Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father. Yes, a dog sat in the witness stand. Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying. At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.
While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.). In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial. The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.
Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing). It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial. Would dog lovers view her more favorably? Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present? How would the dog impact opposing counsel’s cross examination?
These are valid questions, but the opposing response is more persuasive.
In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony. A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box. In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.
Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony. Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand. Why would the reduction of anxiety in a child be a bad thing? Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms. Has the presence of these dogs created unjust verdicts?
Most importantly, the “comfort dog” accommodation has primarily been utilized with children. A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims. As this UST Law Review notes:
“…our Supreme Court promulgated the Rule on Examination of A Child Witness which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding… the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”
Obviously, the rules of the game change when a minor is giving testimony. Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand. While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.
Those interested in utilizing comfort dogs in court can check out a sample brief here.
Blogger: Matt McCusker
