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.”
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. There is evidence, however, that this does the exact opposite to children. An aggressive line of questioning can cause a child witness great distress. 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. 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. His research revealed how the effects of trauma can leave physical lesions like a stroke.
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. Many child sexual assault victims had such a negative experience with the court system that they would not report the crime in the future. Even legal professionals do not want their own children to participate in the legal process.
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. 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. 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.” The juror’s negative biases of CCTV led to fewer guilty verdicts when measured against pre-deliberation.
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. 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. There is no evidence that confirms the presence of a support person increases prejudice toward the defendant. However, studies show that mock jurors find children that use a support person as less credible and trustworthy. Mock jurors are more likely to assume that the child was “coached” by the support person. In turn, the credibility of the child’s testimony is lessened.
Most courts also allow comfort objects to be brought onto the stand by a child.Comfort objects may include the child’s favorite toys, stuffed animal, or blanket.Comfort objects allow the child a sense of calm while testifying. However, comfort objects may make the victim appear more vulnerable and appealing. Thus, the presence of a comfort object could prejudice the defendant.
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. 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. 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. This does not include many states that use therapy dogs in the courtroom.
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. There are currently 32 specially trained teams of dogs and handlers working throughout the circuit.
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. The child was diagnosed with post-traumatic stress disorder and was unable to communicate with professionals about the event. Rose was introduced to the child’s sessions and allowed her to become “a lot more verbal.” 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.” 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.
The trial court ruled that the dog’s presence was essential in the courtroom. 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. 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. 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. 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.
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. 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. 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.
To date, federal courts have not allowed courtroom canines to be present during trial, though they do acknowledge the benefits that the canines provide. 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. 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.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. The act would amend Fed. Rul. Crim. P. Ch. 223, regarding witnesses and evidence to include the use of facility dogs. 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.
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.
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. After Rikki passed away in 2017, his work lives on through the dolls.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.” The jury believed her and convicted. Mitchell believed the successful outcome stemmed from the child using the doll. Florida law explicitly includes language that allows for dogs in the courtroom, 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.
Rules of Procedure
Using a judge’s discretion in permitting courtroom canines, many state courts have endorsed a balancing approach. 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, fear dogs, or have cultural biases against dogs. In order to eliminate bias from the jury, counsel during voir dire would also have to adduce the panel’s attitudes about dogs.
Finally, it is critical that a limiting jury instruction be given with the proper terminology for the canine. 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. 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. 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.
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.
 Chuck Mitchell, The Rikki Doll, Paw Review: The Florida Bar Animal Law Section Newsletter 17 (Winter 2020).
 John H. Wigmore, Select Cases on the Law of Evidence 543 (1913).
 Rachell Zajac, et al., Disorder in the Courtroom? Child Witnesses Under Cross-examination, 32 Developmental Rev. 81, 182 (2012).
 Bessel A. Van der Kolk, The Body Keeps Score 40-44 (2015).
 Id. at 43.
 Zajac, Disorder in the Courtroom? Child Witnesses Under Cross-examination at 182 (citing four other studies).
 Id. (citations omitted).
 Id. (citing four additional studies).
 18 U.S.C. §3509 (b)(1)(D) (2018).
 Katherine M. Grearson, Proposed Uniform Child Witness Testimony Act: An Impermissible Abridgement of Criminal Defendants’ Rights, 45 B.C. L. Rev. 467, 468-69 (2004).
 Gail S. Goodman, Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children’s Eyewitness Testimony and Jurors’ Decision, 22 L. & Hum. Behav. 165, 199 (1998) (“[C]losed-circuit technology was associated with a negative bias. Children who testified via CCTV were viewed as less believable than children who testified in regular trials” despite the fact children were more accurate.). Id. at 199.
 Id. at 200. (Testifying via CCTV may “limit the impact of children’s testimony on juror’s initial decision” after deliberation jurors “seemed disinclined to convict a defendant based solely on the word of a child.”). Id. at 199.
 18 U.S.C. §3509 (b)(2)(B) (2018).
 Judicial Council of California, Operations and Programs Div., Ctr. for Judicial Educ. & Research, Bench Handbook: The Child Witness 9 (2016) [hereinafter California Bench Handbook]; Bradley D. McAuliff & Margaret Bull Kovera, Do Jurors Get What They Expect? Traditional Versus Alternative Forms of Children’s Testimony, 18 Psychol. Crime L. 27 (2012).
 Bradley D. McAuliff, et al., Support Person Presence and Child Victim Testimony: Believe It or Not, 33 Behav. Sci. & L. 508 (Aug. 2015).
 Bradley D. McAuliff, et al., Supporting Children in U.S. Legal Proceedings: Descriptive and Attitudinal Data from a National Survey of Victim/ Witness Assistants, 19 Psychol., Crime, & L. 27 (2012).
 California Bench Handbook at 9.
 Fern L. Kletter, Propriety of Allowing Witness to Hold Stuffed Animal, Doll, Toy or Other Comfort Item During Testimony, 82 A.L.R. 373 (2013).
 California Bench Handbook at 12-13; ABA Criminal Justice Section Task Force on Child Witnesses, The Child Witness in Criminal Cases 28 (2002) [hereinafter Task Force on Child Witnesses].
