Comforting Witnesses, Discomforting Due Process

Animals, dolls, and human beings have been enlisted to provide comfort and support to victims in criminal courtrooms.1 Since the testimony of a complainant is a key component of prosecutions,2 and subject to challenge by the defense, the presence of a support aid raises fundamental questions of due process, fair trial and right to confrontation.3

In addition to constitutional scrutiny, this witness aid will be the subject of scientific study as have other such enhancements.4 Still, the effects of comfort aids on witness competency, accuracy, and reliability as well as on the judge and jury have yet to be fully assessed.5

This article collects notable judicial opinions, scholarly research and bibliographies about the role of comfort aids and accompanied testimony in criminal prosecutions.

CASES

People v. Spence, 212 Cal. App. 4th 478 (Cal. App. 4th Dist. 2012)
"In another question of first impression, Spence argues he was deprived of due process of law at trial when the trial court misapplied statutory provisions concerning certain sex offense prosecutions that allow one support person to accompany the child witness to the stand. (SS 868.5, 868.8; Evid. Code, S 765.) Spence argues the court erred by additionally allowing a therapy dog or support canine to be present at the child's feet while she testified, and contends this was "overkill" that unduly focused the jury upon the child's alleged status as a victim, before any conviction was achieved. He complains the necessary statutory findings were not made, and the necessary admonitions were not given to properly educate this victim advocate and the jury about the appropriate demeanor restrictions in testimony. (SS 868.5, 868.8.) We find no prejudicial error or abuse of discretion in these respects."

People v Tohom, 109 A.D.3d 253 (N.Y. App. Div. 2d Dep't 2013)
""[Dogs] are such agreeable friends — they ask no questions, they pass no criticisms" (George Eliot, Scenes of Clerical Life [1857]), but do they belong in the courtroom? On this appeal, we examine the question of whether the courts of this state should permit the presence of a therapeutic "comfort dog" in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim. We conclude that this question should be answered in the affirmative."

State v. Dye, 178 Wn.2d 541 (Wash. Sept. 26, 2013)
"This case requires us to determine whether a court may allow a witness to be accompanied by a comfort animal, here a dog, when testifying during trial. Generally, we give trial courts wide discretion to control trial proceedings, including the manner in which testimony will be presented. We recognize that some trial procedures, such as providing a child witness with a toy on the stand or shackling a defendant at trial, may risk coloring the perceptions of the jury. But trial courts are capable of addressing these risks. Here, the trial court acted within its broad discretion when it determined that Ellie, the facility dog provided by the prosecutor's office to the victim Douglas Lare, was needed in light of Lare's severe developmental disabilities in order for Lare to testify adequately. We affirm the Court of Appeals."

State v. Palabay, 844 P.2d 1 (Haw. Intermediate Ct. App. 1992)
"We agree that it was error for Complainant to have testified while holding a teddy bear, absent a finding of compelling necessity. It was also error for the State to have cross-examined Defendant about the substance of Complainant's videotaped statements, which were inadmissible hearsay. If the State knowingly permitted Complainant to hold a teddy bear while testifying, moreover, a reasonable argument can be made that such action evidenced bad faith and amounted to misconduct since the State had earlier agreed, in response to Defendant's motion in limine, not to introduce photos of Complainant's bedroom depicting teddy bears. However, based on our review of the record, we conclude that these errors, in view of the overwhelming evidence of Defendant's guilt, had little effect on the outcome of the trial, did not cumulatively prejudice Defendant so as to deny him a fair and impartial trial, and were thus harmless. We accordingly affirm the judgment below."

State v. Rulona, 785 P.2d 615 (Haw. Sup. Ct. 1990)
"In this case, however, we do reach the question of whether there might be circumstances in which a court could permit a child witness to testify sitting in the lap of an accompanying person. Even if we assume that the court had the discretion to do so, there is nothing in the minor witness' testimony, either before the court made its preliminary ruling, or after she took the stand before the jury, which shows a compelling necessity for allowing such a prejudicial scenario. On the contrary, the record shows that the child apparently testified before the grand jury without needing to be seated on the lap of a sexual abuse counselor. Her testimony in sum was that she was frightened to be there as a witness, and would feel better if she sat on the sexual abuse counselor's lap. Most witnesses appearing in trial for the first time, even adults, are frightened, but there was no indication that she could not testify without being seated in the counselor's lap."

