Courtroom Dogs Help Ensure Victims' Voices Are Heard

At its 2021 Midyear Meeting, the American Bar Association House of Delegates approved Resolution 101A, which urged all jurisdictions to permit a specially trained canine to accompany an anxious or traumatized individual who is testifying in court. The resolution also urged actions to ensure these canines’ welfare. This resolution enhances victims’ rights and advances the rule of law by assuring “meaningful access to justice for all persons.” However, the resolution’s passage, by a vote of 202 in favor and 135 in opposition, was not without debate from the defense bar.

This article addresses procedural and due process concerns arising from a canine’s presence in the courtroom. Some instruction for maintaining fairness for all parties is provided in state statutes; other required procedures may be derived from case law. Moreover, there is guidance from a panel of judges who recently participated in a 75-minute webinar entitled “Courthouse Dogs: Best Practices for Judges,” hosted by the National Judicial College (NJC) on July 21, 2021. This article also provides accounts from individuals who have observed firsthand the positive influence canines have had on victims and vulnerable witnesses while they testify.

The Accommodation

There is significant support across the United States for permitting specially trained canines as a witness accommodation. Dozens of states have programs that involve hundreds of dogs that have assisted testifying witnesses in the courtroom. To date, at least 16 states have enacted statutes that explicitly permit certified dogs to accompany victims and vulnerable witnesses in specified circumstances. The most recent legislation is the South Dakota law that authorizes a court to allow “a child witness or a witness having a developmental disability to be accompanied by a certified therapeutic dog during the witness’ testimony. In February 2021, New York State Senator Pamela Helming sponsored a bill, which was referred to the New York State Senate Judiciary Committee, to amend the New York Judiciary Law to authorize a canine to accompany a vulnerable witness while he or she gives testimony in the courtroom. Although the proposed legislation was not voted upon in 2021, it remains viable for consideration during the second half of the present legislative session in 2022 and may be introduced in future sessions.

In jurisdictions that do not have explicit statutory authority, judges are exercising their inherent power to direct courtroom protocol and decorum, including the mode of examining witnesses and protecting witnesses from harassment and embarrassment, in determining whether to permit a canine to accompany a victim or vulnerable witness. In September 2020, the NJC, the largest and oldest judicial college in the country, surveyed its alumni and asked: “Would you allow a professionally trained facility dog in the courtroom during a trial to assist a victim or vulnerable witness while giving testimony?” Almost nine out of ten judges responded yes. On April 14, 2021, the Supreme Court of Pennsylvania heard oral argument in Commonwealth v. Purnell, a case of first impression addressing whether a trial judge erred in the exercise of his discretion in permitting a canine to accompany a minor witness during her testimony in a murder case. The intermediate appellate court affirming the conviction held that the trial judge did not abuse his discretion in permitting a canine to accompany a witness.

Some state statutes restrict the accompaniment of a certified canine to victims and vulnerable witnesses who are 18 years of age or younger in criminal matters, or in noncriminal matters involving child abuse or neglect. Other state statutes provide for the accommodation to a witness who has an intellectual, physical, or developmental disability or is testifying in sexual assault cases. Some statutes do not restrict the category of witness who may seek canine assistance. The NJC panel supported the availability of accommodation to any witness, including a defense witness, provided the witness can establish the need for the presence of the dog.

Federal legislation was introduced in both houses of the 116th Congress to empower federal judges to permit a certified dog to accompany a witness testifying in federal criminal proceedings. Advocates of courthouse dogs are hopeful that the bill may be reintroduced in the new Congress.

Courtroom dog programs are flourishing throughout Europe. In early 2021, Victim Support Europe (VSE), a Brussels-based umbrella organization of victim support, received funding from the European Commission for its initiative called FYDO (Facility Dogs in Europe). VSE partnered with experts in Belgium, Italy, and France to train dogs over the next two years to provide canine support to vulnerable victims. The funding will also enable VSE to prepare a comparative research report on the impact of the canines on the testimony of victims.

Ensuring Fairness

Critics of the accommodation contend that a dog’s presence in the courtroom during the witness’s testimony may prejudice the jurors against the opposing party. They argue, particularly in a criminal case, that a dog may make the jury sympathetic to the witness, would suggest that the witness is undergoing therapy as a result of the defendant’s actions, or would portray the defendant as so menacing that the witness needs protection. However, the limited research to date indicates that the presence of a canine has no effect on jurors. Notably, during oral argument in Commonwealth v. Purnell, counsel for the defendant-appellant conceded that the presence of a canine in the courtroom is not inherently prejudicial.

