Aug 09 2011

Dog Helps Child Victim Testify in Court: Its Cute, Its Helpful But is it Fair?

A young girl of 15 testified against her father in a courtroom in Poughkeepsie the other day. The charges against the father was that he had forced his child to have sex with him and he impregnated her. No one can imagine the stress that the girl was dealing with in having to stare down the accused and testify about what happened to her. But in a case of first impression in NY a Dutchess County Supreme Court judge allowed the child witness to have an assistant in the courtroom – Rosie the Witness Dog. Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. During the teenager’s testimony, Rosie sat in the witness box at the child’s feet. Whenever there was a pause during a particularly difficult line of questioning, Rosie, sensing the tension, nuzzled the teenager or leaned into her.
The witness was able to stroke the dog as well during her testimony. The father was convicted of all counts. As the NY Times reported today:

“The teenager ‘was most grateful to Rosie above all,’ said David A. Crenshaw, a psychologist who works with the teenager.’She just kept hugging Rosie,’ he continued.

Courts have long sought innovative ways to help young witnesses feel comfortable in the witness stand. NY appellate courts have already approved allowing a child to hold a teddy bear in the witness stand and have likewise said it is constitutional to allow a child to testify via video from the judge’s chamber as opposed to being in the actual courtroom. And the NY Times reported that since 2003 several states, including Arizona, Hawaii, Colorado and Indiana, have allowed dogs in the witness stand; they are called “testimony enablers.”

As someone who has had the unpleasant task of having to cross examine a child witness on a number of occasions, I cannot imagine trying to do so while the witness has Lassie on her lap. The already daunting task of trying to establish reasonable doubt in these types of cases would be made nearly impossible with the canine testimony enablers. You would have to certainly screen off of the jury any pet owner or dog lover. You would have to explain that while the dog may appear to be nuzzling the child during times of stress, that the stress might be from not telling the truth or exaggerating the facts. Would dog-loving jurors think that a dog would not be so nice to someone who was lying or that the kind of tension involved in lying is not the same as the tension caused by talking about uncomfortable truths and that the dog would be able to discern the difference so that the dog is not just a testimony enabler, but a testimony bolsterer? I think this process is fundamentally unfair to the defendant to the point of depriving him of a fair trial.

I know what you’re thinking – I am cruel and heartless to be more concerned about the rights of the accused than the rights of the child victim. What I ask you to keep in mind is that child sexual abuse is high on the list of the most common falsely reported crimes. And while maybe in the case where Rosie was used, the physical evidence of the pregnancy, DNA and other evidence made it a pretty clear cut case, many times there is nothing to prove the guilt of the accused except the word of the child witness, who can be easily manipulated by a vengeful parent or an overzealous police detective. This latest device is just another step towards eroding the rights of the accused in favor of “protecting the children.” Too often, no one -not judges, prosecutors or legislators- becomes concerned about protecting the innocent defendant. Lest you think I am exaggerating about the influence these Canines of the Courtroom may have, in the Times article about this issue today appeared this quote:

“Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor [in Seattle] who has become a campaigner for the dog-in-court cause.

On a side note, in ruling that he would allow Rosie to sit with the witness during testimony,Judge Stephen Greller explained that the teenager was “traumatized” and the defendant “appeared threatening.” Really? Is that the legal standard we are to use in deciding when to allow the dog enabler? If the defendant appears threatening its OK? How the judge will put on the record why he/she feels the defendant is threatening is unclear. So the lawyers for the defendant in Rosie’s case are of course appealing:

In written arguments, the defense lawyers claimed it was “prosecutorial misconduct” for the Dutchess County assistant district attorney handling the rape case, Kristine Hawlk, to arrange for Rosie to be taken into the courtroom. Cute as the dog was, the defense said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.

Any criminal trial is always a precarious and delicate balance between the rights of the complainant and the rights of the accused. This idea pushes the scales of justice off kilter and unfairly raises the bar for every person facing these types of charges. Perhaps if I hadn’t seen so many defendants who were innocent yet had to face a stressful trial with their lives on the line, I might be more sympathetic and open to the idea. But until the accused gets his own therapy dog as well, this idea is for the birds.

Leave a Reply

%d bloggers like this: