Skip

"There was no way for me to cross-examine the dog."
August 8, 2011 1:14 PM   Subscribe

Rosie is an adorable golden retriever, trained as a therapy dog to help calm the stressed. She recently made an appearance in a courtroom to help a 15-year-old girl testify against her father in an incest case. The father was convicted, and his lawyers are now appealing the conviction on the grounds that Rosie was just too darn cute.

Specifically, the lawyers argue that Rosie lent added weight to the girl's testimony, and point out that stress can also come from lying under oath. The appeal will likely affect other cases that have hinged on therapy-animal-supported testimony.
posted by Etrigan (206 comments total) 14 users marked this as a favorite

 
Lawyers weigh in -- has there ever been a case where a defense team has filed a similar complaint against a blind witness's service dog? (Side question -- what is the protocol of other service dogs in court? Do witnesses have to leave them behind?)
posted by EmpressCallipygos at 1:30 PM on August 8, 2011


We don't let other people on the stand to assist witnesses, and I don't see any reason why we should. Why therapy dogs? Seeing-eye or other assistance dogs are one thing, but this dog is specifically trained to provide emotional support.

I think this may actually be a decent federal case in the making. This has the potential to be incredibly prejudicial, in a context where there's already the real but unavoidable risk of prejudice due to the nature of the charges. There are already ways of getting traumatized witnesses' testimony in without putting them on the stand. Depositions, sequestration and examination by camera, etc. This is a stunt, pure and simple.

And where this is going to get really interesting is how the "f*ck the police" crowd interacts with the "rape is the Worst Thing Ever" crowd. Remember, we are talking about a legal tactic which the prosecutors freely admit can mean the difference between conviction and acquittal. As it has nothing whatsoever to do with the substance of the case, shouldn't that bother us?
posted by valkyryn at 1:31 PM on August 8, 2011 [32 favorites]


Jesus, they really do this in court?

I know too many people who are just wild about dogs to think this is a fair thing for the accused.
posted by 2N2222 at 1:32 PM on August 8, 2011 [1 favorite]


He should get a new legal-beagle.
posted by Kabanos at 1:32 PM on August 8, 2011 [1 favorite]


I may- oh hell, I will- be in the minority here, and I'm sure someone will say that I probably support incest and rape... but I think this kind of thing shouldn't be allowed.

It's odd the article talked about her as a victim (presumably since he was convicted) but didn't mention any other evidence presented; if this case is purely won on the testimony of the alleged victim, then the dog should absolutey not have been allowed (whereas if they have conclusive evidence via DNA that the father raped and impregnated her, the testimony is almost an afterthought).

The defense makes a good point in their appeal: people may be stressed when talking about awful experiences, but they also may be stressed when they're lying- and the dog would provide an unfair element of relaxation. More troubling, even though Etrigan used the phrase "just too darn cute" to sound dismissive, I can certainly believe a 15-year-old girl holding a dog will seem more persuasive to the jury than one without one. Whether we like it or not, juries consciously and unconsciously display bias towards or against those in the witness stand based on appearance and behavior/mannerisms; that is part of their job, after all. The dog might provide a benefit not dissimilar to getting professional acting lessons before testifying.
posted by hincandenza at 1:32 PM on August 8, 2011 [5 favorites]


Could you imagine getting convicted of something you didn't commit because of a stunt like this? It'd be like if Disney started putting out Kafka adaptations.
posted by theodolite at 1:35 PM on August 8, 2011 [12 favorites]


I think this may actually be a decent federal case in the making.

Maybe a decent case, but probably not a decent federal case. This is a state law matter, and I can't think of anything in the U.S. Constitution that would apply.
posted by pardonyou? at 1:35 PM on August 8, 2011


Here's a better link, Kabanos.
posted by JHarris at 1:35 PM on August 8, 2011 [1 favorite]


But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

This is a good point, and I for one would like to see it tested and some guidelines applied by a higher court.

...a 15-year-old girl who was testifying that her father had raped and impregnated her.

There's obviously more to this case if the girl's testimony needs to be involved, otherwise, how could this not be resolved by DNA testing and a birth certificate?
posted by Capt. Renault at 1:36 PM on August 8, 2011 [4 favorites]


Lawyer Cat Esq. is not amused.
posted by bhance at 1:37 PM on August 8, 2011 [2 favorites]


Standing up in a courtroom and talking about the most horrific thing that ever happened to you in front of a huge number of adults, including the father that raped you, all looking for the tiniest mistakes in your story is an incredibly traumatic event in itself. This girl deserves any help she can get, and if she needed a loving dog to be able to tell her story, then by god, give her every loving dog in the world.

The argument that it prejudices the jury is ridiculous. The jury is supposed to be filled with adults, who understand that their job is to weigh the evidence dispassionately. A dog doesn't change the evidence either way.
posted by gkhan at 1:38 PM on August 8, 2011 [20 favorites]


Appearances do really matter to a jury, and the law takes very seriously the duty not to prejudice the jury for reasons other than the facts presented at trial. For example, an accused has to be allowed to wear street clothes rather than prison garb. I would probably make this appeal if I were the defense attorney.
posted by yarly at 1:39 PM on August 8, 2011 [5 favorites]


Did the dog testify? I thought that only the witness' testimony was admissible.
posted by Gungho at 1:39 PM on August 8, 2011


Maybe the problem could be solved if they used an animal that would inspire less sentiment in the jury. A therapy octopus, perhaps.
posted by XMLicious at 1:40 PM on August 8, 2011 [35 favorites]


There's obviously more to this case if the girl's testimony needs to be involved, otherwise, how could this not be resolved by DNA testing and a birth certificate?

I know nothing at all about this case, but I do know that women who are raped and impregnated by their rapist, particularly when it's incestuous rape, sometimes don't want to carry that pregnancy to term.
posted by Tomorrowful at 1:40 PM on August 8, 2011 [8 favorites]


The argument that it prejudices the jury is ridiculous. The jury is supposed to be filled with adults, who understand that their job is to weigh the evidence dispassionately. A dog doesn't change the evidence either way.

This statement is at odds with both reality and the entire Anglo-American system of trial practice.
posted by saladin at 1:40 PM on August 8, 2011 [36 favorites]


Remember, we are talking about a legal tactic which the prosecutors freely admit can mean the difference between conviction and acquittal. As it has nothing whatsoever to do with the substance of the case, shouldn't that bother us?

Well, to be fair, I believe the prosecutor would tell you that the reference to "difference between conviction and acquittal" referred to the fact that some victims of crimes are hesitant to testify -- even to tell the truth -- because of the emotional trauma of testifying. So in that situation, it doesn't have "nothing whatsoever to do with the substance of the case."
posted by pardonyou? at 1:41 PM on August 8, 2011 [1 favorite]


This is a state law matter, and I can't think of anything in the U.S. Constitution that would apply.
posted by pardonyou? at 1:35 PM on August 8 [+] [!]


Errr... how about due process rights to a fair trial guaranteed by the Constitution? This is what habeas is for. (Not that courts ever grant habeas, but that's another question... )
posted by yarly at 1:42 PM on August 8, 2011


The jury is supposed to be filled with adults, who understand that their job is to weigh the evidence dispassionately.

That's five ton gorilla of a "supposed to."
posted by griphus at 1:42 PM on August 8, 2011 [14 favorites]


We don't let other people on the stand to assist witnesses, and I don't see any reason why we should. Why therapy dogs? Seeing-eye or other assistance dogs are one thing, but this dog is specifically trained to provide emotional support.

That's still my question -- what is the protocol for a blind witness? Do they let the service dog join him/her on the witness stand?
posted by EmpressCallipygos at 1:42 PM on August 8, 2011


This is a state law matter, and I can't think of anything in the U.S. Constitution that would apply.

Fourteenth Amendment right to Due Process, perhaps? Admitting prejudicial testimony? Grounds for a habeas corpus action.
posted by valkyryn at 1:42 PM on August 8, 2011 [2 favorites]


I can appreciate the argument that such a dog might be prejudicial, but -- I have a golden, and I can't imagine a better thing than to allow her to comfort traumatized children in an adversarial situation. My dog, like all goldens, is made of pure love. The thought that someone somewhere said, hey, these kids are traumatized and facing an extremely stressful situation, why don't we... get a golden retriever to sit with them in court? kind of makes me proud of the human race.
posted by pH Indicating Socks at 1:43 PM on August 8, 2011 [15 favorites]


We don't let other people on the stand to assist witnesses, and I don't see any reason why we should.

On the jury I served on, many of the witnesses were Spanish-speaking, and used a court translator, who sat in the witness box with the witness. It didn't seem strange to me.
posted by rtha at 1:45 PM on August 8, 2011 [12 favorites]


I can't think of anything in the U.S. Constitution that would apply.

I can. Try due process, confrontation, and equal protection. Nothing is more offensive to constitutional principles than a fair trial. Of course, that's not to say that the dog actually undermines the fair trial. But competent defense attorneys must nevertheless raise the objection. (

I'd be very concerned about whether there's actual scientific evidence showing that this doesn't result in unfair prejudice. It is plain that the dog's nudging is not evidence and must not be allowed to persuade the jury of anything. But if it did anyway, that would be grounds for a new trial.
posted by Hylas at 1:45 PM on August 8, 2011


This girl deserves any help she can get

See if you still agree with this sentiment when you're on trial for something you've been falsely accused of.
posted by dixiecupdrinking at 1:45 PM on August 8, 2011 [10 favorites]


Fourteenth Amendment right to Due Process, perhaps? Admitting prejudicial testimony? Grounds for a habeas corpus action.

Yeah, good luck with that one.
posted by pardonyou? at 1:45 PM on August 8, 2011


has there ever been a case where a defense team has filed a similar complaint against a blind witness's service dog?

The article seems to suggest that there is, but I can't find it for the life of me. Most trial court rulings aren't published in court reporters, and I'm not seeing any appellate precedent on the issue yet.

But there's a company that does this sort of thing.
posted by valkyryn at 1:45 PM on August 8, 2011


What do you mean, brought it to the courtroom? I didn't swear it in. I didn't mention it in fucking discovery. He's not giving your fucking testimony, dude.
posted by 7segment at 1:47 PM on August 8, 2011 [8 favorites]


This is a serious suggestion: Allow all witnesses to be accompanied by a cute dog while testifying if one witness has one for a reasonable medical reason.
That way there is no bias.
posted by demiurge at 1:48 PM on August 8, 2011 [19 favorites]


Courthouse Dogs, LLC, actually has a white paper on the legality of their practices. I don't really have time to analyze it right now, and it's obviously from a biased source, but there you go.
posted by valkyryn at 1:49 PM on August 8, 2011 [1 favorite]


I once took the deposition of a witness who had a lovely black lab as her service dog. I'm recorded in the transcript saying, "no I'm not going to rub your belly." It led to all kinds of questions from the rest of the team when they reviewed the transcript as we were preparing for trial.
posted by Cocodrillo at 1:51 PM on August 8, 2011 [73 favorites]


Yeah, good luck with that one.
posted by pardonyou? at 1:45 PM on August 8 [+] [!]


Federal jurisdiction really wouldn't be in question here for this kind of claim, I don't think -- the question is whether it actually is violation of due process, and whether it's a well-established violation under AEDPA. Check out Estelle v. Williams.
posted by yarly at 1:51 PM on August 8, 2011


What if it had been an ugly dog?
posted by keli at 1:51 PM on August 8, 2011 [3 favorites]


I know nothing at all about this case, but I do know that women who are raped and impregnated by their rapist, particularly when it's incestuous rape, sometimes don't want to carry that pregnancy to term.

Not to derail, but I meant the girl's birth certificate, which shows that she's underage and related to her father, making it all rather elementary, legally speaking. A DNA test wouldn't depend on carrying to term. Obviously, there's more to things if the girl herself needs to take the stand.

Apologies -- I could have been clearer.

posted by Capt. Renault at 1:51 PM on August 8, 2011


“There was no way for me to cross-examine the dog,”

I understand the job of a defense attorney but that this is his cutesy way of saying that the dog made it harder for him to accomplish his job of creating the implication that a 15 year old girl was just making up her story about being violently raped makes me want to find a dog and hug it right now too.
posted by XQUZYPHYR at 1:53 PM on August 8, 2011 [20 favorites]


Canines in the Courtroom. From a 2009 "Animal Law" issue of GP Solo, the American Bar Association's newsletter for general practice, solo, and small firms.
posted by Kabanos at 1:54 PM on August 8, 2011 [2 favorites]


I understand the job of a defense attorney but that this is his cutesy way of saying that the dog made it harder for him to accomplish his job of creating the implication that a 15 year old girl was just making up her story about being violently raped makes me want to find a dog and hug it right now too.

Those evil defense lawyers, why do we even let them in the courtroom, they only get in the way of our quest to throw all the bad bad people into jail.
posted by Space Coyote at 1:56 PM on August 8, 2011 [42 favorites]


Is there a transcript of the trial in this case available anywhere?
posted by Gator at 1:57 PM on August 8, 2011


Federal jurisdiction really wouldn't be in question here for this kind of claim, I don't think -- the question is whether it actually is violation of due process, and whether it's a well-established violation under AEDPA. Check out Estelle v. Williams.
posted by yarly at 4:51 PM on August 8 [+] [!]


Point taken -- I should have been clear that I wasn't really challenging jurisdiction, I was doubting that any federal court would grant a habeas petition for something like this. But I could be wrong (it's actually happened before).
posted by pardonyou? at 1:58 PM on August 8, 2011


If think that anyone who claims this issue is cut-and-dry on either side should think about it a bit more. Both sides have good points.

Assume for a second that the defendant is actually guilty of the crime of which he's accused. The victim is going to be incredibly traumatized by what was done to her. In fact, the defendant is probably then counting on the fact that the victim is traumatized to get away with it. Allowing the victim to get back to a place where she can simply tell the truth about what happened to her is totally reasonable.

Of course, we don't assume guilt in our justice system. Let's now assume that the defendant is innocent. For some reason, the person on the stand is laying out false charges against the defendant. Then, the cute dog (and the dog is really cute) next to her is going to probably, on balance, prejudice the jury towards sympathizing with her. It probably won't necessarily make her testimony more or less credible, but we're likely to have a lower threshold for believing someone if we sympathize with her.

In an ideal world, the dog wouldn't matter to the credibility of the witness and would just do what was intended -- comfort a child who has (allegedly) been violated in the most horrific way. However, I don't think that anyone can reasonably claim that the dog isn't prejudicial at least to some extent.
posted by Betelgeuse at 1:58 PM on August 8, 2011 [9 favorites]


Could they not get around the "prejudiced by cuteness" accusation by putting a barrier around the witness...or having her testify via closed-circuit? I guess if it's important to show her face as she testifies, set it up so she could pet the dog but it wouldn't be visible. I assume the dog could be trained to stay laying down or sitting.

I don't get the whole "petting shows she's stressed, then they'll have sympathy!" argument. Sweating also shows stress, as does fidgeting, crying, or closing your eyes, but nobody argues that those things unfairly prejudice a jury.
posted by emjaybee at 1:59 PM on August 8, 2011 [16 favorites]


Indirectly regarding the service dog question, check out the comments on the NYT site--there's a comment there from a guy who says he's a litigator with a service dog, and that he feels juries respond positively to his dog and that it has improved his success rate at trial.
posted by phoenixy at 2:00 PM on August 8, 2011 [2 favorites]


How far do you have to do to remove possible prejudice? It seems the ideal situation would be that everybody involved, including attorneys on both sides, defendants (and plaintiffs if a civil case), and witnesses would be required to wear some kind of unisex uniform and a mask, with an audio modulator to normalize everybody's voices. And no real names can be used, only "Person A", "Person B", etc.

Then, the cute dog (and the dog is really cute) next to her is going to probably, on balance, prejudice the jury towards sympathizing with her.

What if the witness him/herself is adorable and cute? Are we going to disallow them from testifying?
posted by kmz at 2:01 PM on August 8, 2011 [8 favorites]


Sweating also shows stress, as does fidgeting, crying, or closing your eyes, but nobody argues that those things unfairly prejudice a jury.

Sweating, fidgeting, crying, and closing your eyes doesn't involve an o my god so cuuuuuuuuuuuuuuute response. People respond strongly to cute things.
posted by Justinian at 2:01 PM on August 8, 2011


What if the witness him/herself is adorable and cute? Are we going to disallow them from testifying?

The attorneys can cross examine an adorable and cute witness. As pointed out in the title of this very thread an attorney can't cross examine an adorable dog.
posted by Justinian at 2:02 PM on August 8, 2011 [1 favorite]


Phoenixy, of course, but then there are many things lawyers and witnesses do to appeal to the jury. They wear nice clothes, they smile. If they are good looking, they get a better break. If they are white, even more so.

I mean, if we're going to talk about the ways juries are influenced by appearances, let's get it all out there.

If we truly wanted juries to base their decisions only on testimony not appearances, why force them to listen to testimony from behind a barrier?
posted by emjaybee at 2:02 PM on August 8, 2011 [2 favorites]


Both sides have good points

Correct, except for the side that thinks court witnesses should be allowed to bring pets with them.
posted by ShutterBun at 2:03 PM on August 8, 2011 [1 favorite]


argh. Why NOT force. sorry.
posted by emjaybee at 2:03 PM on August 8, 2011


What if the witness him/herself is adorable and cute? Are we going to disallow them from testifying?

Of course not. But there's a difference between "People look different, oh well" and "let's put an adorable dog on the stand with a witness, in a culture where people often respond very powerfully to the actions of adorable dogs."
posted by Tomorrowful at 2:03 PM on August 8, 2011


I understand the job of a defense attorney but that this is his cutesy way of saying that the dog made it harder for him to accomplish his job of creating the implication that a 15 year old girl was just making up her story

Not at all. The story doesn't tell us what the defense is. The defense has no such burden of proving any theory or even advancing one. Instead, the prosecution has the burden of proof beyond a reasonable doubt. That the defendant is accused of truly wicked crimes is more of a reason to ensure the process is fair, not less.
posted by Hylas at 2:04 PM on August 8, 2011 [3 favorites]


Maybe the problem could be solved if they used an animal that would inspire less sentiment in the jury. A therapy octopus, perhaps.

I understand that European Union law allows for therapy algae and molds.
posted by ricochet biscuit at 2:04 PM on August 8, 2011 [2 favorites]


Those evil defense lawyers, why do we even let them in the courtroom, they only get in the way of our quest to throw all the bad bad people into jail.

Is that straw man for therapeutic purposes?
posted by XQUZYPHYR at 2:05 PM on August 8, 2011 [7 favorites]


bring pets with them.

You're one of those people who think blind people are assholes for bringing their service animals into restaurants, etc, aren't you?
posted by kmz at 2:05 PM on August 8, 2011 [8 favorites]


Then, the cute dog (and the dog is really cute) next to her is going to probably, on balance, prejudice the jury towards sympathizing with her.

What if the witness him/herself is adorable and cute? Are we going to disallow them from testifying?


Right. Of course not. The interesting thing is where you draw the line. I think yarly's point above on the "street clothes vs. prison garb" issue is another iteration of this. I do think a cute puppy occasionally nuzzling the victim is much closer to the line than nice clothes or a cute witness.
posted by Betelgeuse at 2:06 PM on August 8, 2011


It'd be like if Disney started putting out Kafka adaptations.

Funny you should mention that, I just discovered The Meowmorphosis
posted by nomisxid at 2:06 PM on August 8, 2011


Sweating also shows stress, as does fidgeting, crying, or closing your eyes, but nobody argues that those things unfairly prejudice a jury.

I think that a witness's extremely emotional testimony can unfairly prejudice a jury. The difference is you can't do anything about it. By contrast, it is trivially easy not to put a dog on the stand with a witness.
posted by dixiecupdrinking at 2:06 PM on August 8, 2011 [1 favorite]


Could they not get around the "prejudiced by cuteness" accusation by putting a barrier around the witness...or having her testify via closed-circuit?

That's my question, really. This is done in other situations where getting the witness in the room is difficult, so I'm really not sure why it couldn't be done here. Which makes me tend to think that it's more a stunt than anything else.
posted by valkyryn at 2:06 PM on August 8, 2011 [1 favorite]


> Standing up in a courtroom and talking about the most horrific thing that ever ALLEGEDLY happened to you in front of a huge number of adults, including the father that ALLEGEDLY raped you, all looking for the tiniest mistakes in your story is an incredibly traumatic event in itself.

Yes, it is pedantic, but the father was still on trial at that point and thus his guilt was unproven at the time of the girl's testimony. The specifics of this case make me want to take a long shower and then curl up with my dog, but at issue is the question of whether the dog could be construed as biasing the jury. While this case may be made of pure squick (and really open and shut just based on DNA, I would think?), what about other cases that do not seem as clear?

Plenty of people who did not commit a crime end up in prison based on eye-witness testimony that later proves erroneous. What if this was a burglary or a non-sexual assault? Would the use of a therapy dog still seem as unquestionable as it does in this case?
posted by Panjandrum at 2:07 PM on August 8, 2011 [2 favorites]


(Hint: A service animal is not a pet.)
posted by kmz at 2:07 PM on August 8, 2011 [7 favorites]


I'm not sure about NY, but in many regions and countries the conviction rate for rape is horrifically low due to jury attitudes towards defendants; it strikes me that if the dog swings things this might go some way to redressing that balance.
posted by lesbiassparrow at 2:07 PM on August 8, 2011


Both sides have good points

Correct, except for the side that thinks court witnesses should be allowed to bring pets with them.


I don't think anyone is on that side. Service animals (especially ones certified by the court) are demonstrably different from "pets."
posted by Betelgeuse at 2:07 PM on August 8, 2011 [7 favorites]


Sweating, fidgeting, crying, and closing your eyes doesn't involve an o my god so cuuuuuuuuuuuuuuute response. People respond strongly to cute things.

People also respond to 15-year-old girls falling apart in tears because they have to talk about what their father did to them in front of the entire world. You can't eliminate prejudice.

(btw, while I totally disagree with you, I have to say: awesome username! Justinian is like my favorite emperor, ever!)
posted by gkhan at 2:07 PM on August 8, 2011


Standing up in a courtroom and talking about the most horrific thing that ever happened to you in front of a huge number of adults, including the father that raped you, all looking for the tiniest mistakes in your story is an incredibly traumatic event in itself. This girl deserves any help she can get, and if she needed a loving dog to be able to tell her story, then by god, give her every loving dog in the world.

The argument that it prejudices the jury is ridiculous.


Ridiculous? It already prejudiced you so much that you assumed right out of the gate that the defendant is guilty.
posted by The World Famous at 2:08 PM on August 8, 2011 [16 favorites]


Correct, except for the side that thinks court witnesses should be allowed to bring pets with them.

This is absurd and far too dismissive. I know a woman with traumas in her past that would keep her from ever leaving the house if not for her therapy dog. Congratulations on living a life which hasn't caused you to need a service animal.
posted by EatTheWeak at 2:08 PM on August 8, 2011 [2 favorites]


*towards accusers*
posted by lesbiassparrow at 2:08 PM on August 8, 2011


Judge Wapner was okay with it, so that's good enough for me.
posted by Kabanos at 2:11 PM on August 8, 2011 [2 favorites]


But there's a company that does this sort of thing.

Yes. And it is linked to in the NYT article:
"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."
Ellen O’Neill-Stephens is a co-founder of the organization.
posted by ericb at 2:12 PM on August 8, 2011


I think yarly's point above on the "street clothes vs. prison garb" issue is another iteration of this. I do think a cute puppy occasionally nuzzling the victim is much closer to the line than nice clothes or a cute witness.

Exactly. Imagine a system in which the witnesses for the prosecution all testified while playing with a basketful of puppies. Cute, adorable puppies. Now the defense witnesses all testify while in full Hannibal Lector restraints with the scary mask. While a screen behind them shows horrific and gory crime scene photos and so on. That would obviously be prejudicial.
posted by Justinian at 2:13 PM on August 8, 2011


I don't think it's even a question of whether service animals should be allowed in court or not. The real question is when they are allowed what lengths should the court go to to ensure that the animal doesn't hinder the defendant's chance at a fair trial. The answer to that is great lengths. In fact, almost nothing is more important in this context.
posted by IvoShandor at 2:13 PM on August 8, 2011 [3 favorites]


Full Circle: Prison Inmates Train a Courthouse Dog [PDF] by Ellen O’Neill-Stephens J.D.
posted by ericb at 2:14 PM on August 8, 2011


'Sometimes the dog means the difference between a conviction and an acquittal'

This is the thing I hate about prosecutors. The only thing that matters to many of them is maximizing conviction rate; whether or not all of those people convicted are actually guilty is not necessarily relevant.
posted by Justinian at 2:15 PM on August 8, 2011 [7 favorites]


I like how they left out the part where the dog glared at the defendant, bristling with tension.

All kidding aside, and I love dogs like crazy, but there is no way that this doesn't have an effect on the jury. Nebulous assertions of excessive cuteness aside, animals are extraordinarily capable of picking up non verbal cues and responding to them. Dogs are nothing if not extremely expressive, in innumerable ways. Jurors may pick up on those canine expressions consciously or subconsciously - you'd have to be made of stone not to.

I am left wondering if animals can discern "the truth" though. That's probably just wishful thinking, but my dogs have an uncanny ability to know things they cannot.
posted by Xoebe at 2:15 PM on August 8, 2011


It really is fascinating how rape cases bring out the hawks in liberal people. There are plenty of good reasons for it, but the fact remains that procedural safeguards for defendants are only as good as our willingness to use them in the hard cases.
posted by dixiecupdrinking at 2:17 PM on August 8, 2011 [25 favorites]


Oh and seconding what Justinian said. That phrase caught my eye as well...in fact, a good lawyer might present that statement as part of his appeal.

'Sometimes the dog means the difference between a conviction and an acquittal'

Defense attorney: My point exactly.
posted by Xoebe at 2:17 PM on August 8, 2011 [1 favorite]


The white paper valkyryn linked to is very interesting. There's support for people bringing in comfort humans (children) and comfort objects (dolls) under certain circumstances. It would seem that a dog could be similarly allowed, just as there might exist other cases in which such a dog would be inappropriate.

The defense raised a fair point by arguing that the dog's presence would improperly boost the credibility of the witness and substantially prejudice the jury against the defendant. We'll see how this wends its way through the appellate process.

Slippery slope arguments about people only testifying from behind barriers or CCTVs don't hold water here. There are many excellent rules against prejudicial or confusing evidence. Should you ever wind up in court, there's a fair chance that you might be very glad that there are rules meant to ensure a fair trial.
posted by Sticherbeast at 2:20 PM on August 8, 2011 [1 favorite]


First of all, that attorney wasn't involved in this case. Secondly, would you respond the same way if a prosecutor in a mob case said something like: "Sometimes a live witness means the difference between a conviction and an acquittal."
posted by kmz at 2:21 PM on August 8, 2011 [1 favorite]


Could they not get around the "prejudiced by cuteness" accusation by putting a barrier around the witness...or having her testify via closed-circuit?

Closed-circuit testimony has been upheld by the Supreme Court in child abuse cases. Maryland v. Craig, 497 U.S. 836 (1990). Barriers, however, have been disapproved of. Coy v. Iowa, 487 U.S. 1012 (1988).
posted by jedicus at 2:21 PM on August 8, 2011


The only thing that matters to many of them is maximizing conviction rate; whether or not all of those people convicted are actually guilty is not necessarily relevant.

Must. Advance. Career.
posted by IvoShandor at 2:22 PM on August 8, 2011


I would like people who think the dog is unfair to consider the relative fairness of asking a child witness of 5, 11 or 15 to be articulate, poised and calm enough to effectively testify in a legal proceeding run by, for, and dominated by adults, including adults who will cross-examine them. This dog is explicitly allowed for child witnesses.

The fairness deck is stacked against these witnesses. The dog doesn't even come close to levelling the playing field.
posted by DarlingBri at 2:23 PM on August 8, 2011 [34 favorites]


The real question is when they are allowed what lengths should the court go to to ensure that the animal doesn't hinder the defendant's chance at a fair trial.

The victim is clearly troubled enough to need an assistance dog from the horrible crimes perpetrated upon her by her father, and an accusation of rape comes with so much challenges and baggage that it's inconceivable that the accusation could be false. Fair trial? Who needs on when we already know what happened?

