POLICE INVESTIGATIONS 101
LESSONS FROM SHAKESPEARE’S THE TAMING OF THE SHREW
Gilles Renaud | Ontario Court of Justice (Retired)
INTRODUCTION
In this article, I document the various elements of guidance and instruction from the play The Taming of the Shrew that may result in enhanced excellence in investigative work.
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 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 [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.”[1] 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 to accomplish this objective?[2]
In this contribution, I have organized my thoughts along thematic lines embracing demeanour evidence, followed by interviewing techniques and skills that police officers must acquire and hone, judgment in police word including human nature and concluding with the subject of professionalism. Thus, my goal is to assist investigators to excel in their difficult but 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 best achieved, in part at least, by analyzing this excellent play.
DISCUSSION
Demeanour evidence as a guide to investigators
General introduction
Justice O'Halloran cautioned against the fear that a good actor might hoodwink the Court (and His Lordship would have added “the investigator” had he been asked) in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at para. 10. Refer as well to para. 46 of the judgment of Ryan J. A. in R. v. Sue, 2011 B.C.C.A. 91, to demonstrate the ongoing vitality of this judgment:
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 …:
[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.
Demeanour – body language observed closely to judge if it “matches” the words spoken
Consider a first example taken from another play, King Henry VI (Part1): “Plantagenet. Meantime your cheeks do counterfeit our roses; For pale they look with fear, as witnessing The truth on our side.” Refer to Act 2, sc. iv, l. 62. In effect, I imagine that you as the investigator are speaking, and that you are stating to the person you are interviewing: “your words and your demeanour are fighting each other as what you say is denied by your pale cheeks and fearful expression. In short, your face shows that you are caught in a lie!”
A further useful example follows of the appearance of the witness as a form of “lie-detector”. Refer again to King Henry VI (Part1), at 2-iv-64:
Somerset.
No, Plantagenet,
'Tis not for fear but anger that thy cheeks
Blush for pure shame to counterfeit our roses,
And yet thy tongue will not confess thy error.
Demeanour – What Shakespeare teaches us in Macbeth
The works of Shakespeare contain multiple examples of the dangers associated with demeanour evidence, a very controversial form of "testimony", and a subject that I have discussed critically in extra-judicial writings. Perhaps the best known of these examples is found in Act I, scene IV, 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 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 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 II, scene III of Macbeth.
In essence, Shakespeare teaches us two things:
o 1) We are not capable of assessing accurately what thoughts a person may be entertaining by means of their facial expression, and
o
o 2) A person is capable of assuming a "facial guise" that may well trick and deceive the observer.
In addition, both points are mutually reinforcing in the sense that the capacity that we all enjoy to adopt a "false face" only serves to exacerbate the general inability to discern "the mind's construction". In sum, the thoughts of a third party, a witness for our purposes, may not be judged fully and fairly based on their demeanour.
Demeanour – A brief excerpt from R. v N.S., [2012] 3 SCR 726
I only wish to quote this passage from the majority judgment of McLachlin C.J.C. and Deschamps, Fish and Cromwell JJ.A.:
Changes in a witness's demeanour can be highly instructive; in Police v. Razamjoo, [2005] D.C.R. 408, a New Zealand judge asked to decide whether witnesses could testify wearing burkas commented:
... there are types of situations ... in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence. The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness who obviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or body language. The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly with good eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, all provide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, a message touching credibility. [para. 78]
Demeanour – Guidance from Bowman A.C.J. of the Tax Court of Canada
The future Chief Justice of the Tax Court observed in Faulkner v. Canada (Minister of National Revenue - M.N.R.), [2006] T.C.J. No. 173:
13 Where questions of credibility are concerned, I think it is important that judges not be too quick on the draw. In 1084767 Ontario Inc. (c.o.b. Celluland) v. Canada, [2002] T.C.J. No. 227 (QL), I said this:
8 The evidence of the two witnesses is diametrically opposed. I reserved judgment because I do not think findings of credibility should be made lightly or, generally speaking, given in oral judgments from the bench. The power and obligation that a trial judge has to assess credibility is one of the heaviest responsibilities that a judge has. It is a responsibility that should be exercised with care and reflection because an adverse finding of credibility implies that someone is lying under oath. It is a power that should not be misused as an excuse for expeditiously getting rid of a case. The responsibility that rests on a trial judge to exercise extreme care in making findings of credibility is particularly onerous when one considers that a finding of credibility is virtually unappealable.
