding that he agreed with the suggestion or, at least, could not advance a satisfactory contradictory response.[4]
I invite the reader to note this quote from page 10: "’Mr Davidson's just longing to get back to his work,’ said his wife, with an anxious glance at him”. All things being equal, “anxiety” and “nervousness” ought not to be too challenging to warrant inclusion within the elements of demeanour that are to be judged as reliable, together with other information.
Demeanour evidence that might be accepted critically – hands
I am of the opinion, based on my experience of 40 years in criminal litigation, including 28 as a judge, that the movements of the hands by a witness may well betray the anxiety that a witness is experiencing because of not being fully candid, but it may as well “testify” as to anxiety due to other, innocent, reasons. In this vein, note the following: “She opened and clenched her hands spasmodically…” See page 26.
Demeanour evidence that might be accepted critically – glances
She looked at him and he saw that her eyes were suddenly startled. She opened and clenched her hands spasmodically. The trader stood at the door, listening.
Demeanour evidence that might be accepted critically – squirming
This is the excellent example found at page 21: “The trader squirmed in his old ducks. He had found Miss Thompson a rough customer…” I think that we all recognize when squirming takes place. In such cases, we know that the witness or person observed is uncomfortable, but does this betray an action that belies their words? Are they squirming because they are innocent and believe that they will be accused falsely?
Demeanour evidence that might be accepted critically – voice
The voice of the potential witness, Dr. Macphail, is described initially as “very low and quiet”. Though not the suspect, it is worthwhile to point out that the author changes this fundamental aspect on occasion, in response to the stress of the situation apparently, and I suggest that this element of demeanour may be worthy of credit. On the one hand, an audio-record of the events of the short story would provide an objective means of contrasting and comparing if the tone of voice changed and if this tended to conform or infirm the value of the information being presented by the speaker.
Consider this passage as well: “… She spoke of the depravity of [a certain group] in a voice which nothing could hush, but with a vehemently unctuous horror…” In fact, the potential witness was polite in describing those she had no respect for. In that context, consider how the apparently polite and reserved way one speaks might not disclose a hint of the contempt that the words selected were meant to make plain. A good test for investigators who seek to credit the content of what is said by reason of the manner and voice by which it is put forth is to imagine that a witness is speaking a language you are totally unfamiliar with. Would you give credence to what is said solely by reason of the apparently deferential way the witness expresses themselves though the sense of the words escapes you totally?
Further guidance is found at page 30: “His genial manner vanished and his voice grew on a sudden hard and stern…” Equally satisfactory to me is the bit of “testimony” that is set out next, from page 34: “Davidson's voice trembled with excitement. He could hardly articulate the words that tumbled passionately from his lips…” I think this is not without objective validity.
Demeanour evidence that should not be accepted uncritically – the air of the potential witness
At the outset, allow me to quote from page 9 of “Rain”: “He looked at the two ladies with an obsequious air.” In my view, this brief phrase illustrates well the goal that I seek to achieve with this article: to point out the unlikelihood that a witness the investigator interviews at the scene or at the station will correctly identify elements of demeanour unless he or she is familiar with the surrounding circumstances. To test my view, select only a photo of the face and body and ask yourself: what is the air this patient is exhibiting? By way of contrast, investigate and discover that the person succeeded in ensuring that the two “snooty” clients who were concerned with sharing a table with a “nobody” would be spared that indignity, thanks to his efforts. Only then should you reach such a precise conclusion.
Demeanour evidence that should not be accepted uncritically – brows
The relevant extract reads: “Davidson's brow lowered, and he protruded his firm chin. He looked fierce and determined.” I question how much this reference to the brow from page 25 imports objective information.
Demeanour evidence that should not be accepted uncritically – eyes
The author wrote of a character early on as demonstrating “greedy eyes”. One questions if there is any objective support for such a conclusion. Indeed, if the witness had been recorded with an excellent camera, would the investigator looking at that scene and that person days before the death have selected that “screen capture” for further consideration. If it could be shown that the “greedy eyes” were directed at a lush villa, a ring or a sports car, that might have justified such a qualifier, but the author has his character looking at the beach at that time, and this makes any obvious conclusion far less likely.