State v. Suka, 777 P. 2d 240 (Haw. Sup. Ct. 1989)
"Defendant contends that the presence of the representative of the Victim Witness Kokua Program, Jackie Phillips (Jackie), sitting next to the complainant and standing behind and placing her hands on complainant's shoulders during the complainant's testimony violated defendant's constitutional due process right to a fair and impartial trial. We agree."

LAW REVIEWS AND JOURNALS

All Dogs Go to Court: The Impact of Court Facility Dogs as Comfort for Child Witnesses on a Defendant's Right to Fair Trial, 50 Hous. L. Rev. 1155 (2013)
"The testimony of victims and witnesses is often crucial to the successful prosecution of a case, especially in cases where a child has been abused. Children are increasingly likely to testify in the courtroom face-to-face with the defendant, and these witnesses will undoubtedly feel apprehension about testifying. Courts are sensitive to the fear and stress children experience on the witness stand and are willing to implement protections to ease that fear. Court facility dogs can fill a gap for witnesses when traditional comfort items and support persons fail to ease their anxiety. Objections to the use of court facility dogs are often based on undue prejudice before the jury, increased perceived credibility of the witness, and distraction in the courtroom. However, an array of precautionary measures effectively combat any prejudice. With a properly trained dog and an appropriately tailored jury instruction, a defendant's right to a fair trial will not be compromised."

Court Facility Dogs—Easing the Apprehensive Witness, 39 Colo. Law. 17 (2010)
"This article provides an overview of the use of court facility dogs. These are specially trained dogs that are present in court to assist witnesses who may be frightened or nervous about testifying. The article focuses on the related law, best practices, and the effect of the dogs on parties and the court process. Court records and interviews with judges and counsel suggest that professionally trained dogs have supported children who are called to testify in hearings and trials.

Unlike an inanimate comfort item, such as a doll or stuffed animal that a child might bring to the stand, court facility dogs play a role in advancing a positive perception of the situation. Studies show that a child witness who is accompanied by a court facility dog is empowered to testify without fear (for example, by holding the dog's leash while testifying or having the opportunity to look at or speak to the dog instead of to the examiner, who may be extremely intimidating to the child witness). Prosecutors and defense counsel have found that providing a comfortable atmosphere for witnesses helps them effectively testify. Studies have confirmed that animate touch (holding dog's leash or petting the dog while testifying) often leads to a psychological sense of well-being, decreased anxiety, lowered heart rate, increased speech and memory functions, and heightened mental clarity."

Examination of Why Permitting Therapy Dogs to Assist Child-Victims When Testifying During Criminal Trials Should Not Be Permitted, 16 J. Gender Race & Just. 263 (2013)
"Ultimately, through analysis of the Sixth Amendment Confrontation Clause, related case law, relevant statutes, and scholarly studies, this Note will demonstrate that allowing therapy dogs to assist minor-child crime victims while testifying on the witness stand against defendants present in the courtroom during particularly stressful situations should not be permitted. First, this Note will explore the uses of and proper distinctions between "therapy" and "service" dogs in court. This Note then examines People v. Tohom, other unreported cases, and relevant Sixth Amendment Confrontation Clause jurisprudence including federal Confrontation Clause case law and analogous state case law. Second, this Note will analyze typical prosecution and defense arguments related to the use of therapy dogs in the courtroom. Third, this Note will conclude that, although defendants such as Tohom do not have an absolute right to unfettered face-to-face confrontation - particularly in cases where the defendant sexually abused children - the alternatives to using therapy dogs during face-to-face confrontation prove to be more workable (and constitutional) solutions to dealing with this issue."