…
14 I continue to be of the view that as judges we owe it to the people who appear before us to be careful about findings of credibility and not be too ready to shoot from the hip. Studies that I have seen indicate that judges are no better than any one else at accurately making findings of credibility. We do not have a corner on the sort of perceptiveness and acuity that makes us better than other people who have been tested such as psychologists, psychiatrists or lay people. Since it is part of our job to make findings of credibility, we should at least approach the task with a measure of humility and recognition of our own fallibility. I know that appellate courts state that they should show deference to findings of fact by trial judges because they have had the opportunity to observe the demeanour of the witness in the box. Well, I have seen some accomplished liars who will look you straight in the eye and come out with the most blatant falsehoods in a confident, forthright and frank way, whereas there are honest witnesses who will avoid eye contact, stammer, hesitate, contradict themselves and end up with their evidence in a complete shambles. Yet some judges seem to believe that they can instantly distinguish truth from falsehood and rap out a judgment from the bench based on credibility. The simple fact of the matter is that judges, faced with conflicting testimony, probably have no better than a 50/50 chance of getting it right and probably less than that when their finding is based on no more than a visceral reaction to a witness. Moreover, it is essential that if an adverse finding of credibility is made the reasons for it be articulated. [Emphasis added]
Demeanour evidence – We all judge the looks of others, on a day-to-day basis, not just investigators
That demeanour is the stuff of day-to-day observations and judgments is supported by the quote that follows: “Polixenes. The king hath on him such a countenance …” See The Winter’s Tale – Act 1, sc. ii, l. 368.
Demeanour - Assuming a look, a countenance, to trick the person being spoken to
Goneril. Put on what weary negligence you please,
You and your fellows. I'd have it come to question.
With these words, at l. 517-518 of Act 1, sc. iii, of King Lear, Goneril invites her servant and his staff to deceive the King, her father, and obviously intends that they do so both by their inaction in following his orders and by their appearance in not showing any interest in their duties. That is the subtle nature of demeanour evidence as it goes hand in hand with words and objective actions such as holding out one’s hand to shake, for example, in a greeting in which a broad smile is visible. At all events, the Lady then states, at Act 1, sc. iii, l. 528-529 of that play: “Goneril. And let his knights have colder looks among you. …” In other words, a person may easily adopt a guise or a look, and demeanour, after all, is a form of communication that can be resorted to at will. The example that follows is in keeping with this line of thought: “Duke of Cornwall. This is some fellow Who, having been prais'd for bluntness, doth affect A saucy roughness …” Refer to Act 2, sc. ii, l. 1165.
Further about one’s ability to assume a certain element of demeanour, in our case involving a witness who seeks falsely to convince the listener, consider the passage that follows as support for this proposition:
Cassius. You are dull, Casca; and those sparks of life
That should be in a Roman you do want,
Or else you use not. You look pale and gaze
And put on fear and cast yourself in wonder,
[Julius Caesar, Act 1, sc. iii, l. 57-60] [Emphasis added]
Demeanour – Changes in manners and demeanour of persons that are being investigated
Refer to the passage found below, from Act 4, sc. ii, l. 13-19 of Julius Caesar, as a useful example:
Brutus. He is not doubted. A word, Lucilius,
Howhe receiv'd you: let me be resolv'd.
Lucilius With courtesy and with respect enough;
But not with such familiar instances,
Nor with such free and friendly conference,
As he hath us'd of old.
A careful investigator will wish to assess closely such elements as it might suggest that the parties thought to be on friendly terms are no longer and this might open fruitful investigative avenues.
Demeanour – Testimony, as a form of
At the outset, consider this example: “Oliver. This was not counterfeit: there is too great testimony in your complexion that it was a passion of earnest.” As You Like It, Act 4, sc. iii, l. 167-169. In other words, an investigator at their office may “read” the face of a witness and conclude how credible and / or reliable are the words spoken.
Demeanour – Multiple elements “on display” at once
Consider this example from our featured As You Like It: “Oliver. … but should I anatomize him to thee as he is, I must blush and weep and thou must look pale and wonder.” [1-i-146]
Demeanour – Acting, putting on the element(s) to convince
Consider this excellent example from As You Like It: “Orlando … I thought that all things had been savage here; And therefore put I on the countenance Of stern commandment. … [2-vii-107] Consider as well: “Phebe … Now counterfeit to swoon; why now fall down…” [3-v-16]
Demeanour – Assessing strangers versus persons you know well
The Merry Wives of Windsor, Act 1, scene iii, l. 42-44, includes these words: "Falstaff. I can construe the action of her familiar style; and the hardest voice of her behavior." This passage suggests clearly that one may better (or best?) construe the actions of others if one is familiar with the person. But, for investigators, the witnesses are often strangers, with the possible exception of police officers in the smaller centres. That is why Pistol adds to what Falstaff has just stated: "He hath studied her well." See line 46 of scene iii.
Demeanour - Further dangers of demeanour evidence
Introduction: Investigators must be mindful that a person's thoughts are not always revealed by their looks
I begin by focusing attention on our general inability to read thoughts by means of the facial features of others, by pointing to contrary authority. In effect, I acknowledge that many insist that we are capable of inviting fact finders to "read the thoughts" of others on their face, as did Shakespeare in 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. I suggest that the fact that a witness is anxious or stressed may reflect little more than the anxiety associated with being in your office at the police station. It is, after all, a strange place for most individuals. More to he point, that the stress demonstrated by a witness, including the defendant, did not betray fear that the information provided is false and will be rejected, but rather the real concern that true testimony will not be accepted as it should be.
