Courthouse Facility Dogs - A Witness's Best Friend - The National Judicial College
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CRIMINAL JUSTICE | SUMMER 2020
Courthouse
Facility
Dogs
A Witness’s Best Friend
BY JILL MARIANI
“D
and rekindle the trauma the victims experienced
ogs are such agreeable friends—they ask no during the actual events.
questions, they pass no criticisms.” George Recognizing the therapeutic effect of canines,
Eliot, Scenes of Clerical Life (1857), quoted several courts throughout the United States permit
in People v. Tohom, 969 N.Y.S.2d 123 (App. Div. 2013), professionally trained facility dogs to accompany
leave denied, 22 N.Y.3d 1203 (2014). vulnerable victims and witnesses during their
Many victims of violence lose the power of their testimony in the courtroom. This article familiarizes
voice. Depending on the degree of trauma and the the legal community with the rapid evolution of this
nature of the crime, a victim may feel ostracized and
powerless. Articulating the details of the criminal acts JILL MARIANI is a Senior Investigative Counsel in the
perpetrated against a victim to strangers, including Rackets Bureau of the New York County District Attorney’s
police, jurors, judges, spectators, and the perpetrator Office. The views and opinion in this article are her own and
do not necessarily reflect her employer’s. She can be reached
and their counsel, can trigger disturbing emotions at marianig@dany.nyc.gov.
Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system 14
without the express written consent of the American Bar Association.
CRIMINAL JUSTICE | SUMMER 2020
novel harkens back to Jeeter, a golden retriever/Labrador
approach of enlisting the services of a courthouse retriever mix, from Ellen O’Neill-Stephens’s
dog, a particular type of facility dog, to assist anxious household. In 2003, practicing as a drug court
and traumatized victims/witnesses to provide prosecutor in the Kings County District Attorney’s
complete and truthful testimony. Office in Seattle, Washington, Ms. O’Neill-Stephens
discovered that Jeeter could assist “at-risk” children
Definition or those “rehabilitating” from substance abuse with
It is important to note what a facility dog is, and what their recovery. Eventually, Ms. O’Neill-Stephens
it is not. The inaccurate use of the term facility dog established the Courthouse Dogs Foundation, a
by the courts and others often confuses other types nonprofit organization advocating for and educating
of working dogs with facility dogs. Working dogs others about the use of these dogs. Rebecca Wallick,
that provide assistance to a human being, but are Dogs in the Courtroom, The Bark (July 2018), https://
not facility dogs, include (1) a service dog, trained to tinyurl.com/ycmxzlc8.
perform one or more specific tasks to assist a person The use of facility dogs was continued by Deputy
with a disability; (2) a therapy dog, trained to pro- Prosecutor Page Ulrey, whose dog, Ellie, a Labrador
vide psychological or physiological therapy to one or retriever mix, obtained “facility dog” status from
more individuals; (3) an emotional support/comfort Canine Companions for Independence. As the first
dog, trained to respond to a particular crisis suffered recognized courthouse facility dog, Ellie worked with
by the dog’s handler; or (4) a detection dog, trained the prosecution team in the King’s County District
to find explosives, drugs, or contraband items or to Attorney’s Office. Id. Jeeter and Ellie spurred the de-
engage in search-and-rescue operations. velopment of programs in nearly three dozen states
A facility dog is an expertly trained animal that throughout the continental United States and in
assists an anxious or traumatized individual to com- Hawaii that utilize hundreds of facility dogs. See Jenni
municate the facts that he or she has experienced or Bergal, Canines Helping Out in the Courtroom, PEW
witnessed. The temperament of this type of dog is (June 26, 2017), https://tinyurl.com/yb4nnuek. At least
more subdued than most other working dogs. Usually one-third of these dogs have accompanied witnesses
a golden or Labrador retriever, a facility dog is bred into courtrooms.
