20 Mar Animal Law – Courtroom Canines

COURTROOM CANINES ARE LEADING COURTROOM ACCOMMODATIONS FOR CHILDREN

Note: This article is as posted at https://floridabar.org and listed as Vol. 95, No 2 March/April 2021 Page 34

This article was written by: Ashley Joan England and Kelsey Beirne

“The morning of the trial was excruciating for Anna, as it is for every child victim or witness who has to testify. A couple of mini-meltdowns to start the day did not help nor make me optimistic. Anna’s mom testified first. As she came out of the courtroom, she and her daughter began weeping in each other’s arms as soon as they saw each other. Sharon [the therapy dog] wedged herself between them, trying to comfort someone, somehow.”^[1]

Courtroom canines are an emerging accommodation to assist children testifying at trial. The dogs are specifically trained to reduce a child’s stress levels, enabling more accurate and clear testimony. The use of canines in the courtroom is a cause for concern for defendants and judges. Defendants assert that the use of a courtroom canine will inject sympathy into the jury box, enhance the credibility of the witness who is accompanied by a canine, and in turn prejudice the defendant. These fears, however, are unsubstantiated, as recent empirical evidence reveals that the use of a courtroom canine has no prejudicial effect on either the defendant or the child witness. When compared to other courtroom accommodations, such as CCTV, comfort objects, and support persons, courtroom canines are the best accommodation available for child witnesses.

Trauma of Testifying

The assumption underlying the adversarial judicial system is that an aggressive cross-examination is fundamental to discovering the truth.^[2] There is evidence, however, that this does the exact opposite to children. An aggressive line of questioning can cause a child witness great distress.^[3] When a child is asked to recount a traumatic event, the emergency response centers activate, immobilizing the child. The emergency response shuts off a child’s cognitive abilities, leaving a child frozen in fear, unable to comprehend questions, reason, or accurately remember.^[4] Bessel Van Der Kolk, professor of psychiatry at Boston University Medical School, discovered that when people revisit a traumatic event, the speech centers of the brain shut off, resulting in the inability to translate thoughts and feelings into words.^[5] His research revealed how the effects of trauma can leave physical lesions like a stroke.^[6]

Children’s experiences with the judicial system are confirmed to have prolonged negative effects on a child’s education, mental health, and beliefs about re-engaging with the legal process.^[7] Many child sexual assault victims had such a negative experience with the court system that they would not report the crime in the future.^[8] Even legal professionals do not want their own children to participate in the legal process.^[9]

Traditional Courtroom Accommodations for Children

The courtroom has several methods to help ease the burden of testimony among children. One method is by a two-way closed circuit television (CCTV), where the child’s testimony is transmitted for the courts to view.^[10] This two-way system protects the defendant’s constitutional right to confront their accuser, while the traumatic effects of the courtroom are minimized for the child.^[11] Though CCTV testimony is common, research has shown that jurors perceived children who use this method instead of doing so in person are “less intelligent, more likely to be making up a story, and less likely to be basing their testimony on fact versus fantasy.”^[12] The juror’s negative biases of CCTV led to fewer guilty verdicts when measured against pre-deliberation.^[13]

There are also in-person accommodations, such as support persons and comfort objects. Support persons, also known as adult attendants, can accompany the testifying child to a judicial proceeding.^[14] The courts allow the support person to be within close proximity to the child while the child testifies. This includes the ability for the child to sit on the lap of the adult during the entire proceeding.^[15] There is no evidence that confirms the presence of a support person increases prejudice toward the defendant.^[16] However, studies show that mock jurors find children that use a support person as less credible and trustworthy.^[17] Mock jurors are more likely to assume that the child was “coached” by the support person.^[18] In turn, the credibility of the child’s testimony is lessened.^[19]

Most courts also allow comfort objects to be brought onto the stand by a child.^[20]Comfort objects may include the child’s favorite toys, stuffed animal, or blanket.^[21]Comfort objects allow the child a sense of calm while testifying.^[22] However, comfort objects may make the victim appear more vulnerable and appealing. Thus, the presence of a comfort object could prejudice the defendant.^[23]

Courtroom Canines: A Nonprejudicial Courtroom Accommodation

The use of courtroom canines is emerging throughout the United States as an effective means to comfort children during the judicial process.^[24] What elevates courtroom canines above other accommodation methods is that their use does not prejudice the victim or the defendant and does not influence the jury’s decision-making process.^[25] Numerous studies conclude a courtroom canine is an invaluable tool that reduces stress and, in turn, facilitates clear and reliable testimony.