Indeed, is it not a plain truth that how others react to a certain situation is not capable of any universal rule or formula? Take the question of tears. Is the witness-accused breaking down in your office because of a realization that the doors to prison await, although he or she is innocent? In this light, note that in Macbeth, 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.
A great number of further examples might be offered in attempting to demonstrate to detectives the soundness of the proposition that outward demonstrations of facial demeanour are simply too unreliable as bedrocks for any precise conclusions. I think it best to group these along thematic lines, for ease of consideration, always being mindful that each of these "tells" is easily capable of being feigned. The play Romeo and Juliet will be featured, of course, but other relevant examples will referenced.
Dangers of demeanour evidence include “faking it”
A signal obstacle to the general acceptance by an investigator of demeanour evidence is the well understood belief that demeanour can be "adapted" at will. An example is found in Act 4, sc. iv, l. 18: "Tranio ... Here comes Baptista: set your countenance, sir." Consider as well: "Katherina Fie, fie! unknit that threatening unkind brow ." Refer to Act 5, sc. ii, l. 135-136.
Pursuing this concern, that certain witnesses may be adept at feigning emotions, leaving aside the concern that demeanour evidence is inherently dangerous as unreliable, consider the words found in Macbeth, Act 2, scene iii, l. 131-132: ". Let's not consort with them: To show an unfelt sorrow is an office Which the false man does easy." It is suggested that it is relatively simple for one to adopt a guise that may well hide the true nature of one's thoughts and actions. In The Taming of the Shrew, Act 1, scene i, l. 223, we read: "… puts my apparel and my countenance on." Indeed, the introductory passages include the phrase: "I know the boy will well usurp the grace, Voice, gait and action of a gentlewoman."
Demeanour evidence and fake tears is not an unheard of combination: Consider the Induction, sc. i, l. 123-124, wherein Lord remarks: To rain a shower of commanded tears, An onion will do well for such a shift, Which in a napkin being close convey'd."
The most apposite citation with which to end our brief criticism of demeanour evidence (under this precise heading) is found in As You Like It, Act 2, scene vii, l. 139-140: "Jaques All the world's a stage, And all the men and women merely players." These apt words serve to teach advocates that individuals may very well have been acting when they provided information to the police, for a host of reasons and that necessarily they may have been acting when testifying, for a legion of motivations. In the final analysis, investigators must be wary of the power witnesses possess to appear sincere when interviewed by you at the scene or at your office but to fall short of presenting sincere information.
The elements of demeanour evidence
Introduction – the contributions from Othello
It is suggested that a good introduction to this subject is found in Othello, Act 1, scene i, l. 60-65:
o Iago
Heaven is my judge, not I for love and duty
But seeming so, for my peculiar end:
For when my outward action doth demonstrate
The native act and figure of my heart
In compliment extern, 'tis not long after
But I will wear my heart upon my sleeve
For daws to peck at: I am not what I am.
In effect, the speaker is conscious of the fact that people generally expect that the outward appearance of the face and person will "testify" as to the internal thoughts. Thus, if Iago appears to be loyal and loving to his superior, it is feigned in order better to deceive his intended victim. This is the challenge posed by demeanour evidence: is the "external" Iago hiding what he is at bottom? Indeed, consider some later lines, starting at 169 of the same scene: "Iago ... Yet, for necessity of present life, I must show out a flag and sign of love, Which is indeed but sign ..." In few words, I am not sincere! In the same vein, we read: "Iago. Men should be what they seem; Or those that be not, would they might seem none!" Refer to Act 3, scene iii, l. 130-131. Since they are not, we look to demeanour evidence to assist us in judging if they are sincere and reliable.
Noteworthy as well is the following passage, found in Act 5, scene i, l. 106-110: "Iago. Stay you, good gentlemen. Look you pale, mistress? Do you perceive the gastness of her eye? Nay, if you stare, we shall hear more anon. Behold her well; I pray you, look upon her: Do you see, gentlemen? nay, guiltiness will speak, Though tongues were out of use."
Demeanour - Is “reading” of the face trustworthy?
An example of this type of situation is seen in Much Ado About Nothing, Act IV, scene I:
FRIAR FRANCIS
… By noting of the lady I have mark'd
A thousand blushing apparitions
To start into her face, a thousand innocent shames
In angel whiteness beat away those blushes;
And in her eye there hath appear'd a fire,
To burn the errors that these princes hold
Against her maiden truth. Call me a fool;
Trust not my reading nor my observations,
Which with experimental seal doth warrant
The tenor of my book; trust not my age
My reverence, calling, nor divinity
If this sweet lady lie not guiltless here
Under some biting error.