Noteworthy as well is a passage consigned at page 5: “Dr Macphail looked at the yaws from which most of the children and the young boys seemed to suffer, disfiguring sores like torpid ulcers, and his professional eyes glistened when he saw for the first time in his experience cases of elephantiasis …” I think that an objective observer, able to capture both his eyes and what his eyes were seeing would fairly link the emotion displayed by the eyes’ moisture and the pathos of the surroundings. Thus, I think that an exception to my suggested rule that uncritical acceptance under this rubric may well involve crying or tears as they are an objective manifestation that may be captured by a visual record.
Of course, the production of tears may be easily done with a view to deceive. A first quote follows: “Falstaff … Give me a cup of sack to make my eyes look red, that it may be thought I have wept…” Act 2, sc. iv, l. 373 of King Henry IV (Part 1). Refer also to Act 3, sc. i, l. 8 of King Richard II: “… Plays fondly with her tears and smiles in meeting…” in the sense that the witness can call upon tears or smiles, as the occasion requires, to produce the desired effect.
Drawing further at this juncture to the question of the eyes of a potential witness (or victim), I note that Maugham wrote at page 6 of the missionary:
… His appearance was singular. He was very tall and thin, with long limbs loosely jointed; hollow cheeks and curiously high cheek-bones; he had so cadaverous an air that it surprised you to notice how full and sensual were his lips. He wore his hair very long. His dark eyes, set deep in their sockets, were large and tragic; and his hands with their big, long fingers, were finely shaped; they gave him a look of great strength. But the most striking thing about him was the feeling he gave you of suppressed fire. It was impressive and vaguely troubling. He was not a man with whom any intimacy was possible. [Emphasis added]
A first comment of note is that an investigator should be wary to accept from a witness, at the scene or at the police station, the opinion that a person displayed “tragic eyes”, after learning of their demise. If they recorded such a comment previously, then they would have displayed a prescient nature… Be that as it may, it is the type of demeanour evidence that is near pointless as it says nothing about whether the words or actions of the witness are shown to be false, when contrasted with their inner thoughts that emerge by means of appropriate non-verbal communication.
Other references of note follow, in order to illustrate how writers of fiction have great imagination, on the one hand, but that investigators rarely are able to discern such significant nuances in the second of observation, on the other. In this vein, consider this passage from page 24 as it perfectly captures my doubts: “… Was there a gleam in the missionary's eyes? His face remained impassive.” Other relevant passages follow: “fiery eyes”, at page 12; “… His eyes were flashing” at page 17; “sombre fire glowed in [her] eyes”, at page 18; page 20 sets out “… his eyes darken…”; “… kept his grave eyes on her” at page 24; page 26 includes “… her eyes were suddenly startled.” Consider as well “The governor continued to smile, but his eyes grew small and serious”, found at page 28 and “… He was paler than ever, tired, but his eyes shone with an inhuman fire…” I question how the police officer who testifies to that effect will “survive” cross-examination as there is no objective element to that description.
Demeanour evidence that should not be accepted uncritically – face
Consider critically this passage from page 2:
Mrs. Davidson came and stood beside him. She was dressed in black and wore round her neck a gold chain, from which dangled a small cross. She was a little woman, with brown, dull hair very elaborately arranged, and she had prominent blue eyes behind invisible pince-nez. Her face was long, like a sheep's, but she gave no impression of foolishness, rather of extreme alertness; she had the quick movements of a bird… [Emphasis added]
Maugham seeks to portray this character, the wife of the victim but potentially his murderer, as nobody’s fool. This critical observation, if well-founded, might justify the police investigator pursuing a line of inquiry to the effect that she was quite observant as to her husband’s constant ministrations to the female character who is a prostitute and who needs to get the deceased to change his mind about returning her to the USA and a 3-year jail term that awaits.
