Testifying in court can be a scary thing, particularly for a child
who is a victim of abuse. The child has
already been through an ordeal which leaves behind emotional trauma that she/he
is not mature enough to understand and process.
The child may have been threatened by an abuser, who may also likely be
an authority figure in whom they previously trusted. Once they have finally managed to tell
another person about the traumatic event they have endured, they are then asked
to meet with many people they do not know and relive the whole thing again and
again, until the day they face their abuser in court. Properly trained animals, when permitted into
the forensic interview and courtroom, can reduce the stress a child endures
during initial interviews and testimony, sometimes encouraging the child to
complete her/his testimony when she/he might not have otherwise done so. However, there are defense attorneys who
argue that their clients may not receive a fair trial due to the animal’s
presence in the courtroom. This paper
will serve to examine the difference between therapy pets and animals that are
professionally trained for criminal justice settings, as well as presenting
both sides of whether the legal system is an appropriate place for an animal.
Is there a difference between a therapy pet and a courthouse dog?
Courthouse Dogs, LLC defines pet therapy dogs as “personal pets that have
undergone training with their owner, and then have been evaluated and
registered by a local or national therapy dog organization” (Courthouse Dogs, LLC [CD, LLC],
2010, p. 1). They make a specific
distinction between therapy pets and dogs that are professionally trained for
assistance within the criminal justice system.
An improperly trained dog can impede, rather than ease, criminal justice
procedures.
The challenges which may arise from the use of a pet therapy dog,
rather than a dog that is professionally trained for the criminal justice
setting include:
·
Lack of testing for their safety around children
·
Lack of written guidelines which constitute
acceptable behavior for the dog
·
Confidential situations where it is unacceptable
for a nonprofessional to be present—use of therapy pets requires the volunteer
handler to be present, which may not be acceptable in some situations.
·
Conflict in the amount of time the dog is
available versus the time the child might need the animal to be present—it is
best for the same animal, once acquainted, to go through the entire legal
process with the child. Volunteer therapy pets are limited to working only 2
hours per day.
·
Time investment on behalf of facility’s
professional staff in implementing and maintaining a program where therapy pets
are utilized.
Due to the increasing use that has been noted with courthouse
dogs, the issue of establishing some guiding principles has been raised. As of November 19, 2011, the National District
Attorneys Association’s (NDAA) Board of Directors has adopted specific
guidelines which they consider to be “best practices” regarding the use of
“Courthouse” or “Comfort” dogs. The NDAA
guidelines state (National
District Attorneys Association’s Board of Directors [NDAA], 2011):
·
The dog should receive training in and graduate
from an Assistance Dogs International (ADI) program (or an equivalent program)
·
Testing should be done to ensure the animal
displays safe behavior in the presence of young children
·
Animal handlers should work in a professional
aspect of victim advocacy, law enforcement, or criminal justice
·
The dog and its handler should participate in
continuing support and education with ADI service dog organization
·
The dog and handler should make a good team in
terms of their social interaction within the courthouse
·
There should be a liability insurance policy of
no less than $1,000,000 maintained on behalf of the dog
Courthouse Dogs, LLC states the best practices model plays an
important role in convincing judges that the trained canines are useful and can
provide a more positive outcome in the courtroom setting, while ensuring
minimal risk of civil liability due to their presence ("Best Practices,"
2010). Courthouse Dogs, LLC also declares
that training and vetting is of the utmost importance and that a dog’s lack of
discipline which may upset the legal system would be detrimental to the
establishment of any future courthouse dog programs.
One of the agencies endorsed by the National District Attorney
Association, noted for their excellence in training courthouse dogs, is
Assistance Dogs International, Inc (ADI). Their website lists the minimum
standards for the certification of their dogs, addressing specifics in the
animal’s appearance, behavior, and training.
Dogs begin training as puppies and generally are not placed until around
the time they are 2 years old. Animals
trained under ADI standards are clean and well-groomed, will not urinate or
defecate anywhere deemed inappropriate (and will do so on command), are not
disruptive or aggressive, do not steal food, work calmly and quietly in any
situation, and remain within 24” of their handlers unless otherwise necessary
to perform trained tasks ("Minimum
Standards," 2012). Facility
dogs in particular will have a specific handler/trainer who should be a
facility professional (not a volunteer) to whom the animal will positively
respond and obey. The trainer will also
receive instruction and be able to demonstrate the ability to care for the dog,
maintain current training, and continue to add new skills with the dog. The animal will wear equipment or clothing
which makes them easily identifiable and the animal/handler team will
have a laminated identification card with their photo(s) and names
("Facility Dogs," 2012).
