Full Title Name:  RECENT CASES ON THE USE OF FACILITY DOGS BY WITNESSES WHILE TESTIFYING

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John Ensminger Place of Publication:  Michigan State University College of Law Publish Year:  2014 Primary Citation:  Animal Legal & Historical Center 1 Country of Origin:  United States
Summary: This article examines the use of a "facility dog" - a dog present during testimony at trial - in various court settings. Specific cases are examined in the article.

I. INTRODUCTION

To make children and other vulnerable witnesses comfortable while testifying, courts are increasingly permitting such witnesses to be accompanied by specially trained dogs while on the stand.  The concept of using such dogs long precedes references in cases.

For a discussion of that early history of this phenomenon, see Marianne Dellinger, Using Dogs for Emotional Support of Testifying Victims of Crime, 15 Animal L. 171 (2008).  For a discussion of the history of facility dogs up to 2013, see Casey Holder, Comment: All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant’s Right to a Fair Trial, 50 Houston Law Rev. 1155 (Symposium, 2013) (stating that “currently sixteen states allow dogs into the courtroom.”).  Another law review article published only a few months later found 21 states had implemented courthouse dog programs. Sarah Bowers, The Use of ‘Therapy Dogs’ in Indiana Courtrooms: Why a Dog Might Not Be a Defendant’s Best Friend, 46 Indiana Law Review 1289 (2013).  The last two articles refer to prosecutions where facility dogs were used but where no judicial opinion was written with regard to their approval for use in a judicial setting.  The present article confines its analysis to judicial opinions. 

This article is being posted online so that discussions of new cases can be easily added to show how the acceptance of dogs with a function of helping a witness testify is evolving.  When a new case is issued and comes to the author’s attention, it will be added after this introduction, meaning that earlier cases will be dealt with later in the argument.  It is hoped that this approach to presenting the development of this legal subject will help those interested in this area by not requiring that they re-read previously posted analysis before they can find the latest case or other development.

A. Terminology

At present, the preferred term for a dog accompanying a witness during testimony is “facility dog,” though cases and the literature on the subject have also called them testimony dogs, courthouse dogs, companion dogs, therapy dogs, service dogs, comfort dogs, therapy assistance dogs, support dogs, and therapeutic comfort dogs.  Most of these terms imply canine functions in providing comfort or reducing anxiety (emotional support dogs) and should be avoided because the function of the dogs in a courtroom setting is far more specific.  Most dogs described in cases so far have been trained in a manner similar to how therapy dogs are trained, but not all dogs were actually trained or certified therapy dogs so this term would also be confusing.  A service dog is generally a dog that assists a particular individual with a disability, but facility dogs may be used with vulnerable witnesses in a particular state while living with a master who is not disabled.  Therefore, that term is also best avoided.  Companion dogs are generally pets, though some degree of need may be implied in specific contexts.  Calling a dog a courthouse dog has a clever journalistic ring, but might suggest the dog lives in the courthouse, on call like a stenographer or translator. In the end, facility dog or testimony dog may be the best choices, and facility dog will be used as the default setting here. 

B. Tabular Summary

The decisions involving facility dogs (or dogs designated as having similar functions) used for the testimony of children or vulnerable witnesses are summarized in the following table, which lists key aspects of the parties, dogs, as well as two issues that are becoming paramount in resolving objects to the use of such dogs: what must be shown by the prosecution in order for a court to grant a motion to allow such a dog to accompany a witness (including where the burden lies), and what efforts must be made to limit possible prejudice from the jury’s awareness of the dog’s accompaniment of a witness.   

Case (Year)

Victim/ Ages

Defendant

Dog/ Qualification

Required Showing

Effort to Minimize Prejudice

California v. Spence (2012)

11-year-old step daughter of defendant

Sexual assault including penetration and sodomy

Dog not described aside from fact it sat at victim’s feet

No claim of interference with defendant’s right to confront and cross-examine victim-witnesses; lack of evidence dog’s presence affected jury

Jury cautioned; trial court took care to ensure dog mainly unnoticeable; trial judge stated that improper activity of therapy dog would result in its removal from courtroom

Washington v. Dye (2013)

Adult male with developmental disabilities and mental retardation

Fraudsters convicted of aggravated first-degree theft, residential burglary

Ellie, Golden Retriever trained by and living with prosecutor

Not defendant’s burden to prove prejudice by dog but prosecution’s burden to prove special dispensation necessary for vulnerable witness, but need not prove substantial need or compelling necessity; also defendant failed to establish his fair trial rights were violated or that jury instructions largely mitigated prejudicial effect

Witness allowed to give treats to dog during testimony; caution to jury; if Ellie had played with victim or growled at defendant, trial court could have removed her from courtroom

New York v. Tohom (2013)

15-year-old daughter of defendant

Father accused of predatory sexual assault, endangering welfare of child

Rose, Golden Retriever, trained from age of 8 weeks to sense stress and anxiety and present herself to be petted

Defendant failed to show accommodation of comfort-therapy dog was impermissible under state statute on support persons and accommodations of child witnesses, impaired right to fair trial, or compromised right of confrontation and cross-examination; trial court had discretion where animal could ameliorate psychological and emotional stress of a testifying child witness; necessity requirement for prosecution not preserved for appellate review

Instructions to jury to minimize prejudice; dog’s presence in courtroom described as unobtrusive

Connecticut v. Devon, 150 Conn.App. 514, 90 A.3d 383 (2014)

Three children of defendant, respectively 6, 8, and 10 years old when the alleged abuse began

Multiple charges of sexual assault and risk of injury to a child

Dog named Summer owned by therapist; dog’s training  not described but court said that dog should be “suitably trained”

There had to be a finding, or at least a showing, that the special procedure of allowing a child victim to testify with a facility dog at his or her side was needed

Trial court provided caution to jury, but appellate court did not discuss issue of instructions because showing of necessity was not established before dog’s presence allowed

Washington v. Moore (2014)

Wife of defendant

Husband convicted of assault with domestic violence

Dog named Keris, referred to as a service or comfort dog

No evidence presence of dog made witness appear traumatized or victimized

No objection at trial so issue of prejudice not preserved for appeal

California v. Chenault (2014)

Girls/11 and 13 (daughters of niece of defendant)

Male relative convicted of multiple forcible lewd acts on his daughter and girls within family

Described as support and companion dog, “trained in providing support”

No burden on prosecution to show individualized necessity; presence of dog should assist or enable witness to testify

Dog brought in and out without jury present, kept as inconspicuous as possible (though apparently within sight of jury); caution to jury

 

