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January 01, 2016

Ohio Trial Courts Can Allow Alleged Child Sexual Abuse Victims to Testify with Companion Dog Present

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

State v. Jacobs, 2015 WL 6180908 (Ohio Ct. App.).

In the appeal of a criminal case involving unlawful sexual contact with a minor, defendant argued six assignments of error, including that he was denied his right to a fair trial when the court permitted the prosecution to have the office’s companion dog present during the minor victim’s testimony. In a case of first impression, the appellate court found no error and ruled that Evidence Rule 611(A) authorizes trial courts to allow an alleged victim to testify with a companion dog present under certain circumstances. The court affirmed the defendant’s conviction and four-year sentence. 

Defendant Michael Jacobs appealed his conviction on counts of unlawful sexual conduct with a minor and corrupting another with drugs. Jacobs was alleged to have touched the minor victim S.H. inappropriately. These incidents occurred while S.H. visited Jacobs’s house. Jacobs also allegedly gave marijuana to S.H. and her boyfriend, who was present during some of the alleged incidents of inappropriate touching. He eventually convinced S.H. to report the incidents to police. During S.H.’s testimony at trial, a companion dog sat at her feet while she was in the witness stand. 

One of Jacobs’s six assignments of error in his appeal argued that the trial court erred by allowing a child witness to testify with a companion dog. The appellate court disagreed, stating that the trial court is vested with broad discretion in the control and questioning of witnesses and only abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable.

Ohio rules of evidence state 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 truth; (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

When applying the rules in the context of a criminal prosecution for alleged sexual abuse of a child, courts should recognize that the protection of child victims of sexual abuse serves an important public policy goal. For this reason, special accommodations are often allowed for child victims of sexual abuse to minimize the emotional trauma and stress of testifying in front of the accused and in a courtroom full of strangers. 

The appellate court noted that other jurisdictions have allowed child victims to testify via closed-circuit television, while sitting in the lap of a clergy member, or while holding a teddy bear. Courts in other states have also allowed use of a companion dog during a child victim’s testimony. For these reasons, the court found the presence of a support dog is no more prejudicial than the presence of a support person when it can be shown such animal can alleviate psychological and emotional stress to the child witness.

The court also distinguished its decision from the Connecticut Appellate Court’s ruling in State v. Devon D., 150 Conn. App. 514 (2014), in which the court concluded trial courts have discretion to permit a trained dog to sit near a witness when a need is clearly shown but found the facts in that case did not qualify because the child witness had only met the noncertified dog an hour before testifying and indicated she was afraid of the dog.

The  court in this case was guided by three principles: 1) trial courts are in the best position to determine how to control trial proceedings, especially the mode of interrogating witnesses; 2) 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 3) these special allowances may include using a companion dog during the child victim’s testimony under certain circumstances.

Thus, the trial court did not abuse its discretion because S.H. had met the dog a week before, bonded with him immediately, requested his presence, and testified that the dog made her feel more comfortable. The companion dog was also trained and had been used in a variety of trials.

The court also rejected the defendant’s objection based on S.H.’s age at the time of her testimony. He failed to offer any authority for a certain age cut-off for the use of special procedures on behalf of alleged sexual abuse victims. While S.H. was 17 years old at the time of trial, she testified about alleged sexual abuse that occurred when she was between 11 and 15 years old.