to detect a human being’s stress level. The facility dog
can calm a victim/witness with a gentle nudge to that The Benefit
person’s leg or by simply laying a furry head on the The courthouse facility dog, the preferred term,
person’s lap, making the individual feel safe. may assist any vulnerable participant in any court
A facility dog must graduate from an accredited proceeding, including victims/witnesses in criminal
dog association, such as Assistance Dog International, proceedings; individuals recovering from substance
or one of its affiliated organizations. Undergoing at abuse, mental illnesses, and post-traumatic stress
least a two-year training period, these dogs must pass disorders before drug courts and mental health
the same public access test as other working dogs. courts; and even defense witnesses. Casey Holder,
From puppyhood, these dogs are sensitized to be Comment, All Dogs Go to Court: The Impact of Court
resilient in stressful situations, while also express- Facility Dogs as Comfort for Child Witnesses on a
ing confidence and affection. Rebecca Wallick, Dogs Defendant’s Right to a Fair Trial, 50 Hous. L. Rev. 1155
in the Courtroom, Follow-Up Part II, The Bark (Feb. (2013).
2015), https://tinyurl.com/y9ty4wb7. The positive effects derived from a canine ac-
A facility dog can be paired with a myriad of companying a victim/witness is rooted in science.
handlers, including forensic interviewers, psycholo- Research has shown that traumatized individuals
gists, social workers, counselors, therapists, victim may experience a surge of the hormone cortisol that
advocates, law enforcement personnel, and prosecu- affects an individual’s cognitive capacity, resulting in
tors. These dogs can benefit victims orwitnesses in a difficulty recalling information or focusing on a ques-
variety of circumstances, from an initial interview or tion. Research has also found that interacting with
forensic examination, to pretrial briefings, courtroom a dog can produce another hormone called “oxyto-
testimony, sentencing, and other post-conviction cin,” sometimes referred to as the “love hormone,”
proceedings. which is associated with the feeling of well-being
and comfort and can assist a victim in communicat-
The Inspiration ing effectively. Gabriela N. Sandoval, Court Facility
The inspiration for the courthouse facility dog Dog—Easing the Apprehensive Witness, 39 Colo. Law.,
Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system 15
without the express written consent of the American Bar Association.CRIMINAL JUSTICE | SUMMER 2020
no. 4, Apr. 2010, at 17, https://tinyurl.com/y9pn5v5r; dog to accompany victims and vulnerable witnesses
James C. Ha, Dog Behavior: Modern Science and Our during their testimony in specified circumstances.
Canine Companions (Academic Press 2018). Some statutes limit the accompaniment of a certi-
By establishing a safe and stable environment, fied canine to underage victims or witnesses (ranging
these dogs assist the victim/witness to recall and from 13 to 18 years of age) in criminal matters or in
articulate critical and truthful information better. noncriminal matters involving child abuse or neglect
Trained to perform unobtrusively in public, the court- (see, e.g., Ark. Code Ann. § 16-43-1002; Idaho Code
house dog will sit quietly next to a victim/witness for § 19-3023; Miss. Code Ann. § 99-43-101; Okla. Stat.
long periods of time and will not interrupt the flow Ann. § 2611.12(C) (therapeutic dog).) Other statutes
of testimony or disturb the courtroom proceedings. extend the accommodation to adults who are intel-
Rebecca Wallick, Stilson Comforts at Sentencing, The lectually, physically, or developmentally disabled; to
Bark (Feb. 2015), https://tinyurl.com/yc5dudos. victims and witnesses of sexual offenses, regardless
of age (see, e.g., 725 Ill. Comp. Stat. Ann. 5/106B-
Legal Authority 10; Fla. Stat. Ann. § 92.55 (facility dogs and therapy
Initially the authority for permitting a canine to ac- dogs)); or to victims of domestic violence (see, e.g.,
company a victim/witness into the courtroom was Cal. Penal Code §§ 868.4, 868.5 (codifying People v.
grounded in the trial judge’s inherent discretion to Chenault)).
direct courtroom protocol and decorum. Such discre- As the concept and its benefits have become
tion has justified a judge’s ruling to limit the examina- better understood, some state legislatures have
tion of witnesses, to remove an uncooperative or broadened the courts’ authority to permit canines to
obstructive participant, or to allow jurors to ask ques- accompany any vulnerable witness, as defined by the
tions of the witnesses. See, e.g., People v. Johnson, 315 statute or case law. See, e.g., Ala. Code §§ 12-21-147
Mich. App. 163 (2016) (citing People v. Rose, 289 Mich. & 12-21-148 (therapy and facility dogs); Ariz. Rev. Stat.
