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Courthouse Dogs: Can Being Too Cuddly Violate the Constitution?

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This summer in Dutchess County, New York, a fifteen-year old faced the unfathomable– having to relive an incredibly painful memory by testifying against her father, Victor Tohom, that he raped her and impregnated her.

Over the years, legislators, courts and prosecutors have tried to find ways to help witnesses like this teen who are faced with the stress of testifying against a defendant whose mere presence may be intimidating. One method is to allow a “recent complaint witness” to testify that a victim of a sexual assault made a complaint shortly after the attack. But this evidence is deemed to be hearsay that can only buttress the witness’s testimony – it cannot stand on its own as evidence of the assault.

Another method is to allow a witness to testify via closed circuit television in a separate room while the defendant stays in the courtroom. This procedure has been challenged as a violation of a criminal defendant’s right to confront the witnesses against him. Even Justice Scalia has found this option to be constitutionally infirm, arguing in his dissenting opinion in Maryland v. Craig that if the Sixth Amendment’s Confrontation Clause means anything, it means having a live body in the witness chair who can be cross examined by the defendant’s counsel.

In order to help the fifteen-year old get through her testimony at trial, the Dutchess County prosecutors called in Rosie – New York’s first certified court therapy courthouse dog. Rosie is a beautiful Golden Retriever whose job is to give support to testifying witnesses. As the fifteen-year old reached difficult moments in her testimony, she was able to lean into Rosie and take comfort from her presence.

Tohom’s defense attorneys objected to Rosie’s presence. One argument the attorneys made is that Rosie’s presence biased the jurors by making them empathize with the teenager. A second argument is that a therapy courthouse dog is trained to encourage a person under stress to continue to testify, but a witness may be under stress whether they were testifying truthfully or lying. Another argument is that the attorneys are unable to cross examine the dog.  Yet another argument is that jurors may pick up on subtle actions such as the dog nudging the witness or the witness leaning into or hugging the dog, and think that those parts of the testimony are somehow more truthful or significant. In fact, during Tohom’s trial, the dog reportedly nudged the teen at one point when she hesitated in her testimony. Although no New York courts have dealt with the issue of a courtroom courthouse dog, the judge pointed to a case allowing a witness to have a teddy bear while testifying as grounds to allow Rosie into the witness box.

As a former public defender, I feel strongly about upholding the constitutional rights of the accused. As a dog lover, I marvel at the ways that dogs can help us in our greatest time of need. I understand the defense attorneys’ concerns with the presence of a dog like Rosie, particularly with a jury trial. That said, I find the use of a therapy courthouse dog a much better option than the closed circuit television procedure. At least with a therapy courthouse dog, there is a witness in the witness chair, preserving the defendant’s Confrontation Clause rights. Any risk that jurors could be biased by the dog’s presence can be counteracted with well crafted jury instructions.  For a detailed look at the use of courtroom courthouse dogs, take a look at the article, Using Dogs for Emotional Support of Testifying Victims of Crime by Marianne Dellinger.

Washington State was the first to have a courtroom therapy courthouse dog in 2003. Since that first case, several other states have followed. It will be interesting to follow what the appellate courts think of therapy courthouse dogs like Rosie, and whether more states join the movement to use courthouse dogs.  For more about courthouse dogs, visit the wonderful website of Courthouse Dogs, LLC at www.courthousedogs.com.

Special thanks to Ellen O’Neill Stephens of Courthouse Dogs for visiting and commenting on the proper terminology for these wonderful dogs, as well as the training, purpose and proper use of courthouse dogs!

UPDATE (8/28/11):  Thanks to The Bark for posting Dogs In the Courtroom, Part Two, with a more in depth explanation — thanks to Ellen O’Neill Stephens with Courthouse Dogs — of the distinction between therapy dogs and facility dogs.  If you would like to know more, take a look!

UPDATE (1/14/12):  Prosecutors in Prince William County, Virginia are joining other jurisdictions in allowing dogs to aid testifying victims.  Read more about it in this Washington Post article.

Author: Heidi Meinzer

Attorney and Animal Lover, not necessarily in that order

2 thoughts on “Courthouse Dogs: Can Being Too Cuddly Violate the Constitution?

  1. Courthouse Dogs Promote Justice for All

    It is important to make the distinction between pet therapy dogs and courthouse dogs for two reasons.

    Pet therapy dog organizations have no national training standards; therapy dogs are not tested for safety around children before being registered and must be attached to their volunteer owners by a leash at all times. The presence of pet therapy dogs and their volunteer handlers in the criminal justice system has already created problems for their handlers and can create legal issues.
    See http://courthousedogs.com/pdf/CourthouseDogs-PetTherapyDogs.pdf.

    Secondly, it is important that these dogs have a neutral name so as not to prejudice a jury. The term “therapy dog” could imply that the witness is in fact a victim in need of therapy. This could be an unfair comment on the evidence.

    In contrast, courthouse dogs are graduates from service dog organizations that are members of Assistance Dogs International and these working dogs are handled by criminal justice professionals. They are carefully selected for this work so that they can deal with the stress of assisting people in the criminal justice system and their degree of training ensures that they will be extremely well-behaved, thereby greatly reducing the chances that their presence could disrupt the proceedings.

    (To appreciate the consequences of having an ill-behaved dog in the courtroom read http://www.upi.com/Top_News/US/2011/04/15/Convict-appeals-presence-of-dog-at-trial/UPI-33521302911757/)

    Finally, trying to make the dog appear cuddly or appealing to a jury is not desirable. If done properly these dogs are far less prejudicial than a support person’s presence in the vicinity of the witness or having a child hold a comfort item like a teddy bear. Courthouse dogs are professionals and their usual courtroom behavior while a witness is on the stand is to lie still at the feet of the witness. Witnesses have told us that merely holding the leash makes them feel more in control.

    Ellen O’Neill-Stephens
    Courthouse Dogs- Founder
    317 109th Ave SE
    Bellevue, WA 98004
    http://www.courthousedogs.com
    ellen@courthousedogs.com

  2. Ellen,

    Thank you so much for your comments! I particularly appreciate your explantion of therapy dogs versus courthouse dogs. And the link you attached with the poorly behaved judge’s dog is a great example of what courthouse dogs are not! Thanks for stopping to comment, and keep up the wonderful work you have begun with courthouse dogs!

    All the best,

    Heidi

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