children and dogs in the courtroom

Advance warning: this post deals with court cases that involve adults raping children, which some people like being warned about. Consider yourself warned.

A friend of mine sent me a link to a New York Times article about the legal questions raised by having therapy dogs in the courtroom, and I think this is kind of an interesting legal issue.

The short version for people who don’t like clicking things is that a 15 year old girl was allowed to have a courtroom dog with her while she testified against her father, who was accused of raping her and making her pregnant. The dog, Rosie, is handled by ECAD, which is a group that trains service dogs to help people with various disabilities, like seeing eye and hearing ear dogs but also dogs trained to work with veterans and other people who suffer from PTSD and the like only this is a dog trained for courtroom support.

This is all pretty cool, unless you’re on the other side of the case.

The defense is raising a couple of legal issues around having dogs like Rosie in the courtroom, as is to be expected since as a lawyer your job is to do the best you can for your client, and if not to win their case then to ensure that they had a fair trial in the hopes that the wrong person doesn’t go to prison.

There are two concerns about the dogs, one concern for the witness and one for the jury.

With the jury the concern is straightforward and obvious: that the dog will sway their opinion with cuteness or that they’ll feel like the fact of having a therapy dog present will serve as a kind of silent evidence of its own, showing that the witness suffered some kind of trauma and therefore they must vote a certain way. Essentially, that the dog will make the witness more likable or seem more vulnerable.

With the witness, the concern is that the dog will help them lie, that the distraction of the dog will help someone who wants to lie cover it up by focusing on the dog.

These are legitimate concerns to have. My initial reaction was that a therapy dog is like another service dog, but in a criminal case it’s a bad idea to go with a pet therapy dog for a bunch of reasons that I will sum up by saying that a pet therapy dog is different from a courtroom dog, the training is different, and requirements and needs are different. A pet therapy dog is unlikely to be trained for a courtroom situation and there are limits on how many hours they can work (two hours) since a trial can go on and on for approximately ever. A dog that is trained by the witness or who lives with the witness poses an even more obvious problem. So, specialized courtroom dogs are the way to go if you’re going to have a dog in the courtroom, since they’re specifically trained for this situation and handled by people associated with the court.

So is it cool to have dogs in the courtroom?

The thing with the dogs is that testifying is pretty hard for some people, and it’s notably hard for kids and people who’ve been through significant trauma. It’s a long, grueling process. First you have direct examination, from the lawyer on your side, where they run you through whatever horrible thing happened in excruciating detail. This can take hours and reawaken things you’re desperately trying to move on from. Then the other side gets to cross-examine you, and this is pure hell. The cross-examination is to get out any information favorable to the other side and if there is no information favorable to the other side, to tear you down as a witness. The cross-examination is to show that you’re wrong, you don’t remember, you were having a mental breakdown that was unrelated to any trauma you may be imagining, that you’re lying or otherwise just not believable. This is horrible to go through as an adult who understands the process. It has got to be even worse for a kid, especially a kid who’s been traumatized. For a criminal case, the jury has to be certain beyond a reasonable doubt that the defendant is guilty in order to convict. I’m guessing if you knock up your teenage daughter that’s not too hard, but as a lawyer in order to get your defendant off the hook sometimes all you can do is muddy the water a little so that the jury can’t be sure.

On top of that, a defendant has the right to face their accuser in court. This means that when you testify against someone who has done something truly terrible to you, you have to do it with them sitting there in the room looking at you. Back in the day in England defendants didn’t have the right to face their accusers or see the evidence, so you had these freaky trials where you couldn’t cross-examine witnesses or see the evidence or even really know what you were up against and you were pretty much guaranteed to lose, much like Bush tried to do with the military tribunals for Guantanamo detainees. So here the founders were like “hey that’s bad, let’s not have that anymore” and they wrote the constitution and they were not really thinking about girls whose dads rape them having to testify. Probably they were not thinking about kids or even women at all since a lot of this is about the “reasonable man” standard, but that’s a huge tangent that I’m not going on right now.

To get back to the subject, testifying is really hard on people and the protections of the criminal justice system, such as they are, are made for the accused, not the other witnesses, since the accused is the one who may be going to prison or being executed or something. And this focus on the defendant is absolutely valid, but it doesn’t mean the defendant gets to dictate the entire process.

It’s difficult in general to take testimony from kids, and obviously the younger they are the harder this is. With very small children you have to see if they can understand what’s going on well enough to testify reliably, like if they get that they have to answer questions truthfully and whether they can handle the situation. With slightly older kids, there’s a whole bunch of case law on allowing various things to help them testify without freaking out.