Because of these benefits, some state courts interpret victim rights statutes to encompass the use of a canine during trial. Other states have codified the use of courtroom canines as an accommodation. As of March 12, 2020, courts have established courthouse facility dog programs, which include over 238 facility dogs working in 40 states.^[26] This does not include many states that use therapy dogs in the courtroom.^[27]

The records of Florida’s Second Judicial Circuit partnered with Tallahassee Memorial Animal Therapy program indicate that since 2007, the program has worked 155 criminal cases and 325 visits, including depositions, pretrial meetings, and other meetings.^[28] There are currently 32 specially trained teams of dogs and handlers working throughout the circuit.^[29]

A Golden Retriever Ignites a Lawsuit

A golden retriever named Rose sparked controversy when she accompanied a child rape victim to trial. An 11-year-old girl was sexually assaulted multiple times by her father over the course of four years, twice impregnated by her father and both times forced to undergo an abortion.^[30] The child was diagnosed with post-traumatic stress disorder and was unable to communicate with professionals about the event.^[31] Rose was introduced to the child’s sessions and allowed her to become “a lot more verbal.”^[32] Experts described the “soothing impact” the therapy dog had on the child so that she could “better express herself verbally” and would “help her level of physiological stress.”^[33] Rose was trained since the age of eight weeks to “sense stress and anxiety and act in such a way to help reduce that” by raising herself up and offering herself to be petted, thus, helping maintain composure of the person testifying.^[34]

The trial court ruled that the dog’s presence was essential in the courtroom.^[35] The court reasoned that children who look to support persons during testimony may appear as being coached, but since a dog cannot speak, the animal cannot influence a child’s testimony.^[36] The defendant appealed arguing that the dog’s presence was unwarranted under law, violated his due process right to a fair trial, and impaired his right to confront witnesses against him.^[37] The New York appellate court held that the use of the dog was permitted by state law, as it was a logical extension and analogous to the use of a comfort object. The court further rejected the defendant’s arguments because there were no overt signs of prejudice, and any possibility of prejudice was cured by the court’s jury instruction.^[38] Lastly, the court held that the defendant’s ability to cross-examine the victim was not hindered because the dog did not physically impede the jury’s ability to observe the child.^[39]

Other state courts apply similar reasoning to the New York court in affirming the use of a courtroom canine. State courts consistently hold that the use of a courtroom canine is not inherently prejudicial.^[40] To the extent a court finds a possibility of prejudice, appellate courts will uphold the judge’s determination that the benefits of the canine’s presence in reducing anxiety and eliciting testimony outweigh any resulting prejudice to the defendant’s right to a fair trial.^[41] Lastly, like in the New York case, trial courts will mitigate potential prejudice by issuing a limiting instruction to the jury or enacting procedures to limit the jury’s interaction with the dog.^[42]

Federal Courts

To date, federal courts have not allowed courtroom canines to be present during trial, though they do acknowledge the benefits that the canines provide.^[43] For example, in United States v. Neuhard, No. 15-cr-20425, 2017 U.S. Dist. LEXIS 36029 (E.D. Mich. Mar. 14, 2017), the court denied the use of a canine during testimony. The court erroneously relied on the absence of specific language in the Federal Rules of Criminal Procedure permitting courtroom canines, for the proposition that canines are never allowed in a federal courtroom.^[44] In contrast, federal courts routinely allow the use of comfort objects under Federal Rules of Evidence 611(a) despite that use of comfort objects is absent from the Federal Rules of Criminal Procedure.^[45]Because Fed. Rul. Evid. 611(a) allows federal courts to permit comfort objects notwithstanding a specific adoption of their use in the Federal Rules of Criminal Procedure, the Federal Rules of Evidence should also authorize the use of a canine.