God help any of us if we're ever accused of a sex crime and there are metafilter members on the jury.
posted by chimaera at 2:24 PM on August 8, 2011 [4 favorites]


Imagine a system in which the witnesses for the prosecution all testified while playing with a basketful of puppies. Cute, adorable puppies. Now the defense witnesses all testify while in full Hannibal Lector restraints with the scary mask. While a screen behind them shows horrific and gory crime scene photos and so on. That would obviously be prejudicial.

Yes, and imagine a system where the prosecution was allowed to use hypno-rays to project mental images into the heads of the jury that the defendant was guilty, while said defendant was dressed as Hitler and sat behind a enlarged poster of a Photoshopped image of them simultaneously stabbing a nun while kicking the Dali Lama in the testicles.

That system doesn't fucking exist either. The girl had a dog with her to make it easier for her to properly give her testimony.

Would you prefer that only a written or videotaped statement be released? That would be even less fair, in that the defense couldn't even cross-examine the human. Or do you think that accuser believing, true or not, that she was raped and having problems dealing with that and talking about it without this assistance means she's not allowed to take the stand to begin with? This is not rhetorical; I am legitimately asking here.

It really is fascinating how rape cases bring out the hawks in liberal people.

It really is fascinating how the simple act of saying that it's not outrageous for a person with a disability, albeit a unique one, requesting a service animal for it leads to accusations of a hateful bias about the entire legal system and lawyers in general.
posted by XQUZYPHYR at 2:24 PM on August 8, 2011 [5 favorites]


I will only appear as an expert witness if allowed to have my SPECTRE-approved cat and leather chair. Without the intelligence and confidence boosting properties of the cat, my testimony would be suboptimal and justice not served.
posted by a robot made out of meat at 2:25 PM on August 8, 2011


The victim is clearly troubled enough to need an assistance dog from the horrible crimes perpetrated upon her by her father

You win the "begging the question" award!
posted by Justinian at 2:26 PM on August 8, 2011 [2 favorites]


You'd think somebody could recognize sarcasm from their own side...
posted by kmz at 2:27 PM on August 8, 2011 [3 favorites]


Could they not get around the "prejudiced by cuteness" accusation by putting a barrier around the witness...or having her testify via closed-circuit?

The problem isn't just the cuteness influencing the jury, the problem is also that if a person is nervous because they are fabricating a story, having something around to relieve that nervousness and make telling the story easier is not necessarily a good thing.

Unfortunately, that is exactly what makes it a good thing if that person is telling the truth. The fact that the witness is a minor makes this even more complicated.
posted by roquetuen at 2:28 PM on August 8, 2011 [3 favorites]


The girl had a dog with her to make it easier for her to properly give her testimony.

And if the presence of a cute dog unfairly prejudices the jury? You don't care?

At the very least you don't think the dog should be hidden from the jury? I'm sure something could be done to allow both an uncontaminated jury and potentially traumatized witnesses to testify more easily.
posted by Justinian at 2:28 PM on August 8, 2011 [1 favorite]


Ellen O'Neill-Stephens, a prosecutor in Seattle who founded the organization Courthouse Dogs, has championed dogs helping witnesses. She said they are "an incredible tool" for helping calm victims "reliving the trauma as they're describing what happened to them."

Their use gained traction after a 2004 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.

"Now you had kids right up there in the face of the person who did this to them," O'Neill-Stephens said.

"We had an occasion in our courthouse where a child just froze," she said, describing a witness scared by the presence of a defendant's relatives. "All it took was playing with the dog to tell the judge he was afraid of them."

The relatives were ordered out of court.

O'Neill-Stephens lists 18 jurisdictions in Washington, Idaho, California, Texas, Missouri, Arizona, Pennsylvania, Hawaii and New Mexico with courthouse dog programs.

... To date, there has been no case law from an appeals court on the practice, O'Neill-Stephens said, but "some defense attorneys successfully object to the presence of the dog and the judge doesn't want to go out on a limb."

She said defense lawyers in her jurisdiction have generally stopped objecting. Some even use the dogs to advantage, petting them as they cross-examine a witness, perhaps softening jurors' views of them as interrogators.

"The dogs are for everybody in the criminal justice system," O'Neill-Stephens said.*
posted by ericb at 2:29 PM on August 8, 2011 [1 favorite]


You'd think somebody could recognize sarcasm from their own side...

BUT YOU'D BE WRONG.

Yeah, that was pretty sad of me. In my defense, people sometimes say some pretty crazy things.
posted by Justinian at 2:29 PM on August 8, 2011 [2 favorites]


1. It's not appropriate to compare this to the cuteness/appearance of human witnesses. That variation is an inevitability that we take when we allow live witnesses. The issue is whether the accompanying dog is similarly inherent.

2. If the animal is a "service" dog with broader application than the courtroom -- e.g., if it is necessary for the witness in any setting -- I am more open to it. If it is simply an accommodation to make the stresses of a courtroom more manageable, then it becomes problematic. I don't understand why this would be permitted where, say, a parent (in other circumstances) or best friend sitting side-by-side with the witness wouldn't be.
posted by Clyde Mnestra at 2:30 PM on August 8, 2011


To level the plating field, the accused should be allowed, no, required, to have Gilbert Gottfried sit next to him during his testimony in court.
posted by zippy at 2:30 PM on August 8, 2011


A similar ploy was used in the prosecution of Fielding Mellish.
posted by gimonca at 2:31 PM on August 8, 2011


The victim is clearly . . .

See: You weren't even on the jury, and you have already concluded, without hearing any of the testimony, that she is a victim and that something about the facts of the case is "clear" to you. All based on you having read about her lawyers arguing that she needed the dog in order to testify.
posted by The World Famous at 2:31 PM on August 8, 2011 [4 favorites]


So not only incapable of recognizing sarcasm, but incapable of reading a thread before posting.
posted by muddgirl at 2:33 PM on August 8, 2011


Sometimes people misidentify their attackers. The witness would be sincere, the dog would comfort the witness, and someone could go to prison, all without anyone lying.

I'm not saying (nor do I believe) that the case being appealed here is such a misidentification. I'm pointing out situations where the cute dog could substantially prejudice the jury against the defendant, leading to unjust results.

I don't understand why this would be permitted where, say, a parent (in other circumstances) or best friend sitting side-by-side with the witness wouldn't be.

Having persons share the stand has been permitted in a number of jurisdictions, under certain circumstances. Comfort people and comfort dolls are not entirely new to the American legal system. The question is whether comfort dogs are allowed in New York.
posted by Sticherbeast at 2:33 PM on August 8, 2011


It seems to me, back on topic, that we can negate the issue of prejudice by allowing every witness to have a cute and calming totem of one sort or another.
posted by muddgirl at 2:34 PM on August 8, 2011 [1 favorite]


I don't think that people are giving enough credence to chimaera's (apparently a bit too subtly sarcastic) point that the very presence of the dog may be prejudicial by making it appear a foregone conclusion that the witness is traumatized by the events. The fact that it's a cutesy wootsy widdle puppy is really kind of secondary.
posted by dixiecupdrinking at 2:35 PM on August 8, 2011 [3 favorites]


I throw in with those who say, "Wow, that's an incredibly tough question with good arguments on both sides, and I'm glad it's not up to me."
posted by Linda_Holmes at 2:35 PM on August 8, 2011 [14 favorites]


New York Law Journal:
After holding a hearing in People v. Tohom, 338/2010, Dutchess County Court Judge Stephen Greller had concluded on June 1 that the child victim would suffer "serious emotional and psychological distress" if called on to testify without Rose's support but that an appropriate instruction to the jury would minimize any prejudice to the defendant. He said that her case fell within the parameters of Executive Law §642-a, which requires trial judges to be sensitive to the stress child witnesses experience. He analogized this holding to that in People v. Gutkaiss, 206 A.D. 2d 628 (3rd Dept. 1994), a sodomy case in which the court ruled it "was entirely appropriate" to allow a child to testify while holding a teddy bear. While unprecedented in New York, advocates list 18 jurisdictions in Washington, Idaho, California, Texas, Missouri, Arizona, Pennsylvania, Hawaii and New Mexico with courthouse dog programs. There is a website that promotes their use www.courthousedogs.com. Rose's regular job is helping provide therapy in schools for troubled children.
posted by ericb at 2:36 PM on August 8, 2011 [4 favorites]


People let me testify sitting next to my six-foot tall rabbit. It didn't seem to affect anyone's judgment, though, as they reacted quite harshly to my testimony.
posted by Clyde Mnestra at 2:37 PM on August 8, 2011 [1 favorite]


And if the presence of a cute dog unfairly prejudices the jury? You don't care?

Of course I care. I care if a juror secretly hides their racism. I care if the attorney knows a witness is emotionally vulnerable and pressures them into looking unstable or unreliable on the stand. I care about corrupt prosecutors and planted evidence. I care about a lot of factors that could be perceived as an unfair bias on behalf of either side.

And all in all I care about what decisions can be the most fair given the multitude of circumstances. So I continue to submit that if it was necessary for the well-being of the witness, or in fact her very ability to testify, then yes, it is an acceptable allowance in this case. Could it not be in other cases? Of course. Perhaps the legal system should employ some kind of arbiter who presides over trials to determine what things are fair or not. Just spitballing here.
posted by XQUZYPHYR at 2:37 PM on August 8, 2011 [10 favorites]


chimaera just panned so dead Buster Keaton's corpse rolled over halfway and got stuck.
posted by griphus at 2:37 PM on August 8, 2011 [4 favorites]


If I were testifying about something stressful, it would help me considerably to bring a bottle of bourbon to the stand and consume it prodigiously throughout my examination. Would this be permissible?
posted by Lutoslawski at 2:38 PM on August 8, 2011


Simple question: could the dog be placed behind the stand so the jury wouldn't see it?

