Since 2012, parties objecting to the use of a dog to assist a vulnerable testifying witness have argued that because people generally like dogs, the dog may cause the jury to feel more sympathy towards that witness. This could result in a juror finding that the witness was more credible, thereby denying the defendant the right to a fair trial.
However, in two recent 2020 cases, appellate courts in Georgia and Pennsylvania noted that the standard defense objection to the presence of the dog that assists a testifying witness is “the unsubstantiated assumption that the dog generated sympathy without any evidence in support thereof while ignoring the fact that some people are afraid of or dislike animals, especially dogs”. Both courts found this claim had no merit especially since the court took measures to conceal the dog’s presence from the jury.
(Review the research paper, “Facility Dogs in the Courtroom: Comfort Without Prejudice?” that showed that the presence of the dog in the witness box was less prejudicial than the child holding a comfort item.)
The evolving case law on this issue has resulted in decisions finding that trial courts are capable of addressing these types of risks and have broad judicial discretion to do so.
Judicial Discretion is largely based on Federal Evidence Rule 611 (a) or similar state evidence rules which state the following:
A trial judge is responsible for the control and management of the trial and is vested with wide discretion to perform this function. 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.
In either case, it is always a best practice for the judge to conduct a balancing test on the record which evaluates this accommodation for a vulnerable witness versus the presence of the dog creating potential prejudice that could impact the defendant’s right to a fair trial. This advice was affirmed by the appellate court decision in the Commonwealth v Purnell.
To date, every appellate court decision has affirmed the use of a dog to be within the discretion of the court as an accommodation for a vulnerable witness, with the exception of Michigan which only allows a dog to accompany testifying children, but not “able-bodied” adults.
Arizona
State v. Millis (2017)
391 P.3d 1225, 1233 (Ariz. Ct. App. 2017)
Full text of the opinion here
Court of Appeals of Arizona, District 2, March 9, 2017.
Defendant Millas choked an 8-month-old baby to death. The baby’s mother, a witness, had established a bond with Blake, the victim advocate’s facility dog, during the proceedings leading up to the trial and she asked that the court permit Blake to be with her during the trial. The court was informed that Blake would not accompany her when she testified but would only sit with her in the gallery.
The defendant argued Arizona crime-victim law gives a victim a right to be accompanied by a support person, not a support animal, and that the dog would unfairly prejudice him by inviting the jury to base its decision on emotion or sympathy. The state argued Blake would not prejudice Millis and would help the mother testify in the midst of difficult circumstances. After a hearing, the trial court found that the dog’s presence would not unfairly prejudice Millis.
The appellate court affirmed the trial court’s decision.
California
People v. Chenault (2014)
227 Cal. App. 4th 1503, 175 Cal. Rptr. 3d 1 (2014)
Full text of the opinion here.
California Court of Appeal, July 11, 2014.
Review denied by California Supreme Court, October 15, 2014.
Nature of case:
Darrell Chenault was convicted of 15 counts of sexual offenses, committed against two of his daughters and two of his nieces. At the time of trial, the nieces were 11 and 13 years old.
Procedure in the trial court:
The prosecutor asked the judge to allow the presence of a support dog during the testimony of the two nieces (who were then 11 and 13 years old). The prosecutor relied on a California statute, Evidence Code § 765. That statute requires courts to take “special care” to protect a witness under the age of 14 from “undue harassment or embarrassment.”
The court took measures to reduce any possible prejudice to Chenault by setting forth logistics for the entry, positioning, and departure of Asta and the children during jury recesses so the dog was as unobtrusive and least disruptive as reasonably possible. Asta was also directed to sit in a chair near the back door.
Jury Instructions:
“[F.] and her sister [C.] in turn, will be accompanied by a service animal, companion dog, whose name happens to be Asta. The law permits the Court to make reasonable accommodations for child witnesses, and accordingly, I’ve granted the request for Asta to be present during the testimony of [F.] and [C.] And Asta will otherwise be a nonparticipant.”
Appellate decision:
The presence of a support dog does not violate the defendant’s constitutional right to a fair trial or to confront witnesses. A support dog is no more prejudicial than a support person. The California court rejected the standards by the Washington Supreme Court in Dye.
In deciding whether a support dog should be allowed, the judge should “focus on whether the presence of the specific support dog would likely assist or enable the individual witness to give complete and truthful testimony by reducing the stress or trauma the witness may experience while testifying in court or otherwise minimizing undue harassment or embarrassment.” Although express findings are preferred, implicit findings may be adequate.
If a dog is allowed, the court should make the presence of the dog as unobtrusive and undisruptive as reasonably possible. If the dog’s presence becomes known to the jury, the court should give an appropriate admonition to the jury.
In this case, the trial judge implicitly found that the dog’s presence was necessary. The judge took adequate measures to protect the defendant from possible prejudice. The instruction given by the judge effectively told the jury not to consider the presence of the dog in weighing the evidence and deciding the merits of the case. Although a more complete admonition would be preferable, this instruction was adequate. The judge therefore properly exercised his discretion under Evidence Code § 765.
People v. Spence (2012)
212 Cal. App. 4th 478, 151 Cal. Rptr. 374 (2012)
Full text of the opinion here.
California Court of Appeal, December 27, 2012.
Review denied by California Supreme Court, April 10, 2013.
Nature of case:
James Spence was charged with six counts of sexual offenses, arising out of two separate incidents. The victim was his 10-year-old stepdaughter. The jury convicted Spence on four counts.
