THE USE AND ABUSE OF DOGS IN THE WITNESS BOX.

• Author: Ensminger, John J.

TABLE OF CONTENTS I. INTRODUCTION II. CRIMES, WITNESSES, AND DOGS A. Crimes in Which Dogs are Commonly Used by Witnesses B. Child Witnesses in Case Law C. Vulnerable Adult Witnesses in Case Law D. Statutory witness restrictions by age and capacity III. THRESHOLD ISSUES AND OBJECTIONS A. Judicial Consideration of Training and Training Organizations B. Legislative Perspectives on Training and the Growth of a Monopoly C. Handler Qualification D. Insurance Requirements IV. CONDUCT OF TRIALS WITH FACILITY DOGS A. Witness Becoming Familiar with Dog Before Trial or at Preliminary Hearing B. Placement of Dogs During Trials C. Presence and Visibility of Handler With or Near Dog D. Misbehavior of Dog E. Facility Dogs Present in Court but Not During Testimony V. DOGS AND JURIES A. Arguments on Jury Prejudice B. Jury Cautions and Instructions C. Cross-species Communication and Implicit Bias D. Research on Impact on Juries of Dogs Accompanying Witnesses VI. CONCLUSION I. INTRODUCTION

For many decades, psychologists and other mental health professionals have investigated the advantages of dogs to enhance the communication skills of ordinary children, mental patients, special-needs children, prisoners, and other groups. (2) There is considerable research on the difficulties that children face while testifying in the presence of those who may have abused them, as well as the difficulties of testifying in open court in general. (3) Studies have shown that the presence of a dog makes it more likely that a child will be able to recount frightening experiences, even in difficult environments. (4) Measurements of stress biomarkers in children during forensic interviews regarding sexual abuse situations determined that children accompanied by a therapy dog maintained lower heart rates and cortisol levels than children describing the situations without such a dog. (5) These benefits have also been verified to apply to adults with various disabilities. (6)

Increasingly, courts are permitting children and other vulnerable witnesses to be accompanied by dogs when taking the stand for difficult testimony. (7) At least thirty-one states have implemented courthouse dog programs. (8) Decisions concerning the use of dogs on the witness stand have been issued by courts in Arizona, (9) California (including one federal habeas), (10) Connecticut, (11) Idaho, (12) Indiana, (13) Michigan (one federal habeas), (14) New York, (15) Ohio (one federal habeas), (16) Tennessee, (17) Texas, (18) and Washington. (19) Fifteen states and the territory of Guam passed legislation allowing the use of dogs (variously denominated) during witness testimony. (20)

Case law in various states has established that it is within the discretion of the trial court judge to permit vulnerable or adolescent witnesses to use dogs to aid in their testimony. (21) Not all courts have accepted this practice, and some have set limits. For instance, a Michigan judge presiding over a federal prosecution for sex trafficking allowed a seventeen-year-old witness to use a dog in the lobby area and attorney conference rooms, but not in the witness box. (22) A New York appellate court reversed a conviction on multiple grounds, including the trial court's allowance of a victim to testify accompanied by a therapy dog, without any analysis concerning why the use of a service dog was deemed an error. (23) A Michigan appellate court reversed a trial court decision that allowed a dog to accompany an adult witness without a disability during testimony, requiring a new trial. (24) A Michigan federal court specifically denied a motion by the government to allow a "canine advocate" to accompany minor victims at trial, noting that the Child Victims' and Child Witnesses' Rights statute "does not provide for a support animal to accompany a child in addition to the adult attendant." (25) Although excluding the support animal from the courtroom, the Michigan court accepted that the witnesses could be with the dog before and after testimony, and during breaks "in the hallway outside of the courtroom or in the attorney conference room being used by the Government." (26) Courts have generally rejected a requirement of necessity-that the witness needed the dog to be able to testify reliably and completely. (27)

Some courts have referred to "implicit" findings of necessity. (28) A Connecticut appellate court reversed a trial court on the grounds that a showing of necessity had not been made at trial, but that ruling was then reversed by the Connecticut Supreme Court. (29) In a federal habeas petition, the magistrate judge said that the state trial court should have required a showing of specific need as to particular witnesses. (30) Hawaii's statute requires a determination that a compelling necessity exists that calls for the use of a facility dog. (31) Washington's statute requires that the party seeking to use a courthouse facility dog provide "reasons why the courthouse facility dog is necessary to facilitate a witness's testimony," and the statute provides that the witness may use the dog on the finding of such a necessity. (32)

