RECENT CASES ON THE USE OF FACILITY DOGS BY WITNESSES WHILE TESTIFYING
- John Ensminger
- Animal Legal & Historical Center
- Publish Date: Original publish 2012; updated periodically
- Place of Publication: Michigan State University College of Law
To make children and other vulnerable witnesses comfortable while testifying, courts are increasingly permitting them to be accompanied by specially trained dogs while on the witness stand. Some recent cases are analyzed here.
At present, the preferred term for such a dog is “facility dog,” though other cases and the literature on the subject have called them testimony dogs, courthouse dogs, companion dogs, therapy dogs, and service dogs. The latter three terms apply to broad categories of canine functions and might best be avoided because of connotations that might not apply to a dog used to facilitate a witness’s testimony. (See Marianne Dellinger, Using Dogs for Emotional Support of Testifying Victims of Crime, 15 Animal L. 171 (2008), regarding the beginnings of the use of dogs during testimony.)
II. VICTIM ADVOCATE AND THERAPY DOG ACCOMPANY CHILD ABUSE WITNESS ON STAND
California v. Spence, __ Cal.App.4th __, ___ Cal.Rptr.3d __, 2012 WL 6705300 (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. 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 prosecuting witnesses who have 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 trial judge pointed to the discretion granted a judge under Evidence Code § 765 to control court proceedings in the search for truth.
[The 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 decision from the state of Washington in Dye, 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 instructed the jury not to make any assumptions or draw any conclusions from the presence of the service dog. The Washington appellate court in Dye 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.”
In considering whether allowing both a therapy dog and a victim advocate to accompany a witness to the stand, arguably in contravention to the language of 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 to other states. Nevertheless, for states that have allowed, whether by statute or under general principles 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.
III. FACILITY DOG ACCOMPANIES ADULT WITNESS DURING TESTIMONY
Washington v. Dye, 283 P.3d 1130, 2012 WL 3641607 (Wash.App. Div. 1, August 27, 2012)
Douglas Lare was an adult man with significant developmental disabilities, and although he had a job he functioned at the level of a child. He became involved with Alesha Lair, who persuaded him to drain his retirement account of $59,000 and give it to her. She opened credit cards in his name, leaving him with $42,000 in credit card debt. After she moved out, her other boyfriend, Timothy Dye, woke Lare up one night as he ransacked Lare’s house. Lair pled guilty to theft in the first degree with a vulnerable victim aggravator. Dye did not settle on the same charges and the matter proceeded to trial.
Before trial, the prosecutor sought permission from the court to have a dog, Ellie, sit with Lare when he testified against Dye. Ellie was the “facility dog” of the King County Prosecutor’s Office. The dog was also referred to by the parties at various times as a service dog or a comfort dog. Dye objected to the use of the dog, arguing that it would distract the jury, aggravate Dye’s allergies, and cause extreme prejudice. The prosecutor cited State v. Hakimi, 124 Wash. App. 15, 98 P.3d 809 (Ct. App. 2004), where two children were allowed to testify holding dolls, and the court granted the prosecutor’s motion. Dye was convicted of residential burglary, but the jury did not add a vulnerable victim aggravator.
Dye appealed. The Washington Court of Appeals, Division 1, affirmed, holding that Dye’s right to a fair trial had not been violated when the trial court allowed the facility dog to sit next to him as he testified.
A. Arguments on Appeal
On appeal, the defense argued that Ellie’s presence deprived Dye of a fair trial “by interfering with his right to confront Lare, by improperly inciting the jury’s sympathy and encouraging the jury to infer Lare’s victimhood, and by giving Lare an incentive to testify in the prosecution’s favor.” The defense also argued that the court allowed the dog without making necessary findings for accommodation under the Americans with Disabilities Act and Washington discrimination laws, but the court held that the ADA and state discrimination law would only apply if an accommodation had been denied.
The defense cited Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1998), where the Supreme Court held that a screen placed between the defendant and the complaining witness interfered with the defendant’s Sixth Amendment right to confront a witness against him. The Washington appellate court found Coy inapposite because the dog did not screen Lare from Dye or prevent face-to-face confrontation. Besides, the “defense engaged in a lengthy and thorough cross-examination of Lare, highlighting his memory problems and eliciting several inconsistent statements.” Thus, the court held that there was “no indication that the dog compromised Dye’s right of cross-examination.”
The defense also argued that Lare may have been more biased or more suggestible because Ellie belonged to the prosecutor’s office. It is not clear what is meant here, perhaps that Lare would be thankful for the presence of the dog and thus more compliant to one of the officials who arranged for Ellie to be with him when he testified. In State v. Aponte, 249 Conn. 735, 38 A.2d 117 (1999), the Connecticut Supreme Court held that the prosecutor committed misconduct by giving a child witness a stuffed dinosaur to hold during testimony. There apparently would have been no objection had the child brought the dinosaur from home. In Aponte, the defense was not permitted to cross-examine concerning the child’s possible bias or susceptibility, which compounded the misconduct. In Dye, the court noted that Lare was not given the dog and “even if Ellie’s temporary companionship were sufficient to create bias or suggestibility, Dye does not allege any restriction on his ability to expose the same during cross-examination.” The court held that Aponte was inapposite.
The defense also argued that “by failing to make specific findings weighing Lare’s need for emotional support against the possibility of prejudice,” the trial court violated Dye’s right to due process. The court noted that both parties had analogized Lare to a child witness, and then observed that child witness cases “provide abundant authority that a court may allow a child witness to hold a comfort item during testimony where the witness’s need for emotional support outweighs the possibility of prejudice.”
In addition to Hakimi, the court cited State v. Cliff, 116 Idaho 921, 782 P.2d 44 (1989) (eight-year-old victim of lewd and lascivious conduct could hold doll while testifying); State v. Dickson, 337 S.W.3d 733 (Mo.Ct.App.2011) (child victim of kidnapping, forcible rape, and sodomy, could hold stuffed animal while testifying); State v. Powell, 318 S.W.3d 297, 304 (Mo.Ct.App.2010) (11- and 16-year old victims could hold teddy bears while testifying in molestation case); and State v. Marquez, 124 N.M. 409, 951 P.2d 1070 (1997) (12–year–old victim of sexual assault held teddy bear while testifying). The appellate court also cited Dellinger, Marianne, Using Dogs for Emotional Support of Testifying Victims of Crime, 15 Animal L. 171, 172, 185 (2009), noting that the article specifically referred to Ellie. The court quoted the headnote of the article, which summarized Dellinger’s argument as being that such specialized dogs should be used “only in cases where the witness can demonstrate a truly compelling need for the emotional support and only where the proper balancing with the defendants' rights is performed.”
The Washington appellate court noted that the trial court did not think Ellie would distract the jury and had observed that Ellie was “very unobtrusive [and] will just simply be next to the individual, not be laying in his lap.” The appellate court affirmed, stating that there was no error (also rejecting assignment of error to the use of an alternate juror, who had been dismissed minutes before the court learned there had been inadvertent contact between Dye and a regular juror).
B. Use of Facility Dogs with Adult Witnesses
Dellinger noted that the use of dogs in courtrooms was evolving but noted that “the present posture is most likely to favor the use of canines to support child witnesses.” Dye permitted the use of a dog with an adult witness who was functioning at the level of a child, but the result raises the question of how far the need for emotional support while testifying might extend the use of a facility dog, or indeed a service or emotional support dog owned and used by a witness. The toy cases concern children, but service and emotional support dogs are used by adults to help them deal with stressful situations, including performing tasks such as speaking in public.
Dellinger noted that although the focus of her article was on child witnesses, this was “not an indication of the dearth of legal support in favor of using dogs for emotional support of adult witnesses,” and she cited an article (Casey McNerthney, “Dogs give prosecutors a hand in difficult cases,” in Seattle PI, http://seattlepi.nwsource.com/local/330093_kcdogs03.html) indicating that Ellie was also being used in prosecuting elderly abuse cases. An article about a therapy dog used in a prosecution of a child victim in Carroll County, Maryland, mentions that a therapy dog, Buddy, a Black Labrador/Newfoundland mix, has been used with adult witnesses who “have gone through very traumatic things.’ (http://abcnews.go.com/TheLaw/story?id=5244356#.UFW5ZlFRBMQ) See also Bradley Weinreb, It’s About Dog-Gone Time: Courthouse Dogs, Prosecutor’s Brief: The California District Attorneys Association’s Quarterly Journal, vol.34(2) (Winter 2012) (“Courthouse facility dogs are part of a progressive approach to accommodate certain adult and child witnesses and help produce articulate testimony on direct and cross-examination.”).
C. National District Attorneys Association
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 dog should be tested for safe behavior around young children before being placed to work in this field.” There are also specifications about the training of the dog’s handler, requiring, among other things, that he or she “should receive training, testing and ongoing support in the handling of the dog from an ADI service dog organization.” Additionally, the “dog and handler should have the appropriate temperament and disposition to make [a] good courthouse dog team as this work requires a great deal of social interaction with people from all walks of life and in stressful situations.” Finally, the dog should carry a liability insurance policy with limits of not less than $1 million. Most national therapy dog organizations have a policy of at least that amount. (NDAA Resolution, November 19, 2011, http://www.courthousedogs.com/pdf/CourthouseDogs-NDAA.pdf)
D. Service Dog 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 but 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 raised 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 to its case in such a situation.
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. There has been no further decision in the case. 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.
E. Service and Emotional Support Animals Owned by Witnesses
The Dye court observed, unlike in Aponte (where the witness was given a dinosaur toy), that here there was no gift. This raises the question of what limits would be appropriate if a witness were to bring a service or emotional support animal into a courtroom. 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 entering such a state, 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 a service animal (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.
Dellinger noted 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.” This is likely to be even easier to manage with a service or emotional support animal that is used to remaining beside the witness. A calm dog will often lie at its master’s feet while the master is sitting, so that if the witness box shields the witness’s legs, and the dog’s presence may never be detected by the jury. The picture here shows Lare in the witness box with Ellie at his feet. The dog was visible during testimony 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.
IV. Florida Statute on Use of Service and Therapy Animals with 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, it had 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.
Dye is an appropriate extension of the use of a trained dog in a courtroom setting with a vulnerable witness. Although the extension of the child witness cases was made by noting that Lare functioned at the level of a child, the arguments for letting a dog be present with someone in a witness box can easily and appropriately be applied to adult witnesses with psychological and emotional conditions that limit their ability to testify.
This is a recent area of law, but it is likely that, with the rapid increase in the number of veterans and others with PTSD using service dogs, there will be situations in which the presence of the dog will arguably be necessary for an adult witness to testify effectively. The parameters of adult testimony with many types of canine support have yet to be considered by the courts.
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