The Courthouse Dogs Act is a bill that strives to address this issue. The act passed the Senate in late December 2019, and is currently pending before the House of Representatives.^[46] The act would amend Fed. Rul. Crim. P. Ch. 223, regarding witnesses and evidence to include the use of facility dogs.^[47] Granted, if the bill passes, it will promote uniform procedures across federal courts. The act as currently written, however, is too restrictive, as it excludes the use of therapy dogs. State courts have permitted therapy dogs in the courtrooms for over a decade without reversal. Nevertheless, out of an abundance of caution, a neutral term like “courtroom canine” should be used to describe the canine to the jury.^[48]

Best Practices for Attorneys

For state proceedings, when an attorney files a motion for the use of a courtroom canine, it should include the following to increase the likelihood of success. The motion should include evidence that the canine is well trained. Proper training is critical for proper courtroom decorum and minimal disruptions. A well-trained canine protects their future use. It is also crucial to provide evidence of how a child benefits from a courtroom canine.^[49]

The Animal Law Section produced nearly 2,000 stuffed animals to resemble “Rikki,” a therapy dog who worked in the Tallahassee Memorial Animal Therapy program and had more than 25,000 interactions during her therapy career. If a motion to use a courtroom canine is denied, a doll that resembles the canine that worked with the child can serve as a substitute.

Should the court ultimately deny the motion, there are options that a court will likely approve under traditional accommodations. The Animal Law Section of The Florida Bar paid a toy manufacturer to produce nearly 2,000 stuffed animals to resemble “Rikki,” a therapy dog who worked in the Tallahassee Memorial Animal Therapy program.^[50] After Rikki passed away in 2017, his work lives on through the dolls.^[51]Chuck Mitchell, Rikki’s former handler and volunteer with the program, recounted how a young girl testifying at trial “clutched her Rikki doll tightly on the witness stand and occasionally used it to hide her face. [The girl] eventually found the courage to testify.”^[52] The jury believed her and convicted. Mitchell believed the successful outcome stemmed from the child using the doll.^[53] Florida law explicitly includes language that allows for dogs in the courtroom,^[54] however, if a motion is denied, a doll that resembles the canine that worked with the child can serve as a substitute since stuffed animals are commonly used as comfort objects.^[55]

Rules of Procedure

Using a judge’s discretion in permitting courtroom canines, many state courts have endorsed a balancing approach.^[56] This balancing approach requires a record that the courtroom canine is effective in aiding the child’s testimony. Courts should require the dog to have specialized training and adopt procedures to minimize the potential impact the presence of the canine may have on jurors. For example, the witness and canine should enter and be seated prior to the jury (the canine is out of the jury’s view as the canine is in the witness box). Likewise, the jury should be dismissed before the child and canine leave. This minimizes the jury’s interaction with the courtroom canine.

It is necessary that in voir dire the judge or attorney informs the jury that a courtroom canine will be present during the trial. Otherwise, if an incident does occur, such as the canine making a noise during testimony, it may startle the jury and possibly lead to a mistrial. But judges are also concerned about members of the jury who are allergic to dogs,^[57] fear dogs,^[58] or have cultural biases against dogs.^[59] In order to eliminate bias from the jury, counsel during voir dire would also have to adduce the panel’s attitudes about dogs.^[60]

Finally, it is critical that a limiting jury instruction be given with the proper terminology for the canine.^[61] In the instructions, it must be clear that the dog does not serve in the capacity of a service dog, emotional support animal, or even a therapy dog.^[62] As some courts have stated in dicta, the use of the word “therapy” may imply the witness now needs therapy because of the alleged crime.^[63] As terms to describe dogs that help people are used interchangeably, a neutral, consistent term such as “courtroom canine” that encompasses both facility dogs and therapy dogs should be used. The use of a neutral term can help mitigate any potential prejudice. In light of these procedural safeguards and the empirical evidence that courtroom canines help child victims without prejudicing the defendant or child witnesses, judges should allow the use of courtroom canines in most circumstances.^[64]

Conclusion

Courtroom canines are the best available accommodation for children. Their use preserves the right to a fair and impartial jury. When a witness is accompanied by a canine, the canine’s presence calms the child and facilitates clearer and more accurate testimony. In contrast to traditional accommodations, a courtroom canine does not inject prejudice against the defendant or witness. As an additional safeguard to ensure the finality of the jury verdict, judges and attorneys should ensure and adopt special procedures to minimize any potential prejudice. As the use of courtroom canines is becoming commonplace in the judiciary and legislature, it is critical that both practitioners and judges seize this opportunity and follow practices to ensure the continued use of the canines.

This column is submitted on behalf of the Animal Law Section, John Powell, chair; Ralph A. DeMeo, editor; and Gregg R. Morton, guest editor.