Make a Full Record

There are several measures that may be taken to ensure fairness. First and foremost, making a full record is paramount. It was the consensus of the NJC panel of judges that the party seeking the accommodation for the witness should make an in limine application, followed by a hearing, preferably with live testimony. Among the relevant factors identified by the NJC panel that the moving party should provide are: (1) the credentials, experience, and training of the canine; (2) the established relationship between the victim or vulnerable witness and the canine; and (3) an explanation of how the canine’s presence may reduce the anxiety of the witness and is likely to elicit full and truthful testimony. The need for a robust record was stressed by the NJC panel, particularly for appellate review of the issues. The NJC panel was receptive to including in the record a photograph of the designated canine because the dog’s physical appearance may be relevant to certain issues.

Dog Training

Although there is no national training standard, some state statutes require that supportive dogs graduate from an assistance dog program that is a member of an accredited assistance dog organization. Some statutes require a trainer to accompany the dog in the courtroom. A few jurisdictions also require proof that the dog is insured.

No Disruption

The NJC panel agreed that the movant should provide evidence that the canine’s presence will not be disruptive to the proceedings, particularly because the dog sits next to the witness during direct testimony and cross-examination, a period that may, in some instances, be lengthy. Of course, a trial judge may be able to observe and evaluate the dog’s behavior if present in the courtroom during the in limine hearing or at some other pre-trial appearance and thus find that the canine will be unlikely to cause interruptions.

“Courtroom Dog”

The term used to describe a supportive canine is also an important factor in maintaining a neutral playing field. Among the existing state statutes, the qualifying canine is defined as a “facility dog” and/or a “therapy dog.” However, such references in a criminal proceeding may convey a subliminal message that the witness fears or has been traumatized by the defendant. In response to this concern, the NJC panel suggested the neutral terms “courtroom dog” or “courthouse dog” as preferable references in front of a jury.

Burden of Proof

Most state statutes place the burden of proof on the party seeking to have a canine in the courtroom, either explicitly or implicitly. However, the state statutes are not uniform in defining the standard of proof. Some statutes simply require proof that a certified canine may be helpful in reducing the stress of the victim or vulnerable witness while testifying. The NJC panel agreed that this is an adequate showing. At least one state statute requires a standard of the preponderance of the evidence, and one jurisdiction requires a showing of compelling evidence.

Canine’s Visibility in Courtroom

Another step for ensuring fairness and due process is the manner in which the canine is introduced into the courtroom. The preferable practice is for the dog to enter and leave the courtroom outside the presence of the jury and, to the extent possible, not be visible to the jury during the witness’s testimony. In a courtroom where the witness is not seated in a closed witness box, the dog can be camouflaged by draping a curtain around the bottom of the witness chair. The judicial panel stressed that the victim or vulnerable witness should be instructed to refrain from petting the dog or in any way drawing attention to the dog while testifying. In many Florida juvenile court proceedings, the handler and the canine are seated in the audience in full view of the witness but not visible to the jury. This prevents any suggestion that the witness and the canine are connected.

Educate the Jury

As another precautionary measure, the court should educate the jury. The NJC panel agreed, and several state statutes require, that a party requesting the assistance of a courtroom dog should seek the court’s approval to question prospective jurors during voir dire on the issue of whether a dog accompanying a witness would create any undue sympathy for the witness or cause prejudice to a party in any way. Because this is a novel topic, the parameters of that inquiry by the parties should be discussed with the trial judge before the voir dire commences.

To further the jurors’ understanding, the NJC panel strongly advised that the trial judge consider providing specific instructions to the jury. Such instructions may be given as part of the preliminary instructions before testimony begins, immediately before the witness who is accompanied by the dog takes the stand, and/or as part of the general instructions at the conclusion of the trial. It may be prudent to provide instructions to the jury at all three stages of the proceeding. The NJC panel agreed that any instruction should include language admonishing the jurors to not make or draw any conclusions from the dog’s presence during a witness’s testimony.

Allergies, Fear of Canines

Critics of courtroom canines have also raised concerns that a party to a proceeding or the courtroom staff may be allergic to dogs. Allergens are everywhere in a public space, even on people’s clothing, and as long as an allergic individual does not come into direct contact with the dog, there should not be any issue. Notably, a canine that qualifies under the Americans with Disabilities Act is not precluded from assisting an individual because someone in the public space may be allergic to dogs. Opponents of this accommodation also complain that dogs may smell or drool. However, certified dogs that accompany victims and vulnerable witnesses are normally very well groomed and are selected for their calm and quiet demeanor.

A more sensitive situation arises when the objection comes from a person who has a fear of dogs either because of a personal negative experience or as an observer of the use of certain breeds by law enforcement for crowd control. A related objection is rooted in negative cultural attitudes toward animals in general. If the concern is raised by a prospective juror, the solution may be excusing the juror by exercising a challenge for cause. However, if the objection is raised by one of the parties to the proceeding, a solution will require a careful balancing of rights and some creative thinking.

