Dog’s Presence during Motion
Prior to the hearing ask the judge if your courthouse facility dog can be present in the courtroom during the pretrial motion so that the judge and defense counsel can observe the dog’s behavior during this time. Having the judge observe your calm, quiet dog can be very helpful for the judge who has to consider several things when making this decision.
Introduce your dog to everyone in the courtroom that would like to meet the dog before putting the dog in a “down” position while the hearing takes place.
Trauma Sensitive Courts
Emotional Stress Can Impact a Witness’ Ability to Speak
Many times people, particularly children, who have been victims of crimes or witnessed crimes of violence are emotionally traumatized by those events. They are often re-traumatized when they have to describe the event during a trial in front of the person accused of the crime in a room full of strangers. During this process these witnesses experience physiologic responses that they have no control over, which can impact their ability to speak. If the witness cannot describe what happened, then the jury is deprived of information that could be critical to the evaluation of the defendant’s guilt or innocence.
Attach or refer to the following documents to the brief
- Trauma Sensitive Courts
- Recognizing and Responding to Trauma Stress Reactions of Vulnerable Witnesses
- Trial Tip – Discuss the plan if a witness appears to be having a trauma stress reaction while on the stand.
Calm Dogs Reduce Stress
- Scientific Research Confirms that the Presence of Dogs Reduces Stress in Humans
- A Child Witness in the Courtroom– American Academy of Pediatrics policy statement regarding how emotionally traumatizing this can be for children. Courthouse facility dogs referred to as one way to mitigate this response. Review
Monterey County (California) District Attorney Dean Flippo explains how the presence of a courthouse facility dog enhances the fact-finding mission of the court:
Include Information Regarding the Dog’s Experience and Training
The State requests that the court allow Dog Name to be present in the courtroom with Witness Name when he/she testifies. Dog’s Name presence will neither prejudice the defendant nor give extra credence to Witness Name’s testimony.
Experience and Training of Facility Dog
- Example– Harper was trained as facility dog by Canine Companions for Independence (CCI), a service dog organization that is accredited by Assistance Dogs International (ADI). CCI is a non-profit organization that trains four types of dogs- service dogs (primarily mobility assistance), skilled companion dogs for the physically or emotionally disabled, hearing dogs for the hearing impaired, and dogs for facility teams. Facility teams are made up of a dog and a trained handler. Facility dogs also carry most of the skills of service dogs as well as the specialized skills for whatever type of facility the dog will be working in. Dogs that graduate from Canine Companions for Independence have a one-million-dollar liability insurance policy. This organization has placed over 70 facility dogs in a courthouse setting or child advocacy center since 2004. Harper has been in training for two years and knows approximately forty commands. CCI determined that Harper’s temperament was best suited to work in a public setting and placed her at the Dawson Place Child Advocacy Center to work as a facility dog. Harper’s greatest strength is her ability to calm and comfort others in stressful situations.
- List number of times that dog has assisted a witness in the courtroom if the dog has prior experience or if the dog had a test run sitting through an unrelated trial.
Establish that there is a Bond Between the Witness and the Dog
- Include information in the brief that this witness will benefit from the presence of the dog by having a knowledgeable witnesses testify or provide an affidavit from that person about the interaction between the dog and witness to demonstrate that the dog has had a calming effect on the witness. This will increase the likelihood the witness will be able to answer the questions posed by the attorneys. In addition, a calm witness will decrease the need for a recess to regain composure and therefore reduces the needless consumption of time per ER 611 (a) (2).
Include Appellate Case Law
Include Facility Dog State Legislation- (if applicable)
Discuss Options to Minimize Prejudice
The defendant is entitled to a fair trial. Many defense attorneys are concerned that when the jury sees the dog, there is a possibility that the presence of the dog could cause sympathy towards the witness or make it seem like the witness is more credible. These are some options that will reduce the likelihood of that response.
- It is recommended that unless the defense attorney wants to discuss the presence of the dog to assist a witness during voir dire, you avoid doing so. Talking with the jurors about their relationships and feelings about dogs will only likely create stronger feelings about the dog in the courtroom than if the jurors don’t know about it until the witness testified.
