Defense Objections and Outline for Trial Brief

This section provides a list of potential objections to the presence of the dog and an outline for a trial brief for this motion. Review the appellate briefs posted under our Appellate Issues section for more detailed information about the arguments for and against the use of a courthouse dog during a trial.

Defense Objections to the Use of a Courthouse Dog During a Trial

The dog will distract the jury.
The child will be distracted by the dog.
If the child has a dog within reach, the child will take the oath less seriously.
The dog detracts from the decorum of the courtroom.
Jurors that like dogs will like the witness more than the defendant.
The State orchestrated the presence of the dog in order to engender sympathy for the complainant.
If the dog physically responds to a witness exhibiting signs of stress, the jury cannot tell if the dog is responding to stress produced by lying or stress produced by recounting a traumatic experience.
I can’t cross-exam the dog.
The dog is comforting the witness because the defendant committed the crime against the witness.
Child witnesses who are nervous are often allowed to cuddle a favorite toy or blanket, , "but to provide them with a special prize - a new dog - and praise them each time they come and testify is profoundly troubling and can undermine the truth."
The defendant is allergic to dogs.
The presence of the dog bolsters the credibility of the witness.
The witness will look at the dog instead of the defendant.

To counter some of these objections refer the court to these three cases that illustrate that jurors can follow the court’s instruction to disregard the presence of the dog:

The court permitted the dog to assist the child and the jury acquitted the defendant. Wagging Tails - Proponents say courtroom dogs aid nervous witnesses but defense lawyers worry cute dogs could influence juries
The court permitted facility dog Ellie to assist a developmentally disabled man. The defendant said he was allergic to dogs and the court agreed to accommodate the defendant in that regard. The jury rejected the vulnerable victim aggravating factor in this case. It could be argued that Ellie’s presence actually benefitted the defendant because if she had not been present to calm the witness, he could have appeared less coherent and therefore vulnerable enough to meet the criteria for being an aggravating factor that would have increased the defendant’s sentence. State v. Dye, 283 P.3d 1130, (Wash. App. Div. 1, 2012) See appellate decision.
The court permitted a dog named Jeeter to assist twin girls when they testified against their father who was accused of sexually assaulting them. During cross-examination the defense attorney petted the dog with the children when she questioned them. The jury was unable to reach an agreement and the case resulted in a mistrial. Courthouse dogs calm victims' fears about testifying

Outline for Trial Brief to Permit Courthouse Dog to Accompany Witness

The State requests that the court allow Dog Name to be present in the courtroom with Witness Name when he/she testifies. Dog’s Name presence will neither prejudice the defendant nor give extra credence to Witness Name’s testimony.

Insert Experience and Training of Dog’s Name
Example- Harper was trained as service dog by Canine Companions for Independence (CCI), a service dog organization that is accredited by Assistance Dogs International (ADI). CCI is a non-profit organization that trains four types of dogs- service dogs (primarily mobility assistance), skilled companion dogs for the physically or emotionally disabled, hearing dogs for the hearing impaired, and dogs for facility teams. Facility teams are made up of a dog and a trained handler. Facility dogs also carry most of the skills of service dogs as well as the specialized skills for whatever type of facility the dog will be working in. Dogs that graduate from Canine Companions for Independence have a one million dollar liability insurance policy. This organization has placed facility dogs in a courthouse setting since 2004. Harper has been in training for two years and knows approximately forty commands. CCI determined that Harper’s temperament was best suited to work in a public setting and placed her at the Dawson Place Child Advocacy Center to work as a facility dog. Harper’s greatest strength is her ability to calm and comfort others in stressful situations. Harper can provides emotional support to everyone she encounters in the criminal justice system. (1)
List number of times that dog has assisted a witness in the courtroom if the dog has prior experience or if the dog had a test run sitting through an unrelated trial.

Evidence Rule

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. See State v. McDaniel, 83 Wash.App 179, 185, 920 P.2d 1218 (1996).