App. 499, 509 (2010)). Ann. § 8-422; Conn. Gen. Stat. Ann. § 51-10d (therapy
Some courts have also invoked specific statutes to dogs); Hawaii Rev. Stat. § 621-30; La. Rev. Stat. § 15-
buttress that authority. For example, in 2013, a New 284; Mich. Comp. Laws Ann. § 600.2163a; Va. Code
York trial court permitted Rose, a graduate facility Ann. § 18.2-67.9:1; Wash. Rev. Code § 10.52.110.
dog placed with the Poughkeepsie children’s home, to
assist a child witness to testify against her father in a Burden of Proof
criminal sexual assault case. See People v. Tohom, 969 Although some statutes provide for such an
N.Y.S.2d 123 (App. Div. 2013), leave denied, 22 N.Y.3d accommodation upon the court’s own motion (see,
1203 (N.Y. 2014). The judge relied on a 1986 amend- e.g., Fla. Stat. Ann. § 92.55; Miss. Code Ann. § 99-43-
ment to the Fair Treatment Standards for Crime 101), the usual procedure is for a party to make an
Victims, pursuant to Executive Law on § 642-a(4), application. There appear to be three standards of
authorizing a judge to “be sensitive to the psychologi- proof among the jurisdictions to justify the presence
cal and emotional stress a child witness may undergo of facility dogs. Some courts do not require the
when testifying.” movant to make a showing but place the onus on
Several years before the enactment of a specific the defendant to establish prejudice or impropriety.
statute, a California trial judge relied on California Other courts require the applicant to establish
Evidence Code § 765 to permit a facility dog to ac- explicitly the necessity of the dog to facilitate the
company two juvenile sisters in the courtroom during witness’s testimony. In some jurisdictions, this burden
their testimony against the defendant, a relative of proof is codified (see, e.g., Hawaii Rev. Stat. § 621-
charged with committing numerous lewd and sexual 30(b) (a “compelling necessity”), Va. Code Ann. § 18.2-
acts against them. People v. Chenault, 175 Cal. Rptr. 67.9:1(C) (preponderance of the evidence); Wash. Rev.
3d 1 (Ct. App. 2014). Many of the cases that permitted Code § 10.52.110(5) (dog’s presence is necessary)).
the presence of a dog in court have involved victims Yet other jurisdictions simply require that the record
of sexual assault who were either minors or adults clearly demonstrate that the witness would have
with developmental disabilities. difficulty testifying without the assistance of a facility
In the last five years, several states have enacted dog. See, e.g., People v. Tohom, 969 N.Y.S.2d 123 (App.
specific statutes permitting certified dogs to Div. 2013); Cal. Penal Code § 868.4(b)(3); Okla. Stat.
accompany victims/witnesses. At last count, at least Ann. § 2611.12 (D)(1)(c); Va. Code Ann. § 18.2-67.9:1(C)
15 states have enacted statutes expressly permitting (2).
a professionally trained canine designated as a facility Irrespective of the applicable standard, the moving
Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system 16
without the express written consent of the American Bar Association.CRIMINAL JUSTICE | SUMMER 2020
party should seek permission in written form from for Some Defenders, Judges, Chi. Trib. (Apr. 5, 2018),
the court and set forth the following facts, some of https://tinyurl.com/y978xvbr; Kayla Burd, Facility
which are required by statute: (1) the credentials of Dogs in the Courtroom: Comfort Without Prejudice?,
the facility dog, including the type of training and Sage J. (May 2, 2019). Nevertheless, several
certification attained; (2) the extent of any prior precautionary measures can be taken to minimize
in-court experience by the canine; (3) details about any potential prejudice. First, the parties should seek
the experience and the training of the facility dog’s the court’s approval to voir dire prospective jurors
handler; (4) any established relationship between on the issue of whether a facility dog accompanying
the witness/victim and the canine, and noting if the a witness would create any undue sympathy for the
presence of the dog was requested by the victim/ witness or cause prejudice to a party in any way.