Procedure in the trial court:
The victim asked to have Dory accompany her to the witness stand. The judge ruled that allowing a dog in the courtroom was comparable to letting the victim hold a teddy bear. Based on the judge’s previous experience with Dory, she believed that Dory would be almost unnoticeable once everyone was in place. The judge said that Dory would be removed from the courtroom if any issues or improper behavior occurred.
The victim was also accompanied to the witness stand by a victim advocate from the San Diego District Attorney’s Office.
Jury Instructions:
The jury was given a standard instruction to decide the case based on the evidence, not on any extrinsic factors such as sympathy, passion, or prejudice.
Appellate decision:
The defendant argued that the procedure at trial violated a California statute, Evidence Code § 868.5. That statute allows a witness to be accompanied to the witness stand by only one support person. The Court of Appeal held that Dory was not a “person,” so the statute was not violated.
The presence of the victim advocate and the support dog did not create any disruption or distraction, so as to violate confrontation clause protections. The court viewed the trial judge’s remarks as containing an implied finding of necessity. These findings were supported by the victim’s youth, her emotional response when interviewed by a doctor and nurse, and the prosecutor’s concerns that she would have an “emotional meltdown” on the witness stand. Assuming that more specific findings of necessity would have been proper, any error in this respect was harmless.
Connecticut
State v. Devon D. (2016)
321 Conn. 656 (2016)
Full text of the opinion here.
Supreme Court of Connecticut, June 14, 2016.
Nature of case:
Devon D. was convicted of 11 counts of sexual offenses. The alleged victims were one of his daughters and two of his sons.
Procedure in the trial court:
The prosecutor asked permission to have a “therapy dog” sit near the daughter while she testified. The prosecutor cited a statute authorizing special procedures for child witnesses in abuse cases, Connecticut General Statutes § 54-86g. The prosecutor also argued that the court had inherent authority to allow this. The prosecutor explained that the girl did not have any concerns about testifying in front of the defendant, but she was concerned about the presence of other people.
The judge held an evidentiary hearing on this request. At the hearing, the prosecutor offered testimony from a child therapist who had met the girl the previous day. The girl had told him that she would feel more comfortable if Summer was with her when she testified. The therapist testified that the girl would be more likely to talk about her experiences if the dog were present.
The judge concluded that the presence of the dog would assist the witness in testifying. This would prevent the need for the “more drastic and onerous” procedure of video recording her testimony. The defendant’s rights would not be prejudiced by this procedure.
During the trial, Summer sat near the girl when she testified. Summer was placed in a position where she could not be seen by the jury.
Jury Instructions:
“Testifying in open court before a crowd of strangers is an unfamiliar and stressful event for most people. In order to reduce that anxiety, I have allowed the presence of a service dog in the courtroom during the testimony of one of the witnesses I anticipate we’ll soon hear. You are to disregard the presence of the service dog. You are not to credit the witness’s testimony, in any way, simply because of the presence of the dog. You are to draw no inference for or against any witness using a service dog. Sympathy and emotion play absolutely no part of your consideration and eventual deliberation. You are to attach no significance whatsoever to the presence of the dog. Her being with the witness is merely a tool that I decided to use to promote a more calming supportive setting for this witness.
The witness is anxious about testifying in front of a group of people. The dog is not present due to any concern that the witness has with the defendant’s presence. The service dog met the witness this past Friday in preparation for the trial. Think of the dog as an interpreter, like an aid to get the witness’s testimony across to you more clearly.”
Appellate decision:
The use of a dog is not one of the procedures authorized by § 54-86g. A trial judge nonetheless has inherent discretionary authority to allow that procedure.
In exercising this discretion, “the 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. The trial court should consider the particular facts and circumstances for the request to have a dog accompany the particular witness, the extent to which 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. The trial court should balance these factors against the potential prejudice to the defendant and the availability of measures to mitigate any prejudice, such as limiting instructions and procedures to limit the jury’s view of the dog.”
Applying these standards, the trial judge properly exercised his discretion in allowing Summer to be present during the daughter’s testimony. The judge properly found that her testimony would be assisted by Summer’s presence. The judge also properly concluded that the use of the dog reduced the need for “more drastic measures.” The judge took appropriate steps to prevent unnecessary prejudice to the defendant.
The defense argued that the use of a dog can be allowed only on a showing of “compelling need.” The Supreme Court rejected this argument. The “compelling need” standard applies when a procedure infringes on a defendant’s right to confront witnesses. The use of a dog during a witness’s testimony does not affect that right.
Florida
Note from Courthouse Dogs Foundation. For appellate court purposes, a description of the dog’s behavior in court should be noted on the record. For example:
Leigh v State
58 So. 3d 396
Full text of the opinion here.
“Furthermore, the jury was aware of the presence of a dog in the courtroom because, on more than one occasion, the presiding judge, the Honorable Susan Lebow, had to correct her dog, which was whining and barking, and on more than one occasion, the dog put its front paws on the swing door that separated it from the courtroom where the judge was presiding, suggesting to the jury that the dog was present for the safety of the court, unnecessarily marking Defendant as a dangerous character”.
Appellate Court’s decision
Philip Leigh (Defendant) appeals from an order summarily denying his motion for postconviction relief. Following a jury trial, Defendant was found guilty of trafficking in cocaine and conspiracy to traffic. Defendant claimed his trial counsel was ineffective for allowing him to appear in a leg restraint and for failing to object to the presence of a dog. Apparently, the dog became disruptive on more than one occasion and was visible to the judge and jury. The Florida appellate court reversed and remanded, with a provision that the trial court could attach portions of the record that would refute the possibility that defense counsel’s failure to object to the dog’s presence indicated ineffective assistance of counsel. Since there was apparently no evidence of the dog’s presence in the record at all, the trial court was presumably obligated to conduct an evidentiary hearing on the matter.