C. Training Requirements

Proposed legislation, law review articles, the National District Attorneys Association, and a foundation devoted to advancing the use of facility dogs have all proposed that facility dogs should be trained by member organizations of Assistance Dogs International, an international accrediting organization with a North American chapter (Assistance Dog International North America, portal at http://www.assistancedogsinternational.org/regional-chapters/north-america-adina/ ).  New York Assembly Bill 7159-A (May 3, 2013) would define a facility dog as “a graduate from an assistance dog organization accredited by Assistance Dogs International.”  A note in the Indiana Law Review (Bowers, above) recommends that “organizations accredited by Assistance Dogs International” be used to train facility dogs. In 2011, the National District Attorneys Association Board of Directors passed a resolution on the use of “’Courthouse’ or ‘Comfort’ Dogs to aid in the investigation of crimes involving young or vulnerable victims and in situations where these animals would aid in the preparation for, or during trial or hearing testimony.”  The resolution provides that a dog used in such a setting “should be a highly trained graduate of an Assistance Dogs International (ADI) service dog organization or equivalent thereof.”  The handler of such a dog “should receive training, testing and ongoing support in the handling of the dog from an ADI service dog organization.” Finally, the dog should carry a liability insurance policy with limits of not less than $1 million.  (NDAA Resolution, November 19, 2011, http://www.courthousedogs.com/pdf/CourthouseDogs-NDAA.pdf).  The Courthouse Dogs Foundation, at present the leading advocate on the use of facility dogs in the United States, states on its website that facility dogs specialized “in assisting individuals with physical, psychological, or emotional trauma due to criminal conduct … should be graduates from assistance dog organizations that are accredited members of Assistance Dogs International to ensure that they do not create a public danger and are stable, well-behaved, and unobtrusive to the public. Facility dogs in the legal system are handled by criminal justice professionals, such as a deputy prosecutor, a law enforcement officer, a victim advocate, or a forensic interviewer.”  Assistance Dogs International has a webpage devoted to training standards for facility dogs (http://www.assistancedogsinternational.org/standards/assistance-dogs/standards-for-dogs/training-standards-for-facility-dogs/).

A commenter in a Houston Law Review Symposium (Holder, above) argues more correctly that an “appropriate canine should be one specifically trained for the legal world by an organization that specializes in training court facility dogs.”  It is the author’s opinion that no specific organization should be designated with authority to train or test dogs for work at trials.  The prosecution should have the burden of establishing the dog was adequately trained or has evidenced the ability to function appropriately in a courtroom before.  Most national therapy dog organizations carry insurance policies of at least $1 million that cover biting incidents while the animals are in service.  The standards provided by Assistance Dogs International for facility dogs are well drafted, but substantially similar to obedience and behavioral requirements for therapy dogs licensed by national therapy dog organizations.  There is no need to create such a monopoly for a single service or therapy dog organization.

II. CALIFORNIA COURT FOCUSES ON MINIMIZING POTENTIAL FOR PREJUDICE WHEN 11 AND 13 YEAR-OLD GIRLS TESTIFY WITH SUPPORT DOG

California v. Chenault, D064276, 2014 Cal.App.LEXIS 642 (Cal.App.Dist.4, 2014).

Darrell Chenault was convicted on 13 counts of lewd acts on a child under 14 years of age.  He was sentenced to 75 years to life in prison.  On appeal he contended that the trial court abused its discretion by allowing a support dog to be present during the testimony of two child witnesses without individualized showings of necessity, and that the presence of the dog was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him.  The appellate court affirmed.  Although acknowledging other courts had used the term “facility dog,”  this court preferred “support dog.” 

A. Use of Dog During Trial

After a divorce, Chenault engaged in various sexual acts with his daughters, various other children, and two daughters of his niece, C., born in 1999, and F., born in 2001.  The appellate court described the dog’s presence at trial as follows:

At the time of trial, F. was 11 years old and C. was 13 years old. Before trial, the prosecutor filed a trial brief that requested F. and C. be permitted to have a support dog present during their testimony in addition to a support person. Citing the trial court's discretion under [the California Evidence Code], the prosecutor asked the court to allow F. and C., who were under 14 years of age, to use a dog trained in providing support. She represented the dog was "a trained service dog that will not disrupt the courtroom and has been inside the court in the past. In fact, the trained service canine sought to be used in this case has been providing support for victims and witnesses in San Diego County for the last several years." She argued: "Young victims are often very nervous and scared to testify on the witness stand. This is quite understandable given the facts and nature of these cases. The use of a support canine would surely aid the victims in giving their testimony. Support canines have proven very effective in making children feel safer to recall past traumatic events, speak in front of strangers, and give clearer testimony." To avoid prejudice to the defendant or distraction of the jury, the prosecutor suggested the support dog walk in with F. and C., sit under the witness stand during their testimony, and then leave with them after they completed their testimony.

The reference to the witnesses being under 14 years of age is made because Chenault was being prosecuted on numerous counts of forcible lewd acts on a child under 14 years of age.  The prosecutor’s request was granted by the trial judge, whose expectation was that the dog would be as inconspicuous to the jury as possible.

I would expect that the K-9's presence, so to speak, would be limited to actually accompanying [F.] and [C.] to the witness stand and then kind of playing lap dog at their feet. But one thing I don't want is for [F.] and/or [C.] and said support animal to be wandering the hallway out here on any recesses with pats on the head by everyone [who] loves dogs, including jurors.

Chenault’s attorney objected at trial that the witnesses were not “little kids,” but rather 11 and 13, had already talked to police, social workers, and the prosecutor without the presence of a dog, and had testified at a preliminary hearing without a dog, though it had been requested.  The request had been denied at the preliminary hearing, according to the defense counsel, who suggested that support people be used instead.

The trial judge said he was sensitive to defense counsel’s concerns but, according to the record, stated, “I’ve also seen the support animals in operation, and I know how stressful testifying in an environment such as this usually is, especially for children of a tender age.”  The fact the children had told their stories over and over “perhaps is an argument in favor of a support animal rather than against it.”  The judge said he would caution the jurors, and allowed the dog to accompany the two witnesses during the trial.  He anticipated calling a recess before the testimony of F. and C. so that the witnesses could enter the courtroom with the dog and its handler “through the back hallway.  After the witness took the stand with the support dog, the jury would reenter the courtroom.”  The judge felt this procedure minimized, if not it did not eliminate, “any untoward prejudice.”

The prosecutor informed the court that the dog’s handler would be seated where the dog could see the handler to assure that it would not stand up or otherwise misbehave.  When F. took the stand, defense counsel complained about the dog’s location, but the judge said that the dog had to be where it was because of its size and because of the limited space available.  The appellate court presumed for purposes of the appeal that the dog was within sight of the jurors during the testimony.

At the beginning of his examination of F., the judge informed the jury that F. was accompanied by “a service animal, companion dog, whose [name] happens to be Asta.”  The appellate court states that the trial “record does not reflect any problems caused by the support dog during F.’s testimony.”  Nor did the appellate court find any problem in the trial record regarding the use of the dog during C.’s testimony.  In the opinion of the author of these comments, it might have been best not to give the dog’s name as this can allow people to begin to personalize their relationship with a dog.  

B. Support Persons under California Law

The appellate court concluded that California Penal Code §868.5, which provides for the presence of support persons for witnesses in certain circumstances, “does not apply to the presence of therapy or support dogs…. Rather, a trial court has authority under Evidence Code section 765 to allow the presence of a therapy or support dog during a witness’s testimony.” For both parts of this finding the court cited Spence, discussed herein.  The appellate court applied an “abuse of discretion standard in reviewing the trial court’s exercise of its authority under Evidence Code section 765.”

The court noted that California case law on Penal Code § 868.5 has consistently rejected arguments that the presence of support persons “is inherently prejudicial, erodes the presumption of innocence, and impermissibly encroaches on confrontation clause and due process rights.”  The court did “not believe that the presence of a support dog is inherently more prejudicial than the presence of a support person,” citing the New York case of Tohom, discussed below.

Defense counsel felt that “the one sided deployment of a universally beloved animal distracts the jury from a dispassionate review of the evidence and unfairly bolsters the prosecution’s case by aligning witnesses with a powerful symbol of trustworthiness and vouching for their credibility as victims.”  The court acknowledged that in certain circumstances “a support dog might cause a jury to consider impermissible factors in deciding a defendant’s guilt,” but said such a scenario would be rare.