witness; and (5) the low risk of any disruption by Some statutes expressly permit such an inquiry.
the canine in the court proceedings, including See, e.g., Ark. Code Ann. § 16-43-1002(e); Wash.
information about any liability insurance Rev. Code § 10.52.110(7)(a). Second,
policy. See, e.g., Hawaii Rev. Stat. the parties and the court should
§ 621-30(c)(2); Okla. Stat. Ann. agree upon the procedure for
§ 2611.12(D)(1)(b); Wash. Rev. the physical introduction
Code § 10.52.110(4)(b); see of the facility dog into
also Ala. Code §§ 12-21- the courtroom. In most
147(a)(3)(a)(5) & 12-21- reported cases, and as
148(a)(1)(d) (requires a specified in several
minimum $500,000 statutes, the facility
liability policy). It is also dog accompanies the
prudent to request that witness to and from
the dog be present the witness box outside
during preliminary the presence of the
hearings or other court jury. Furthermore, in
appearances so that the most instances, the dog
trial judge can evaluate is not visible to the jurors
the behavior of the canine during the testimony See,
in settings where there is no e.g., Wash. Rev. Code §
trial jury. Adherence to such 10.52.110(7)(b), (c). Third, the
practices may well shape the law parties should discuss with the
in states where there is no specific court the need for and wording of
statute and make way for amendments any preliminary instructions to the jury
broadening existing laws. before the testimony begins, and any general
instructions at the conclusion of the testimony. The
Defense Objections jurors should be informed that while a dog may be
The major concern raised by defense counsel is that accompanying a particular witness during the trial,
the accused party may be unduly prejudiced by the the jury should “not make or draw any conclusions
mere appearance of the canine in the courtroom. based on the presence of the dog’s service.” Some
More specifically, they argue that the dog may make statutes have codified a requirement for jury
the witness appear more appealing to the jury or instructions. See, e.g., Ariz. Rev. Stat. Ann. § 8-422(C).
may make the defendant appear so menacing that
the witness needs to be protected by a dog, or may National Support
suggest that the witness is undergoing therapy as a There is national recognition of the benefit of facility
result of trauma inflicted by the defendant. William dogs to victims/witnesses. In 2018, the National
Glaberson, By Helping a Girl Testify at a Rape Trial, District Attorneys Association and the Association
a Dog Ignites a Legal Debate, N.Y. Times (Aug. 8, of Prosecuting Attorneys each passed a resolution
2011), https://tinyurl.com/42y8nu9. The research of supporting the implementation of courthouse facility
Professor Dawn McQuiston of Wofford College dogs to accompany victims and vulnerable witnesses.
in Spartanburg, South Carolina, indicates that the See Nat’l Dist. Att’ys Ass’n, 2018 Resolution of The
presence of the canines has no effect on jurors. See National District Attorneys Association (2018), https://
Dave Collins, Comfort Dogs in Court Do Opposite tinyurl.com/ybktypzl; Ass’n of Prosecuting Att’ys,
Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system 17
without the express written consent of the American Bar Association.CRIMINAL JUSTICE | SUMMER 2020
Courthouse Facility Dog Resolution of the Association testify in criminal matters. See, e.g., CARI Seeking
of Prosecuting Attorneys (Feb. 2018), https://tinyurl. to Employ Courthouse Dog to Help Children Give
com/y96lbo9d. On December 19, 2019, the US Senate Evidence, Raidió Teilifís Éireann (Nov. 2019), https://
passed a bill sponsored by Senator John Cornyn tinyurl.com/ybc4teym; Patricia Hynes, Top Dogs, 112
(TX) called Dogs as Witnesses Guardians Act (S. L. Soc’y Gazette, no. 3, Apr. 2018, at 36, https://tinyurl.
1029) (DAWG Act), or Courthouse Dogs Act, which com/yc7nebqw.
authorizes federal judges to permit a certified facility On this side of the Atlantic, Kim Gramlich is the
dog to accompany a witness testifying in criminal founder and chair of the Justice Facility Dogs Canada
proceedings. Courthouse Dogs Act, S. 1029, 116th (JFCD), an organization that provides advocacy and
Cong. (2019), https://tinyurl.com/y9jxsynd. education across Canada. JFDC supports Canadian
The legislation is now pending in the House of legislation that would permit facility dogs to aid
Representatives with bipartisan support. Courthouse victims within the Canadian criminal justice system.