Georgia
Jones v. State (2020)
,___ S.E.2d ___, 2020 WL _______ 9. (Ga. Ct. App. filed March 13, 2020),
Full text of the opinion here.
The defendant was charged with several counts of sodomy. One of the young adult victims suffered from severe PTSD as a result of the defendant’s actions and acquired his dog to calm him when stressed. The court allowed this victim to bring his dog into the witness box when he testified. Steps were taken to conceal the dog from the jury. The defendant asserted that the trial court erred by allowing, upon request of the prosecution, a dog to accompany a victim with post-traumatic stress disorder when he testified.
Note- The appellate court stated that:
- Georgia has long recognized that “a trial court is vested with considerable discretion in its conduct of court proceedings. This considerable discretion includes the discretion to make reasonable accommodations for the comfort and care of witnesses with special needs.” (emphasis added)
- “Moreover, Jones has failed to show that he was harmed by the trial court’s decision. Given the procedures the trial court followed to minimize the dog’s presence, we cannot assume that the dog had any impact on the jurors, much less that it engendered sympathy in them for O. Y. ) (8) Jones assumes that the dog generated sympathy without any evidence in support and contrary to the fact that some people fear or dislike animals
Idaho
State of Idaho v. Nuss (2019)
Full text of the opinion here.
Nuss argued the district court abused its discretion by allowing the facility dog to accompany a testifying child. The appellant objected to the dog’s presence, the handler’s presence, and that the facility dog was allowed to exit the courtroom in the jury’s presence, and these actions prejudiced Nuss’ right to a fair trial.
The Idaho Court of Appeals held that Idaho Code § 19-3023 requires the district court to allow the presence of both a facility dog and its handler during a child’s testimony, absent written findings of undue prejudice; the facility dog and its handler did not prejudice Nuss’s constitutional right to a fair trial and the district court properly instructed the jury about the presence of the facility dog and its handler.
The appellate court found that the district court did not abuse its discretion by allowing the facility dog, along with its handler, to accompany the victim at the witness stand during her testimony.
Michigan
People of the State of Michigan v. Dakota Lee Shorter (2018)
Full text of the opinion here.
In this case, the defendant was charged with sexually assaulting the victim and the prosecution asked that a support dog accompany the victim when she testified in court. The following evidence was provided to the trial court judge.
- The victim’s roommate stated she was so upset that he could barely understand her.
- the apartment manager described the complainant’s emotional state as “absolutely hysterical to the point I couldn’t understand her.”
- The police officers, who testified, agreed that the complainant was very upset when they arrived. One officer testified that “[s]he was shaking and her breathing was to the point where almost hyperventilating.”
- The nurse that conducted the forensic sexual assault exam described the victim as “emotionally distraught and tearful throughout”.
- The prosecution responded to the defendant’s objection stating, “Judge, I think my response to that is that it will limit her emotional outbursts when she’s testifying. This is a victim who has been teary-eyed multiple times when I’ve spoken to her, without even getting into, you know, the facts of what occurred the actual testimony that she will be giving. We did a trial preparation meeting at my office last week where Preston, the dog, was present. She was less emotional with him in the room. She indicated she felt more comfortable and that is something that she wants. I think that it—it would be a benefit to both sides to have her control her emotions through the use of the support dog.”
- “The trial court then granted the prosecution’s request, concluding, “That’s sufficient for this Court in that it will limit her emotional display on the stand. I agree that that could even be
beneficial to the Defendant. And that there’s already been, sort of, a trial run with the dog and it’s been a successful one at that. So, I think that’s a sufficient basis for her to use the support
animal while testifying.” When instructing the jury at the outset of the complainant’s testimony and, again, at the end of the trial, the court instructed the jury that you must “not allow the use of a support animal to influence your decision in any way,” and that “you should not consider the witness’s testimony to be any more or less credible because of the animal’s presence.
The appellate court decided “that a fully-abled adult witness may not be accompanied by a support animal or support person while testifying” and that the error was not harmless and remanded the case back for retrial.
State’s Brief to the Michigan State Supreme Court
Amicus Brief for the Michigan State Supreme Court
The Michigan State Supreme Court denied review of the Appellate Court’s decision.
People v. Johnson (2016)
2016 WL 1576933 (2016)
Full text of the opinion here.
Michigan Court of Appeals, April 19, 2016
Nature of Case:
Jordan Johnson was convicted of six counts of sexual offenses committed over a three-year period. The victim was his niece, who was six years old at the time of trial.
Procedure in the trial court:
Prior to trial, the prosecutor filed a notice of intent to use a “support person” pursuant to Michigan Compiled Laws 600.2163a. The dog was the designated “support person.” Defense counsel did not object to this procedure. During the trial, the dog sat at the feet of the 6-year-old victim and her 10-year-old brother when they testified.
Jury Instructions:
The jury was given a standard instruction to decide the case based solely on the evidence and to not render a decision based on sympathy or bias.
Appellate Decision:
Because no objection was raised at trial, the only issue on appeal was whether the defendant received ineffective assistance of counsel. To establish ineffective assistance, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that this deficient performance prejudiced the defendant.
The use of the dog at trial was not properly based on MCL 600.2163a. That statute allows the use of a support person. A dog is not a “person.” The use of a dog nonetheless fell within the trial judge’s inherent authority to control the courtroom. Any objection to the judge’s authority would have been meritless.
The defense attorney could make a reasonable tactical decision not to object to the dog’s presence. The presence of a dog in the courtroom is not inherently prejudicial. Allowing a witness to be accompanied by a dog likewise does not violate the defendant’s right to confront witnesses. As a result, the trial judge is not required to make specific findings of necessity before allowing the use of a support animal. It is nonetheless better practice for judges to make some findings regarding their decision to allow or disallow a support animal.
The jurors are presumed to follow their instructions to decide the case on the evidence and not render a decision based on sympathy. Defense counsel acted reasonably in not requesting additional instructions.
New York
People v. Tohom (2013)
109 A.D.3d 253, 969 N.Y.S.2d 123 (2013)
Full text of the opinion here
New York Supreme Court, Appellate Division, July 10, 2013.
Leave to appeal denied by New York Court of Appeals, April 10, 2014.
Nature of case:
Victor Tohom was charged with two counts of sexual offenses. This was based on multiple acts of sexual conduct with his daughter over a four-year period (2006 to 2010). The daughter was born in 1995.
Procedure in the trial court:
At a pre-trial hearing, the court heard testimony from a social worker who had been providing therapy to the victim. She testified that the victim had been diagnosed with PTSD resulting from sexual abuse. During therapy sessions, the victim did not want to discuss the abuse and showed anxiety. When Rose, the facility dog, was present, the victim showed less anxiety and was more verbal. Rose was trained to put her head on a person’s lap when the person showed anxiety.
The court ruled the victim’s trial testimony was likely to cause severe stress, which necessitated procedures to protect her well-being. The court, therefore, allowed Rosie to sit with the victim while she testified. During the testimony, the victim initially petted Rosie. After that, Rosie was no longer visible.
Jury Instructions:
“During the testimony of [J.] she will be accompanied by a companion dog. The decision to allow this was one the court made and you may not speculate in any way as to why that decision was made. You must not draw any inference either favorably or negatively from either side because of the dog’s presence. You must not permit sympathy for any party to enter into your considerations as you listen to the testimony, and this is especially so with an outside factor such as a companion dog permitted to be present in the courtroom. Each witness’s testimony must be evaluated based upon the instructions I gave you during my charge and on nothing more.”
Appellate decision:
A New York statute requires judges to “be sensitive to the psychological and emotional stress a child witness may undergo when testifying.” New York Executive Law § 642-a. Although the victim in this case was 15 years old at the time of trial, she was still a “child witness.” Consequently, this statute provided authority for the use of a “comfort dog” at trial. The statute did not require any finding of “necessity” or “compelling need.”
Even apart from the statute, a trial judge is “empowered to control the proceedings in whatever manner may be consistent with the demands of decorum and due process.” Rosie may have engendered some sympathy for the victim. There was, however, no proof that this sympathy was significantly greater than the normal response to a child’s testimony about sexual abuse. The trial judge specifically instructed the jury not to permit sympathy to enter into its considerations.
Nor did the presence of Rosie interfere with the defendant’s right of confrontation. The defendant claimed that Rosie conveyed the impression that the victim was being truthful. Contrary to this claim, a dog does not have the ability to discern truth from falsehood.
Ohio
State v. George (2014)
2014-Ohio-5781 (App. Ct, 2014)
Full text of the opinion here.
Ohio Court of Appeals in Ninth Judicial Circuit, December 31, 2014.
Summary:
Clayton George was convicted of raping two children of his girlfriend, age six and eight at the time of the crime. Among assignments of error on appeal was that the trial court had abused its discretion in allowing Avery, a facility dog, to accompany the two children during their testimony without a showing of necessity. On appeal, the defense argued that (1) unlike the facility dogs in Tohom, Spence, and Dye, Avery was “recognizable on the record while he was in court,” (2) the prosecution failed to show necessity for having Avery at trial, and (3) the standards set in Tohom, Spence, and Dye should have applied to determine whether Avery was permitted at trial. The appellate court noted that the defense had not objected to the presence of the dog during the trial nor had he made these three points at trial, meaning that the appellate court did not need to consider them for the first time on appeal under Ohio appellate law. The assignments of error were all overruled and the judgement of the trial court was affirmed.
State v. Jacobs (2015)
2015 WL 6180908 (2015)
Full text of the opinion here.
Ohio Court of Appeals, October 21, 2015.
Motion for leave to file delayed appeal denied by Ohio Supreme Court, March 9, 2016.
Nature of case:
Michael Jacobs was convicted of unlawful sexual conduct and corrupting another with drugs. The victim was between 11 and 15 years old at the time of the crimes. At the time of trial, she was 17 years old.
Procedure in the trial court:
The trial prosecutor asked the judge to allow the dog to sit at the victim’s feet while she testified. The prosecutor told the judge that when the victim saw the dog, she “bonded with him immediately.” She had requested that the dog be present. The victim testified that the dog’s presence made her feel “more comfortable.” There was evidence that she suffered from psychological ailments relating to her sexual abuse diagnosis. The record also showed that the dog was trained and had previously been used in a variety of trials.
Jury Instructions:
The Court of Appeals’ opinion does not mention any jury instructions that were given on this subject.
Appellate decision:
Ohio Rule of Evidence 611(A) allows trial judges to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.” (This is similar to Federal Rule of Evidence 611(a).) Under that rule, “special accommodations” can be allowed for child victims of sexual abuse.
Three principles guide the application of these standards. “First, trial courts are in the best position to determine how to control trial proceedings, especially the mode of interrogating witnesses. Second, in light of the trial courts’ position and their discretion, it is not erroneous for them to approve a variety of special allowances for child victims of sexual abuse. And third, these special allowances may include a companion dog during the child victim’s testimony under certain circumstances.” In light of the information provided to the trial court, its decision was not an abuse of discretion.
