Russell Hebets Aug. 9, 2011

This week the New York Times has reintroduced the public to the concept of dogs comforting witnesses during criminal trials in this article. The legal issues surrounding courtroom dogs are new to New York and the New York court system’s ultimate decision on the dogs might go a long way in establishing their legitimacy. In criminal law this issue has been going on for nearly a decade now, since the first courtroom dogs were used in Seattle in 2003. There are two primary questions that should be of interest to those involved in law in Colorado. First, is there a legal basis for allowing court dogs in Colorado? Second, should defense attorneys support the adoption of court dogs in the Colorado criminal justice system?

There is a growing body of literature trying to determine if there is a legal basis for court dogs. Right now the literature is fairly biased towards those who support the dogs’ use; this is probably because the dogs are not in widespread enough use to generate significant opposition at this point. There is growing precedent for court dogs use, courts in Washington began that practice and prosecutors’ offices in Texas, Georgia, Montana, and Florida, used the Washington model to start programs of their own according to Marianne Dellinger in her law review article on the issue entitled, “USING DOGS FOR EMOTIONAL SUPPORT OF TESTIFYING VICTIMS OF CRIME.” The best case for their use in Colorado comes from an excellent article in The Colorado Lawyer, Gabriela N. Sandoval writes:

“Colorado statutes, the Colorado Rules of Evidence, and secondary sources on practice and procedure vest the trial judge with broad discretion to control the interrogation of witnesses:28 The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.29

When it is clear that children are anxious or fearful, judges have made efforts to try to lessen the trauma associated with direct and cross-examination. For example, a child in a Colorado sex abuse case was called to the stand and, at first, she seemed withdrawn and unwilling to testify.30 The prosecutor called a recess and, outside the jury’s presence, told the trial judge the child was afraid.31 The judge permitted the child’s teenaged sister to accompany her during the examination, in an effort to ease her fear.32 On appeal, the defendant argued that the trial court abused its discretion by allowing the teen to sit next to her sister while she testified.33 The Colorado Court of Appeals disagreed and upheld the trial court’s decision.34”

While there seems to be a growing legal case supporting the use of court dogs the question is if defense attorneys should support this movement? In the New York case the lawyers for the defense point out that dogs are trained to help comfort the witness during stress, but that stress may come from lying to the court. The jury might believe that the dog is helping the witness proclaim painful truths when, in fact, the witness is under stress for other reasons. Also, the mere choice over which witnesses get to use the court dog might prejudice the jury. Usually only the victim or accuser is given access to the dogs, because they are generally reserved for children. In the case of a falsely accused defendant there are two reasons the dogs might create bias for the prosecution. First, the jury would believe that the accuser is so traumatized by the crime that they need assistance. Second, the defendant’s testimony might not be as powerful relative to the child, since the calming effect of the dog is touted for its ability to make children’s testimony better.

On the other hand, court dogs can be used to help the defense ask tough questions to a witness. According to one article the defense counsel chose to pet the dog along with the child witness so that a series of very difficult questions felt more like a conversation. This approach made the defense seem gentle and the jury felt like the defense had questioned the child well. By creating a more comfortable setting for witnesses that can be difficult to cross examine court dogs may help defense counsel ask a wider range of questions and receive longer and clearer responses from young witnesses. Additionally, in Colorado because witnesses under age 10 might not be held competent to testify court dogs may increase the number of cases where the primary witness to a crime can be cross examined. This would benefit the defense because they would be able to ask questions about their theory of the crime to the best witness.

While court dogs may still be a legal grey area defense practitioners should begin to think about what they might do if they are approached about using one. Current cases, such as the one in New York, are sure to go to appeal and will help gather evidence opposing their legal use. However, the dogs may still be allowed in a trial and the defense should create a specific strategy to optimize the use of any dog that is allowed in court. Primarily the defense should consider how it will change questions or interact with the dog, and maybe start the new legal practice suggested in this blog of asking for the reciprocal ability to use the dog for key defense witnesses.