Benefits

Courtroom canine proponents recognize that the cornerstone to this initiative lies in the evolutionary bond that has developed between humans and canines over thousands of years. Dogs’ unique ability to support humans has had a profound effect on the mutually beneficial relationship. Dogs play a role in facilitating trust and attachment and provide a number of emotional benefits that surpass those of any other animal and, in some cases, even humans.

Dr. Elizabeth Spruin, a canine behaviorist and an investigative psychologist in the School of Psychology, Politics and Sociology at the Canterbury Christ Church University in England, specializes in the use of dogs to support vulnerable victims of crimes and children with autism and emotional issues. She explains:

[M]any victims in the Criminal Justice System do not have a “trusted” individual to transfer attachment to due to early experiences or recent events of the crime and that leads to a lack of disclosure and problems building trust. . . . These dogs provide unconditional acceptance and love, and a sense of safety. Through the support they provide, dogs help to build rapport for many people who struggle to trust others.

As director of the Justice Support Dogs International Lab, Spruin recalls the case of an eight-year-old girl and her two sisters who had been sexually abused by a relative. When Spruin’s facility dog Oliver was introduced into the interview room, the young girl’s demeanor transformed, enabling her to open up and communicate. After learning about Oliver, the eight-year-old girl’s two sisters agreed to provide evidence in the case.

Spruin recalls another case involving a 12-year-old autistic girl who had been raped several times by an older man in her neighborhood. The girl was very shy and muttered when she spoke, making it difficult to understand her. However, the child’s demeanor changed the moment she met Oliver, openly communicating the facts of the incidents clearly and coherently. Spruin has observed that the benefits reach beyond the victims to the anxious family members of a traumatized child.

New York State Ontario County District Attorney James Ritts supports having canines accompany both minor and adult vulnerable witnesses during in-court testimony. His office is currently working with Juno, a two-year-old Labrador retriever that has supported at least a dozen crime victims. According to Ritts, such canine companionship “puts survivors and witnesses of crime, especially children, at ease to participate more comfortably, not only in legal proceedings but in forensic interviews and therapy sessions. You can actually see the level of anxiety lessen to the point that conversation about these difficult experiences is possible.” He stresses that “this accommodation recognizes a crime victim’s right to be treated with fairness and dignity.”

Michael Galantino, a special-victims prosecutor for 30 years and the executive director of the National Association of Prosecutor Coordinators, observes:

The presence of a supportive dog at all stages of a criminal prosecution is extremely beneficial to the well-being of the victim and the pursuit of justice. Young victims of sexual or physical abuse are already traumatized before they come into contact with the criminal justice system. Having a supportive dog near them for the forensic interview, trial preparation and testimony helps to reduce further trauma and facilitate communication.

According to Levent Altan, the executive director of VSE, “The victims’ voice is often overlooked in the justice system, but practice and evidence have shown that the presence of a trained facility dog by their side can empower them and give them back control of their story while minimizing the harm they experience in the proceedings.” Altan stresses:

Justice systems need to adapt to the needs of victims, putting them at the center of the process, while continuing to respect fair trial rights of the [defendant]. . . . Fundamentally a balance is needed between both, since the rights of victims are of the same order as suspects and should not be considered inferior to them. The basic objectives of our criminal justice system—to find the truth, achieve justice for victims and society, protect the innocent, punish and rehabilitate perpetrators—[rely] on the protection of victims and their participation within the system. Justice systems fail in their objectives if they fail victims. . . . By adapting the system and making it safer for the most vulnerable we can regain the general public’s confidence in justice, which ultimately leads to more cohesive, successful societies.

Securing the Canine’s Welfare

ABA Resolution 101A also advocates for the canine’s health and well-being. The long hours of service and exposure to stress from victims and vulnerable witnesses can have a negative effect on a supportive canine; this requires a suitable environment for shelter, relief breaks, and a comfortable resting area. For more than 14 years, Chuck Mitchell has been working with certified therapy dogs that support victims, especially children who have suffered sexual abuse. According to Mitchell,

A familiar bed should be provided, particularly since the dog visits different courtrooms and environments. The dog should also have ample water and nutrition, as well as playtime and familiar toys to relieve stress. Equally important, the dog should be regularly groomed and have veterinarian visits to check for general health and well-being, and any injuries and/or signs of stress.

Usually, a courtroom dog remains under the guardianship of a government or not-for-profit facility and resides with the handler. However, arrangements should be made in advance for the dog’s long-term care upon retirement from service, unless the dog will remain with its handler, the preferred practice.

Conclusion

The rights of victims deserve the same recognition as those of other parties to a proceeding. A courtroom dog provides the support to enable victims and other vulnerable witnesses to speak their truth and receive justice. In return for rendering such assistance, the dog’s welfare should be secured for its lifetime.