Obviously the jury would know there's a dog there, but that's not the same as staring at an incredibly cute puppy while trying to objectively judge whether the evidence is factual or not.
posted by miyabo at 2:39 PM on August 8, 2011 [1 favorite]


It seems to me, back on topic, that we can negate the issue of prejudice by allowing every witness to have a cute and calming totem of one sort or another.

I also submit that each party be allowed to let their totems fight one another's totems, using specific attacks, and that cases shall be resolved in disputes of this manner. Let us agree, then, to let each party in a case train their totem such that their totems can evolve into more powerful totems, and also that each party be allowed to collect a number of their totems into a "ball" of sorts that can release the most appropriate totem for each particular case. Lastly, to avoid prejudicing the jury, the totems shall not be allowed to testify in any manner, but only to speak their own names. I shall conclude this formal proposal with nothing less than a musical exhortation to all onlookers that you simply must catch them all, "them" meaning the a representative member of each specie of totem.
posted by Sticherbeast at 2:39 PM on August 8, 2011 [30 favorites]


Indirectly regarding the service dog question, check out the comments on the NYT site--there's a comment there from a guy who says he's a litigator with a service dog, and that he feels juries respond positively to his dog and that it has improved his success rate at trial.

I cannot be the only one to read this and think Arrested Development, can I? Justice is blind, etc.
posted by joe lisboa at 2:39 PM on August 8, 2011 [4 favorites]


I was on the jury of a case where a 6 year old girl was raped and would have bled to death without medical treatment. This case being in Australia, she was allowed to give her testimony from another room so that she would not have to face her attacker. The lawyers (and the rest of us) remained in the courtroom, and CCTV was used. This seems a compassionate and fair way to deal with the problem of cute dogs.

The defendant was found guilty on all charges and sentenced to prison to remain at her majesty's pleasure - that is, no end date. It was not the first time he'd abducted a child and raped her. We found this out after the verdict - the bailiff told us.

Being on this jury was one of the most harrowing things I've done. 6 days of hearing about the injuries to the child, the defendant's mother and brother testifying against him. If it was difficult for me, I can't imagine how hard it was for the little girl.
posted by b33j at 2:40 PM on August 8, 2011 [7 favorites]


The only thing that matters to many of them is maximizing conviction rate; whether or not all of those people convicted are actually guilty is not necessarily relevant.

To be fair, it is their job, just like its the defense attorneys' job to minimize convictions.
posted by rtimmel at 2:40 PM on August 8, 2011


The only thing that matters to many of them is maximizing conviction rate; whether or not all of those people convicted are actually guilty is not necessarily relevant.

To be fair, it is their job, just like its the defense attorneys' job to minimize convictions.


This is completely incorrect.
posted by Clyde Mnestra at 2:42 PM on August 8, 2011 [13 favorites]


Perhaps the legal system should employ some kind of arbiter who presides over trials to determine what things are fair or not. Just spitballing here.

Going further, perhaps there could be some sort of "appeals" process through which contentious legal issues could be resolved, such that we are not always bound to the cliché of hard cases making bad law.
posted by Sticherbeast at 2:42 PM on August 8, 2011 [3 favorites]


The argument that it prejudices the jury is ridiculous. The jury is supposed to be filled with adults, who understand that their job is to weigh the evidence dispassionately. A dog doesn't change the evidence either way.

I think this may be one of the most naive things I've ever read on MeFi. I'm not totally convinced on this, but there's at least a major potential for prejudice. The argument in my mind is whether that's outweighed by the possibility of getting more probative evidence into a trial. I'm not sure. Good question.
posted by norm at 2:43 PM on August 8, 2011 [2 favorites]


Going further, perhaps there could be some sort of "appeals" process through which contentious legal issues could be resolved, such that we are not always bound to the cliché of hard cases making bad law.

That's a cliché about appellate court decisions.
posted by The World Famous at 2:44 PM on August 8, 2011 [1 favorite]


To be fair, it is their job, just like its the defense attorneys' job to minimize convictions.

This is, just by the way, not true. Prosecutors are required to do many things defense attorneys aren't, including dropping cases in the interests of justice. Defense attorneys can (and must) defend clients where there's lots of evidence of guilt; prosecutors are not permitted to prosecute people if they don't believe the evidence supports a conviction. Prosecutors are required to turn over evidence tending to exonerate the person; defense attorneys are not required to turn over incriminating evidence. They actually have totally different jobs.
posted by Linda_Holmes at 2:44 PM on August 8, 2011 [18 favorites]


It was not the first time he'd abducted a child and raped her. We found this out after the verdict - the bailiff told us.

I've read this a few times now and I understand why things like that are hidden from jurors- because that truly is an act of preserving neutrality in a trial. And yet here we are arguing over the presence of a dog as bias against a defendant. I choose to leave this thread now, sad.
posted by XQUZYPHYR at 2:46 PM on August 8, 2011 [3 favorites]


Problem: we need a dog who can comfort the victim without prejudicing the jury in his or her favor.

Solution
.
posted by Clyde Mnestra at 2:46 PM on August 8, 2011 [3 favorites]


What prosecutors are required to do and what they are incentivized to do are often in conflict.
posted by Zalzidrax at 2:46 PM on August 8, 2011


The argument that it prejudices the jury is ridiculous. The jury is supposed to be filled with adults, who understand that their job is to weigh the evidence dispassionately. A dog doesn't change the evidence either way.


Remember, juries are made up of a (supposedly) random cross-section of laypeople. Our peers. The common clay of our great nation. You know -- morons.
posted by Holy Zarquon's Singing Fish at 2:47 PM on August 8, 2011 [18 favorites]


prosecutors are not permitted to prosecute people if they don't believe the evidence supports a conviction.

Which is why I don't get all upset at a prosecutor who states that they want to convict the people they're prosecuting and take that to mean "muah ha ha! With this dog I shall convict even MORE innocent people!!"

Anyway, with regard to bad convictions, the big work should be done on cross-racial eyewitness identifications (unreliable).
posted by the young rope-rider at 2:49 PM on August 8, 2011


What prosecutors are required to do and what they are incentivized to do are often in conflict.

No argument. But I think it's worth knowing that they have different ethical obligations, which are obviously followed by different people to different degrees, as with most rules.
posted by Linda_Holmes at 2:50 PM on August 8, 2011


If you can't trust a jury to not be prejudiced by a cute dog, isn't something like the 5th Amendment useless as well? As soon as you invoke it, you've deep-sixed yourself if you can't rely on a jury to follow the judge's instructions on what to consider and not consider.
posted by kmz at 2:50 PM on August 8, 2011


lesbiassparrow: I'm not sure about NY, but in many regions and countries the conviction rate for rape is horrifically low due to jury attitudes towards defendants; it strikes me that if the dog swings things this might go some way to redressing that balance.
This is a disturbing approach: you believe the conviction rates are too low ("horrifically"), so convicting more people- whether they are innocent or guilty- justifies using cute puppies on the witness stand. So long as we get those numbers up, eh?
DarlingBri: I would like people who think the dog is unfair to consider the relative fairness of asking a child witness of 5, 11 or 15 to be articulate, poised and calm enough to effectively testify in a legal proceeding run by, for, and dominated by adults, including adults who will cross-examine them. This dog is explicitly allowed for child witnesses.

The fairness deck is stacked against these witnesses. The dog doesn't even come close to levelling the playing field.
That is also an interesting perspective. I'm not sure why you think anyone expects a child witness of 5, 11, or 15 to be "articulate, poised and calm" since the jury can pretty well understand that a 5-year-old is going to talk about things differently than an adult witness and weigh that accordingly.

Hey, speaking of child witnesses and leveling the playing field:

McMartin Preschool Trial
Wenatchee child abuse prosecutions
posted by hincandenza at 2:57 PM on August 8, 2011 [1 favorite]


Why yes, those are two cases where, after evidence was considered, no one was found guilty.
posted by muddgirl at 3:00 PM on August 8, 2011 [1 favorite]


Um. Wouldn't the most fair solution be to let both the victim and the defendant use the dog while testifying?
posted by elizardbits at 3:01 PM on August 8, 2011


My apologies, the second wikipedia link is very, very terrible. It appears that some indeterminate number of people were initially found guilty, but were later acquited or plead down? Not exactly an unusual outcome nowadays.
posted by muddgirl at 3:01 PM on August 8, 2011


What if this was a burglary or a non-sexual assault? Would the use of a therapy dog still seem as unquestionable as it does in this case?

Hell, I'm a civil defense attorney, and I'd scream bloody murder if plaintiff's counsel tried to bring in a dog. Simply having the dog on the stand gives unjustified credence to the idea that the witness has been traumatized. I don't care what kind of case it is, the potential for prejudice is large, and there are better, less prejudicial ways of getting this testimony in.

That, for me, is what decides this issue. Courts have ways of dealing with situations like this which don't involve the "daaawwwwww!" factor. Given that so many people are so strongly prejudiced against sexual assault defendants as it is,* and arguably against defendants in general, I want to remove any possible finger on the scale.

*And as evidence I submit every single damned thread on MetaFilter where the issue comes up.
posted by valkyryn at 3:04 PM on August 8, 2011 [5 favorites]


Um. Wouldn't the most fair solution be to let both the victim and the defendant use the dog while testifying?