Dogs Act, H.R. 5403, 116th Cong. (2019), https:// One of JFDC’s goals is to develop Canadian crisis
tinyurl.com/y9vfwtpg. response teams that would respond to mass casualty
incidents and disasters.
Embraced Internationally In 2009, Cecilia Marre, the executive director of
The American model of the courthouse facility dog Corporacion Bocalan Confiar, an assistance dog
has been embraced worldwide. It is being replicat- organization in Santiago, Chile, started a victim sup-
ed in Argentina, Canada, Chile, the United King- port program that employs canines to assist public
dom, and part of continental Europe. Dr. Elizabeth prosecutors in nonjury criminal trials. Ellen O’Neill-
Spruin, a canine behaviorist and an investigative Stephens, Courthouse Dogs Go South, The Bark (July
psychologist in the School of Psychology, Politics 2018), https://tinyurl.com/y9t9bo65. Titan, a five-year-
and Sociology at the Canterbury Christ Church old golden retriever, is a courtroom dog working with
University, in England, specializes in the use of children in Buenos Aires, Argentina. Bubble Staff, This
dogs to support vulnerable members of society Argentine Courtroom Therapy Dog That Helps Kids Is
in her role as the director of the Justice Support the Best Boi, The Bubble (Jan. 2020), https://tinyurl.
Dogs International Laboratory. The research lab is com/y85vq7yf.
dedicated to examining the benefits that specially A few programs have been initiated in the juris-
trained dogs can provide victims and witnesses in dictions Down Under. Joanne Baker, a nonlawyer in
the criminal justice system. Ella Rhodes, Paws for Australia with a Master of Science in Canine Science,
Court, 29 The Psychologist 896 (Dec. 2016), https:// is the president and managing director of Righ-
tinyurl.com/ybfdazus. Oliver, a black lab certified teous Pups Australia, Inc. She pairs dogs with at-risk
facility dog, was the first canine to work through- teens and young people with disabilities, including
out the British justice system providing support to autism spectrum disorders, at her facility (https://
victims and witnesses of crimes, including children tinyurl.com/y8z4zygs). In New Zealand, Gail Bryce,
with autism and emotional issues. Dr. Spruin’s re- a court’s victim advisor, introduced the concept of
search shows that Oliver’s presence makes victims/ courthouse facility dogs through Louie, her black
witnesses feel less anxious and more relaxed in Lab who worked in the Tauranga court. Louie died in
legal proceedings, enabling them to communicate December 2018, after assisting in 35 trials. Ministry
more clearly and openly. of Justice, Justice: Our People, Our Communities 14
Operating from its headquarters in Brussels, Bel- (2017), https://tinyurl.com/ycfa7xzv.
gium, Victim Support Europe (VSE), an international
advocacy group, is committed to offering the assis- Conclusion
tance of facility dogs to victims. VSE has partnered Increasingly in the United States and internationally,
with other European organizations to advance a courthouse facility dogs are recognized as assets in
multi-country project on research, best practices, and the courtroom. They assist victims/witnesses with
implementation of a facility dog program to address trauma, mental illness, or intellectual disability and
a significant EU-wide problem of secondary victimiza- those who might otherwise be unable or unwilling to
tion or victim-blaming. There are currently facility dog testify. A facility dog can give victims and witnesses
programs in Belgium, Hungary, Ireland, Italy, Romania, a voice and the courage to speak their truth. With
and Serbia. For instance, Children at Risk in Ireland appropriate procedures in place and oversight by
has partnered with Dogs for the Disabled to raise the courts, facility dogs deserve a role in the criminal
funds to train a courthouse dog to assist minors to justice system. n
Published in Criminal Justice, Volume 35, Number 2, Summer 2020. © 2020 by
the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database orretrieval system 18
without the express written consent of the American Bar Association.You can also read