C. No Requirement for Individualized Showings of Necessity

Chinault argued that “individualized showings of necessity” should have been required for F. and C. before the support dog could be present in the courtroom.  The appellate court concluded however that “a case-specific finding that an individual witness needs the presence of a support dog is not required by the federal Constitution,” for which Tohom was again cited.  Rather, a facts and circumstances analysis required only that the trial court—

should consider the particular facts of the case and the circumstances of each individual witness and determine whether the presence of a support dog would assist or enable that witness to testify without undue harassment or embarrassment and provide complete and truthful testimony. In so doing, the court should focus on whether the presence of the specific support dog would likely assist or enable the individual witness to give complete and truthful testimony by reducing the stress or trauma the witness may experience while testifying in court or otherwise minimizing undue harassment or embarrassment. If the trial court finds the presence of a support dog would likely assist or enable the individual witness to give complete and truthful testimony and the record supports that finding, the court generally will act within its discretion under Evidence Code section 765 by granting a request for the presence of the support dog when that witness testifies.

Nevertheless, the court stated that “we believe the appropriate standard should be whether the presence of a support dog would assist or enable that witness to completely and truthfully testify without undue harassment or embarrassment.”

As to whether the trial court adequately considered all relevant issues before allowing the presence of the dog, the appellate court stated:

Based on our review of the record, we conclude the trial court made implicit findings that the presence of Asta, the support dog, would assist or enable F. and C. to testify completely and truthfully without undue harassment or embarrassment. The court also took measures to reduce any possible prejudice to Chenault by setting forth logistics for the entry, positioning, and departure of the support dog, along with F. and C., during jury recesses so the dog was as unobtrusive and least disruptive as reasonably possible.

The court noted that Spence had referred to “implied findings of necessity,” and Dye had spoken of an implicit finding of necessity, so the implicit findings of the trial court in Chenault were adequate to allow the presence of the dog.  It might be better, in the opinion of this commenter, for courts to make such findings explicit before allowing a dog, regardless of where the burden is placed and what that burden is.

D. Effort to Minimize Prejudice

The appellate court said that the trial court should take measures to reduce possible prejudice from use of the dog by making its presence—

as unobtrusive and least disruptive to the proceedings as reasonably possible. The court may have the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and dog leave the courtroom. In certain physical courtroom settings, it may be possible to have the support dog lie on the floor near the witness, entirely out of the jurors' view. If not, the support dog should be positioned, if possible, so its presence is not significantly distracting to the jurors.

If the jury becomes aware of the dog, then—

it generally will be the preferred practice for the court to give an appropriate admonishment to the jury to avoid, or at least minimize, any potential prejudice to the defendant. For example, the court may admonish the jury that it should disregard the dog's presence and decide the case based solely on the evidence presented, should not consider the witness's testimony to be any more or less credible because of the dog's presence, and should not be biased either for or against the witness, the prosecution, or the defendant based on the dog’s presence.

If prejudice cannot be eliminated, or at least reduced sufficiently to avoid infringing on the defendant’s constitutional rights, the court should deny the request for use of the dog.  The California appellate court specifically rejected the position of the Supreme Court of the State of Washington in Dye, discussed below, that put a burden on the prosecution to prove that a special dispensation for a vulnerable witness is necessary.

Finally, the appellate court determined that even if allowing the dog to be present were to be held to be error, that error was harmless because it was not reasonably probable the defendant would have obtained a more favorable verdict had the error not occurred.

III. CONNECTICUT APPELLATE COURT SAYS PROSECUTION HAD TO ESTABLISH NECESSITY FOR SPECIAL PROCEDURE

Connecticut v. Devon, 150 Conn.App. 514, 90 A.3d 383 (2014).

The defendant and his girlfriend had three children, whose identities are disguised as letters, GF for the girlfriend, C1, C2, and C3 for the children, with only the defendant’s first name revealed, Devon D.  Devon D. and GF separated in 2005 but Devon had visitation rights.  The criminal allegations as to C1 were explicit:

While trick-or-treating in October, 2009, six year old C1, who was the daughter of GF and the defendant, told GF that the defendant had sexually abused her by putting his "wee-wee" on her stomach and by touching her "private" part with his fingers. They talked about these allegations again the next morning. Several days later, GF told Frieda Griffin, a social worker with the Department of Children and Families …, about C1's allegations. Griffin had been working with the family and had been going to GF's home on a regular basis. GF then contacted the police, and she brought C1 to Saint Francis Hospital and Medical Center, where C1 participated in two videotaped interviews conducted, on different days, by Erin Byrne, a clinical child interview specialist for the Children's Advocacy Center at Saint Francis Hospital and Medical Center. C1 told Byrne that the defendant had penetrated her "private" with his fingers and with his penis, which hurt and caused her to bleed, that he attempted to penetrate her "butt" with his penis, that he ejaculated on her several times, and that he forced her and her siblings to watch a pornographic movie. She also told Byrne that the defendant forced her to perform fellatio on him, but she vomited when he ejaculated in her mouth. Additionally, C1 told Byrne that the defendant was upset because she had eaten meat, so he put vinegar in her "privates" and in her ears; he also tried to insert his penis into her ear to clean her flesh and get the "meat" she had eaten out of her body, thus causing her ear to bleed. C1 also told Byrne that the defendant had his clothes off or his pants pulled down during these instances and that many of them occurred in the bedroom.

Devon was charged with one count of sexual assault in the first degree, and two counts of risk of injury to a child based on these allegations.  Soon after C1’s revelations, C2, a boy, also described sexual abuse in connection with which Devon was charged with two counts of sexual assault in the first degree, and three counts of risk of injury to a child. C3, another son, also came forth with allegations of sexual abuse, which led to an additional count of sexual abuse and one of risk of injury to a child.

Interviews of the children describing the interactions with their father were conducted by various professionals and videotaped.  No physical evidence of abuse was found during examinations of the children, though testimony indicated that this was not necessarily to be expected.  Following a trial by jury, Devon was convicted of all charges relating to all three children and sentenced to 40 years of imprisonment to be suspended after 18 years followed by 35 years of probation.

A. Special Procedure Questioned on Appeal

On appeal, Devon asserted that the prosecution as to the charges concerning C1 should have been separated from the charges as to C2 and C3, and that the evidence from C1’s case should not have been cross-admissible as to C2 and C3, an argument the Connecticut Appellate Court accepted as justifying reversal.  Devon also argued on appeal that “the court improperly permitted the state to have a dog sit near C1 while she testified to provide comfort and support to her.”  The appellate court concluded that the trial court had abused its discretion in permitting the use of the dog to comfort and emotionally support C1 while she testified without requiring the state to prove that this special procedure was necessary for this witness.  At trial, defense counsel specifically told the trial court he was not making a confrontation clause claim as to the presence of the dog, and the appellate court therefore considered such a claim waived.

During the trial the prosecution had filed a motion for special procedures under Connecticut General Statutes § 54-86g, concerning testimony of a victim of child abuse, which allows for a number of procedures, including taking the testimony of the child in a separate room without a potentially intimidating defendant being present and allowing the child to sit with “an adult who is known to the child and with whom the child feels comfortable.”

The prosecution explained that C1 did not have any concerns about testifying in front of Devon, but that she was concerned about testifying before other people, for which the dog might provide comfort. On a hearing on the motion, a child therapist testified that he had purchase a “service dog” for therapeutic use in his practice.  The therapist, David Meyers, stated that he had not used the dog in a courtroom setting but that such a dog could be useful in alleviating anxiety suffered by children.