The defendant argued that the victim was not entitled to special accommodations because she was 17 years old at the time of trial. The court rejected this argument. There is no specific cut-off age for the use of special procedures on behalf of alleged sexual abuse victims.
State v. Hasenyager (2016)
Ohio Court of Appeals Ninth District Court
Full text of the opinion here.
Defendant objected to facility dog accompanying the child to witness stand while she testified against the defendant because the presence of the facility dog during her testimony vilified his trial counsel and unfairly bolstered the witnesses credibility in the eyes of the jury.
Appellate Decision
The Ninth District Court of Appeals disagreed finding that: applying “Evid.R. 611(A) in the context of a criminal prosecution for alleged sexual abuse of a minor child, courts should “recognize that the protection of child victims of sexual abuse forms an important public policy goal in this state and across the nation.” State v. Eastham, 39 Ohio St.3d 307, 310 (1988). “Due to this recognition, ‘[s]pecial accommodations * * * are often allowed for child victims of sexual abuse to minimize the emotional trauma and stress of having to testify in a courtroom full of strangers, along with the accused.’” State v. Jacobs, 9th Dist. Summit No. 27545, 2015-Ohio-4353, ¶ 21, quoting State v. Gutierrez, 3d Dist. Hancock No. 5– 10–14, 2011–Ohio–3126, ¶ 100; see also Holder, All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant’s Right to a Fair Trial, 50 Hous.L.Rev. 1155, 1158 (2013) (“Children experience unique challenges on the witness stand, and in response, they receive special accommodations.”).
Pennsylvania
Commonwealth v. Purnell (2020)
Full text of the opinion here.
The Pennsylvania Supreme Court granted allocatur to consider two issues of first impression: (1) whether defendant was prejudiced during his murder trial when a minor witness was allowed to use a comfort dog when the witness testified, and (2) whether a finding of “necessity” or “need” is required in order for a trial court to allow the presence of service or support animals or items for a witness testifying at trial.
Superior Court summarized the relevant facts of the case as follows:
On the evening of October 3, 2016, in the area of Belmont Street and Sixth Avenue in Coatesville, Kevin Jalbert was shot seven times and killed. At the time of the shooting, Stacie Dausi, Justin Griest, and Sharon and Robert Swisher were inside the Swishers’ residence on Belmont Street and saw a group of black males in an adjacent alley and heard their voices grow louder and angrier. Griest and Mr. Swisher witnessed the murder and identified Appellant as the shooter, although Griest later recanted after he was assaulted on September 2, 2018.
Jalbert’s murder and Griest’s assault were also witnessed by A.H., an autistic minor. Prior to trial, the Commonwealth filed a motion asking the trial court to allow A.H. to have a “comfort dog” with her on the stand. The motion explained: “The comfort dog would enter the courtroom prior to the jury’s entrance. The comfort dog would exit the courtroom once all the jurors are excused from the courtroom. The comfort dog would remain in the witness stand outside the presence of the jury.”
During a pretrial hearing on the motion, Appellant objected to the dog’s presence in the court, expressing his concern that “the jury is going to see the dog somehow and they’re going to feel sympathy for [A.H.]” The trial court asked the Commonwealth why it was requesting a comfort dog for A.H. alone, when there were other minor witnesses in the case, and the Commonwealth answered: “A.H. has expressed to law enforcement that she is concerned about her safety coming to court and it’s for that reason the Commonwealth is asking for the dog to accompany her to the stand.” The trial court granted the Commonwealth’s motion. Without withdrawing his objection to the dog’s attendance, Appellant further argued that, if the trial court was going to allow the dog in the courtroom, the dog should be “out of the view of the jurors.”
Slip op. at 1-2 (footnote and internal record citations omitted). On appeal, Purnell argued that the trial court erred in allowing a comfort dog to accompany A.H. while she testified, because (1) the dog’s presence generated sympathy in the jury, which prejudiced his defense; and (2) the Commonwealth failed to establish its necessity.
Finding “no inherent prejudice in the presence of a comfort animal in a courtroom,” Superior Court concluded that Purnell failed to demonstrate he was prejudiced during his murder trial when A.H. was allowed to use a comfort dog when she testified. Slip op. at 26. The court reasoned that Purnell failed to show that he was harmed by the trial court’s decision to allow use of comfort dog, the trial court followed procedures to minimize the dog’s presence, and that Purnell’s assumption that the dog generated sympathy without any evidence in support thereof was unsubstantiated and ignored the fact that some people were afraid of or disliked dogs.
As to whether the Commonwealth was required to show necessity, Superior Court noted that “courts are split on whether the prosecution must prove that the special measure of a comfort or support item for a minor or special needs witness is necessary to secure the witness’s testimony.” Slip op. at 23. However, the court further noted that in “the cases concerning comfort dogs in the courtroom specifically, of those that addressed whether the trial court must find the presence of the dog to be a necessity or need, all concluded that such a determination was unwarranted.” Slip op. at 24. Moreover, the court acknowledged, “all of the cases holding that a finding of necessity is not required are from the past decade, whereas the only case in the past decade insisting upon the finding of necessity is [Gomez v. State, 25 A.3d 786, 798–99 (Del. 2011) (requiring prosecution to show that special measure is necessary to facilitate witness’s testimony, adopting “substantial need” standard)] with [State v. Palabay, 844 P.2d 1 (Haw. Ct. App. 1992) (requiring prosecution to show that special measure is necessary to facilitate witness’s testimony, adopting “compelling necessity” standard)] and [State v. Cliff, 782 P.2d 44 (Idaho Ct. App. 1989)] being more than a quarter century old; the modernity of the cases not insisting on necessity therefore gives them greater persuasive value.” Slip op. at 26. Persuaded by similar holdings in a majority of jurisdictions, Superior Court held that “a trial court need not find a compelling necessity for the animal’s presence, provided that the animal alleviates a witness’s stress, hence allowing the witness to testify veraciously and thoroughly.” Id.
