Tuesday, August 9, 2011

Every dog has its day...in court

It's been all over the news this week, this story of a man convicted of rape appealing his conviction, citing as one of the trial errors the fact that his 15 year-old accuser had a therapy dog with her while she was on the stand testifying. Naturally, being an appellate lawyer, I pay attention. And as you might guess, I have some thoughts about the propriety of this sort of thing.

In some ways, a therapy dog isn't all that different from the legal ground we have already covered. We have argued about child witnesses (especially victims) holding a teddy bear or some other "comfort" item while testifying. We have argued about child witnesses having their parents in the courtroom while they testify or having an advocate sitting with them at the witness stand. There have also been other issues relating to making children as comfortable as possible when testifying: placing a screen between the witness and the defendant or having the child testify via closed circuit television from another room. So a dog is really just the next wave.

Those cases should provide the necessary legal framework for litigating this issue in the current New York case. Presumably, as in those other situations, the judge should make a pre-trial finding that the presence of the dog is necessary, taking into consideration multiple factors (age of the victim, stated fear at testifying, possibly an evaluation from a psychologist, etc.), and weighing all of the pro-factors against the danger of prejudice to the defendant.

So that's the way a court will look at it. But here's some of the main things I worry about. First, I hope that even if dogs are allowed, courts would be extremely cautious about getting the dogs in and out of the courtroom. Measures should be taken, wherever and however possible, to keep the jury from seeing the dog. Have the jury enter the courtroom only after the witness has taken the stand with the dog sitting in such a way that the jury can't see it. (In courtrooms I have seen, the witness stand is like a desk and is completely surrounded by a wood cubicle-type thing. So have the dog sit under the desk where it can rest its head on the witness' lap and yet not be seen.) If these dogs are as well-trained as they are supposed to be, I would expect barking not to be a problem. I know my heart melts a little every time I see a dog, so I think not letting the jury see the dog is important. (Unless the jury is entirely composed of cat people.)

My bigger concern, though, is that courts be mindful of what kind of allegations the defendant is facing. In some cases, it is entirely clear that a crime occurred, the victim was in fact victimized, and the only question is who did it. The Central Park jogger, for example. It's quite clear that she was attacked, brutalized, but she did not know by whom. Her testimony did not provide any meaningful evidence to identify her attacker(s). In that kind of case, perhaps a therapy dog would be somewhat less prejudicial. Regardless of who attacked her, we would expect reliving that evening would be traumatic for her.

The real prejudice comes in the cases where the question is did this crime occur at all? In so many sex cases, both adult rape cases and allegations of child molestation, it comes down to a he said/she said situation. The man claims the sex was consensual and suggests reasons for why the complaining witness would now allege otherwise. The father/uncle/family friend claims no impropriety while the child says he touched her. These cases don't usually involve much probative physical evidence. They come down to a credibility contest. Does the jury believe the accuser beyond a reasonable doubt? In these cases, allowing a witness to have a therapy dog (or a teddy bear or an advocate sitting behind her) can be devastating to the defense. Here we have the state and the court making it clear to the jury that this person is a victim. But that is for the jury to decide. No matter how much the court instructs the jury to disregard the dog, not allow sympathy to affect the verdict, or not read anything in to the court's rulings, the reality is that juries are going to be affected. One of the biggest blind spots in the criminal justice system is courts' refusal to acknowledge how juries actually work. So I fear no amount of instructing will stop a jury from being swayed by the subtle implication that the court has already determined the accuser is a victim in cases where that is precisely the question the jury must answer.

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