At present, the predominant judicial and legislative term for a dog accompanying a witness during testimony is "facility dog," and that is the term that will be the default for this Article. (33) Cases, statutes, and both legal and scientific literature have also called them courthouse dogs, (34) courthouse facility dogs, (35) companion dogs, (36) courthouse companion dogs, (37) courtroom support dogs, (38) therapy dogs, (39) canine therapy dogs, (40) service dogs, (41) comfort dogs, (42) therapeutic comfort dogs, (43) therapy assistance animals, (44) support dogs, (45) support canines, (46) canine advocates, (47) and in one case a dog was described as a comfort item. (48) Although dogs performing certain public functions, such as tracking, are often chosen from a limited number of breeds, no breed preference has been demonstrated for facility dogs; however, occasionally a court describes the breed of the dog used, of which many are Labradors. (49)

2. CRIMES, WITNESSES, AND DOGS

   1. Crimes in Which Dogs are Commonly Used by Witnesses

      While the most frequent use of a dog with a witness in a courtroom has been to accompany a child while testifying about a sexual crime, (50) other types of crimes in which dogs have accompanied witnesses include murder, (51) child abuse, (52) aggravated assault (against the mother of the child witness,53) aggravated theft and residential burglary, (54) second degree assault with domestic violence, (55) and sex trafficking of children. (56)

      Statutes generally provide that facility dogs may be present in criminal matters; such provisions are often contained in a state's criminal procedure laws. (57) Arizona specifies that a facility dog may accompany "the victim while testifying" and presumably would be restricted to the victim of a crime. (58) However, the Hawaii and Washington statutes refer only to a judicial proceeding, without restricting this to criminal matters. (59) Mississippi's statute provides for the use of a "properly trained facility animal" (60) in any proceeding in which a child (an individual under 18) testifies. (61) The statute does not define a facility animal though it describes a proceeding for the section's purposes as a "criminal hearing, criminal trial or other criminal proceeding in the circuit or county court in which a child testifies as a victim of a crime or as a witness as to a material issue" or a "youth court proceeding in which a child testifies as a victim of a crime or a delinquent act or as a witness to a crime or delinquent act." (62) Guam refers to the use of "courthouse companion dogs" in a "court room setting," but requires the territory's Attorney General to develop policies and practices on the issue. (63)

   2. Child Witnesses in Case Law

      Court opinions generally mention the age of a child witness at the time of the crime as well as at the time of testimony. (64) Some crimes occurred over multiple years and the time span is generally indicated. In Coria, the boy was nine at the time he witnessed a violent assault on his mother and was eleven when he testified with a therapy dog. (65) In Spence, the victim was ten at the time of the sexual assault and eleven during testimony. (66) In Tohom, the abuse began when the girl was eleven and continued until she was fifteen, which was her age when she testified. (67) In Chenault, the abuse began when the two girls were five and six, yet they testified when they were eleven and thirteen years old. (68) The two children in George were six and eight at the time of the crime and seven and ten during the trial. (69) Reyes indicates the boy was ten at the trial, the same age as the child witness in Smith (70) Johnson involved a three-year-old girl whose abuse was witnessed by her six-year-old brother; they were six and ten when testifying and both were accompanied by a support dog during the trial. (71) In Devon D., the girl was nine at the time of the abuse and eleven when she testified. (72) In Hasenyager, the girl was eleven at the time of the abuse and thirteen at trial. (73) In Riley, at the time of the trial, multiple child victims, age thirteen and sixteen, and child witnesses, age ten, fifteen, and seventeen, testified with the help of a support dog. (74) All five witnesses used a dog when testifying, the largest number of witnesses using a dog in a single trial. In Davis, the six-year-old victim's forensic interview was presented at court via DVD, but she was present in the courtroom with a dog while the DVD was being played and began kicking and crying, which resulted in the court stopping the DVD.75 In Tomaszycki, the defendant met the child when she was ten years old, but the decision only specifies that the defendant began abusing the victim when she was under thirteen. (76) The defendant, who represented himself, refused to participate in court...