Commonwealth v Purnell 2021
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) Did the Superior Court err in affirming the trial court’s decision to permit a dog to accompany a testifying witness?
(2) Mindful of the rights of the accused, should a showing of need for special accommodation be required prior to its allowance?
A trial witness may be accompanied by a “comfort dog” if the animal will help yield reliable, complete, and truthful testimony, the justices ruled Wednesday in a precedent-setting opinion that established a “balancing test” for Pennsylvania judges confronted with such a request.
Ruling unanimously in a murder case, the Supreme Court pointed to other states that allow witnesses to testify with the help of emotional support dogs. The justices said it’s permissible, as long as steps are taken to minimize any potential harm to a defendant.
“Trial courts have the discretion to permit a witness to testify with the assistance of a comfort dog,” Chief Justice Max Baer wrote for the court. “In exercising that discretion, courts should balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant’s right to a fair trial.”
The defendant, Sheron Purnell, was convicted of third-degree murder in the 2016 shooting death of a man in Coatesville and was given a prison sentence of up to 47 years.
Purnell’s lawyers argued that a Chester County judge abused his discretion by allowing a comfort dog to accompany a teenage witness who testified against Purnell at trial. The defense argued the dog, part of the sheriff’s K-9 unit, would “generate sympathy” among jurors for the girl.
Prosecutors argued the dog was trained to accompany witnesses in court and would help allay the girl’s fear of testifying.
The judge allowed it but said the dog, a black Lab named Melody, had to remain under the witness stand throughout the teenager’s testimony. He also instructed jurors to ignore the dog for purposes of assessing the witness’s credibility and said they should not view her more sympathetically.
The Supreme Court said the judge had acted reasonably.
“We note that there is nothing in the record to suggest that the comfort dog was in any way disruptive to the trial,” the court said.
The justices adopted rules established by Connecticut’s high court and said they would apply to Pennsylvania state court cases. Judges can limit any potential prejudice to a defendant by blocking jurors’ view of the dog and giving appropriate jury instructions, the court said.
“After finding no merit to Appellant’s prejudice argument, the Superior Court stated in a footnote that, when faced with a question of whether a State witness’ use of a comfort dog prejudiced a criminal defendant, the Supreme Court of Connecticut adopted a balancing test in State v. Devon D., 138 A.3d 849 (Conn. 2016). Id. at 837 n.11. In that case, the Supreme Court of Connecticut held that a “trial court should consider the particular facts and circumstances for the request to have a dog accompany the particular witness, the extent to which 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.” Id. The Court then noted that a “trial court should balance these factors against the potential prejudice to the defendant and the availability of measures to mitigate any prejudice, such as limiting instructions and procedures to limit the jury’s view of the dog.”
Tennessee
State v. Reyes (2016)
2016 WL 3090904 (2016)
Full text of the opinion here.
Tennessee Court of Appeals, May 24, 2016
Nature of Case:
Jose Reyes was convicted of one count of rape of a child. The victim was a 10-year-old boy who was living in the same house as Reyes.
Procedure in the trial court:
Prior to trial, the defendant filed a motion to exclude the dog from the courtroom. The judge held an evidentiary hearing at this motion. Ms. Wilkerson testified that she is a forensic interviewer. She described the dog’s training and her own training as his handler. She testified that when she interviewed the child, he was at first very frightened. After he had an opportunity to spend time with the dog, he calmed down and became able to focus and talk. Based on this evidence, the judge ruled that the dog’s presence would ease the child’s ability to testify. The judge also ruled that the dog would be made available to any witness on request. No other witness requested him.
During the trial, the child was seated in the witness stand with the dog at his feet before the jury was brought in. The positioning of the dog made it difficult or impossible for the jury to see him.
Jury Instructions:
“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’s testimony should be evaluated upon the instructions that I give you.”
Appellate Decision:
Permitting the dog in the courtroom was not an abuse of the trial judge’s discretion. The court relied on the decisions in Dye, Chenault, and Tohom.
State v. Cox (2022)
E2020-01388-CCA-R3-CD
Court of Criminal Appeals of Tennessee in Knoxville (August 24, 2012)
Full text of the opinion here.
Defendant Cox was convicted by a jury of eighty-one counts of aggravated sexual battery, one count of rape of a child, and one count of continuous sexual abuse of a child. On appeal, Cox argues among other things that: the trial court erred by allowing the victim to testify with the aid of a therapy dog without a hearing to determine the animal’s training or necessity to the victim’s testimony. The Tennessee Court of Criminal Appeals noted that the trial judge did not abuse his discretion in allowing facility dog Lucia to assist the minor victim in trial and that prosecutors can continue to use facility dogs to comfort minor victims when they testify in court.
Texas
Lambeth v State of Texas (2017)
Lambeth v. State, 523 S.W.3d 244 (2017)
Full text of the opinion here.