In any discussion of the face, one must include pallor or blushing. Thus, page 11 records these remarks: “Mrs. Davidson looked down at her work, and a slight colour rose to her thin cheeks. Her hands trembled a little. She did not trust herself to speak.” How does a careful observer who is investigating this person’s role, as a witness or suspect, even discern the “slight” colour or the “little” bit of trembling? All that aside, what does it mean? See also page 17: “He sought for a word that should not offend the ladies' ears. His eyes were flashing and his pale face was paler still in his emotion…” And, at page 18, we read: “… They flushed, however, when she burst into a shout of derisive laughter…”
Demeanour evidence that should not be accepted uncritically – frowns
Page 19 includes this reference: “… When Mrs. Davidson told him of their two encounters with Miss Thompson he did not answer. His deepening frown alone showed that he had heard…” I consider that many things lead to frowns, and that this is also a very challenging type of non-verbal communication.
Demeanour evidence that should not be accepted uncritically – lips
Consider what Maugham wrote at page 7: “She looked from Macphail to his wife, standing helplessly in different parts of the room, like lost souls, and she pursed her lips. She saw that she must take them in hand. Feckless people like that made her impatient, but her hands itched to put everything in the order which came so naturally to her.” I do not think that any degree of experience involving criminal investigations in general and the careful observation of the lips of a witness at the scene or at the police station will result in a sound ability to interpret what such movements seek to “declare” if anything. A more caustic commentator than I might suggest that the average person doing so is thirsty…
Demeanour evidence that should not be accepted uncritically – nose in the air
“They passed her in silence, with their noses in the air, as if she did not exist. They flushed, however, when she burst into a shout of derisive laughter…” See page 18. I do not think this necessarily suggests haughtiness, though that is often thought to be the case.
. Demeanour evidence that should not be accepted uncritically – sighs
In my opinion, sighs are too difficult to “handcuff” so to speak to be of much value. They involve far too much subjective impressions, are impossible to define, and the timing of what is a normal as opposed to an unusual sigh is beyond calculation. Thus, the faint smile described at page 3 is of no value to the investigator unless he or she can draw objective lines of description and measurement. After all, what does a sigh describe other than some frustration, to a greater or lesser degree?
Demeanour evidence that should not be accepted uncritically – smiles
In my past extra-judicial writings, I did not typically find the interpretation of smiles to be so exact a science that I could draw any valuable information from that element of demeanour. I find no value in the phrase “… thin, difficult smile” as I do not know what the author meant. In the same fashion, page 8 includes this phrase: “The quartermaster pointed with his thumb to the woman standing by his side. She was twenty-seven perhaps, plump, and in a coarse fashion pretty. She wore a white dress and a large white hat. Her fat calves in white cotton stockings bulged over the tops of long white boots in glacé kid. She gave Macphail an ingratiating smile.” I challenge whether the smile would have been described as such if the witness who judged it in those terms (if this were real life and not fiction) was not aware that they were all stranded and looking for the few available rooms in the area. Stated otherwise, if you as the investigator had seen CCTV footage of only the face, would you have concluded as such or would it only have been your choice once you understood that she was hoping to smile her way into one of the few rooms still available to be let.
. Demeanour evidence that should not be accepted uncritically – stares
Maugham wrote at page 3 that the wife of the eventual victim displayed a “ruthless stare”. However, the dialogue that follows made plain why the author assigned that description to her, and the context fully justifies the qualification. In the same vein, the investigator who discovers information that explains or justifies certain non-verbal communication must be lauded. After all, I suggest no “uncritical” acceptance, not that acceptance is impossible.
Demeanour evidence that should not be accepted uncritically – twitches
“… The twitch of Davidson's face proved that, though he spoke of scientific things, his mind was busy in the same direction…” I express my doubts that twitches must be equated with any precise internal manifestation…
Demeanour – conclusions on – the notion of the appearance of the witness
Having examined the issue of demeanour by means of a review of each piece of the puzzle, so to speak, it will prove of assistance to consider the total picture, the “appearance” of the witness you are interviewing next to the scene of the crime or at the station. The phrase found at page 29 introduces this subject well: “… They saw Miss Thompson standing at the threshold. But the change in her appearance was extraordinary. This was no longer the flaunting hussy who had jeered at them in the road, but a broken, frightened woman …” I am of the view that one may well rely on this “total” image of the witness in concluding the question whether the information provided is trustworthy.