- Have the dog and witness enter and exit the witness box and courtroom outside the presence of the jury. The judge should inform the jury that a facility dog is in the witness box, the purpose of the dog and give an instruction not to allow the presence of the dog to have an impact of their deliberations.
- Although the close proximity of the dog will provide the most calming effect on the witness, another option would be to have the dog and handler can be positioned in the courtroom in view of the witness. The jurors would not necessarily know that the dog is there to support the witness.
- It is important that the parties use a neutral term for the dog such as “facility dog” rather than the term “therapy dog” or “advocate dog”. Defense counsel could legitimately argue that the term “therapy dog” implies that the child is in fact a victim in need of therapy and it is for the jury to decide if in fact the child was victimized. Using the term “advocate dog” implies that the dog is the child’s champion. Courts have found that the use of victim advocates can be prejudicial because of the appearance of vouching for credibility See State V. Suka, 777 P2nd 240 (Haw.1989)
The Court Should Not Make the Presence of the Dog Conditional on the Jury Being Unaware of the Dog’s Presence in the Courtroom
Unexpected things have happened that do not justify the risk of creating an issue on appeal or a mistrial if this requirement is violated.
- In one case, a defense attorney accidently dropped his glass of water on top of the dog lying down in the witness box during cross-examination. Although the dog remained invisible to the jury, it would have been understandable if the startled dog stood up or tried to exit the witness box.
- Some dogs fall asleep while in the witness box and may begin to snore. If the jury doesn’t know the dog is there then this could be very distracting and may interfere with the jury concentrating on the testimony of the witness. When this has happened, it has broken the tension in the courtroom and everyone enjoys a moment to smile, recover and continue with the proceedings. View it as a mini-recess.
Discuss Jury Instructions
It is recommended that the judge instruct the jury about the witness being accompanied by a dog while testifying. This should be done just before the witness testifies and at the end of the trial. However, if the defense objects to a jury instruction, that should be taken into consideration.
Sample Jury Instructions
The presence of the dog is a reasonable accommodation to the witness to allow him/her to fulfill the obligation of testifying in a court of law. The dog is a highly trained professional who is properly referred to as a “facility dog”. This dog is not a pet, does not belong to the witness and is equally available to both the prosecution and defense under certain circumstances. You must not draw any inference either favorably or negatively for 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. The presence of the facility dog is in no way to be interpreted as reflecting on the truthfulness of the testimony offered by the witness.
Each witness’s testimony must be evaluated upon the instructions I give you during my charge and on nothing more.
“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’ 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 too attached 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 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 like an interpreter, an aid to get the witness’ testimony across to you more clearly.”
– by the Honorable John L. Carbonneau, Jr., State of Connecticut v Devon D., AC35400
* Note that this dog is not a service dog because the dog was not assisting a person with a disability.
“During the testimony of J, she was accompanied by a companion dog. The decision to allow this was one I made, and you may not speculate as to why. You must not draw any inference either favorably or negatively for 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 is permitted to be present in the courtroom. Each witness’ testimony must be evaluated upon the instructions I give you during my charge and on nothing more.”
– by the Honorable Stephen L. Greller, Dutchess County Court Judge, People v Victor Tohom, 2011-07111 Supreme Court of the State of New York: Appellate Division 2nd Judicial Dept.
Scientific research shows that the presence of the dog does not add to the canine allergen load already present in the courtroom. See Common Allergens and Allergic Reactions to Dogs.
Fear of Dogs
There have been occasions when either a defense attorney or defendant have objected to the presence of the dog because of their fear of dogs. When considering the objection, although the witness isn’t physically disabled and the facility dog does not have public access, the presence of the dog is to reduce the witness experiencing emotional trauma and to also facilitate the fact finding process. These are important matters too.
In addition, if a physically disabled attorney, judge, or witness had a service dog present in the courtroom, the fearful defendant or defense attorney would have to deal with this situation as best they could according to the Americans with Disabilities Act.