It turns out there’s a whole bunch of cases where a kid was allowed to have something to help them out. In Holmes v. United States, 171 F.2d 1022 (1948), the court let a 9 year old testify while sitting on her mom’s lap while testifying against the man who raped her and beat her almost to death:

The first point of appellant’s appeal is that the court erred in on its own motion permitting the child complainant to sit on her mother’s lap while she testified. This it was asserted might tend to inflame the jury. The child was a little girl of nine who had been subjected to a most terrible and horrifying experience to a degree which might well influence the balance of her life. She was at the moment on crutches and with her leg in a cast. What might have inflamed the jury was the pitiable condition of the little girl herself and it would doubtless have inflamed them more if she had been unable to sit in the witness stand comfortably by herself or had been compelled to stand on her crutches with her leg in a cast while testifying. The action of the trial court sua sponte in permitting the child to sit on her mother’s lap to put the child at ease as much at least as was possible under the trying circumstances was not only proper as a humanitarian act but was praiseworthy as being in the interest of justice.

So this was significantly about the kid’s physical comfort.

In State v. Johnson, 38 Ohio App. 3d 152, an 8 year old sat in her aunt’s lap:

“In this particular case in the pretrial hearing the court took note of the demeanor and the appearance of the alleged victim in this case on the witness stand and was able to form from her appearance and her demeanor what appeared to be a state of mind in which she was either frightened or embarrassed substantially and with what appeared to be a decided reluctance to speak concerning the matter at issue.

“The court is mindful of the risk which has just been enunciated by defense counsel with respect to a situation in which a child of tender years could be perhaps indirectly coerced or at least influenced by virtue of having someone with whom she is familiar with her at the time that she offers testimony * * * and in balancing these interests which rub off on the complete and total right under the Sixth Amendment right of the defendant to confront the witness in a way in which the child of tender years who is the witness is free from influence by outside sources in any way whatsoever or sources of any kind.

“In balancing these interests the court has determined in this particular case that the interests of society outweigh the concerns enunciated by the defense.

and

The perceived need of the witness to sit on the lap of the aunt, her reluctance to answer direct questions, the need for leading questions to elicit answers and the demeanor of the infant-witness, all could be construed by a jury as diminishing, rather than extending, the credibility of the witness.

Which is essentially the court saying that while it’s important not to interfere with the defendant’s Sixth Amendment rights, it’s also important for the kid to be able to testify at all and having someone there with her could undermine her credibility as easily as supporting it.

In Baxter v. State, 522 NE 2d 362, one of the kids was allowed to hold her mom’s hand:

Baxter also concludes that the testimony of S.W. should not be considered because her mother held her hand throughout S.W.’s testimony. Without elaborating, he claims that such conduct prejudiced the jury against him. The trial court had discretion to allow special measures aimed at putting the young child at ease on the witness stand. See Ricketts v. State (1986), Ind., 498 N.E.2d 1222. We fail to see how Baxter was unduly prejudiced, particularly considering that the victims’ mother testified and denied the sexual abuse.

This one is pretty clearly not about the kid taking signals from an adult, but about her comfort in the courtroom and ability to testify.

There are also a bunch of cases about kids taking dolls or toys into the courtroom. In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) (the citation I found is through the courtroom dogs website), where an 8 year old brought a doll with her to help her not panic

[…]the trial court must strike a balance between the defendant’s right to a fair trial and the witness’s need for an environment in which he or she will not be intimidated into silence or to tears.

so the defendant argued that it impeded his ability to cross-examine, and the Appellate Court said

the Confrontation Clause grants only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”

Which means the goal is effective testimony within the bounds of the Sixth Amendment, not reaching the verdict that the defendant wants. It’s not about ensuring a particular verdict at all, but that the process is fair. While we must always be careful not to prejudice the jury and to protect defendants’ rights and the presumption of innocence as paramount, it’s also necessary to separate out what actually interferes with cross-examination and what merely offers comfort to the witness so that they can testify at all – what the defendant’s rights are, versus what they merely desire. When we can satisfy the defendant’s rights and make things a little easier on a witness who’s having trouble testifying and being in the courtroom setting, especially when the accommodation is for the purpose of getting testimony, then we should do that.

In conclusion, if you rape your 15 year old daughter and make her pregnant, the thing swaying the jury against you is probably not that there’s a dog sitting with her.

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