Demeanour evidence – The Grey’s Anatomy examination
Countenance
Certain witnesses may be adept at feigning emotions as seen in The Taming of the Shrew, Act 1, scene i, l. 223: "… puts my apparel and my countenance on." Indeed, the introductory passages include the phrase: "I know the boy will well usurp the grace, Voice, gait and action of a gentlewoman."
Emotions
Baptista stated in Act 4, sc. iv, l. 40-42: "Right true it is, your son Lucentio here Doth love my daughter and she loveth him, Or both dissemble deeply their affections."
"Flatly" speaking
The Taming of the Shrew, Act 1, scene ii, l. 75, provides an example of this type of deposition or pre-trial statement: "Grumio Nay, look you, sir, he tells you flatly what his mind is." Of course, one ought not to take adverse testimony at face value save in very narrow circumstances.
Frown
"But slow in speech. Thou canst not frown, thou canst not look askance, Nor bite the lip." are the instructions Shakespeare provides at Act 2, sc. i, l. 239, per Petruchio.
Lip
"But slow in speech. Thou canst not frown, thou canst not look askance, Nor bite the lip." are the instructions Shakespeare provides at Act 2, sc. i, l. 239, per Petruchio.
Look
"But slow in speech. Thou canst not frown, thou canst not look askance, Nor bite the lip." are the instructions Shakespeare provides at Act 2, sc. i, l. 239, per Petruchio.
Tears
Consider the Induction, sc. i, l. 123-124, wherein Lord remarks: To rain a shower of commanded tears, An onion will do well for such a shift, Which in a napkin being close convey'd."
Interviewing skills and techniques
Admissions – indirect ones
A jocular illustration of the indirect admission is found in The Taming of the Shrew, Act 5, scene i, l. 27-28: "Vincentio Art thou his father? Pedant Ay, sir; so his mother says, if I may believe her."
Asking questions when do not know the answer
“Do not ask a question if you do not know the answer” is a statement often made by lawyers in discussing the “dos and don’ts” of cross-examination, but you discharge a far different role as an investigator. A good example is seen in Act 2, sc. i, l. 27-29. Baptista states: "Why dost thou wrong her that did ne'er wrong thee? When did she cross thee with a bitter word?" In most cases, nothing is to be gained for a lawyer by these types of inquiries as they open the door to a host of unfavourable observations. But the investigator seeks the truth, not partisan success. Consider that Petruchio observes at Act 2, sc. i, l. 52-54: "Within your house, to make mine eye the witness Of that report which I so oft have heard." If he has heard reports of actions and statements that would justify ill feelings, they ought to be investigated.
Confessions – commanded to make
We read at Act 5, sc. ii, l. 59: "Confess, confess, hath he not hit you here?" [per Hortensio]. I suggest that investigators ho shout to witnesses to agree with them will find judges quite unimpressed.
Confessions “step by step” -- An example
Refer to Act 4, sc. iii, l. 130-140:
o Petruchio
Proceed.
Tailor
[Reads] 'With a small compassed cape:'
Grumio
I confess the cape.
Tailor
[Reads] 'With a trunk sleeve:'
Grumio
I confess two sleeves.
Instructing witness as to seeking clarification as to meaning of words
In effect, always instruct the witness to ask what the meaning of words is if they might not be familiar with one or more. In this context, emulate the actions of Petruchio. Hence: ". Why, what's a moveable?" See Act 2, sc. i, l. 197.
Leading – to be avoided at all costs
At the outset, consider this extreme example:
Come on, i' God's name; once more toward our
father's. Good Lord, how bright and goodly shines the
moon!
Katharina
The moon! the sun: it is not moonlight now.
Petruchio
I say it is the moon that shines so bright.
Katharina
I know it is the sun that shines so bright.
Petruchio
Now, by my mother's son, and that's myself,
It shall be moon, or star, or what I list .
Refer to Act 4, sc. v, l. 1-8. And later, at lines 11-15: "Katharina Forward, I pray, since we have come so far, And be it moon, or sun, or what you please: An if you please to call it a rush-candle, Henceforth I vow it shall be so for me." And, I hasten to add, we read at Act 5, sc. ii, l. 59: "Confess, confess, hath he not hit you here?" [per Hortensio]
Listening closely to the witness
Grumio states "And therefore 'tis called a sensible tale: and this cuff was but to knock at your ear, and beseech listening." Refer to Act 4, sc. i, l. 58. The person being interviewed ought not to have to beseech a listening ear. Consider as well what Katherina states in Act 4, sc. iii, l. 73-74: "Why, sir, I trust I may have leave to speak; And speak I will; I am no child, no babe: Your betters have endured me say my mind, And if you cannot, best you stop your ears."
Tedious account provided by a witness
Act 3, sc. ii, l. 101, of The Taming of the Shrew includes this comment of what you might consider, in order for justice to prevail: "Petruchio Tedious it were to tell, and harsh to hear."
Turn all witnesses to your advantage
Act 3, sc. ii, l. 127-128 of the play reads: "Tranio I am to get a man, -- whate'er he be, It skills not much. we'll fit him to our turn." Be mindful, however, as an investigator, that your duty is to provide all useful information to the prosecutor, who will then work their magic to gain advantage from what is collected.
Yes or no questions: An example
"Sir, a word ere you go; Are you a suitor to the maid you talk of, yea or no?" This example of what I would think an acceptable yes or no type of question, stated by Hortensio, is found at Act 1, sc. ii, l. 226.
Judgment demonstrated by the investigator
Be wary of quick-witted folks
Baptista states at Act 5, sc. ii, l. 37 of the play: "How likes Gremio these quick-witted folks?"
Bias and unreliability: Pride shown by a witness may lead to impeachment by defence at trial
In the case of The Taming of the Shrew, Sly is quite proud of his ancestry as he proclaims in the Induction, at sc. i, l. 3-6: "Ye are a baggage: the Slys are no rogues; look in the chronicles; we came in with Richard Conqueror." Most investigators will “mark” such comments, be they subtle or not, in order to be aware of this form of bias. After all, is it not true that "pride cometh before the fall?"
Budged an inch, has the witness?
n the Induction to the play, sc. i, l. 10-12, Sly states: "Third, or fourth, or fifth borough, I'll answer him by law: I'll not budge an inch, boy: let him come, and kindly." Such intransigent witnesses are often vulnerable to a well-reasoned cross-examination in which counsel makes plain that the testimony is unreliable by reason of a refusal to be true to the oath taken. You as investigator must note such instances.
Clothing, investigators should not judge witnesses on this basis
The Taming of the Shrew, Act 4, scene iv, l. 187-188, records this passage: "Petruchio Well, come, my Kate; we will unto your father's Even in these honest mean habiliments: Our purses shall be proud, our garments poor; For 'tis the mind that makes the body rich." Note as well Act 5, scene i, l. 63, that makes plain the wisdom of this suggestion: "Tranio Sir, you seem a sober ancient gentleman by your habit, but your words show you a madman."
Credulity
Lucentio asked in Act 4, sc. ii, l. 65-66: "And what of him, Tranio?" His friend responded: "If he be credulous and trust my tale."
Deception by witnesses, be watchful of this possibility
Act 5, sc. i, l. 104-195, reads: "Gremio Here's packing, with a witness to deceive us all!" Recall the words the Bard consigned in Much Ado About Nothing and that Balthasar sings: "Men were ever deceivers". Act 2, sc. iii, l. 63.
Dissembling by a witness at the scene or in your office at station
Katherina provides a “medium” force example of a warning to be honest: "Of all thy suitors, here I charge thee, tell Whom thou lovest best: see thou dissemble not." Refer to Act 2, sc. i, l. 9. In 28 years as a judge and a number as a defence counsel and later a prosecutor, I have heard this admonition frequently and yet, I have never seen a witness state "I was about to dissemble, but your reminder stopped me in my tracks." I suggest that it is a requirement by police officers, but I know that opinions differ on this subject.
Fact finding: Introduction
By way of brief introduction, I note that investigators must work towards a number of fact-finding conclusions in order to decide upon the long-trm course of the investigation.
Fact finding: Contradicting a written document
The Taming of the Shrew, Act 4, scene iii, l. 124 and following, illustrates the difficulty facing a party wishing to contradict something in writing:
o Grumio
Face not me: thou hast braved many men; brave
not me; I will neither be faced nor braved. I
say unto thee, I bid thy master cut out the
gown; but I did not bid him cut it to pieces:
ergo, thou liest.
Tailor
Why, here is the note of the fashion to testify
Petruchio
Read it.
Grumio
The note lies in's throat, if he say I said so.
Fact finding: Emotions and perceptions of the witness
The play includes these comments at Act 5, scene ii, l. 26: "Katharina 'He that is giddy thinks the world turns round." In other words, detectives must be wary of the emotional state of witness, including at the time of their perceptions.
Fact finding: Emotions depend on time since event
The Taming of the Shrew, Act 5, scene ii, l. 1, provides an example of this truth, which may explain why witnesses may seem to describe traumatic events with equanimity: "Lucentio At last, though long, our jarring notes agree: And time it is, when raging war is done, To smile at scapes and perils overblown."
Fact finding: Evasive response
Act 3, scene i, l. 145-156, includes this example of evasion: "Signior Gremio, came you from the church? Gremio As willingly as e'er I came from school." Do we know whether he was willing in such circumstances? It sounds like paltering in that he may have detested school, and investigators do not suffer ambiguity.
Fact finding: Honesty
Consider the example found in The Taming of the Shrew, Act 3, scene ii, l. 25: "Tranio. Though he be blunt, I know him passing wise; Though he be merry, yet withal he's honest." This is a fundamental type of assessment to be undertaken.