 California Bench Handbook at 12-13; Task Force on Child Witnesses at 28. SeeAshley Englund, Canines in the Courtroom: A Witness’s Best Friend Without Prejudice, Animal & Nat. Resource L. Rev., forthcoming 2021 (discussing the factors the courts consider to permit comfort objects).
 See Kletter, Propriety of Allowing Witness to Hold Stuffed Animal, Doll, Toy or Other Comfort Item During Testimony.
 The term “courtroom canine” encompasses both “facility dogs” and “therapy dogs.” As terms are used interchangeably throughout the various state statutes and courts, courtroom canines neutralizes the term to mitigate an inference that the witness is so traumatized that he or she needs a therapy dog.
 Englund, Canines in the Courtroom; Kayla A. Burd & Dawn E. McQuiston, Facility Dogs in the Courtroom: Comfort Without Prejudice?, 44 Crim. Justice R. 515, 518 (2019).
 Courthouse Dogs Foundation, Courthouse Facility Dogs in the United States, https://courthousedogs.org/dogs/where/where-united-states/.
 See Englund, Canines in the Courtroom (discussing the difference between therapy dogs and facility dogs). See also Joshua Jamerson, Therapy Dog Helps Woman Testify at Assailant’s Sentencing Hearing, The New York Times, Jun. 9, 2015, available at https://www.nytimes.com/2015/06/10/nyregion/therapy-dog-helps-woman-testify-at-assailants-sentencing-hearing.html.
 Jim Ash, Animal Law Section Partnership Uses Therapy Dogs to Help Child Victims Navigate Criminal and Dependency Proceedings, Fla. Bar News, Mar. 4, 2020, available at https://www.floridabar.org/the-florida-bar-news/animal-law-section-partnership-uses-therapy-dogs-to-help-child-victims-navigate-criminal-and-dependency-proceedings/; Second Judicial Circuit of Florida, Courthouse Therapy Dogs, http://2ndcircuit.leoncountyfl.gov/petTherapy.php (The animal therapy program provides “free animal therapy services to children and vulnerable adults testifying in criminal and dependency court matters. The Courthouse Animal Therapy program offers support to these children and adults when giving statements and testimony in court that would otherwise be difficult or impossible for them to provide.”).
 Ash, Animal Law Section Partnership Uses Therapy Dogs to Help Child Victims Navigate Criminal and Dependency Proceedings; Second Judicial Circuit of Florida, Courthouse Therapy Dogs.
 People v. Tohom, 109 A.D.3d 253, 255 (N.Y. App. Div. 2013).
 Id. at 257.
 Id. at 247
 Id. at 257-58.
 Id. (quoting the people’s support to grant the motion).
 Id. at 260.
 Id. at 268 (“It is beyond dispute that a dog does not have the ability to discern truth from falsehood and, thus, cannot communicate such a distinction to a jury.”).
 Id. at 271-72.
 State v. Millis, 391 P.3d 1225 (Ariz. Ct. App. 2017); People v. Chenault, 175 Cal. Rptr. 3d 1, 10 (Cal. Ct. App. 2014) (“We do not believe the presence of a support dog is inherently more prejudicial than the presence of a support person.”).
 State v. Dye, 309 P.3d 1192, 1200-01 (Wash. 2013) (“While the possibility that a facility dog may incur undue sympathy calls for caution and a conscientious balancing of the benefits and the prejudice involved, the trial court balanced the competing factors appropriately.”); State v. Devon D., 138 A.3d 849, 867 (Conn. 2016) (The court should balance the extent that “the dog’s presence will permit the witness to testify truthfully, completely and reliably, and the extent to which the dog’s presence will obviate the need for more drastic measures to secure the witness’ testimony” against the “potential prejudice to the defendant and the availability of measures to mitigate any prejudice.”).
 Dye, 309 P.3d at 1200; Devon D., 138 A.3d at 867 (“[T]he jurors never saw [the dog] because the court excused the jury prior to [child’s] testimony so that [the dog] would be on the witness stand, out of view, before the jury returned. This procedure eliminated the possibility that the jurors might be swayed by the presence of ‘[a] cute little kid with her cute dog,’ as the defendant feared.”); State v. Millis, 391 P.3d 1225, 1235 (Ariz. Ct. App. 2017) (Affirming the trial court, when the dog sat with the adult victim in the gallery would not unfairly prejudice the defendant “because the animal would have been less visible and prominent to the jury in the gallery than it would have at the witness stand.”).
 See United States v. Gardner, No. 16-cr-20135, 2016 U.S. Dist. LEXIS 132882 at *8 (E.D. Mich. Sept. 28, 2016) (“The Court does not dispute that the medical and academic literature supports a finding that a person can enjoy a myriad of physical and psychological benefits from interacting with a friendly dog, particularly in times of stress.”); Id. at *1 (“This [c]ourt has previously analyzed this issue in the context of an adult witness and noted the strong support in state courts for allowing a support animal.”).
