{"id":14310,"date":"2011-08-10T12:52:46","date_gmt":"2011-08-10T17:52:46","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=14310"},"modified":"2011-08-10T13:06:25","modified_gmt":"2011-08-10T18:06:25","slug":"when-the-witness-woofs","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/08\/when-the-witness-woofs\/","title":{"rendered":"When the Witness Woofs"},"content":{"rendered":"

\"\"<\/a>When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.\u00a0 According to The New York Times<\/a><\/em>, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.\u00a0 Rosie has a highly developed sense of empathy, and will nuzzle, snuggle or lean against someone who is experiencing stress or trauma.\u00a0 Psychologists sing the praises of service dogs like her, and courts in several states have ruled that witnesses who are especially vulnerable, such as children in sexual abuse cases, may be accompanied by canine helpers.<\/p>\n

As you might imagine, approval of Rosie and dogs like her is not universal.\u00a0 Everyone agrees that Rosie is adorable, but therein lies part of the alleged problem.\u00a0 Defense attorneys fear that Rosie gives credibility to the child witness that may or may not be justified.\u00a0 One of the public defenders in the case, David S. Martin, protested that each time the child witness stroked the dog\u2019s fur, \u201cit sent an unconscious message to the jury that she was under stress because she was telling the truth,\u201d adding \u201cThere is no way for me to cross-examine the dog.\u201d\u00a0 Although the lawyer for the prosecution in this case refused to comment about Rosie for the article, Ellen O\u2019Neill-Stephens, a Seattle prosecutor who is a proponent of dog-helpers in court, said \u201cSometimes the dog means the difference between a conviction and an acquittal.\u201d<\/p>\n

The past several decades have seen a great deal of discussion about the difficulty of dealing with child witnesses in a criminal trial, and there have been many judicial experiments \u2013 some effective and some not.\u00a0 <\/p>\n

The problem came to the fore in the 1980s when a slew of highly publicized child sexual abuse trials occurred.\u00a0 The public jumped on the bandwagon of child protection and rallied around the cause: it was not unusual to see cars with bumper stickers reading \u201cListen to the children\u201d and \u201cChildren don\u2019t lie.\u201d<\/p>\n

Except sometimes, children do lie, and even more often, they tell what they think is the truth after adults (often well-meaning but sometimes malevolent) have questioned and probed and planted suggestions.\u00a0 Gradually, the pendulum swung towards defendants\u2019 rights, and beginning with Coy v. Iowa <\/em>[finding an unconstitutional\u00a0 denial of the right of confrontation when a statute presumed trauma to the witness in a child sexual assault trial, and the witnesses were allowed to testify from behind a screen that blocked their view of the defendant] and Maryland v. Craig <\/em>[finding that child testimony via closed circuit television might be constitutionally allowed if there is a case-specific finding of necessity to prevent trauma and if there is adequate opportunity to cross-examine the witness], the U.S. Supreme Court required courts to make individualized findings about what might be necessary to help a traumatized witness while still allowing the defendant to exercise his constitutional right to confront witnesses against him.<\/p>\n

Although many cases, including the aforementioned two, have addressed the issue of balancing rights of confrontation with the interests of child witnesses, it should be noted that a defendant\u2019s right to a fair trial may be at stake here as well.\u00a0\u00a0 It is well-settled that a defendant\u2019s right to a fair trial precludes the prosecution from unnecessarily manipulating the courtroom and its occupants so as to subtly convey that the defendant is guilty.\u00a0 For example, a defendant cannot be compelled to undergo trial dressed in prison orange garb, and he must be offered acceptable street clothing for his appearances in court.\u00a0 Failure to comply with these requirements can result in a mistrial or a new trial.\u00a0 Moreover, witnesses against the defendant cannot just say nor do whatever they want in court \u2013 they must answer questions that comply with the rules of evidence about what is relevant and what is merely prejudicial.<\/p>\n

From the defendant\u2019s perspective, the concern with Rosie the dog and others like her is that the jury will conclude that the poor child witness must be telling the truth, otherwise she would not need Rosie\u2019s encouragement so much.\u00a0 Dog lovers \u2013 and there are many \u2013 tend to attribute human characteristics to dogs.\u00a0 Surely a dog would not encourage a child witness to lie!\u00a0 But the defense lawyers are right to point out that Rosie, by instinct or training or both, has learned to respond to stress or discomfort.\u00a0 A child witness may well be feeling stress or discomfort, but it could come from truthful confrontation, from stage fright over speaking in front of a group, from fear of someone (but not necessarily the defendant), or even from lying, which is also very stressful for most people.\u00a0 If the goodwill induced by the adorable Rosie leads jury members to believe only the best about the child witness and her motives, then the defendant might find it impossible to convince them otherwise.\u00a0 True, the defense lawyers can cross-examine the child, but this must be done with kid gloves to avoid looking like a bully and actually hurting the defendant\u2019s case.\u00a0 The badgering, aggressive demolition of a teary child-witness exists only in certain TV scripts \u2013 any real lawyer would have to be insane to try anything of the sort.\u00a0 Denigrating the dog in front of the jury probably wouldn\u2019t be a good idea, either.<\/p>\n

From the prosecution\u2019s perspective, there are some human-shaped monsters out there that do very, very bad things to children \u2013 and those children are often terrified to testify.\u00a0 If a golden retriever can comfort the child enough to get her story before the jury, then this seems like a practical solution.\u00a0 It\u2019s not like the dog is being presented as a witness to the crime, after all.\u00a0 Of course, it\u2019s clear that a cute dog reflects well on the witness, but really, how is this any different from having the child dress in a sweet, innocent-looking outfit, even if her normal attire is somewhat racier?\u00a0 Everyone knows that eschewing orange prison attire isn\u2019t the only sartorial decision being made in the courtroom.<\/p>\n

Ultimately, this will have to be another balancing act overseen by judges.\u00a0 Perhaps judges should be required to gently remind the jury that the dog is there to help the witness deal with stress, which could be the result of truth-telling, fabrication, stage-fright, or other factors.\u00a0 Juries are useful precisely because they often revert to common sense \u2013everyone knows that you are not necessarily a nice or honest person just because a dog likes you.\u00a0 (Even Hitler and Stalin are reputed to have had dogs.)\u00a0 If the dog becomes too active in the courtroom, the judge might need to intervene. \u00a0\u00a0But overall, I think service dogs in the courtroom might be a very good thing indeed.<\/p>\n","protected":false},"excerpt":{"rendered":"

When a New York teenager had to testify against her father, claiming he raped and impregnated her, she shared the witness box with a helper.\u00a0 According to The New York Times, that helper was Rosie, a specially trained golden retriever who comforts and encourages traumatized or stressed individuals.\u00a0 Rosie has a highly developed sense of 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