Fact finding: Method to madness
The play indicate at Act 3, scene i, l. 120: "Tranio He hath some meaning in his mad attire." Reminds one of the famous phrase found in Hamlet: "Polonius [Aside] Though this be madness, yet there is method in't ." Refer to Act 2, sc. ii, l. 202-203.
Fact finding: Oath, value of an
The Taming of the Shrew, Act 4, scene ii, l. 33, includes this comment: "Tranio And here I take the like unfeigned oath."
Friends may communicate in "few words"
The play, at Act 1, scene ii, l. 41-42, provides an example of this type of situation: "Petruchio Signior Hortensio, 'twixt such friends as we Few words suffice." Any such code or shorthand present in an intercepted communication or exchange of messages, especially in our present social media world, must be analyzed closely.
"Fumble recovery": Did the witness misunderstand what was being asked?
If I may be excused for resorting to a football expression, I note at times in interview recordings that the investigator seeks to clarify, without leading, whether the witness misunderstood an important question. For example, The Taming of the Shrew, Act 1, scene ii, l. 20-40, provides an example of the type of misunderstanding that might arise when a witness simply misperceives what is being asked and the investigator may have to intervene. In effect, the employer requested of his employee that he knock at the gate and the latter did not perceive what he was requested to so.
Grumio
Knock, sir! whom should I knock? is there man
has rebused your worship?
Petruchio
Villain, I say, knock me here soundly.
Grumio
Knock you here, sir! why, sir, what am I, sir,
that I should knock you here, sir?
Petruchio
Villain, I say, knock me at this gate
And rap me well, or I'll knock your knave's
pate.
Grumio
My master is grown quarrelsome. I should knock
you first,
And then I know after who comes by the worst.
Petruchio
Will it not be?
Faith, sirrah, an you'll not knock, I'll ring
it.
Good Hortensio,
I bade the rascal knock upon your gate
And could not get him for my heart to do it.
Grumio
Knock at the gate! O heavens! Spake you not
these words plain, 'Sirrah, knock me here, rap
me here, knock me well, and knock me soundly'?
And come you now with, 'knocking at the gate'?
In effect, if it turns out that there was a fundamental error in what the speaker meant, it must be put on record and corrected. The play, at Act 5, scene ii, l. 18-20, also provides an example of this situation. Thus: "Petruchio You are very sensible, and yet you miss my sense." If the witness did not seize the investigator’s obvious sense, the Court later may be justified in not concluding that true impeachment has taken place.
Identification evidence – a very high standard of proof
Act 1, sc. i, l. 221-224, of The Taming of the Shrew reports Lucentio stating: "And therefore frame your manners to the time. Your fellow Tranio here, to save my life, Puts my apparel and my countenance on, And I for my escape have put on his." In effect, clothes and one's demeanour add to the difficulty of investigators in finding reliable evidence. Note as well Act 4, scene ii, l. 100-101, as they include these interesting remarks: "Tranio He is my father, sir; and, sooth to say, In countenance somewhat doth resemble you. Biondello [Aside] As much as an apple doth an oyster, and all one."
Parroting by witness?
One of the foremost questions that an investigator must ask at the conclusion of an interview with a potential witness is whether the person was providing their own evidence, or parroting what someone has been guiding them (or browbeating) to say. For example, Bianca is commanded by Shakespeare to state: "I must believe my master; else, I promise you, I should be arguing still upon that doubt " Refer to Act 3, sc. i, l. 53.
Reversing the proposition: Evaluating both sides, if not more, of any issue
I have argued elsewhere, and in great detail,[3] that one of the fundamental tools with which to judge the merits of any information you gather prior to trial as an investigator is the technique of reversing the proposition. If the witness you interviewed, for example, who is friendly to the accused-suspect 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". Put shortly, what does a judge conclude of an account, for example, that the accused was found bent over the body of a stabbing victim whilst holding the bloody knife? That the defendant stabbed the victim or happened to be the first person to stumble across the body? In effect, you must look at both sides of an issue, if not at all possible facets.
A first “literary” illustration is drawn from the opening pages of Charles Dickens' immortal A Christmas Carol. Scrooge quite reluctantly raises the subject of his clerk taking December 25 as a holiday and observes that it is unfair that his employee consider himself "ill-used" if docked a day's pay if no work is performed on Christmas and adds, a propos of our discussion, "And yet. you don't think me ill-used when I pay" for no work. Note as well that in The Gondoliers, Gilbert and Sullivan's last great success, we sing "when everyone is somebody, then no-one's anybody".
Note the contrast between youth and advanced age in the extract found below, consigned in The Taming of the Shrew, Act 2, scene I, l. 329-334:
o Gremio
Youngling, thou canst not love so dear as I.
Tranio
Graybeard, thy love doth freeze.
Gremio
But thine doth fry.
Skipper, stand back: 'tis age that nourisheth.
Tranio
But youth in ladies' eyes that flourisheth.