Meyers further testified that he and the dog had met C1 earlier in the day, spending one hour with her, and that they had visited the courtroom together.  Although C1 initially refused to touch the dog and said she was fearful, she soon warmed up to it and then told Meyers that she would feel more comfortable if the dog were with her when she testified in court. Upon questioning by defense counsel, Meyers stated that he was unaware of any studies that had determined that the testimony of a witness would be more reliable or truthful if a therapeutic dog were present during the testimony.

This is an important observation in that the phenomenon of facility dogs should be studied in a rigorous scientific manner both as to their effects on witnesses and on juries.

B. Inherent General Discretionary Authority, but No Statutory Authority

The trial court concluded that CGS § 54-86g gave it discretion to allow use of the dog, with any potential prejudice cured by proper instructions to the jury.  The appellate court determined, however, that the section “as currently written does not give the court the specific authority to allow the presence of a dog while a child witness testifies and that, although the court has the inherent discretion to allow the use of comfort tools,” this situation was an abuse of discretion without a “proper prior showing that C1 needed the presence of the dog when she testified.”  The court noted that the statute does not list “use of a live dog … as a special procedure.”  The court also observed that it had previously held that the statute did not cover a child witness holding a stuffed animal while testifying.  State v. McPhee, 58 Conn. App. 501, 755 A.2d 893, cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).

Despite the absence of statutory authority for permitting a facility dog, the appellate court did conclude that the trial court had “inherent general discretionary authority” to permit such a dog, but also determined that this discretion was abused under the facts of the case.  After the court summarized a number of cases where child witnesses had used stuffed animals, as well as cases involving facility dogs (Dye, Tohom, Spence), the court elaborated on the abuse by the trial court stating that this arose because “there was no finding, nor was there a showing, that this special procedure was needed.”  Because of this, and the failure to sever the case of C1 from that of C2 and C3, the judgment was reversed and remanded for new trials. (It is to be noted that the appellate court quoted from the introduction to this article above regarding the terminology of facility dogs.)

IV. FACILITY DOG ACCOMPANIES ADULT WITNESS DURING TESTIMONY

Washington v. Dye, 309 P.3d 1192 (Wash., 2013)

In 2005, Alesha Lair became romantically involved with Douglas Lare, a neighbor, and moved into Lare’s apartment in 2007, bringing along her sister, mother, and mother’s boyfriend.  Douglas Lare suffers from developmental disabilities, including cerebral palsy, Kallman Syndrome, and mild mental retardation.  He is an adult but functions at a mental age between 6 and 12 years old.  Alesha opened credit cards in Lare’s name and charged them to their limits, buying herself and her family clothing, shoes, computers, beer, cigarettes, a DVD player, and cell phones.  She also withdrew money from Lare’s retirement account.  She then moved out and used Lare’s money to furnish a new apartment with her other romantic involvement, Timothy Dye.  In total, according to the Washington State Supreme Court, she borrowed approximately $42,000 against credit cards in Lare’s name and withdrew $59,000 from Lare’s retirement account.  Alesha Lair pled guilty to theft in the first degree with aggravating circumstances.

Timothy Dye also took advantage of Douglas Lare.  Lare woke one night to find Dye rummaging through his apartment.  Dye asked if he could take a DVD player and VCR. When Lare refused, Dye nevertheless took some DVDs and a shelving unit.  Lare came home from work the following day to find his television, VCR, DVD player, microwave, and a collectible knife were missing.  Dye admitted to a police detective that he had pawned Lare’s DVD player but claimed Lare had voluntarily offered it to him.  After the burglaries, Lare installed three locks on his front door and began sleeping with mace, a frying pan, and two knives.

Dye was charged with residential burglary.  During Lare’s defense interview, he had been accompanied by a facility dog, Ellie, a Golden Retriever used by the prosecutor in King County, Washington, to comfort children giving statements or providing testimony.  The dog was trained by and lives with the prosecutor who prosecuted Dye.  The Washington Supreme Court noted that the dog had been referred to in various proceedings as a comfort dog or a therapy dog, but that the appellate court had preferred “facility dog.”  The Supreme Court decided to use the same term.

A. Request for Facility Dog at Trial

The prosecution moved to allow Ellie to accompany Lare when he testified.  Dye’s counsel said she did not object to Ellie’s presence if Dye could hold his baby when he testified.  The trial court granted the prosecution’s motion, but said that Dye would need a similar disability to hold a baby while testifying.  Dye’s counsel also objected that Ellie might inflame Dye’s allergies or distract the jury.  The court said that it might accommodate Dye’s allergies if it received medical documentation of their existence. Apparently no documentation was provided.  The Supreme Court described Ellie’s presence during the trial:

Ellie sat with Lare during his testimony and accompanied him to the restroom.  Lare also fed Ellie treats and used Ellie as a table while reading an exhibit. Ellie's presence is not otherwise indicated in the record except for her introduction at the beginning of Lare's testimony:

Q. ... . Who's your friend there with you?
A. This is Ellie.
Q. And why is Ellie there with you?
A. Ellie is to help me and to make it easier for me. And I have treats here.

…. At the end of the trial, the court instructed the jury not to "make any assumptions or draw any conclusions based on the presence of this service dog."

Dye was convicted of residential burglary.  The Court of Appeals affirmed the conviction.  Dye then appealed to the Washington State Supreme Court, arguing that Ellie’s presence violated his right to due process and a fair trial.

B. Washington State Supreme Court Analysis

The Washington State Supreme Court found only two published cases on point, Tohom and Spence, both discussed below.  The Court noted that a prior state appellate decision, Washington v. Hakimi, 124 Wn.App. 15, 98 P.3d 809 (2004), had allowed two young girls who may have been molested to carry dolls to the witness stand. The Court cited a number of similar cases from around the country and noted that courts have split as to whether (1) the prosecution must prove that the special measure is necessary to secure the witness’s testimony, or (2) the defendant must prove that the special measure would create prejudice or be improper.  In Hakimi, the Washington appellate court did not impose an explicit necessity test but, according to the Supreme Court, “relied on a record that clearly indicated that the witness would have difficulty testifying in the absence of the comfort item or support person."

The Court determined that it would “not overrule the trial court’s exercise of discretion unless the record fails to reveal the party’s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons.”  The Court stated that a trial court abuses its discretion only if one of the following is true:

  1. The decision is manifestly unreasonable, falling outside the range of acceptable choices given the facts and the applicable legal standard.
  2. The decision is based on untenable grounds, i.e., factual findings are unsupported by the record.
  3. The decision is based on untenable reasons, i.e., an incorrect standard or facts that do not meet the requirements of the correct standard were applied. 

As to whether the trial court’s decision was “manifestly unreasonable,” the Court found that “there is no actual evidence on the record that Ellie had the effect of distracting the jury, damaging the presumption of Dye’s innocence, or otherwise tainting the proceedings.”  The Court noted:

It is the responsibility of a party alleging error to create a record of that error. If Dye's counsel had seen Ellie jump on Lare, make a defensive posture toward Dye, or engage in other prejudicial behavior, she could have noted such behavior for the record, or even asked the court to remove Ellie from the witness stand momentarily. Counsel did not.

As to “untenable grounds,” the Court found that the trial court’s findings regarding Douglas Hare’s disabilities were “well supported by the record,” as were its findings that Ellie would be very unobtrusive.  The Court noted that the record did not indicate that Ellie disrupted the proceedings, left Lare’s side, or growled at Dye in such a way as to make him look dangerous or untrustworthy.  Therefore, “the trial court did not rely on untenable grounds.” 

As to “untenable reasons,” the Court noted that the trial court was aware of Lare’s significant anxiety regarding his testimony, his significant emotional trauma, and his developmental disability.  The Court concluded: “Because the trial court held a hearing on the permissibility of Ellie's presence, and because the record showed why Ellie's presence was needed to facilitate Lare's testimony, the trial court did not rely on untenable reasons.” 

The Court said that “whatever subconscious bias may have befallen the jury was cured by the trial court's limiting instruction, which cautioned the jury not to ‘make any assumptions or draw any conclusions based on the presence of this service dog.’”  The Court held that Dye had failed to establish that his fair trial rights were violated and that any possible “prejudice that resulted from Ellie’s presence was minor and largely mitigated by the limiting instruction the trial court gave.”  Therefore, the trial court had not abused its discretion and the appellate decision, and hence the conviction, was affirmed. 

C. Visibility of the Dog to the Jury

Marianne Dellinger noted, in the article cited in the Introduction, that “the dog and the witness could be required to enter the courtroom before the jury, and the dog would remain out of the jury’s sight.”  The picture here shows Lare in the witness box with Ellie at his feet. The dog was visible during testimony only to jurors sitting at one end of the jury box.   The picture was not taken during the trial, but during a subsequent interview that took place in the courtroom, and is supplied courtesy of Ellen O’Neill-Stephens.

D. Application of Dye to Adult Victim of Domestic Violence

A Washington State Court of Appeals decision issued in May 2014 allowed a “service dog” to accompany an adult victim of domestic violence to the stand when she testified against her husband, Duane Allen Moore, who had been charged with second degree assault with a domestic violence special allegation. In Washington v. Moore, 2014 Wash. App. LEXIS 1186 (May 13, 2014), Moore’s wife, Sabrina Moore, was accompanied during her testimony by a dog named Keris, referred to in the appellate opinion as a service dog, but in the appellant’s brief as a “service or comfort dog.”  The dog’s training, its relationship with the witness (i.e., as a facility dog, a service dog, or a pet that provided comfort) received no elaboration either by the appellate court or in the briefs of the parties.

The prosecutor had moved to allow Ms. Moore to be accompanied by the dog because she “was nervous and scared about testifying….”  Defense counsel at trial made no objection.  The appellate court stated that because the defendant failed to raise at trial any objections regarding the dog’s presence as a violation of his right of confrontation, the issue had not been preserved on appeal absent a showing of constitutional error with “practical and identifiable consequences at trial.”  The appellate court found “no evidence in the record that the dog’s presence made Ms. Moore appear traumatized or victimized, and thereby violated Mr. Moore’s due process rights, or acted as a comment on the evidence.”  Thus, the failure to object to the use of the dog at trial meant that there was no foundation for an appeal on the issue, which was fatal to defendant’s arguments that the presence of the dog prevented an effective face-to-face confrontation with the witness.

Given that the decision is essentially procedural, it is difficult to say whether Washington has accepted that a dog can accompany an adult witness without establishing any disability other than fear of an abusive husband.  If this situation had been accepted as a substantive argument, it would indicate a substantial broadening of the use of facility dogs at trials.

V. FIFTEEN-YEAR-OLD SEXUAL ABUSE VICTIM ACCOMPANIED BY THERAPY DOG WHEN TESTIFYING AGAINST HER FATHER

New York v. Tohom, 969 N.Y.S.2d 123 (N.Y. App. Div., 2d Dept. 2013)

The Appellate Division, Second Department, of the New York Supreme Court ruled that a “therapeutic comfort dog” could provide emotional support to a crime victim during testimony against an individual, Victor Tohom, charged with predatory sexual assault against a child, a felony, and endangering the welfare of a child, a misdemeanor.  The acts of sexual misconduct were stated by the prosecution to have occurred from the summer of 2006 to November 2010 with his daughter, who had been born in 1995.  During that period, the victim twice became pregnant and the defendant arranged for abortions.

Prosecutors sought, in May 12, 2011, to allow a Golden Retriever named Rose to accompany the child on the witness stand while she testified.  Rose had proven useful during interviews and therapy sessions with the child and, according to a therapist, allowed the victim to be “more verbal.”  The girl had expressed anxiety about testifying and her therapist said the dog would help to alleviate the apprehension, as well as reducing the psychological and emotional trauma that might result from testifying against her father.

The prosecutors acknowledged the absence of case law or statutory authority for such use of a specialized dog but did note that there was New York precedent for allowing the use of a teddy bear. New York v. Gutkaiss, 206 A.D.2d 628, 614 N.Y.S.2d 599 (App. Div., 3rd Dept. 1994) They also cited Criminal Procedure Law provisions regarding special witnesses and pointed to Executive Law §642-a, which allows a person supportive of a special witness to be “present and accessible” during testimony by such a witness.  (This statute is part of Article 23 of the New York Executive Law, Fair Treatment Standards for Crime Victims.)

Defense counsel argued that the dog would prejudice the jury against the defendant and would convey to the jury that the witness was under stress as a result of testifying and that this stress resulted from telling the truth.  They also argued that at the time of testifying, the girl was 15 years old, while prior cases “overwhelmingly” involved preteen witnesses. (But see Spence, Dye, Moore, and Chenault, discussed in this article.)

A social worker provided some history regarding the victim.  The girl had spent the first ten years of her life in Guatemala, where she was raised by her maternal grandparents.  At her father’s request, she was sent to the United States and began to live with her father, having “virtually no contact with her mother.”  The social worker testified that having the girl testify in open court would retraumatize her.

The prosecution argued that Rose had been trained since the age of eight weeks “to sense stress and anxiety and act in such a way to help reduce” such stress and anxiety by raising herself up and offering herself to the person experiencing them.  The defense was willing to allow the social worker to be in the courtroom directly behind the witness stand but requested that the dog be kept out.

A. County Court Ruling

The County court allowed Rose to accompany the victim during testimony, determining that the intent of Executive Law § 642-a is “to protect children under 16 years of age who are victimized by crime,” so use of the dog was appropriate.  Before the girl’s testimony, the judge explained to the jury that she would be accompanied by a “companion dog,” but that the jury was not to “draw any inference either favorably or negatively from either side because of the dog’s presence.” The jury was also cautioned in this regard prior to beginning deliberation.

The defendant was convicted on both the felony and misdemeanor charges and sentenced to imprisonment for 25 years to life on the felony and one year of incarceration on the misdemeanor, the sentences to run concurrently.  The defense moved to set aside the verdict, basing the motion partially on the fact that the Executive Law did not explicitly allow for the dog’s presence.  The County Court denied the motion and the defendant appealed.

B. Issues on Appeal

The defense reiterated some of its objections at the trial court on the appeal, and added others, including arguing that the trial court was required to make a finding of necessity before allowing the use of the dog.  The appellate court held that, since this argument was not raised before the County Court, it was “unpreserved for appellate review.”  In any case, the argument was found to be without merit because Executive Law § 642-a does not set forth any necessity criterion.

