Using a Courthouse Facility Dog in the Courtroom

What type of dog should be used in this setting?

Only highly trained facility dogs should accompany a witness to the stand. A dog that can reduce stress for a witness while he or she testifies requires a dog that can be quiet and unobtrusive. The dog should be able to either sit or lie on the floor beside the witness and be emotionally available to the witness when the need arises. In some cases, the judge has required that the dog remain out of sight of the jurors out of concern that the dog would be distracting for the jurors. Needless to say, if a dog misbehaves in a courtroom it could result in a mistrial or make judges reluctant to take this risk to accommodate the needs of a nervous witness.

When should a dog accompany a witness to the stand?

Using a dog to provide emotional support to a witness should only be reserved for those witnesses that truly require this assistance. Make this assessment while preparing the witness for the trial. In one instance, the decision was made to ask the judge to allow a facility dog to assist 7 year old girls in an incest case, when the girls cried and absolutely refused to sit in the witness chair. In another case, the judge permitted the facility dog to assist an adult rape victim when the victim exhibited physical symptoms of stress and told the judge she needed the dog to get through the ordeal of seeing the defendant and his defiant family in the courtroom while she testified.

For the dog to be most successful in supporting the witness, the dog and witness should have had an opportunity to bond and interact with one another during pre-trial interviews. This will give the dog an opportunity to “read” the emotional state of the witness and make them more comfortable being in one another’s presence during this stressful time.

Presenting the motion to the judge

Review the sample brief in support of the dog accompanying the witness to the stand and advise defense counsel of the motion. It is recommended that the dog accompany you to court for the motion so the judge can observe firsthand how well-behaved the dog is. Make a record of the dog’s experience and training and provide documentation of the dog’s training from the certifying agency and liability insurance policy. Also explain the witness’ need of the dog’s assistance and make the witness available for questioning from the court regarding this issue.

Argue that ER 611 (a) provides: “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.” The standard of review for alleged violations of ER 611 is manifest abuse of discretion. There is case law that supports your position as well.

Avoid using the term “therapy dog”. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. These dogs only provide emotional comfort. Use of the term “therapy dog” implies that the witness is in fact a victim and could be construed as a comment on the evidence. You don’t want to raise an appellate issue by using this term.

Defense counsel also object to the dog accompanying the witness to the stand arguing that the appealing nature of the dog in support of a State’s witness is unfair to the defendant. While presenting this motion be sure to inform the court of the Courthouse Dog philosophy, that the dog provides emotional assistance to everyone involved in the criminal justice system. Hopefully you can document instances in which your dog has also provided comfort to defendants and their families while in public areas of the courthouse, in Drug Courts or visiting juveniles in detention facilities. You could also offer to have the dog accompany the defendant to the stand should he or she decide to testify and can document that emotional support is needed.

If the court grants the State’s motion, determine if the presence of the dog with the witness is something that should be addressed in voir dire, if the judge should give the jury a special instruction about the dog or if the dog’s presence should not be mentioned at all.

Read Trial Notes by Deputy Prosecuting Attorney Valerie Shapiro for an example of such a hearing.

Review http://www.vachss.com/dogs/vachss_transcript.html for the transcript of this motion regarding Vachss, one of the original courthouse dogs.

A courthouse dog helps defense counsel too

A defense attorney that is comfortable with dogs can use the dog to her or his benefit during cross-examination. In one trial, defense counsel questioned the child about her abuse with the facility dog seated between her and the child. During questioning both petted the dog and rather than appearing to be grilling the child it sounded as though they were having a quiet conversation. Jurors thought defense counsel was quite gentle with the child. The case ended in a mistrial.

The Jury’s Response to the Dog

All of the juries that we have spoken to have not found the dog’s presence to be distracting or inappropriate. They understand that some witnesses, especially children, require additional support during a trial.