In the ultimate analysis, a good deal of non-verbal communication is so commonplace and objectively reliable that investigator would be foolish to ignore them, such as the universal sign for be quiet, quoted at page 36 “… The trader put his finger on his mouth to prevent any exclamation from Dr Macphail and beckoned to him to come…” But much demeanour evidence is highly subjective and is equally suggestive of many innocent reasons or explanations that it ought not to be given any weight. In my view, what we read at page 38 applies to most elements of demeanour: “ … Dr Macphail could not understand the look in her eyes.”
Human nature – danger that shyness is taken for lack of intelligence
Maugham points out in the second paragraph of his short story that Dr. Macphail was shy, but not a fool. Throughout, we read of his relative weakness of character, or resolve, or of backbone, due to his generally timid nature and his judgment that confrontations served little purpose, as contrasted with the apparent keen desire of the victim, the missionary, to brave any situation if he thought it served God’s purpose.
Human nature – last word is best left to one’s spouse
That is what the author suggests is the mind set adapted by his character Dr. Macphail after many years of marriage and expressed early in the short story. Thereafter, the investigator will verify if his actions support this self-professed policy, and how any deviations suggest significant elements of provocation in his conduct.
Human nature – tattoos and piercings
“[That group] seemed then, with their tattooing and their dyed hair, to have something sinister in their appearance …” This example, from page 23, makes plain how human nature may prejudge appearances because a minority is similarly enamored with something the majority vehemently opposes… Are investigators similarly reaching wrong conclusions based on elements that are without importance in the truth-finding function?
Conclusion
Investigators in Canada are encouraged to treat descriptions of the subjective demeanour of the suspect provided after an arrest, as opposed to their objective words and actions, with great skepticism as it is part of our nature to accept the truth of guilt if the authorities have charged someone. Accordingly, I suggest that the better course for all police officers is to attempt to “blot out” of the accounts you receive all demeanour evidence and to focus your attention on the acts and words of the suspect or person charged. This exercise, I suggest, is not unlike the investigator reading this short story as if it were an account by the characters of what they perceived of the non-verbal communications of the suspect, to then re-read it after deleting all the references to the suspect’s non-verbal language and judge if a prosecution should be undertaken or further pursued.
[1] Justice Renaud has been a member of the Court since January 1995, and previously worked as a prosecutor with both the Attorney-General’s Office in Ottawa and the Department of Justice (Canada) as a member of the War Crimes and Crimes Against Humanity Section. He has published several books, in English and French, on sentencing, evidence, judging and advocacy, including Demeanour Evidence on Trial: A Legal and Literary Criticism, Sandstone Academic Press, Melbourne, Australia, 2008.
[2] Interested readers may wish to consider two of my articles: “Demeanour evidence: Guidance from the Tax Court of Canada for Criminal Defence Counsel”, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-294, May 4, 2020, and “Demeanour Evidence and "Eyelid Turns": Guidance from the Manitoba Court of Appeal and Anthony Trollope”, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-293, April 27, 2020.
[3] Refer as well to page 5 in which we read: “But Mrs. Davidson had given two or three of her birdlike glances at heavy grey clouds…” With sufficient observations of the witness, let us say by the investigator locating CCTV footage, the conclusion may be reached that the glances are not descriptive of a furtive attempt to gather information, a potentially negative fact, but more in keeping with a shy nature, a more positive perception as less likely to denote a menacing or threatening person.
[4] Refer as well to page 4: “Mrs. Davidson gave him a quick look through her pince-nez, but did not answer his question.” As an investigator, you may have to press for a response, in accordance with the importance of the issue.