See Spot Mediate: Utilizing the Emotional and Psychological Benefits of "Dog Therapy" in Victim-Offender Mediation, 20 Ohio St. J. on Disp. Resol. 943 (2005)
"The advantages of using therapy dogs are already known and employed in a variety of settings--hospitals, classrooms, rehabilitation centers, psychiatric units, prisons, nursing homes, and even the workplace -- in  order to "lift the spirits" of the people with whom the dogs come into contact. Therapy dogs have found their way into the legal system, as well. Therefore, it seems only logical to come across their company in victim-offender mediation. Part II of this Note will lay the groundwork for later analysis of how "dog therapy" techniques are well suited to this type of mediation by discussing the psychological dynamics of victim-offender mediation, including how the mediator must confront and deal with them.
It is well known that, in the course of mediation, a mediator may be called upon to wear many different hats. Of importance to this Note are the jobs of "therapist" and "magician." Part III of this Note will describe the "therapist" role as it focuses on the therapeutic effect that a dog's presence will have on victim-offender mediation, namely the psychological benefits for the participants. The "magician" role will also be explored through a discussion of how the mediator will use the dog's presence to aid in the process of discussing and resolving conflict, with both parties' emotional needs receiving equal attention. Finally, Part IV will discuss the training required by mediators who wish to employ therapy dogs in their practice. These new "mediator-handlers," as these types of mediators are known, will have a challenging task in specializing in this type of mediation, but one that can be truly rewarding."

Use of "Therapy Dogs" in Indiana Courtrooms: Why a Dog Might Not Be a Defendant's Best Friend, 46 Ind. L. Rev. 1289 (2013)

"The purpose of this Note is to discuss how the use of therapy dogs unfairly prejudices criminal defendants and to advocate for Indiana to enact safeguards to minimize these prejudices. Part I focuses on child witnesses, in particular how techniques used in the past to ease these witnesses testify against their perpetrators have led to the present use of therapy dogs in the courtroom. Part II provides background context regarding the use of therapy dogs in courtrooms, including what they are, how they are trained, and where, how, and why they are being used across the country. Part III analyzes the potential pitfalls for defendants, centering on how the presence of therapy dogs might bias the jury against defendants, as well as how the presence of the dogs influences the child and makes the appellate process more difficult for criminal defendants. Finally, Part IV focuses on how Indiana should proceed in utilizing therapy dogs in its courtrooms and proposes a new rule of criminal procedure that includes safeguards Indiana should enact to protect the rights of criminal defendants while still addressing the special needs of child witnesses."

Using Dogs for Emotional Support of Testifying Victims of Crime, 15 Animal L. 171 (2009)
"This article analyzes the legal foundations supporting the use of service dogs for emotional support of complaining witnesses in open court. Currently, the Federal Rules of Evidence give trial judges wide discretion to allow evidence presentation methods deemed effective for the ascertainment of the truth. Other federal law allows child witnesses to give testimony with the emotional support of an adult attendant or through alternative methods such as closed-circuit television or recorded statements. However, a defendant's Sixth Amendment confrontation rights may be held violated by such alternative methods, especially after the recent landmark case Crawford v. Washington. In contrast, this is less likely to be the case if a witness gives live testimony, even with the potentially prejudicial presence of a service dog. Case precedent demonstrates that defendants' right to 'a fair trial and the protection of the confrontation right have been upheld in similar cases where minor witnesses used comfort objects for support."

AMERICAN LAW REPORTS

Coaching of Witness by Spectator at Trial as Prejudicial Error, 81 A.L.R.2d 1142
"This annotation discusses the question whether the coaching of a witness by a spectator at a trial while the witness is actively testifying on the stand constitutes prejudicial error. This question has been raised in relatively few cases, the bulk of which, as might be expected, are criminal prosecutions, and the courts in most of the cases, although recognizing, at least inferentially, that it is of course improper for a spectator in a courtroom to coach a witness while he is testifying, have held that no prejudicial error resulted from such coaching under the particular circumstances, either because no abuse of the trial judge's discretion was shown, the record failed to show that any harm resulted therefrom, the objection to such misconduct was not timely or properly made, or the trial judge took seasonable curative action to offset the possible prejudicial effect of the misconduct. However, in a few instances the fact that the trial judge refused or failed to take curative action has been held to constitute reversible error or at least a contributing factor, along with other errors, in requiring a reversal."