Facility Dog Case Law

In State v. Dye, 283 P.3d 1130, (Wash. App. Div. 1, 2012) Defendant Dye appealed his conviction for residential burglary. The victim in the case was an adult man with significant developmental disabilities. At trial, the State obtained permission to allow a facility dog named "Ellie" to sit at the victim's feet during testimony. The jury was instructed to ignore the dog's presence. On appeal, Dye contends that his right to a fair trial was compromised because the dog's presence improperly incited the jury's sympathy, encouraged the jury to infer victimhood, and gave Lare an incentive to testify for the prosecution. In rejecting defendant's arguments, the court found that the right to confrontation was satisfied and the defense engaged in a "lengthy and thorough cross-examination" of Lare. Further, the court found there was no gift to Lare and the dog's temporary companionship did not restrict cross-examination on this aspect. The appellate court found that the trial court balanced the interests, finding that the dog was "very unobtrusive" and would "not be laying in his lap." The court found no prejudice to defendant from the presence of the dog, especially in light of the jury instructions to ignore her.

See additional cases.

Analagous Case Law

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault entered the courtroom carrying a doll as she walked to the witness stand. At the request of the defendant the jury was excused and the defendant registered his objection to the child appearing in court with a doll. The state was allowed to produce testimony as a foundation for allowing the witness to possess a doll while she testified. The court-appointed guardian ad litem for the child testified that during the preliminary hearing the victim started to have dry heaves while on the stand and had to be taken to a restroom. The guardian also testified that when the victim got upset she tended to wring her hands, put her hands on her face and chew her nails. It was the guardian's opinion that being able to hold the doll would give the child something to do with her hands. (Note: We have observed many witnesses rubbing their fingers over the dog’s leash when testifying in court. This is self-calming behavior that is less distracting because holding onto to a leash connected to a dog is something people see every day. Adult witnesses have also reported to us that holding the dog’s leash make them feel more in control.)

After hearing evidence, the court concluded that the doll could have a calming effect on the witness. The court further concluded that the benefit of having coherent testimony from the witness outweighed any possible prejudice to the defendant and that allowing the child to possess a doll on the stand was a less stringent measure than some that had been accepted by the United States Supreme Court, or required by some state statutes. Following the hearing, the court allowed the witness to take the stand while carrying her doll.
Cliff appealed stating that the ruling violated his due process right to a fair trial and also violated his constitutional right of confrontation. The defendant did not contend that he was prohibited from facing the witness in court. Instead he urged that allowing the witness to have the doll as a “psychological security blanket” hampered his right of cross-examination.
The appellate court disagreed with this argument stating that 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.” In the present case, the defendant was allowed to face the witness in court and was allowed wide latitude in questioning the witness. Under these facts the court found no violation of the defendant's right of confrontation.

The defendant also argued that allowing the child-witness to appear before the jury holding a doll interfered with his due process right to a fair trial. The claim was made that by allowing the child to hold a doll, the trial court allowed the prosecution to highlight the vulnerability of the witness and thus prejudice the defendant by increasing the juror's natural sympathy toward the witness.

The court also rejected this claim stating that although every person accused of a public offense has a right to a fair and impartial trial, in cases, such as this, where it is necessary to receive testimony from young children, 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.

In State v. Hakimi, 124 Wash.App. 15, 98 P.3d 809 (2004), review denied by 154 Wash. 2d 1004, 113 P.3d 482 (2005), the court held that in a prosecution for child molestation of two seven-year-old girls, the trial court did not abuse its discretion by permitting the girls to carry a doll to the witness stand, when they did not carry them while being interviewed by child interview specialist. The court found that those interviews presented an entirely different environment than a public courtroom, and that the trial judge weighed the interests of the two victims and any potential prejudice to the defendant in allowing the girls to testify while holding a doll. While considering the matter the trial court stated, “It seems to me, children do present different issues and different considerations in terms of being witnesses in different cases. They have a peculiar need to find some security in an otherwise insecure setting, I suspect.”

In State v. Smith 119 P.3d 411 (2005) the court made a similar ruling stating the defendant failed to establish the existence of clear and unequivocal rule of law prohibiting the conduct of a fifteen year old child holding a teddy bear while testifying.

Analagous Statutes

Include relevant statutes in your brief that can be found at:

NDAA Presence of Support Persons for Child Witness Compilation

NDAA Comfort Items Compilation

Emotional Stress Can Affect a Person's Ability to Speak

Many times children that have been victims of crimes or witnessed crimes of violence are emotionally traumatized by those events. They are often re-traumatized when they have to describe the event during a trial in front of the person accused of the crime in a room full of strangers. During this process these children experience physiologic responses that they have no control over, which can affect their ability to speak. If the child cannot describe what happened, then the jury is deprived of information that could be critical to the evaluation of the defendant’s guilt or innocence. Refer to paper written by David A. Crenshaw, Ph.D., ABPP on child witness trauma stress reactions.

It is well accepted in medical and academic fields that a friendly dog can decrease anxiety and sympathetic nervous system arousal by providing a pleasant external focus for attention, promoting feelings of safety and providing a source of contact comfort. (2, 3, 4)

Trial Practice- Describe or have knowledgeable witnesses testify about the interaction between dog and witness to demonstrate that the dog has had a calming effect on the child. Argue that this will increase the likelihood the child will be able to answer the questions posed by the attorneys. A calm witness will decrease the need for a recess to regain composure and therefore reduces the needless consumption of time per ER 611 (a) (2).

Arguments

There is ample precedent for this type of witness accommodation
The presence of the dog in the courtroom is less prejudicial to the defendant than other witness accommodations. In many ways the neutral presence of a courthouse dog is a better practice than the use of a comfort item or the presence of a support person. The dogs are a lot less noticeable and endearing than a teddy bear, doll or blanket held in the lap of a child. A support person’s facial expressions or body language could also be more distracting to the jury especially if it appeared that the support person was conveying disdain for defense counsel during cross-examination.
The presence of a courthouse facility dog enhances the court’s ability pursuant to ER 611 (a) to exercise reasonable control over the mode and order of examining witnesses and presenting evidence because the dog’s presence reduces stress in humans that can interfere with their ability to speak and therefore make the interrogation and presentation more efficient and effective for the ascertainment of the truth.

Conclusion

Dog’s Name is highly trained and well behaved and will sit or lie down calmly as the witness testifies. His/her presence will make the interrogation and presentation effective for the ascertainment of the truth, avoid needless consumption of time should the witness need to be excused to regain a calm emotional state and protect the witness from harassment or undue embarrassment. Since Harper provides emotional support to all those involved in the criminal justice system her presence will neither prejudice the defendant nor give extra credence to Witness Name’s testimony.

The court can provide an instruction to the jury not to “make any assumptions or draw any conclusions based on the presence of this facility dog. “ Since juries are presumed to follow the court’s instructions absent evidence to the contrary there is no prejudice to the defendant. State v. Dye (supra)

Therefore, the State requests that this accommodation be made for Witness Name in order for the jury to have as much evidence as possible when determining the issue of the defendant’s guilt or innocence.

Respectfully submitted,
___________________

See www.caninecompanions.org
Allen, Karen. "Are Pets a Healthy Pleasure? The Influence of Pets on Blood Pressure." Current Directions in Psychological Science 12 (2003): 236-39. This article reviews the support for the observation that the presence of a friendly pet can help an individual cope with a stressful situation.
Jenkins, Judy L. "Physiological effects of petting a companion animal." Psychological Reports 58 (1986): 21-22. This article reports that for subjects ranging in age from 9 to 58 years old, petting their dog lowered their blood pressure.
Nagengast, Sunny L., Mara M. Baun, Mary Megel, and J. M. Leibowitz. "The effects of the presence of a companion animal on physiological arousal and behavioral distress in children during a physical examination." Journal of Pediatric Nursing 12 (1997): 323-30. In this study, preschool children had lower blood pressure, heart rates, and behavioral distress when a companion animal was present during a physical examination