POUGHKEEPSIE, N.Y.: Seeing-eye and other service dogs have long been permitted in courts. However, Rosie, the first judicially approved courtroom therapy dog in New York, was in the witness box (sitting by witness’ feet) providing emotion support to a teenage rape victim who was testifying that her father had raped and impregnated her. Defendant Victor Tohom was convicted and sentenced to 25 years to life. Although there was no precedent in the state, Judge Greller ruled that Rosie was similar to the teddy bear that a New York state appeals court in People v. Timothy G. Gutkaiss said in 1994 could accompany a child witness.
Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more “Rosies” in courtrooms. For example, defense lawyers may argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract.
Mr. Tohom’s attorneys argue:
- it was “prosecutorial misconduct” for the prosecution handling the rape case to arrange for Rosie to be taken into the courtroom as Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.
- that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath. But jurors are likely to conclude that the dog is helping victims expose the truth. And there is no way to cross-examine a dog.
Since 2003, courthouse dogs are participating in trials in at least 10 states to offer children and other vulnerable witnesses nuzzling solace in front of juries, often over the objections of defense lawyers who worry that the dogs generate extra sympathy for victims and witnesses. The states with courthouse dog programs include Washington, Idaho, California, Texas, Missouri, Arizona, Pennsylvania, Hawaii and New Mexico. Prosecutors insist that “sometimes the dog means the difference between a conviction and an acquittal” and that Rosie and dogs like her did not affect the substance of the testimony about horrifying crimes. “These dogs ease the stress and ease the trauma so a child can take the stand.”
The use of courthouse dogs gained traction after Crawford v. Washington, 541 U.S. 36, 56 (2004) a U.S. Supreme Court ruling on a defendant’s right to confront an accuser threw into doubt the legality of allowing victims to testify remotely by two-way video or other means to avoid the stressful environment of the courtroom.
For the full article see: Dog Helps Young Rape Victim Testify
For more information regarding Court Dogs see: ‘Court dogs’ help calm traumatized witnesses – TODAY.com (6/13/11)
For a detailed discussion about Two-Way Videoconferencing and the 6th Amendment see: U.C. Davis Law Review 2008 COMMENT Accusations from Abroad: Testimony of Unavailable Witnesses via Live Two-Way Videoconferncing Does Not Violate the Confrontation Clause of the Sixth Amendment by Christine L. Olsen.
- Courthouse dog will comfort kids as they go through a stressful time (azstarnet.com)
- Courthouse dogs calm victims’ fears about testifying (seattletimes.com)