Conditions Interfering With Accused's View of Witness as Violation of Right of Confrontation, 19 A.L.R.4th 1286
"This annotation collects and analyzes the state and federal cases which have considered whether the existence or presence of any condition, during the course of a criminal proceeding, which obstructs or interferes with the defendant's view of a witness against him, constitutes a violation of the defendant's right to confrontation of witnesses. For purposes of this annotation, a "criminal proceeding" includes the preliminary examination and all proceedings in the case subsequent to the filing of the criminal charges and prior to the termination of the trial."

Emotional Manifestations by Victim or Family of Victim During Criminal Trial as Ground for Reversal, New Trial, or Mistrial, 31 A.L.R.4th 229
"This annotation collects and discusses the state and federal criminal cases in which the courts have considered whether particular emotional manifestations which were made during a criminal trial by the victim or a relative of the victim constituted sufficient grounds for the reversal of a judgment of conviction, or the granting of a new trial or a mistrial."

Physical Condition or Conduct of Party, His Family, Friends, or Witnesses During Trial, Tending to Arouse Sympathy of Jury, as Ground for Continuance or Mistrial, 131 A.L.R. 323
"This annotation, as indicated in its title, discusses the question whether the physical condition or the conduct of a party, his family, friends, or a witness, at a trial, tending to arouse the sympathy of the jury, is a ground for a continuance or mistrial of the action or prosecution."

Propriety and Prejudicial Effect of Permitting Nonparty to Be Seated at Counsel Table, 87 A.L.R.3d 238
"In cases in which the courts have discussed the issue of a nonparty sitting at counsel table, they have generally upheld the decision of the trial court, whether the trial court's decision was to let a nonparty remain at counsel table or to order his or her removal. The issue is generally discussed in terms of the principle that matters concerning the conduct of the trial are within the trial court's discretion and there is error only if the trial court has abused its discretion. This annotation divides the cases into numerous mutually exclusive categories depending on whether the case is civil or criminal, and depending on the type of person sitting at counsel table. In terms of the basic factual situations, the cases can be divided into two general categories: (1) where a nonparty was sitting at counsel table in order to advise counsel and (2) where a relative of a party or a relative of a victim was sitting at counsel table for various reasons."

Propriety and Prejudicial Effect of Third Party Accompanying or Rendering Support to Witness During Testimony, 82 A.L.R.4th 1038

"This annotation collects and discusses the cases which have considered the propriety of allowing a third party to accompany and render support to a witness while testifying in the courtroom. Included are situations in which, in addition to the presence of the third party, physical contact with the witness occurred."

Propriety of Allowing Witness to Hold Stuffed Animal, Doll, Toy or Other Comfort Item During Testimony, 82 A.L.R.6th 373
"Many courts have allowed vulnerable witnesses to bring a comfort item with them while they testify. In State v. Dickson, 337 S.W.3d 733, 82 A.L.R.6th 677 (Mo. Ct. App. S.D. 2011), transfer denied (May 31, 2011), a prosecution for child kidnapping, forcible rape, and forcible sodomy, the court found that the trial court's decision to allow a child victim to hold a stuffed animal while testifying at trial was not an abuse of discretion. The court reasoned that the victim was eight years old at the time of trial and that allowing her to hold the stuffed animal would enable her to testify more comfortably and completely, thereby assisting the jury in determining the facts of the case. The court also found that allowing the victim to hold the comfort item did not affect the defendant's trial strategy, which did not contest that the sexual assault had occurred but argued that someone else had committed it. Other courts have held from the circumstances of the case that a witness should not have been allowed to hold a comfort item while testifying. This annotation collects and analyzes all cases considering the propriety of allowing a witness to hold a comfort item."

