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Pennsylvania case
Recently, the Pennsylvania Supreme Court issued a ruling of first impression that may make testifying in a trial a bit less stressful for certain people.
With its focus on ensuring a fair trial, the court said that comfort dogs will be allowed to assist witnesses in criminal trials, if the dog's presence will help the witness to testify in a reliable, truthful manner. This conclusion seems entirely straightforward and logical: if a support dog of some kind helps put a person at ease, their presence would be even more crucial when such a person needs to be speaking publicly, on the record, in a very serious situation with serious consequences. Clearly, in these circumstances the services of a companion animal should be allowed, as it aids in the administration of justice. Surprisingly however, the PA Supreme Court's affirmation only came after several years of litigation concerning the permissibility of such a comfort dog's presence in a criminal trial.
The litigation on this issue stems from a 2018 Chester County murder trial, in which the court allowed Melody the comfort dog to accompany a child witness. The child witness was autistic and, the district attorney's office said, afraid to testify -- not hard to believe for any witness in a murder trial, let alone for a child. (Also, court documents suggested that a second witness was assaulted due to his involvement; the child's fear stemmed in large part from that, understandably.) The district attorney requested the court's permission to allow a comfort dog to help the child witness, and the court granted the request. This underlying case, Commonwealth v Purnell, resulted in a conviction of the defendant, who then appealed the case based on the allowance of the dog: the appeal claimed the dog generated sympathy from the jury and also that the state did not establish the dog's necessity.
Aside from the defense attorneys' possibly grasping at any available straws after receiving a guilty verdict, it's difficult to understand their objection. It's hard to see the downsides of allowing support animals in the courtroom to help testifying witnesses cope with the pressures of being part of a criminal trial. First of all, in this case, the jury did not actually see the dog, so the claim about the dog eliciting sympathy from the jury has little weight. (The dog and the witness were in the witness box before the jury entered, and the jury left before them as well, so the dog was not visible.)
Farfetched arguments about improper jury persuasion are founded on the hyperbole that everyone loves dogs and that if jurors see a witness for the prosecution with a dog, they will connect 'dogs' to 'prosecution' and 'anti-dog' to 'defendant', and then the jurors are purportedly swayed towards the prosecution because of their affinity for dogs. Not only is this argument inapplicable because the jury didn't see the dog, but is also reductive and offensively dismissive of jurors' capabilities.
The sympathy argument also alleged that the jury would deem the child witness vulnerable and sympathetic for needing a service dog. However, if you ask us the very circumstance of being a child witness giving evidence in a murder case seems to clearly evidence vulnerability and engender more sympathy than does merely having a support dog.
At the heart of all of this should be the question - what is going to aid in achieving an outcome that is in the interests of justice? A trial must ensure fairness and truthfulness. If a dog's presence helps a witness deliver key testimony that they might otherwise be too nervous to get out, then that dog must be allowed in. Courtrooms can be highly stressful for lawyers; it must be exponentially worse for people rarely in them. The stress involved in appearing in court holds for all witnesses irrespective of whether they appear for the prosecution or defence. The necessity for any bit of support during such a difficult time, in order to ensure that testimony can be given to the best of that witness' ability, seems like something both sides should agree is essential to a fair outcome.
The PA courts tended to agree: on initial appeal in 2020, the Superior Court concluded that the trial judge did not abuse their discretion by allowing the comfort dog to assist the witness, and a few weeks ago the Supreme Court upheld this decision. This court stated, "We hold that a trial court should balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant’s right to a fair trial."
Finding guidance from the Connecticut Supreme Court's decision on a similar matter, the PA Supreme Court adopted the Connecticut balancing test for the commonwealth. The pivotal question in the Connecticut test is whether allowing a service dog will aid the witness in testifying truthfully and reliably, not whether the accommodation is strictly necessary in its own right. "[B]ecause truthful and reliable testimony is an essential component of a fair trial, a finding that an accommodation will help a witness to testify more reliably also constitutes a finding that the accommodation is necessary.” This must be balanced by the potential prejudice to the opposing parties, with the court urged to employ means to mitigate any potential prejudice, such as providing jury instructions and keeping the dog from the jury's vision, both of which the Chester County trial judge did.
Support Animals in England
Regarding the situation here in England, we hear a lot of complaints about the exploitation of the support dog system, especially when people talk about pets being brought on planes. However, while official assistance dogs in England have many rights, England doesn't actually recognise or provide guidance for emotional support animals. Some say that the lack of legal recognition for emotional support animals as opposed to assistance dogs shows that mental illness is still not given the same import as physical illness in UK law.
As for dogs in courts, one English judge's wonderful work bringing dogs into Chelmsford county court back in 2016 seemed to be the catalyst for events here. Judge Lynn Roberts, the designated family judge for Essex and Suffolk, coordinated with Pets as Therapy and Canine Concern to bring therapy dogs into the courthouse to visit with and provide relief for all workers and visitors. Roberts also made sure to arrange for dogs to be present whenever children would be attending court. Although those dogs were not used as support specifically when children were testifying, this was the beginning of English courts recognising how valuable dogs could be in the court setting.
Seeing what a success her therapy dog program was in the courthouse, Roberts expressed her desire to see the concept expand and reach other counties. And in 2018, the UK got its first 'justice facility dog', a therapy dog working with Kent Police and Canterbury Christ Church University. Oliver the dog helped support people (especially vulnerable people, victims, and witnesses to crime) as they recounted distressing experiences to detectives. Oliver's initial work was to support those who had to provide video-recorded police interviews, but the workers involved expressed hope that he and others like him could be used in court cases.
Then, a Crown Court in Cornwall became the first to have therapy dogs visit with vulnerable or young witnesses in the courthouse. These dogs did not accompany the witnesses inside the courtroom, but rather comforted them while they waited and prepared to testify. However, the results of their presence -- "miraculous" according to one judge -- would make it hard to deny how helpful they could be inside the courtroom as well.
*This does not reflect the views of TAAP or its trustees regarding the ethics of using dogs in various manners.