Reprint of article below.
QUESTION: What is your opinion of therapy dogs used for victims of violence in court testimony?
POUGHKEEPSIE, N.Y.–Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
When the trial ended in June with the father’s conviction, 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.”
Now an appeal planned by the defence lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.
Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. Both prosecutors and defence lawyers have described her as adorable, though she has been known to slobber. Prosecutors here noted that she is also in the vanguard of a growing trial trend: In Arizona, Hawaii, Indiana, Idaho and some other states in the past few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.
The new role for dogs as testimony enablers can raise thorny legal questions, however, with defence lawyers arguing that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract – whether a witness is telling the truth or not – and some prosecutors insisting that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in a handful of states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a Seattle prosecutor who has become a campaigner for the dog-in-court cause.
Seeing-eye and other service dogs have long been permitted in courts. But in a ruling in June that allowed Rosie to accompany the teenage rape victim to the trial here, a Dutchess County Court judge, Stephen L. Greller, said the teenager was traumatized and the defendant, Victor Tohom, appeared threatening. Although he said there was no precedent in the state, Greller ruled that Rosie was similar to the teddy bear that a New York state appeals court said in 1994 could accompany a child witness.
At least once when the teenager hesitated in Greller’s courtroom, Rosie rose and seemed to push the girl gently with her nose. Tohom was convicted and sentenced to 25 years to life.
His public defenders, David S. Martin and Steven W. Levine, have raised a series of objections that they say seem likely to land the case in New York’s highest court. They argue 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 they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Martin said.
In written arguments, the defence 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 defence said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.
Hawlk declined to discuss Rosie. In written arguments, she said that all Rosie did was help a victim suffering from serious emotional distress, and she called the defence claims “frivolous accusations.”
The defence lawyers acknowledged the risk of appearing anti-dog. Rosie, they wrote, “is a lovely creature and by all standards a ‘good dog,’ ” and, they added, the defendant “wishes her only the best.”
As the lawyers prepare their appeal, Rosie has been busy. She spent much of her time in recent weeks with two girls, ages 5 and 11, who were getting ready to testify against the man accused of murder in the stabbing of their mother.
The Dutchess County prosecutor in that case, Matthew A. Weishaupt, argued 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,” Weishaupt said in an interview.
In the end, Rosie was not needed in the second case