The presence of a therapy dog during a forensic interview may make
this important part of the process more productive as it allows the child to
feel more comfortable during the interview, which might otherwise be very
distressful for the child. The child can
hug or pet the animal during the interview if they become upset, whereas the
interviewer cannot provide any affection or physical contact; the child can be
allowed a certain amount of control with the animal in a situation where they
most likely would otherwise have no control; and the dog can provide a positive
distraction from the child’s apprehension.
In the courtroom, children are more apt to feel comfortable on the
witness stand with a courthouse dog by her/his side. Without a dog present that can provide
comfort for a child during testimony, parents will often agree to a plea bargain
by the defendant just to prevent their child from enduring the stress of
testimony. Dogs in the courtroom are not
limited to serving the child on the witness stand; they also can be a presence
in the entire courtroom, as they sometimes are found in drug court, soothing
those who may be enduring drug withdrawals or family who must sit patiently
waiting for long periods of time. The
following is a sample jury instruction that judges may use (written by the
National Crime Victim Law Institute): “Testifying in court is an unfamiliar
and stressful event for most people; these dogs are used in a courthouse
setting to help reduce witness anxiety and are available to any witness who
requests one” (Campos, 2008). The presence of the animal may also
serve as a deterrent from displays of aggressive behavior in a very high-strung
environment.
However, despite the extensive professionalized training of
courthouse dogs, as well as their handlers, there are defense attorneys who
strongly oppose their presence in the courtroom, particularly when they
accompany a witness to the stand. These
defense attorneys, rather than using the dog as a soothing agent for their own
client, argue that the animal being available to the defendant on the stand
creates a jury bias. In a New York case
from 2010, the defense argued against allowing the dog in the courtroom, citing
the dog’s presence would cause a jury to be more empathetic toward the witness
as she would be seen as more vulnerable, thus distracting from any
contradictory evidence the defense might put forth ("People v Tohom," 2010). In that particular case, the dog, Rosie,
nuzzled the 15-year-old victim, who had been raped and impregnated by her
father, when she hesitated during testimony.
The lawyer for the defense stated the victim stroking Rosie sends the
underlying message to the jury that her stress is due to having to tell the
truth about the defendant and that the defense is disadvantaged in that it cannot
cross-examine the dog. In another case
in Marion County, California, the defense stated that the “heartwarming scene
of child and dog” could create prejudice against a defendant. They also argued that the child was being
rewarded for his testimony against the defendant with the new dog to play with,
and that could potentially weaken the process of getting to the truth, which should
ultimately be the goal of any trial (Berton, 2009).
Given the potential for appeals based on the presence of an animal
in the courtroom, prosecutors are being careful to keep very good records concerning
their use. Any acting out on behalf of
the dog could have the potential for a mistrial, thus their very professional
behavior is of the utmost importance. Several
states have already implemented the use of dogs in the courtroom, but
prosecutors fear that they will one day have to defend their use, as there
still remains no law on the books which either definitively allows or disallows
their presence (Berton, 2009).
In looking at the information presented, I can see the questions
and concerns on both sides of the debate as to whether an animal should be
allowed to accompany a child to the witness stand. I do not think anyone would argue that there
is a particularly heart-warming “cute factor” in seeing a child with a
well-mannered dog, as described in the SF Gate article, “Courtroom Canines Calm
Kids, Raise Bias Fears”. I can also
understand that a defense attorney will do whatever is in his power to prevent
a child from testifying, as allowing a child to feel empowered by such means
prevents the attorney from having an “easy win”. Where both the prosecution and the defense
may argue that they only want to “get to the truth”, everyone is well aware
that there is much more at stake than simply justice. All the attorneys have their reputations,
egos, and finances at stake as well.
Prosecutors, while having the child’s best interest at heart, will
try to use anything that can be advantageous for them to get a conviction. Most abusers have done and said things to
children to ensure their silence, therefore they never planned on the child telling
anyone, let alone possibly being able to testify, thus changing a defendant’s
willingness to “cut a deal”. By getting
a judge to allow a comfort animal into the courtroom, a prosecutor can
potentially have a much easier case. I
would truly hope that a prosecutor who feels they have a weak case would not
use a comfort dog as a tactic to sway a jury!
Defense attorneys are paid to obtain the easiest road for their
client, and having a child feeling confident enough to take the witness stand
undermines the defense attorney’s ability to perform this task. It is completely understandable that the
defense would feel disadvantaged with this scenario. A defendant faced with the possibility of his
victim speaking in court about what he did to her will certainly fear being
exposed for who he really is! By that
same token, a defendant who is truly innocent would have good cause to worry
that a jury might be partial to a child with a comfort dog. Particularly with sex offender laws becoming
increasingly harsh, cases involving such crimes can be especially nasty. In
some cases, the accused are being allowed to plea to charges which would not
require them to be a registered sex offender, so a defendant who thinks the
child will testify against him might seriously consider this option.