And, somewhat later, in the play at Act 2, scene i, l. 380-386, we read these remarks:
o Baptista
I must confess your offer is the best;
And, let your father make her the assurance,
She is your own; else, you must pardon me, if
you should die before him, where's her dower?
Tranio
That's but a cavil: he is old, I young.
Gremio
And may not young men die, as well as old?
A further illustration is seen in Romeo and Juliet, Act 2, scene 5, l. 28-32:
o Nurse
Jesu, what haste? can you not stay awhile?
Do you not see that I am out of breath?
Juliet
ow art thou out of breath, when thou hast breath
To say to me that thou art out of breath?14
Turning to Hamlet, we read at Act 5, scene ii, l. 4-10:
Hamlet
Sir, in my heart there was a kind of fighting,
That would not let me sleep: methought I lay
Worse than the mutines in the bilboes. Rashly,
And praised be rashness for it, let us know,
Our indiscretion sometimes serves us well,
When our deep plots do pall: and that should teach us
There's a divinity that shapes our ends,
Rough-hew them how we will,--
Lastly, I cite the article by Gary Smith, "Unwilling Actors: Why Voluntary Mediation works, Why Mandatory Mediation Might Not":
26 An excellent illustration of this can be found using another play by Shakespeare, The Taming of the Shrew. As written, this play is objectionable not only as it purports to show a husband's domination of his wife, but her acceptance and finally her support for her own oppression. However, if a frame is placed around the play -- for example, a man falling asleep in a prologue is awakened by his wife Kate, "untamed," in the epilogue -- the play can be presented as the man's dream. The play, which is now within another play, takes on an ironic character, using the same words to produce a different message for the audience. Through the imposition of the frame, which changes the polarity and therefore alters the interpretation, the contents are no longer objectionable.[4]
Stereotypical beliefs – do not abdicate your judgment to accept
Consider in this vein two passages from The Taming of the Shrew, touching upon "grave citizens". Act 1, scene i, l. 10, provides an example of this type of situation: "Lucentio Pisa renown'd for grave citizens." Later on, at Act 4, scene ii, l. 95, we read: "Tranio Ay, sir, in Pisa have I often been, Pisa renowned for grave citizens." For present purposes, these references seek not to guide investigators to look for stereotypes that are invariably of little use, if not downright harmful, but to be conscious of the possibility that the witnesses may be guided by such stereotypes, especially unconsciously.
“Vetrovec” warning
Act 1, sc. i, l. 128-129 of The Taming of the Shrew, reads: "Hortension Faith, as you say, there's small choice in rotten apples." Expressed otherwise, there are occasions in criminal prosecutions where the Crown has no choice but to call a host of unsavory witnesses, and to thus invite the Court to deliver what is known as a Vetrovec warning, in light of the seminal case reported in [1982] 1 S.C.R. 811, 1982 CanLII 20 (S.C.C.). An excellent review of the case law is found in R. v. Rajbhandari, 2017 ABCA 251 (CanLII). Your responsibility as an investigator is to amass all of the negative stuff that must be disclosed to the defence and Court.
Volubility of a witness – Be careful not to limit unfairly
Act 2, sc. i, l. 174-175 sees Petruchio state: "Then I'll commend her volubility, And say she uttereth piercing eloquence." Consider what Grumio states at Act 1, sc. ii, l. 243: "… this gentleman will out-talk us all."
Words: The importance of
Luciento remarks in The Taming of the Shrew, at Act 1, sc. ii, l. 154: ". Whate'er I read to her, I'll plead for you As for my patron, stand you so assured, As firmly as yourself were still in place: Yea, and perhaps with more successful words." Indeed, I suggest that words can be witnesses and quote Tranio states: "And I am one that love Bianca more Than words can witness, or your thoughts can guess". See Act 2, sc. i, l. 328-329.
Professionalism during your career as an investigator
Branding someone a liar, do not be too prompt to do so
The Taming of the Shrew, Act 2, scene i, l. 10-12, includes these remarks: "Bianca Believe me, sister, of all the men alive I never yet beheld that special face Which I could fancy more than any other. Katharina Minion, thou liest. Is't not Hortensio?" If you are in possession of “contradictory information”, it may be beneficial to merely note the answer you received and to report to the Crown the information you possess, leaving it to their good judgment to decide what course to follow.
Cooperation with the defence Bar
Perhaps the best illustration of the proper conduct expected of you is found in the play at Act 1, sc. ii, l. 274-275:
Sir, I shall not be slack: in sign whereof, Please ye we may contrive this afternoon, And quaff carouses to our … health, And do as adversaries do in law, Strive mightily, but eat and drink as friends.
In Whiteside v. Hydro Electric Commission of Thunder Bay, 2006 CanLII 42609 (Ont. Sup. Ct.), Pierce J. remarked: "30 Shakespeare recognized the nature of the adversarial process in 1593 when he wrote in The Taming of the Shrew …", to then quote this passage. Noteworthy as well are the words found at Act 1, sc. i, l. 128-129: "Hortension. this bar in law makes us friends, it shall be so far forth friendly."
