Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).
It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.
There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:
His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:
Avoid using the term “therapy dog” because the use of this term may create grounds for a mistrial or raise an issue on appeal. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. A defense attorney could argue that the use of the term “therapy dog” by the judge or the prosecutor implies to the jury that the witness is in fact a victim in need of therapy and could be construed as a comment on the evidence. It is up to the jury to decide if the witness was victimized by the defendant. You don’t want to retry a case and put the witness/victim through this ordeal a second time.
Martin hits it right on the head, by the way. Anytime the proponent of a new technique strongly (the above paragraph is in bold on their website) advises you to avoid the use of a term so that it can be admitted in court, you can safely bet that the discouraged description fits precisely.
The trial judge, in permitting the use of this therapy dog, draws an analogy to the use of a doll by a child witness by testifying. The analogy rings hollow, to me. A doll is inanimate and moves only when the person holding the doll gives it energy to move. A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?
Scott, in his post on this, highlights the problems with dog-aided-testimony:
The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted. Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question.
But we must feel similarly bad for the person convicted on erroneous testimony. We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised. Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.
As wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem. We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.
Defendants, on the other hand, are only permitted completely shaved cats.