A trial court convicted appellant Ben Charles Lambeth of continuous sexual abuse of a child and aggravated sexual assault against a child, with concurrent sentenced of 30 and 20 years. The trial court allowed the complaining witness to testify with a service dog in the witness box, out of the jury’s sight, as a comfort item. Appellant raised two issues on appeal: That the trial court erred by allowing the service dog, and the trial court should have excluded testimony from appellant’s former step-daughter that he repeatedly sexually assaulted her as a minor. On the service dog issue, the court found that the trial court properly made findings of fact as required by Tex. Code Crim. Proc. art. 38.074 §3(b), which governs comfort items.
Specifically, the trial court found the witness’ testimony would be more reliable with the dog, and that the dog was brought into the court outside the jury’s presence. The court overruled appellant’s argument that the dog alerted the jury to its presences by making sounds during testimony, thereby prejudicing the jury. The court found that the record did not establish what sounds, if any, the dog made. The court also found that the jury would not have been prejudiced even if it had known about the dog.
Appellant argued that the jury was prejudiced because it could have inferred the witness suffered a psychological injury based on her use of the dog, but the court found that direct evidence established the witness suffered a psychological injury from sexual abuse, and thus any inference regarding the dog was inconsequential.
The court affirmed the trial court’s judgment.
Smith v. State (2016)
2016 WL 1444143 (2016)
Full text of the opnion here.
Texas Court of Appeals, 14th District, April 12, 2016
Petition for discretionary review filed July 14, 2016
Nature of Case:
Jonas Smith was convicted of aggravated assault, for stabbing a woman that he was dating with a butcher knife. The victim’s 10-year-old son saw her shortly after the assault.
Procedure in trial court:
Prior to trial, the prosecutor asked the judge for permission to use a service dog during the son’s testimony. The prosecutor explained that this would “promote the child’s comfort and anxiety and mental well-being while they’re in the scary setting of the courtroom.” Defense counsel objected that use of the dog would be “overly prejudicial.” The court overruled that objection.
During trial, the child was seated in the witness stand with the dog at his feet before the jury was brought in. The handler was seated nearby. After the child testified, the jury was excused before the dog left the courtroom.
Jury Instructions:
No special instruction relating to the dog was given.
Appellate Decision:
The only objection raised by defense counsel at trial was that use of the dog would be “overly prejudicial.” The appellate court’s review was therefore limited to that issue. Because the dog was positioned so that he could not be seen by the jury, the trial judge properly found that the dog’s presence was not prejudicial.
Alternatively, any error in allowing the dog was harmless. The jury did not see the dog, so they could not have been influenced by the dog’s presence. Even if the jury saw the dog and felt sympathy for the child, that would not have influenced the verdict. The child did not see the assault and did not know who committed it.
Washington
State v. Dye (2013)
178 Wash. 2d 541, 309 P.3d 1192 (2013)
Full text of the opinion here.
Washington Supreme Court, September 26, 2013.
Summary of case:
Timothy Dye was charged with residential burglary. The victim was a 56-year-old man with significant developmental disabilities. The victim’s girlfriend had also been dating Dye. When she left the victim, she took his apartment key with her. On January 24, 2008, the victim woke up to find Dye rummaging through his apartment. The following day, the victim came home from work to find his front door propped open and several items missing. Dye later admitted to police that he had pawned one of these items, but he claimed that the victim had voluntarily offered it to him.
Procedure in the trial court:
The victim requested Ellie’s presence during his testimony at trial. The prosecutor argued that the victim needed Ellie’s assistance because he was anxious about his upcoming testimony, functioned at the level of a child, and was fearful of the defendant. The prosecutor also said that Ellie had provided tremendous comfort during an interview.
The trial judge found that the victim was a developmentally disabled individual who had significant emotional trauma. The judge ruled that Ellie was an appropriate accommodation to the victim’s disability.
Ellie sat with the victim during his testimony. The victim also fed her treats and used her as a table while reading an exhibit. At the beginning of his testimony, the victim said that Ellie was there “to help me and to make it easier for me.”
In the Dye case, the Washington State Supreme Court stated that Dye “had failed to establish that his fair trial rights were violated. Any prejudice that resulted from Ellie’s presence was minor and largely mitigated by the limiting instruction that the trial court gave. In contrast, the trial court ruled that Ellie’s presence would be helpful in reducing Lare’s anxiety and eliciting his testimony, and no evidence to the contrary appears on the record. Both the general trend of courts to allow special procedural accommodations for child witnesses and the deference built into the abuse of discretion standard require us to respect the trial court’s decision in how to structure its own proceedings. 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. The trial court did not abuse its discretion and the Court of Appeals is affirmed.”
Jury Instructions:
“One of the witnesses in this trial may be accompanied by a service dog. Do not make any assumptions or draw any conclusions based on the presence of this service dog.”
Appellate decision:
Where special courtroom procedures implicate constitutional rights, it is not the defendant’s burden to prove that he or she has been prejudiced, but the prosecution’s burden to prove that a special dispensation for a vulnerable witness is necessary. Trial courts have a unique perspective on the actual witness that an appellate court reviewing a cold record lacks; because the trial court is in the best position to analyze the actual necessity of a special dispensation, we will not overrule the trial court’s exercise of discretion unless the record fails to reveal the party’s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons. Using this standard, we now analyze whether the trial court’s decision was based on untenable grounds, or based on untenable reasons, or manifestly unreasonable.
There was no showing that Ellie’s presence distracted the jury or damaged the presumption of innocence. The record did not indicate that Ellie did anything to impact the trial. Any subconscious bias that might have befallen the jury was cured by the court’s limiting instruction.
State v. Moore (2014)
2014 WL 1917289 (Wash. App. Div. 2)
Court of Appeals of Washington, Division 2. May 13, 2014
Full text of the opinion here.
Note the term “service dog” is incorrect.