The child, who has already endured trauma that many can only
imagine, is caught in the middle. It is
understandable why parents/guardians of these traumatized children would agree
to plea bargains! Who would want to subject an innocent, fearful child to even
more trauma and tension? Personally, I
cannot imagine having to ask my young child to go sit alone in front of a
courtroom filled with people she/he does not already know and talk about things
that she/he should not understand. I am sure
even most adults would feel anxious about such a scenario! However, to have this dog present—a friendly,
comforting, non-judgmental, living being that can just “be there” and help
reduce that anxiety—can make all the difference in the world. Everyone involved—the prosecutor, the defense
attorney, the parents, and the child—knows that this animal’s presence is going
to change lives. For the most part, all
the adults involved in a case where there are crimes against children already
understand what is going on. Abusers are
often familiar adults and possibly authority figures to the child, so the child
testifying against this adult can be very intimidated and possibly feel as
though they are betraying this adult.
Having a comfort dog in the courtroom to ease the child’s anxiety can potentially
create a more “level playing field”, so to speak. The child has someone on the stand with her/him
to offer support and sympathy. If
seeking out the truth is truly the goal of the criminal justice system, then
giving a young child the tools with which she/he can tell what happened to her/him
is very appropriate. Disallowing a
comfort item or pet, thereby potentially hindering her/his testimony, is a
disservice to the criminal justice system.
An organization such as Courthouse Dogs, LLC, while offering a
very beneficial service, also has a vested interest in the continued
utilization of courthouse animals. This
organization is very active in trying to set standardized guidelines for
courthouse dogs, ensuring their assistance is permitted to continue in the
judicial system. Courthouse Dogs, LLC
website provides a plethora of education and information regarding everything
you would ever need to know about a courthouse dog program, such as picking out
your dog, the various settings where the dogs are most helpful, legal
information, scientific research on courthouse dog use, training of dogs, and
all the current news about courthouse dog use.
The National District Attorneys Association “best practices”
resolution is simple and straightforward, addressing the major safety and
confidentiality concerns of having courthouse dogs. The resolution provides for a more
professional mindset regarding the program and seeks to protect all who are a
part of it. The best practices, in my
opinion, set basic standards from which a criminal justice system may write
their own standards in implementing a new program. I think that these best practices will evolve
over time, as new challenges and obstacles are recognized in courthouse dog
programs. The practice of keeping very
good records on the dogs, as stated in the “Courtroom Canines Calm Kids, Raise
Bias Fears” article, is an excellent idea.
These records will most likely be valuable in making any necessary
changes to already-existing programs, or when establishing guidelines with
which to implement new programs involving the presence of animals in the
criminal justice system.
In conclusion, I think that the utilization of courthouse dogs is
a wonderful program! The costs involved,
such as employing a professional in the field as a handler, are most likely
offset by less cases going to trial. Since
it does appear that a good foundation for these programs is already
established, I think that this trend will continue to spread. I do feel that defense attorneys would be
wise to find ways to employ their use. I
think comfort dogs should be allowed on the witness stand for adults as well as
children, since adults can experience high levels of anxiety in such
situations, too. This measure would also
dispel the concerns of defense attorneys who feel that the prosecution has an
unfair advantage. Even if a comfort dog
is not necessary for the witness, but rather is being used as a tactic, the
animal being present will ease tensions for all involved. Children who are required to testify in court
have a difficult task, since they are primarily concerned with loyalty to their
authority figures and trying to please them.
When a child has been abused by a parent or guardian, it can be
extremely stressful to discuss traumatic things they have endured. The child is not skilled in recognizing ploys
of defense attorneys who will try to confuse them or twist their words. In the past, getting children to testify
might have been a major roadblock to prosecutors’ cases, but we could possibly
see those situations change drastically now that dogs are being allowed to
accompany children to the witness stand.
Defense attorneys no longer have the comfort of thinking that the
prosecution and parents would not subject a child to such a stressful
situation; they now have to make a stronger case for their client. Rather than argue the animal’s presence,
defense attorneys should make use of the animal as well. When all is said and done, the goal in the
judicial system should be a fair trial where the truth is what is exposed. Courtroom dogs have been shown to benefit
everyone in the courthouse by reducing the anxiety level of all involved, so
their presence should be allowed.
References
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