RESOURCES

Case Law & Statutory Compilation Regarding the Presence of Support Person for Child Witnesses (NDAA 2013)
"This document is a comprehensive compilation of support person statutes and relevant case law from U.S. state, territorial, and the federal jurisdictions. It is up-to-date as of January 2013."

Child Witnesses and Comfort Items (NDAA 2011)
"This compilation contains codified statues."

Comfort Items Compilation (NDAA 2011)
"This compilation contains codified statues."

Courthouse Dogs Foundation
"The mission of Courthouse Dogs Foundation is to promote justice with compassion through the use of professionally trained facility dogs to provide emotional support to everyone in the justice system." This site has a wealth of information on many litigation related topics: (1) Trial Checklist; (2) Defense Objections and Outline for Trial Brief; (3) Legal Support for the Use of a Courthouse Facility Dog to Assist Testifying Crime Victims and Witnesses; (4) Legal References and (5) Appellate Cases.    

Recent Cases on the Use of Facility Dogs by Witnesses While Testifying (Animal Legal & Historical Center)
"This article is being posted online so that discussions of new cases can be easily added to show how the acceptance of dogs with a function of helping a witness testify is evolving. When a new case is issued and comes to the author's attention, it will be added after this introduction, meaning that earlier cases will be dealt with later in the argument. It is hoped that this approach to presenting the development of this legal subject will help those interested in this area by not requiring that they re-read previously posted analysis before they can find the latest case or other development."

Use of Anatomical Dolls (NDAA 2012)
"This compilation includes states, District of Columbia, territories and federal statutes as of December 2012 regarding the use of anatomically correct dolls in court."

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1 See William Glaberson, By Helping a Girl Testify at a Rape Trial, a Dog Ignites a Legal Debate, N.Y. Times, Aug. 9, 2011, at A15 ("Prosecutors [Dutchess County, NY] here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries. . . . The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. "Sometimes the dog means the difference between a conviction and an acquittal," said Ellen O'Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause."). See generally NDAA Comfort Items Compilation (2011)(collection of statutes); Cara Tabachnick, Not Just a Courthouse Dog, Crime Rep., Apr. 14, 2014. 

2 This includes all stages at which a witness might appear including grand jury, pre-trial hearing and trial.

3 See generally Coy v. Iowa, 487 U.S. 1012 (1988)("The remaining question is whether the right to confrontation was in fact violated in this case. The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing appellant as they gave their testimony, and the record indicates that it was successful in this objective. App. 10-11. It is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter." Id. at 1020.).

4 See, e.g., Robert J. Quillen, Facilitated Communication and the Criminal Justice System (Senior Honors Theses (Psychology) E. Mich. University 2013); Brian J. Gorman, Facilitated Communication: Rejected in Science, Accepted in Court--A Case Study and Analysis of the Use of FC Evidence Under Frye and Daubert, 17 Behav. Sci. Law 517 (1999). See also Friedman v. Rehal, 618 F.3d 142 (2nd Cir. 2010)("The record here suggests "a reasonable likelihood" that Jesse Friedman was wrongfully convicted. The "new and material evidence" in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner's case can induce false reports." Id. at 159-160); Jonathan M. Kirshbaum, Actual Innocence After Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases, 31 Pace L. Rev. 627 (2011).

5 Cf. Admissibility of Hypnotically Refreshed or Enhanced Testimony, 77 A.L.R.4th 927; Admissibility in Evidence of Confession Made By Accused in Anticipation of, During, or Following Polygraph Examination, 89 A.L.R.3d 230; Cross-Examination of Witness as to His Mental State or Condition, to Impeach Competency or Credibility, 44 A.L.R.3d 1203; Use of Drugs as Affecting Competency or Credibility of Witness, 65 A.L.R.3d 705.