You offering to pay for that? Because I'm not.
posted by valkyryn at 3:04 PM on August 8, 2011


Sure, why not. Raise my taxes for puppy support. I am totally and unhamburgerily down.
posted by elizardbits at 3:06 PM on August 8, 2011


I'm in favor of therapy dogs, but they should be mangy and ugly ones.
posted by cell divide at 3:07 PM on August 8, 2011


The fairness deck is stacked against these witnesses. The dog doesn't even come close to levelling the playing field.

Except that it doesn't work like that. You can't balance unfairness by being unfair in a different way but in the other direction. I know the intention (yours, at least, if not the prosecutors') is good, but it simply doesn't work. All you do is create more unfairness without diminishing the original problem in any way.
posted by IAmUnaware at 3:08 PM on August 8, 2011 [3 favorites]


hicandenza: I'm not sure why you think anyone expects a child witness of 5, 11, or 15 to be "articulate, poised and calm" since the jury can pretty well understand that a 5-year-old is going to talk about things differently than an adult witness and weigh that accordingly.

Because witnesses who are scared silent, cry for their mommy, and are afraid of the mean man asking them if they are lying are not very credible. (Nor are they effective at giving evidence, as it happens, in which case justice isn't being served particularly well.)

Additionally, I'm not sure why you think a jury can understand a child will talk about things differently than an adult, but not that a child may require more or different support to do so than an adult.
posted by DarlingBri at 3:08 PM on August 8, 2011 [2 favorites]


Simple question: could the dog be placed behind the stand so the jury wouldn't see it?
"During a little more than an hour on the stand, Rose was mostly invisible Monday. When the girl was asked to point out the man who is charged with raping her for four years starting at the age of 10, the dog poked her muzzle up and the girl stroked it. When she was asked to go into graphic detail about the rapes, she looked down and patted the dog.

... Before the girl and jurors were brought in, a handler led Rose to the witness box, where she was placed mostly out of view under the supervision of the judge. When jurors returned, Greller introduced the witness and told the panel she was with a companion animal, but that they shouldn't draw any conclusion from that or allow sympathy to sway them.

The girl gave mostly short answers, steadily reaching down with one hand on the lead and one hand on Rose. The jury of seven women and five men gave no indication they even noticed the dog.

The girl, dressed in a dark top and pants, her dark hair in braids, pursed or bit her lips as she responded to questions, nervously draining a small white cup of water while cross-examination began. At one point, under questioning from the defense lawyer, she took a deep breath, looked down and appeared to whisper to Rose."*
posted by ericb at 3:08 PM on August 8, 2011 [10 favorites]


All of this reminds me why I've never pushed charges. I can not imagine being asked to reccount being raped andthen cross examined about why that was my fault and what I did wrong to deserve it. Oh fuck I've already experienced that but it did land me in the mental hospital. The reality is I don't think I could have done it. I mean reality would have started melting and peoples words don't make sense and everything is a tunnel and there's this roaring sound. And then I used to have siezures.

When people cornered me and tried to ask me what had happened. I do not EVER let ANY ask me about that shit. No I will not be put on the spot and made to feel that way. I do NOT have to answer questions I do NOT have to fucking ever go there again. Fuck that.

Unfortunately the extremely sad thing to me is that now that this dog HAS been let up there, if the defendant was guilty he has a new way of getting out of a sentence because NOW everyone will be sympathetic to this wrong move in the trial.

Meaning I can see why the dog would influence the jury and I can see why it should not be allowed. But now if he IS guilty-- does this mean she has to testify again?

I just can't even imagine.

Or if they decide it was not allowable does he just walk? How does this work? Just to ask the question, what happens when the witness is not mentally capable of being put on the stand and questioned by the defense? Does that happen? How is that handled? I'm sweating, shaking and my heart feels funny just reading this so I might not be able to read the answers. But I can tell you that I might have a cute dog next to me (and now you've imagined a cute dog) so that convulutes the validity of my statement which otherwise would have been believable. Well fuck. I'll just go barf now.
posted by xarnop at 3:09 PM on August 8, 2011 [8 favorites]


muddgirl: My apologies, the second wikipedia link is very, very terrible. It appears that some indeterminate number of people were initially found guilty, but were later acquited or plead down? Not exactly an unusual outcome nowadays
You are being extraordinarily, extraordinarily dismissive of that case.

It started with a sparse accusation by an overzealous cop/foster father, that mutated into a full blown witch hunt where more and more children testified about abuse- with a deeply misguided therapist and investigators initially interviewing them without video recording, and with heavy pressure to produce "stories" supporting their case. When even local towns people began criticizing the investigation... they too became accused. In the end, while all convictions were overturned and there appeared to be no actual abuse, a number of people spend significant time in jail and for some that included the full length of their sentences. And I'm sure everyone involved with the prosecution was sure they were doing good work, and would gladly have taken puppies to the witness stands to bolster their efforts.

If that case is your idea of justice... well, then I think Mayor Curley expressed it well.
posted by hincandenza at 3:12 PM on August 8, 2011 [4 favorites]


This is a disturbing approach: you believe the conviction rates are too low ("horrifically"), so convicting more people- whether they are innocent or guilty- justifies using cute puppies on the witness stand. So long as we get those numbers up, eh?

No, that's not what I meant; I am sorry that it came across that way. But I do believe that a lot of the issues that swirl around in rape cases are often not like those other types of cases. There is, for example, the fact that the (alleged) victims have their entire lives frequently dredged up because there are certain types of people (prostitutes, etc) that juries frequently feel aren't really rapeable and lot of effort in prosecutions goes into breaking through that barrier of discrimination. This is not about pushing the rates of conviction up if that means treating defendants unfairly, but I think one should acknowledge that in a some rape cases defendants can and do get breaks that they might not in other cases. (The rate for convictions in rape cases in the UK is 6.5% versus 36% for other types of criminal cases, which is an enormous gap.)

I would add that for highly traumatized witnesses - victims so traumatized that they cannot give evidence without support - that support should be there. How you make certain that the prosecution or defence don't game that is another matter, and one I am glad that I am not called upon to adjudicate.
posted by lesbiassparrow at 3:13 PM on August 8, 2011 [3 favorites]


That, for me, is what decides this issue. Courts have ways of dealing with situations like this which don't involve the "daaawwwwww!" factor. Given that so many people are so strongly prejudiced against sexual assault defendants as it is,* and arguably against defendants in general, I want to remove any possible finger on the scale.

The dogs are in response to cases where the legality of closed circuit testimony has been challenged, so no, I don't think the courts do have a consistent and solid legal precedent for handling this in a decent, humane, and fair way right not. That doesn't make this way necessarily right, but it's important to consider.
posted by the young rope-rider at 3:14 PM on August 8, 2011 [3 favorites]


the conviction rate for rape is horrifically low due to jury attitudes towards defendants; it strikes me that if the dog swings things this might go some way to redressing that balance.

While prop animals may very well increase conviction rates, it does nothing to ensure that effect will apply to guilty people any more than innocent people. Also, you are making assumptions as to why rape cases don't always result in conviction.
posted by rcdc at 3:15 PM on August 8, 2011 [3 favorites]


They are entitled to file any damn motion they want. I'd do this if I were defending him.

Chances of this motion being granted. Near zero.
posted by Ironmouth at 3:16 PM on August 8, 2011


Um. Wouldn't the most fair solution be to let both the victim and the defendant use the dog while testifying?

You offering to pay for that? Because I'm not.

I can tell you do civil trials! The far bigger problem is that the defendant in a criminal trial doesn't necessarily testify.
posted by the young rope-rider at 3:16 PM on August 8, 2011


This case being in Australia, she was allowed to give her testimony from another room so that she would not have to face her attacker.

In the U.S. one is allowed to face their accuser. It is a Constitutional right.
posted by Ironmouth at 3:20 PM on August 8, 2011 [1 favorite]


Also, you are making assumptions as to why rape cases don't always result in conviction.

I am - but I think *something* has to account for the huge gap in conviction rates, and I find it difficult to believe that that gap is entirely down to people lying about being raped. A big chunk may, however, have to do with police not taking evidence properly or victims washing off physical evidence, though; I don't know enough about the causes in detail, to be honest, to make a decent argument.

But maybe I am influenced by events like a recent rape case in the south of Ireland where the parish priest and other members of a community lined up to shake the hands of a *convicted* rapist because he was a decent family man and the victim was a woman who slept around. I'd like to think that notions of hideous morality like that don't come into rape cases, but I suspect I'd be wrong.
posted by lesbiassparrow at 3:21 PM on August 8, 2011 [3 favorites]


what happens when the witness is not mentally capable of being put on the stand and questioned by the defense? Does that happen? How is that handled?

If the defendant prevails on a motion for new trial, or on appeal, the most likely result is that he'll get a new trial. If the witness won't testify again, a dismissal or more favorable plea agreement are highly likely. This does happen, with some regularity.

Most defense attorneys probably won't go for the child-witness' jugular; they'll look for the child to tell them about the interview process so their expert can testify about flaws, e.g., confirmation bias of the cops and/or forensic interviewer and the vulnerability of children to suggestion.
posted by Hylas at 3:22 PM on August 8, 2011


I am an animal lover, and do have concern that a jury would be swayed by a young person holding an adorable puppy. However, the description quoted by ericb does not sound like she was visibly holding and petting an adorable puppy. So there do seem to be ways to enact this where the jury is largely unaware of the animal (full description in the linked article.) If the jury does not see but only knows about the existence of the animal, is that prejudicial?