The appellate court agreed that there was no explicit statutory provision allowing for the use of therapeutic comfort animals but noted that the general intent of Executive Law § 642-a addressed “the emotional stress which a child victim might endure as a result of his or her necessary involvement with criminal proceedings.”  Although that section speaks primarily of a “child witness,” which is defined in the Civil Procedure Law (190.32(1)(a)) as a person 12 years old or less, there is also a reference to a “special witness,” which is defined (190.32(1)(b)(ii)) as “a person …who is [m]ore than twelve years old and who is likely to suffer very severe emotional or mental stress if required to testify in person concerning any crime….”  Elsewhere (CPL 65.00), a child witness is allowed to be as old as 14.  Materials accompanying the legislative package that resulted in enactment of § 642-a referred to the provision as covering individuals as old as 16.  The appellate court concluded that the County Court correctly ruled that this provision allowed the dog to accompany the victim during testimony.

All four judges of the appellate court panel joined in the opinion of Judge Sandra L. Sgroi. The County Court had agreed with prosecutor that Gutkaiss, where a child witness had been allowed to hold a teddy bear while testifying, was relevant in resolving the legal issues.  The appellate court noted similar decisions regarding comfort items and animals in other jurisdictions and stated that—

[W]e perceive no rational reason why, as per the broad dictate of Executive Law § 642-a(4), a court’s exercise of sensitivity should not be extended to allow the use of a comfort dog where it has been shown that such animal can ameliorate the psychological and emotional stress of the testifying child witness.

The defense argued that Rose’s accompaniment of the witness was prejudicial.  The appellate court noted that the U.S. Supreme Court had dealt with prejudice in Holbrook v. Flynn, 475 U.S. 560 (1986), where the Court had stated that “if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.”  The appellate court also noted:

[T]he defendant admits that Rose was trained merely to respond to a person's stress level. It is beyond dispute that a dog does not have the ability to discern truth from falsehood and, thus, cannot communicate such a distinction to a jury. Nor can it be concluded that any actual prejudice resulted from the concededly unobtrusive presence of the dog in the courtroom.

There was no discussion as to whether adjustments could have been made to the witness stand to prevent the jury from seeing the dog.  In any case, the defendant in the New York case had, according to the appellate court, failed to show that Rose’s presence was inherently prejudicial.

The New York appellate court also summarized Dye (the appellate decision, not the Washington State Supreme Court decision discussed above) and Spence, discussed herein, as well as rejecting an argument that the presence of the dog had interfered with the defendant’s right to confront a witness against him.  As to an argument made at trial that the County Court should have conducted a Frye hearing to determine that use of the dog in the courtroom had a scientific basis, the appellate court said that this issue had not been preserved for appellate review and was without merit.  The court cited an article in which Andrew Leaser had stated: “There is already a significant amount of research showing that the mere presence of a dog can have dramatic emotional and psychological benefits.”  Leaser, A. See Spot Mediate: Utilizing the Emotional and Psychological Benefits of ‘Dog Therapy’ in Victim-Offender Mediation, 20 Ohio State Journal on Dispute Resolution 943, 961 (2005).

In affirming the judgment of the County Court, the New York appellate court summarized its findings as follows:

Under the circumstances of this case, the County Court properly allowed Rose, the comfort-therapy dog, to accompany the child victim/witness on the witness stand during her testimony. The defendant has not shown that this accommodation was impermissible under Executive Law § 642–a; or that it impaired his right to a fair trial; or that it compromised his constitutional right of confrontation and cross-examination.

This case is largely an interpretation of the latitude allowed a trial judge with a child or special witness under a New York statute, but could be relevant to other jurisdictions considering how broadly to interpret victim protection statutes in allowing facility dogs to accompany victims to the stand.

VI. VICTIM ADVOCATE AND THERAPY DOG ACCOMPANY CHILD ABUSE WITNESS ON STAND

California v. Spence, 212 Cal.App.4th 478, 151 Cal.Rptr.3d 374 (Cal.App.Dist.4, 2012)

James Spence was convicted of sexual offenses involving a child ten years old or younger and sentenced to 55 years to life.  Spence had engaged in sexual activities with the daughter of a roommate, for whom he acted as a stepfather. Among arguments he made on appeal was that the trial court erred in allowing, in addition to a support person, a “therapy dog or support canine to be present at the child’s feet while she testified….”  The support person was a victim advocate from the District Attorney’s office.

A. Support Person for Witness in California Statutory Law

California Penal Code §§ 868.5 and 868.8 provide, in prosecutions for certain crimes including those involved here, that judges may alter normal courtroom procedures for prosecution witnesses with a disability or who are under eleven years old, including allowing them to be accompanied by a support person.  Spence contended that allowing the presence of the therapy dog was “‘overkill’ that unduly focused the jury upon the child’s alleged status as a victim, before any conviction was achieved.”

As to support persons, Penal Code § 868.5 specifically provides:

Notwithstanding any other law, a prosecuting witness [in specified crimes, including molestation] shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial … during the testimony of the prosecuting witness.  Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony. (emphasis added)

The court briefly discussed the terminology regarding the dog in the case:

The court and parties at trial referred to the dog as a courtroom or canine therapy dog. Although the Attorney General now prefers to use the term “courthouse facility dog,” and seeks to have us address victim protection issues in a wider context, we need not and cannot expand the record and the issues in that way. Since the term “canine therapy dog” is somewhat redundant, we will refer to the dog in this case as a therapy dog or a support canine.

B. Prosecutor Requests Use of Both Support Person and Therapy Dog

The prosecutor requested that the therapy dog and the victim advocate accompany the child to the witness stand because “Spence's family was going to be present and there were concerns that D. might have an emotional meltdown and refuse to testify, since it could be a terrifying situation for her.”  Defense counsel suggested that the victim advocate and the therapy dog be kept nearby, perhaps in the jury room.

The appellate decision described the trial court’s approach to the question of prejudice in the use of a specialized dog during a trial:

[The trial court] commented that there would be no prejudice in allowing the therapy dog to be present in the courtroom. The court said it was comparable to D. holding a “cute teddy bear in her hands” to provide her comfort. The court explained to counsel that this particular therapy dog had been in the same courtroom before, “and she's almost unnoticeable once everybody takes their seat on the stand. She's very well-behaved and does nothing but simply sit there. And so if that does make it easier for [D.] to testify, I am going to allow it.” However, if any issues or improper behavior by the therapy dog occurred, it would be removed from the courtroom. The record does not show any such problems arose.

The jury was informed that the child witness would be entering through the back door rather than the front entrance to the courtroom.  The prosecutor noted for the record that the witness would be “accompanied by a victim advocate named Norie Figueroa from our office and a canine therapy dog.”

C. California Appellate Review

The California appellate court referred to the Washington State appellate decision in Dye (i.e., the decision that was affirmed by the Washington Supreme Court, as discussed above), noting some factors in that case that were relevant to the prosecution of Spence:

The court relied on several factors to find there was no error in that procedure, such as: (a) the court's discretion to control courtroom proceedings and witness examination, (b) the absence of any claim of interference by the dog's presence with the defendant's right to confront and cross-examine the victim-witness; (c) the lack of any indication the dog's presence alone communicated to the jury any presupposition of this witness's “very victimhood;” (d) the absence of any indication there had been any improper gifts or favors in this respect from the prosecutor to the victim-witness.

The California appellate court also noted that the trial court in Dye had instructed the jury not to make any assumptions or draw any conclusions from the presence of the service dog.  The Washington appellate court analogized the presence of the therapy dog to the use of stuffed animals by child victims in sexual abuse cases, but the California appellate court declined “to use that analogy in this case, which presents a more specialized issue.”  Thus, not all courts have accepted analogies of facility dogs to stuffed animals, toys, or blankets.