 United States v. Counts, No. 3:18-CR-00141, 2020 WL 598526 at *4 (D.N.D. Feb. 7, 2020) (permitting the use of comfort objects during a child’s testimony citing Federal Rules of Evidence 611(a) as it “confers broad discretion on this Court in controlling ‘the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.’” And further the court held that, “‘[a]s long as the defendant’s constitutional rights are safeguarded in a criminal proceeding, a judge is afforded wide discretion in fashioning procedures and modifying standard trial practices….One such accommodation is allowing the [child] witness to testify while holding a doll, stuffed animal, toy, or other comforting or stress-relieving item.’”) (citation omitted). Notably, the use of comfort objects is absent in §3509, but Counts used Fed. Rul. Evid. 611 as a hook for its use.
 United States v. Neuhard, No. 15-cr-20425, 2017 U.S. Dist. LEXIS 36029 at *2-3 (E.D. Mich. Mar. 14, 2017).
 Claire Kowalick, Cornyn’s Courthouse Dogs Act Passes in Senate, Times Record News, Dec. 31, 2019, available athttps://www.timesrecordnews.com/story/news/local/2019/12/31/cornyns-courthouse-dogs-act-passes-senate/2778159001/.
 The Courthouse Dogs Act, H.R. 5403, 116th Cong. (1st Sess. 2019-2020).
 People v. Johnson, 889 N.W.2d 513, n.6 (“[W]e agree with defendant that the term ‘therapy dog’ is not the most appropriate, particularly because the term could imply that the witness was undergoing therapy as a result of the sexual assault. Nonetheless, the trial court also indicated that the dog was from the prosecutor’s office, thus signaling to the jury that the dog was not the witnesses’ own therapy dog, but rather one provided by the prosecution to assist the witnesses with providing testimony.”).
 E.g., State v. Devon D., 138 A.3d 849, 867 (Conn. 2016).
 Ash, Animal Law Section Partnership Uses Therapy Dogs to Help Child Victims Navigate Criminal and Dependency Proceedings; Second Judicial Circuit of Florida, Courthouse Therapy Dogs.
 Ash, Animal Law Section Partnership Uses Therapy Dogs to Help Child Victims Navigate Criminal and Dependency Proceedings.
 Fla. Stat. §92.55 (2019).
 Task Force on Child Witnesses at 28.
 E.g., State v. Devon D., 138 A.3d 849, 867 (Conn. 2016) (“[T]he court must balance the extent to which the accommodation will help the witness to testify reliably and completely against any possible prejudice to the defendant’s right to a fair trial.”); State v. Millis, 43, 391 P.3d 1225, 1235 (Ariz. Ct. App. 2017) (“However, the record indicates that the court considered factors relevant to its discretionary balancing of potential benefits and potential prejudices from a dog.”).
 Lorie Gerkey, Legal Beagles, a Silent Minority: Therapeutic Effects of Facility Dogs in the Courtroom, 1 Int’l J. Therapeutic Juris. 405, 417, 428 (2016) (“[D]og allergens are everywhere in public spaces because they are on clothes of pet owners.”).
 Courthouse Facility Dogs at 95.
 Id. at 29 (“In some cultures, notably some Islamic groups, dogs are considered unclean animals and children should not have contact with them.”).
 Marianne Dellinger, Using Dogs for Emotional Support of Testifying Victims of Crime, 14 Animal L. 171, 181.
 E.g., State v. Dye, 309 P.3d 1192, 1200 (Wash. 2013) (“Any prejudice that resulted from [the canine’s] presence was minor and largely mitigated by the limiting instruction that the trial court gave.”); State v. Nuss, 446 P.3d 458, 459-60 (Idaho Ct. App. 2019), reh’g denied (Aug. 26, 2019) (“Before trial, the district court instructed the jury about the possible presence of a facility dog and to disregard its presence.”). State v. Reyes, 505 S.W.3d 890, 896 (Tenn. Crim. App. 2016) (“[T]he court gave a special jury instruction as to [the courtroom canine]: ‘During this trial, a witness was accompanied by [a] courthouse facility dog. The dog is trained, it is not a pet and it does not belong to the witness. The dog is equally available to both the prosecution and the defense. You must not draw any inference regarding the dog’s presence. Each witness’ testimony should be evaluated upon the instructions that I give you.’”).
 Courthouse Facility Dogs at 45-46.
 People v. Johnson, 889 N.W.2d 513, n.6 (“[W]e agree with defendant that the term ‘therapy dog’ is not the most appropriate, particularly because the term could imply that the witness was undergoing therapy as a result of the sexual assault.). See alsoGerkey, Legal Beagles, a Silent Minority at 418 (“[T]he term ‘therapy dogs’ to identify courtroom dogs would be inappropriate.”).
 People v. Chenault, 227 Cal. App. 4th 1503, 1518 (Cal Ct. App. 2014) (When “prejudice to the defendant cannot be eliminated, or at least reduced to a level that does not infringe on the defendant’s constitutional rights to a fair trial and to confront witnesses, the court generally should exercise its discretion by denying the request for the presence of a support dog.”).
This column is submitted on behalf of the Animal Law Section, John Powell, chair; Ralph A. DeMeo, editor; and Gregg R. Morton, guest editor.