Another concern, of course, is that the animal calms someone who is lying. I'm in agreement with another poster above, I'm glad I don't have to decide the legality of this.
posted by lillygog at 3:23 PM on August 8, 2011


[flag and move on people, please. Save the name-calling for elsewhere entirely.]
posted by jessamyn at 3:31 PM on August 8, 2011 [2 favorites]


Just to ask the question, what happens when the witness is not mentally capable of being put on the stand and questioned by the defense? Does that happen? How is that handled?

It depends. If there isn't *any* testimony, there isn't anything to argue over, but I think you're talking about prior statements to police, prosecutors, friends, etc. So let's suppose these are the only statements available because the witness is unable to take the stand.*

These sorts of statements (generally) fall under the hearsay rule. It's easily stated as a prohibition on out of court statements offered to prove the truth of the matter asserted, and it is justified by the fact that the truth of these statements cannot be challenged through cross-examination, but the prohibition on hearsay is notoriously subject to many exceptions and exclusions. These turn on facts like why the witness is unable to testify, (e.g. the defendant has been convicted in another trial of killing the witness), whether the testimony has certain markers of reliability (e.g. that it was against the witness' interest to tell the truth), and what purpose the testimony is going to be used for (e.g. for showing in-court statements are inconsistent with out-of-court statements rather than showing that the out of court statement is true).

*(The witness could not take the stand and testify for the prosecution then refuse to be cross-examined by the defense because cross-examination is required by the US constitution and, I'd argue, basic fairness. It doesn't have to take the same form as contemporary US practice, but without some form of it, you have nothing more than a show-trial in which the defendant is not allowed to offer a defense).
posted by Marty Marx at 3:35 PM on August 8, 2011


[flag and move on people, please. Save the name-calling for elsewhere entirely.]

right on, jessamyn. Here's the comment reposted with some editing to make it less direct:

I'm not sure about NY, but in many regions and countries the conviction rate for rape is horrifically low due to jury attitudes towards defendants; it strikes me that if the dog swings things this might go some way to redressing that balance.

You want an individual trial to go the way that you think the bulk of them should, regardless of whether the individual accused is guilty or not? To even some imaginary score? You are absolutely entitled to your opinion, but that seems like a fascism to me. I could be wrong and shit, but I believe that most people who value freedom expect an accused criminal to be tried for his individual crime instead of the concept of the crime for which s/he is accused. I haven't done a poll or anything, but it is my understanding that if you value freedom, you generally find the notion of an innocent person in jail repugnant no matter how many similarly-charged-and-also-guilty people have gone free.

Of course, this is pure conjecture so you should be totally cool with injustice rectified by the suffering of the possibly innocent.
posted by Mayor Curley at 3:52 PM on August 8, 2011 [3 favorites]


I think I agree with the naysayers on this one. While I'm sorry that testifying can be a traumatic experience, and I wish that weren't the case, there's a symbolism in the little girl having the dog to protect her, the presumption that the little girl needs to be protected. There's massive symbolism there that the girl has been injured, whether or not she actually has been.

It evokes a strong emotional response, and I would be exceptionally surprised if any jury anywhere, when presented with a little girl with a dog as a prosecution witness, failed to convict. And I think this would be true whether or not the father was actually guilty.
posted by Malor at 3:59 PM on August 8, 2011


You want an individual trial to go the way that you think the bulk of them should, regardless of whether the individual accused is guilty or not? To even some imaginary score?

Er, no. I did explain myself further, but I am guessing rephrasing your comment was too important to read those comments. I don't want innocent people in jail; but the unless the victims in (almost) 19 of every 20 rape cases in the UK is lying - and that's the cases that get to court - then there is something really, really wrong with what goes on with juries and judges in rape cases. And that really wrong isn't them being too quick to believe the accuser.
posted by lesbiassparrow at 3:59 PM on August 8, 2011 [5 favorites]


An attractive young woman attorney with a service dog could clean up representing rape defendants.

Can't say I'm sorry this defendant didn't have the foresight to employ one.
posted by jamjam at 4:00 PM on August 8, 2011


Or, MC, you could be reading her comment in the least charitable, most strawmanny way possible.
posted by kmz at 4:03 PM on August 8, 2011 [4 favorites]


Mods; perhaps my comment above should be struck. It is probably a derail of the point here - of whether in this situation having a dog there swayed the jury.

But I'd be interested to know what research is out there on situations like this - could it backfire, with members thinking that an adult should be able to testify without needing a crutch if they are truly telling the truth? There's surely got to be some given that jury selection and training on how to deal with witnesses of all shapes and sizes seems to be an enormous growth industry for the legal profession.
posted by lesbiassparrow at 4:04 PM on August 8, 2011


At first I was definitely of the "Oh this is prejudicial to the defense, this is awful" camp. and I still sort of think that, but, and this is a big but, if it is handled the way it appears to have been handled in this one case, and if dogs are allowed in very, VERY, narrow circumstances, then I am OK with it.

I am still troubled because I think the prosecution was basically using the dog as a prop, and sending the subtle message that this girl was so traumatized that she needed this, which could definitely prejudice the defendant.

OTOH, prosecutors do this all the time W/O the need of a service dog in gruesome cases, they do this in hopes of inflaming the jury so much that to paraphrase what is said about grand juries, "they'd convict a ham sandwich."
posted by xetere at 4:09 PM on August 8, 2011


19 of every 20 rape cases in the UK is lying - and that's the cases that get to court

Are you positive that you're reading the stats properly? I don't think 19 of every 20 cases that make it to court have the defendant found not guilty. My belief is that the stat probably was something like 1 out of every 20 cases in which someone goes to the police in the first place end in a conviction, which is different; most of those cases never make it to court. I'm not saying that's necessarily good, it's just a different thing. Unless you have a source for the stat so we can check which it is?
posted by Justinian at 4:10 PM on August 8, 2011


I wonder if there are any cases where a defendant required a therapy dog for stress-related trauma (e.g., a veteran with PTSD) and if there were any objections and/or appeals based on the dogs potential influence on the jury.
posted by Room 641-A at 4:12 PM on August 8, 2011 [1 favorite]


It just brings to mind why people with noticeable severe PTSD are even more easy targets: if they are so broken that simply approaching them sends them into panic attacks and immobility and dissociation--- then how would they be able to withstand a trial? Or if they have an extensive mental health history, how would they be able to hold up in trial, and would they ever be believed? If they had an alcohol problem? Would their word matter?

Hmmm. I don't know what the freaking answer is. I mean for shit sake, there is just no way for it to not be one persons word over another and that is so terrible both for protecting the innocent from false accusations and persecuting the guilty.

It's probably a crime with the least amount of ACTUAL evidence other than that sex happened and maybe that "there was a struggle" but I mean with consensual BDSM what does that even prove anyway? It fucking sucks ass. To be all eloquent about it.

"There's massive symbolism there that the girl has been injured, whether or not she actually has been." right but what if she HAS BEEN. Is it humane to treat her as if she has not been injured to prove a point that he is innocent until proven guilty? Meaning what if she is crumpling psychologically under everything that is going on and her mental health is truly affected? What then? I mean it's unfortunate that people sometimes FAKE being traumatized-- but I think people experiencing trauma need special care. What if she needs mental health help to withstand the trial? Should she be denied that unless there is a conviction?

I'll be honest when I've experienced someone trying to make me dissociate from reality by cornering me and trying to force me to talk about fucked up shit-- I can't imagine a dog really making a difference. At that point reality just splits and there you are and you have to find some way to get your biology to hold on to reality. I don't really understand teh use of the dog.

But yet I think it's totally unfair to think she shouldn't be given the support that people who are having active trauma symptoms need simply because there has not been a conviction yet. That would seem so inhumane to me. I mean what if she IS so traumatized that she needs to stay in a mental health facility for a time? Like really, is she supposed to take a break from the mental hospital and go testify while reality is like not working right? Child abuse and extreme trauma can do weird shit to people.
posted by xarnop at 4:14 PM on August 8, 2011 [4 favorites]


Children aren't interviewed in court in the UK, and i'm horrified that they are in the USA (I mean, in rape victim cases, not all - we have children's courts for child defendants, like you). They are interviewed somewhere else with adults present, and video relay to the court room, as reliving the rape can be more stressful than the original rape. However, since they are absent and don't start crying etc, this cuts the conviction rate, since the jury are exposed to the real defendants in the room and a tv screen, so feel emotional pressure and sympathy only for one side. In america, I know that children who approach the police, eg to say that they wish to be taken into care, are not interviewed without their family present and with a responsible adult (= social worker, usually) and adopted children don't have the right to their real birth certificate, genealogy etc: i guess you are very behind on children's rights. We can't boast, we only recently got a children's minister of some sort. (Our government is supposed to be by cabinet of ministers, not the Prime Minister lording it over all the others like a president rather than a chairman, but unfortunately since Thatcher it's become a cult of personality.)
posted by maiamaia at 4:15 PM on August 8, 2011 [2 favorites]


Are you positive that you're reading the stats properly?

Justinian, you were totally right to query this - I was going off a memory of a guardian article and I found the follow up article that stated it was 6.5% of all rapes reported to police (thus including cases which don't go to trial).

Sorry - should have checked before I commented, but that number just stuck with me.
posted by lesbiassparrow at 4:17 PM on August 8, 2011


(The rate for convictions in rape cases in the UK is 6.5% versus 36% for other types of criminal cases, which is an enormous gap.)

She said the figure, which compares the number of convictions against total reports to the police, is based on calculations not used for any other offence.