In considering whether allowing both a therapy dog and a victim advocate to accompany a witness to the stand contravened Penal Code § 868.5, quoted above, the court noted:

[I]t is easy to conclude that therapy dogs are not “persons” within the meaning of section 868.5, setting limitations on the number of “persons” who may accompany a witness to the witness stand. Moreover, since subdivision (b) of section 868.5 refers to the court's duty to give admonitions under section 868.5 that the advocate must not sway or influence the witness, we cannot imagine that the Legislature intended that a therapy dog be so admonished, nor could any dog be sworn as a witness in this context, so as to invoke the limitation on the number of support persons who may accompany a testifying witness to the stand. In any case, the trial court took care to ensure that the therapy dog would be mainly unnoticeable once everybody took their seats, and that corrective action would be taken if there was a problem, which there was not.

Therefore, the court found that the Penal Code did not preclude the use of a therapy dog with a child witness and that allowing the dog to be present during the child’s testimony was within the trial judge’s discretion.  The court found no prejudicial error or abuse of discretion.  Rejecting other assignments of error, the conviction was affirmed.

The California decision is based in significant part on specific statutes that will not apply in other states.  Nevertheless, for states that have allowed, whether by statute or under general concepts of judicial latitude, trained individuals to accompany children or vulnerable witnesses during testimony, this case provides effective arguments regarding the additional presence of a facility dog.

VII. FLORIDA STATUTE ON USE OF SERVICE AND THERAPY ANIMALS AS WITNESSES

In 2012, Florida added a provision regarding service and therapy animals to its evidentiary code.  The new provision was added to a section that concerns judicial or other proceedings involving a victim or witness under the age of 16 or a person with mental retardation and states:

The court may set any other conditions it finds just and appropriate on the taking of testimony by a child, including the use of a service or therapy animal that has been evaluated and registered according to national standards, in any proceeding involving a sexual offense. When deciding whether to permit a child to testify with the assistance of a registered service or therapy animal, the court shall take into consideration the age of the child, the interests of the child, the rights of the parties to the litigation, and any other relevant factor that would facilitate the testimony by the child.” (Florida Statutes 92.55)

It is not clear what is meant by being evaluated and registered according to national standards.  This may mean that the animal would be registered with an organization, such as Therapy Dogs International or a member organization of Assistance Dogs International, i.e., organizations that have national reach in their membership.  The training standards of such groups as Pet Partners (formerly Delta Society), Therapy Dogs International, and Therapy Dogs Inc. are similar but not identical.

The statute also mentions service animals.  Florida uses the pre-2010 Department of Justice definition of “service animal”:

'Service animal’ means an animal that is trained to perform tasks for an individual with a disability. The tasks may include, but are not limited to, guiding a person who is visually impaired or blind, alerting a person who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or balance, alerting and protecting a person who is having a seizure, retrieving objects, or performing other special tasks. A service animal is not a pet.” (Florida Statutes 413.08)

This definition does not specify a national standard though, when used by the Department of Justice, the term “service animal” has national application.  The definition is found in the Social Welfare provisions of the Florida Code, which also state that “[d]ocumentation that a service animal is trained is not a precondition for providing service to an individual accompanied by a service animal.”  Thus, the national standard requirement is unique to the courthouse setting in which the animal is to be used.  Presumably, a training regimen of an organization with some national recognition would be superimposed on the definition.  Given the attitudes of some of the training organizations towards each other, it is to be hoped that Florida judges will be reasonably open to those organizations that have been effective in training service or therapy animals over a period of time.

The term “therapy animal” is not otherwise defined in the Florida statutes, but presumably the evaluation and registration requirement would mean that the dog would have to belong to one of the larger therapy dog organizations.  One commenter has argued that therapy dogs that have to be accompanied by a handler would present a problem for a court, as:

Having a trained handler accompany the dog likely would be a distraction for jury members, who may spend time studying the handler rather than paying close attention to the testimony.  Also, because the dog would be under control of the handler, the witness may not have the sense of empowerment that comes with holding a dog’s leash and walking up to the stand alone with a dog under his or her control.

Gabriela N. Sandoval, Court Facility Dogs-Easing the Apprehensive Witness, 38 The Colorado Lawyer 17 (April 2010) (citing Pet Therapy Dogs in the Criminal Justice System, http://www.courthousedogs.org/pdf/CourthouseDogs-PetTherapyDogs.pdf).  The presence of a handler in addition to the dog would presumably be a “relevant factor” a court should consider in determining the appropriateness of the use of the dog.

Florida’s provision refers to “taking testimony by a child” but appears in a section whose caption refers to judicial or other proceedings involving a victim or witness under the age of 16 or a person with mental retardation.  The application of the provision to an adult with mental retardation would be consistent with the result in Dye (functioning at the level of a child) but is overly narrow if the purpose is to assure that a witness with other psychological or emotional limitations could take advantage of canine support in order to be able to testify.  Most people with PTSD are not mentally retarded, but some will have panic attacks in a witness box that they could effectively deal with if a service or therapy dog, or perhaps an emotional support animal, were present.

VIII. SERVICE DOGS USED BY NON-WITNESS PARTICIPANTS IN TRIALS

In considering possible disruptions that can occur because of the presence of a dog in a courtroom, a few cases involved dogs being used by non-witness participants in trials.  A case decided by the Court of Appeals for the District of Columbia mentioned that a prosecutor had been allowed to use a guide dog and that there had been no objection.  The appellate court remarked that “there appears to have been no evaluation whether the presence of the prosecutor’s guide dog and paralegal presented an ‘overriding interest that is likely to be prejudiced’….”  The fact that the court considered the possibility of prejudice from the presence of the dog, though neither the defense counsel nor the trial court had done so, may indicate some concern that a prosecutor’s use of a guide dog could be prejudicial.  Williams v. U.S., 2012 WL 4006414 (D.C. Ct. of Appeals, 2012).

Press reports have described a chief crime scene investigation supervisor who has testified with her guide dog.  (http://www.ncsilc.org/2011/08/30/blind-csi-investigator-honored-by-tv-counterparts-in-marin/)  Whether there have been objections to such an appearance by a dog was not stated, but it might be argued that the defense might actually find the proof of the witness’s blindness helpful in cross-examination.

In Leigh v. Florida, 58 So.3d 396 (2011), the judge’s dog was visible to the jury and apparently disruptive:

[T]he jury was aware of the presence of a dog in the courtroom because, on more than one occasion, the presiding judge, the Honorable Susan Lebow, had to correct her dog, which was whining and barking, and on more than one occasion, the dog put its front paws on the swing door that separated it from the courtroom where the judge was presiding, suggesting to the jury that the dog was present for the safety of the court, unnecessarily marking Defendant as a dangerous character.

The Florida appellate court reversed and remanded, with a provision that the trial court could attach portions of the record that would refute the possibility that defense counsel’s failure to object to the dog’s presence indicated ineffective assistance of counsel.  Since there was apparently no evidence of the dog’s presence in the record at all, the trial court was presumably obligated to conduct an evidentiary hearing on the matter.  Nevertheless, this raises the issue that a disruptive dog, at least one that might be interpreted as guarding a witness or judge, could improperly influence a jury.