Former Chief Justice Freedman observed in this vein:
o 26 So let me stress the need for the continuance of one of the fine traditions of our ancient and honourable profession: the tradition that the practice of law, in court or out, be carried out in an atmosphere of civility. Vituperation of language or bitterness of spirit need not be a feature of proceedings between members of the bar. Rather one would wish to see those proceedings carried on in an atmosphere of mutual trust, of true confidence. Only in that way will we merit the tribute which Shakespeare paid to our profession when he said: "Do as adversaries do in law. Strive mightily, but eat and drink as friends."
Wise words that counsel and investigators ought never to overlook, especially in light of the guidance of the Supreme Court of Canada on civility in litigation consigned in Groia v. Law Society of Upper Canada, 2018 SCC 27. In my opinion, investigators must of course comply with the directions of the Crown in terms of disclosure and such matters but there is no reason for any friction or lack of respect.
Forward in your approach
The successful investigator must, on occasion, act as did Baccare in the example that follows, consigned at Act 2, sc. i, l. 73: "Gremio Baccare! you are marvellous forward." Being forward is not the equivalent of being rude or insolent. In this context, consider Petruchio's comment: “Though little fire grows great with little wind, Yet extreme gusts will blow out fire and all." See Act 2, sc. i, l. 134. Finally, I quote from Act 3, sc. i, l 1: Lucentio "Fiddler, forbear; you grow too forward, sir."
Hasty words, avoid
"Take no unkindness of his hasty words…" is found in Act 4, sc. iii, l. 164, and is said by Hortensio. It is preferable that no hasty words be said in the first place.
Pithy statements
Act 3, sc. i, l. 65-68 reveals what follows: "Hortensio To teach you gamut in a briefer sort, More pleasant, pithy and effectual, Than hath been taught by any of my trade."
Puppet, defence might aim to be your puppeteer
Refer to Act 4, sc. iii, l. 103-196: "Katherina I never saw a better-fashion'd gown, More quaint, more pleasing, nor more commendable: Belike you mean to make a puppet of me. Petruchio Why, true; he means to make a puppet of thee."
Tired witness - Did you, as a police officer, testify after a night shift?
The Taming of the Shrew, Act 4, scene iii, l. 9, includes these remarks: "Katharina. Am starved for meat, giddy for lack of sleep." As is well known, police officers may be called to testify not having slept the night before and prosecuting counsel ought to inform the Court of such concerns.
Trials are not tea parties
In Act 2, sc. i, l. 138, of The Taming of the Shrew, Baptista states: "But be thou arm'd for some unhappy words." The same is true for all witnesses and you as investigator may expect to be cross-examined quite forcefully.
Values, some are beyond estimation
Act 4, sc. iii, l. 172-175, of the play records Petruchio saying: " … is the jay more precious than the lark, Because his fathers are more beautiful? Or is the adder better than the eel, Because his painted skin contents the eye?" I recall easily a family law motion to be argued on December 23 in which both sets of grand-parents were in Ottawa and wished to spend the "Reveillon", the traditional French-Canadian feast on Christmas Eve with the then six-month-old grandchild whose parents had separated only a few weeks earlier. The judge stated that this was a "coin flip" case as no amount of persuasion could sway him as to the equities. In sum, the child would sleep through the "fête" and the parties were wasting each other's time; whomever had access the next night would not have access the next year. As an investigator, show the same professionalism and do not waste time on matters that advance no ones interest, certainly not the cause of justice.
Vexing a saint
The Taming of the Shrew, Act 3, scene ii, l. 27-28, includes this comment: "Baptista Go, girl; I cannot blame thee now to weep; For such an injury would vex a very saint." You are not a saint and you are entitled to complain of injuries and of unprofessional conduct by others, including lawyers.
Conclusion
Act 4, sc. i, l. 174 reads: "Petruchio And 'tis my hope to end successfully." I suggest, with great sinful pride, that this type of article may assist in that regard.
[1] See “A List of One Hundred Legal Novels” (1922), 17 Ill. L. Rev. 26, at page 31.
[2] 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 pages 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.
[3] Refer to my book, Advocacy: A Lawyers' Playbook, Carswell, 1996, Toronto, Chapter 6, at pages 119-161.
[4] A personal experience is worth noting, if for no other reason than to permit me to poke fun at myself. I asked an accused person who appeared at three o'clock why he had not been present at nine thirty in conformity with his promise to appear and he responded: "Since everybody else was going to be here on time, I figured you had enough work to keep you busy until I showed up." When I responded gravely "What if everybody else on the list had decided to show up late by many hours, as you did? What then?" His tart reply was: "If everybody else was going to be late, I would be a fool to show up on time, wouldn't I!" A perfect illustration of reversing the proposition.