The State charged Mr. Moore with second degree assault with a domestic violence special allegation. At trial, Ms. Moore testified that Mr. Moore had choked her. Two neighbors testified that they witnessed the Moores arguing when Mr. Moore grabbed Ms. Moore, hit her, and placed an arm on her throat. Mr. Moore admitted to arguing with Ms. Moore but denied touching her.
Prior to Ms. Moore’s testimony and outside the presence of the jury, the State moved the court for permission to have a service dog accompany Ms. Moore on the witness stand. The prosecutor advised the court that Ms. Moore was nervous and scared about testifying and that defense counsel had no objections.
Jury Instructions:
“One of the witnesses in this trial may be accompanied by a service dog. Do not make any assumptions or draw any conclusions based on the presence of this service dog.”
Appellate decision:
Summary: Duane Moore appealed his conviction and sentence for second degree assault, domestic violence, after choking his wife during an argument. He argued that (1) the prosecutor committed misconduct during voir dire and closing argument when he argued facts not in evidence, made improper statements about witness credibility, and shifted the burden of proof; (2) the trial court erred when it allowed a witness to testify with a service dog; and (3) the prosecutor improperly testified at the sentencing hearing. With regard to the testimony dog issue, the court found that defendant failed to raise the issue at trial and thus failed to preserve this issue for appeal. Further, the defendant failed to prove that any alleged errors were manifest. There is no evidence in the record that the dog’s presence made Ms. Moore appear traumatized or victimized, and thereby violated Mr. Moore’s due process rights, or acted as a comment on the evidence. The court rejected defendant’s argument and affirmed the trial court.
Where special courtroom procedures implicate constitutional rights, it is not the defendant’s burden to prove that he or she has been prejudiced, but the prosecution’s burden to prove that a special dispensation for a vulnerable witness is necessary. The present context is no different. However, we do not require a showing of “substantial need” or “compelling necessity” like Delaware, in Gomez, 25 A.3d at 798–99, or Hawaii, in Palabay, 9 Haw.App. at 417, 844 P.2d 1. Trial courts have a unique perspective on the actual witness that an appellate court reviewing a cold record lacks; because the trial court is in the best position to analyze the actual necessity of a special dispensation, we will not overrule the trial court’s exercise of discretion unless the record fails to reveal the party’s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons. Using this standard, we now analyze whether the trial court’s decision was based on untenable grounds, or based on untenable reasons, or manifestly unreasonable.
There was no showing that Ellie’s presence distracted the jury or damaged the presumption of innocence. The record did not indicate that Ellie did anything to impact the trial. Any subconscious bias that might have befallen the jury was cured by the court’s limiting instruction.
For the first time on appeal, Mr. Moore argues that the trial court erred by allowing the service dog to be present in court with Ms. Moore. He first argues that, by doing so, the trial court improperly commented on the evidence. He then posits his confrontation and due process rights were violated by the dog’s presence. Because Mr. Moore failed to raise these issues at trial, he has failed to preserve this issue.
We will not review an argument raised for the first time on appeal unless the challenging party demonstrates a manifest constitutional error. RAP 2.5(a)(3). An error is manifest if it is so obvious on the record that the error requires appellate review. State v. O’Hara, 167 Wn.2d 91, 99–100, 217 P.3d 756 (2009). The defendant must show actual prejudice, meaning the alleged error had practical and identifiable consequences at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).
Here, Mr. Moore fails to prove that any alleged errors were manifest. There is no evidence in the record that the dog’s presence made Ms. Moore appear traumatized or victimized, and thereby violated Mr. Moore’s due process rights, or acted as a comment on the evidence. See State v. Dye, 178 Wn.2d 541, 555, 309 P.3d 1192 (2013) (holding that the court’s decision to allow a service dog was reasonable and that there was no evidence on the record that the dog made the victim witness appear “pitiful to the jury and ‘presupposed the victimhood of the complainant’ ”). It is the responsibility of the party alleging error to make a record of that error. Dye, 178 Wn.2d at 556. Additionally, Division One of this Court rejected a similar confrontation clause argument, holding that confrontation clause case law was inapposite because the dog’s presence does not prevent face-to-face confrontation with the witness. State v. Dye, 170 Wn.App. 340, 346, 283 P.3d 1130 (2012), aff’d by Dye, 178 Wn.2d 541. We therefore reject Mr. Moore’s argument and affirm the trial court.
Clarification about Terminology
These appellate cases interchangeably use terms like “therapy” dogs, “companion” dogs, “comfort” dog, “service dog” and “facility” dog. Some trial judges have also referred to these dogs as “advocate” dogs.
These terms can cause confusion, because with the exception of the terms “facility” dog and “service” dog, those terms aren’t defined.
A “facility dog” is a dog that has graduated from an assistance dog organization that is a member of Assistance Dogs International. These dogs are placed with working professionals to enhance the work they do for their clients.
The term “service” dog is inapplicable because service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. ADA definition of service animals
A “therapy” dog is a pet dog handled by the dog’s volunteer owner. Per their industry standards:
- Pet therapy dogs must be attached to their owners by a leash at all times.
- They should only be used for visitation purposes for about two hours to avoid stressing the dog.
- The interaction between the human and the dog must be mutually beneficial, and the dog must be removed from the environment at the first signs of stress.
- If these requirements aren’t met, the liability insurance policy provided by the pet therapy dog organization may be void.
A party presenting a motion to use a courthouse facility dog should take extra caution to avoid referring to the facility dog as a “therapy” or “advocate” dog, as those terms may create issues on appeal. For more information, refer to the Pretrial Outline.