IX. SERVICE AND EMOTIONAL SUPPORT ANIMALS COMING WITH WITNESSES

In issuing regulations applicable to state and local governmental facilities under the Americans with Disabilities Act, with specific mention of service animals, the Department of Justice noted in a preamble that courthouses were covered facilities to which service animals would be admitted.  (Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56164, September 15, 2010.)  These references were not specific to courtrooms, much less entering a courthouse for the purpose of being a witness in a criminal matter, and could not be said to impose a blanket requirement on a judge to allow a witness to testify while accompanied by a service animal.  Nevertheless, the purpose of the rules could be applied to a witness with a mental disability for which the individual uses a service dog.  If, for instance, and individual with PTSD has a tendency to enter an uncommunicative state in situations of stress, and uses a dog in part to reduce the likelihood of this happening, then a strong argument could be made that such an individual should be allowed to remain accompanied by the service dog while testifying.  This situation is somewhat analogous to Dye, except that the dog is owned or used on a regular basis by the witness, rather than being supplied on a temporary basis by the prosecutor’s office.

A somewhat more difficult case would involve a dog that is not a service dog but that provides emotional support for an individual with a mental condition.  Such dogs, if not trained at the level required to be designated service animals (28 C.F.R. 35.104, 35.136), would not have access privileges under the Department of Justice regulations applicable to state and local government facilities.  Nevertheless, such animals are recognized as having access to airline cabins, in part because the Department of Transportation has acknowledged their value for passengers with documented anxiety or psychological conditions who use them to manage the stress of flying. (14 C.F.R. 382.27, 382.117)

Should such an argument justify admitting an emotional support animal—a pet from the perspective of the Department of Justice—into a witness box?  Because of the lack of training required for a service animal, or presumably for the kind of facility dog used in Dye, the dog might not be as inconspicuous as a judge might desire.  Nevertheless, if the judge could be assured that the animal would not be disruptive, should it be allowed in the courtroom?  Or does this open the floodgates to anyone with some anxiety about being in front of a room of people to bring in their pets?  The witness could be required to provide evidence of the condition that necessitates recognition of the animal as distinct from a pet for this purpose, but whether a court would take such an approach will probably have to wait until an actual case arises.

X. CONCLUSION

A number of states have been considering legislation to permit the use of facility dogs with children and disabled witnesses, and several of the cases discussed above are primarily concerned with determining whether the use of a dog by a child or vulnerable witness during a prosecution was acceptable under state child- or vulnerable-witness statutes.  A uniform law might be difficult to draft given that many states have different approaches on judicial latitude with regard to vulnerable witnesses, and uniformity on facility dogs might be difficult to anchor across such a broad range of statutory structures.  Also, it is the author’s opinion that additional judicial experience regarding the types of cases where facility dogs are appropriate, the types of witnesses for whom they are appropriate, and the range of dogs that should be admitted to the witness stand, should be allowed to develop further before trying to impose uniformity.

Although there is a place for facility dogs in the testimony of children and vulnerable witnesses, trial courts, and some appellate courts, have been too easily enamored of the prospect of improving the chances that the witness will feel free to speak without considering that a jury might assume that the presence of the dog allowed to child to speak truth where the child would otherwise not speak at all or would suppress the truth.  This should be a subject of scientific inquiry in the criminal justice field as well in the field of human psychology as affected by animals.  An appropriate study would be to conduct a carefully designed survey of members of juries that have heard testimony where facility dogs accompanied witnesses.  The study should determine not only whether the presence of the dog affected the juror’s vote, but also whether other reactions and impressions of the juror might indicate the existence of a more subtle, perhaps unconscious, bias.  

Writing almost a century ago, Judge McWhorter of West Virginia wrote that “bloodhound testimony” seemed to exert a “superstitious awe in juries,” which courts were satisfied they had neutralized “with admonitions of great caution….”  (J.C. McWhorter (1920). The Bloodhound as a Witness. 54 American Law Review 109.)  Those states that have rejected tracking evidence were, according to a Maryland court, primarily concerned with the effect such testimony can have on a jury.  (Terrell v. Maryland, 3 Md.App. 340, 239 A.2d 128 (Ct.Spec.App. 1968)).  The Maryland appellate court noted that the bloodhound’s supposed reliability, along with “local prejudice and public indignation and excitement may exert undue influence on the jury,” and that “the mere use of the dogs will arouse the public’s excitement with the result of prejudicing the defendant.”  A dose of this kind of skepticism is appropriate with regard to facility dogs in courtrooms.

Courts have not always adequately considered whether the presence of a facility dog could be hidden from the jury, or whether it should be.  Expecting that a dog would have to show overt behavior towards a defendant, as was suggested by the Washington State Supreme Court in Dye, is naïve.  A dog is unlikely to react to a defendant sitting quietly beside defense counsel merely because the defendant is a cause for a child’s nervousness.  In any case, the witness’s anxiety may be to the courtroom and the number of people in it, rather than to only one person sitting many feet away, as was indicated in Chenault. The prejudice that could arise in the jury from the presence of the dog would more likely come from a witness’s constant attention to it, giving the impression that the witness is unburdening himself or herself to the animal in a catharsis that leaves no room for fabricating lies. Courts should therefore consider how best to limit the jury’s perceptions regarding the significance of a dog during testimony.  A mere jury instruction may not be enough given that the human-animal bond, particularly with regard to dogs, is in some way elemental to the relationship we have had for thousands of years and could cross the courtroom to connect the dog to some members of the jury.

Thus, it is not merely that temporary relationship between a witness and a dog brought in to calm and comfort the witness that should be of concern to a judge.  Just as a witness with a prosthetic device could be required to limit the visibility of the device during testimony in a negligence trial where the liability concerns circumstances under which the witness had to begin using the device, so here an effort should be made to limit the jury’s attention to a witness’s vulnerability.  The record should at least establish that a trial court understood such issues and attempted to address them in a fair-minded and logical manner in the case being heard.

As to the witness, there may be some categories, such as children below the age of 12, where the appropriateness of testimony with a facility dog can largely be assumed.  For adult witnesses with mental disabilities, the court should make a determination that the dog will substantially assist the witness in overcoming such fear as might be engendered by the strangeness and imposing nature of the courtroom, or by having to face the defendant.  It should also be considered that some witnesses, such as veterans with PTSD, may have their own service or support dogs whose presence would overcome a debilitating fear of speaking in a courtroom.  A uniform law, in the author’s opinion, will have to allow for this possibility. 

As to the qualifications of the dog, it would be best that the dog have the kind of training and testing that therapy and service dogs often undergo, by which they are taught to be calm, avoid excitement and distraction, remain available and, if necessary, attentive to the individual with whom they are paired during a courtroom proceeding, and follow basic commands that can be explained to the witness.  Such commands should include Sit, Lie Down, Stay, and perhaps a few others. The possibility of having a handler nearby has received little attention, but with some dogs this may be appropriate.  That person must also be as unobtrusive as possible and should not have to continually signal the dog to remain in place or to lie down if it gets restless.

In any given state or county, there may be a number of sources of facility dogs.  Local service and therapy dog trainers may be able to suggest particular dogs that would be calm and calming.  It is the author’s opinion that prosecutors and courts do not need to restrict facility dogs to a single national umbrella organization of trainers of service dogs or to one national therapy dog organization.  Further, such a restriction could create an inappropriate monopoly for certain trainers in an area.  Nevertheless, a requirement of liability coverage might be appropriate, but such policies are provided to handlers of most regional and national therapy dog organizations. 

 

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