Once a rape case reaches the courts, almost 60 per cent of defendants are convicted – a rate higher than some other violent attacks.


I am in no way saying that there still isn't a great deal of ground to cover in the way rape cases are handled, but it looks like the 6.5% number is indeed misleading.
posted by Sticherbeast at 4:18 PM on August 8, 2011 [3 favorites]


I haven't done a poll or anything, but it is my understanding that if you value freedom, you generally find the notion of an innocent person in jail repugnant no matter how many similarly-charged-and-also-guilty people have gone free.

Insofar as it is always repugnant for an innocent person to be punished for something they did not do, sure. But that's a separate question from how we organize a criminal justice system--the sort of question that is raised by asking whether witnesses are allowed assistance that is likely to prejudice the jury against the defendant.

We usually justify a system with sayings like "Better n guilty go free than one innocent be punished." and assign various values for n. Usually, this means accepting some amount of erroneous convictions since the only way to ensure no innocent people are ever convicted is by convicting no one at all.

This introduces an unusually difficult problem, though. Arguments about how high or low n should be turn on claims that other rules would convict too many innocent people or too few guilty people. But how do we know How do we know if we're convicting too many innocent people and too few guilty people?

The obvious answer is survey data, crime reports, and the like. Using these, we could ensure that the number of convictions and non-convictions hit the marks we think are appropriate, given our support of n. Surprisingly, that won't work. It isn't enough to ensure that the number of people who are convicted or released fits our intuitions about n, we also need to know that each person is actually guilty or actually innocent. And we almost certainly have other requirements of due process to ensure the way people are declared guilty is fair. Aggregate data won't get us this--and using it is a form of the ecological fallacy.

So now we need some kind of process for determining whether or not a particular accused is guilty, given the evidence, with the additional constraint that the process be fair. But that's just what the system of justice we were trying to justify is supposed to do! We can't, it seems, use intuitions about too many or too few people going free to build a system of justice, even if we know (as we seem to in the case of rape) that conviction rates are far below the actual crime rate.

We could, though, point out the unfairness of particular features of a system of justice. The pre-rape shield practices of shaming and attacking the credibility of rape victims by asking them irrelevant questions about how many partners they'd had in the past is an example of an obviously unfair feature of a system of justice. Jurors' refusal to believe rape victims is another one, but one that I don't think can be addressed by, say, lowering the standard of proof for rape convictions. The problem isn't with a rule in the court, but fucked up and pervasive social views. Those are going to be a problem as long as there is a jury at all. It is possible to change those views, but it takes a different sort of activism than the activism that resulted in the rape shield laws.
posted by Marty Marx at 4:25 PM on August 8, 2011 [3 favorites]


. In america, I know that children who approach the police, eg to say that they wish to be taken into care, are not interviewed without their family present and with a responsible adult (= social worker, usually)

We are very behind on children's rights, but this particular issue really varies based on the jurisdiction and the competence of the people involved. When it comes to child welfare, the most stunning aspect of the US system is how many different counties there are, each somewhat independent when it comes to child welfare. And then there are 50 different states, each very independent when it comes to child welfare.

The variety and diversity are stunning in scope.
posted by the young rope-rider at 4:32 PM on August 8, 2011 [1 favorite]


Children aren't interviewed in court in the UK, and i'm horrified that they are in the USA

The Sixth Amendment right to cross-examine witnesses is a powerful one.
posted by valkyryn at 4:32 PM on August 8, 2011


The Sixth Amendment right to cross-examine witnesses is a powerful one.
In Australia, child witnesses are still cross examined, the defence lawyer remains in the court, and the child in a separate room, via CCTV.
posted by b33j at 4:41 PM on August 8, 2011 [1 favorite]


I'm pretty sure most states in the US allow for CCTV with child witnesses*. What does vary far more would be the conditions under which that would be allowed (under age 13? for certain crimes but not others? etc.) It's definitely not an automatic option.

*A quick search is turning up a 1989 paper that says 32 states allow it, and a more recent petition to NC to allow it because 46 other states do. I remember it being somewhat common of an issue based on some psych research by Gail Goodman on child sexual abuse.
posted by bizzyb at 4:51 PM on August 8, 2011


I wonder if there are any cases where a defendant required a therapy dog for stress-related trauma (e.g., a veteran with PTSD) ...

Well, this is one of those cases.

From the court filing in response to which the judge eventually allowed the presence of the dog.
FINDINGS OF FACT -- Lori Stella, a New York State licensed Clinical Social Worker, having an LMSW degree, has been the victim’ s therapist since August of 2010. The victim, now 15 years old, has been diagnosed with Post Traumatic Stress Disorder. She exhibits multiple symptoms, including sleeplessness, numbness, failure to connect, inattention and constant feelings of emotional distress regarding her trauma resulting from the alleged sexual abuse by the defendant.

To date, the victim cannot talk about the events with the therapist. When they attempt to do so, she “shuts down”, which is consistent with Post Traumatic Stress Disorder.

She has trouble sleeping at night. On some occasions, she indicates that she feels safe, but the therapy engaged in by the child led the therapist to a different conclusion. The victim cannot articulate much more than “what happened with . . . . . " She provides no details. When questioned, she indicates that she does not want to talk about “it”. She has extreme difficulty in verbalizing. When she becomes upset, her anxiety becomes obvious and visible. She picks at her sleeves; she cannot make eye contact and cannot verbalize.

The victim has limited contact with her family and her only support system is her paternal grandparents who reside outside of the United States. The victim is familiar with “Rose”, an 11-year-old golden retriever companion animal.

The dog has been trained to work with victims of Post Traumatic Stress Disorder, traumatized and special needs children, veterans at VA hospitals and other victims.

The dog has been trained to sense their anxiety and attempt to reduce their stress or anxiety level by either nuzzling them or wanting to be pet.

The victim has worked with “Rose” in a therapeutic setting and the interaction between them has been very positive. The victim becomes significantly more verbal about her activities when she is with the dog and has expressed great anxiety about facing the defendant, who she fears, in open court without the assistance of the dog. The therapist has indicated that it is her opinion to a reasonable degree of certainty that the child’ s courtroom alleging sexual acts committed by the perpetrator, a relative with whom the victim had a long standing relationship, is likely to cause the child to suffer very severe emotional and mental stress. She will be re—traumatized and suffer increased Post Traumatic Stress Disorder, including greater symptomology, without assistance in testifying when she must testify in the presence of the alleged perpetrator.

The victim has indicated that she feels a sense of calm with the dog and will feel safer at the trial. In the opinion of the therapist, the dog will help the victim verbalize and will permit her to better express herself. It was further opined that the dog would decrease the child’ s level of psychological distress and harm. It is unknown whether the child can testify without the dog. Certainly, she is better able to testify with the dog present and her art therapy clearly demonstrates her fear of the perpetrator.
posted by ericb at 5:00 PM on August 8, 2011 [7 favorites]


The victim is not the defendant, ericb.
posted by Gator at 5:02 PM on August 8, 2011


You do realize that some of us don't like dogs....even cute ones? I think that should balance things out.
posted by St. Alia of the Bunnies at 5:06 PM on August 8, 2011


I know that. Just pointing out that the diagnosis for the girl (the victim) is PTSD.
posted by ericb at 5:06 PM on August 8, 2011 [1 favorite]


@jedicus: "Closed-circuit testimony has been upheld by the Supreme Court in child abuse cases. Maryland v. Craig, 497 U.S. 836 (1990)"

True, but Craig is 21 year old law, was a 5-4 decision which included only two members of the current court (Kennedy in favor of allowing the closed circuit testimony, Scalia writing the dissent against), and in the wake of Crawford v. Washington, 541 U.S. 36, it may be weakened or bad law now.

That said, Scalia's objection (IIRC) was largely based on the idea that a person is less likely to lie if they have to look at the defendant when they do, and I would love to hear the MeFis with some knowledge of psychology weigh in on whether that's held up scientifically. I doubt it.
posted by nickgb at 5:09 PM on August 8, 2011


Yes, but the question was about cases where a defendant needed a therapy dog.
posted by Gator at 5:09 PM on August 8, 2011


Yes, but the question was about cases where a defendant needed a therapy dog.

And ericb did a terrible job at answering that question, but a great job at illuminating some of the unique aspects of this case which led to the decision to allow the use of the therapy dog in the court room. It's those kinds of extenuating circumstances that legal challenges to unusual procedures (such as happened here) to be dismissed under very narrow appellate decisions that have little effect on the broader legal corpus.
posted by Panjandrum at 5:20 PM on August 8, 2011


but yeah, my curiosity totally wants to hear about a defendant with a therapy dog too.
posted by Panjandrum at 5:22 PM on August 8, 2011


I agree. Completely unfair to the defendant. I hope they win a new trial.
posted by agregoli at 5:30 PM on August 8, 2011


It just brings to mind why people with noticeable severe PTSD are even more easy targets: if they are so broken that simply approaching them sends them into panic attacks and immobility and dissociation--- then how would they be able to withstand a trial?

My bigger point was that if a dog can make a witness more sympathetic in the eyes of the jury, does it hold true for the accused, as well? Would a "not guilty" verdict be questioned? And if the accused relies on their dog on a daily basis (rather than needing a temporary, court-employed animal) can you tell them they can't bring them to court? I'm not so sure people would be as sympathetic to the the needs of a person accused of a crime.

But yes, if their condition is acute I would think that the lawyer would claim their client wasn't fit to stand trial in the first place.

On preview: I think this comment should help clarify the point I was making about the defendant's side of the issue. (And I used the PTSD example because it was analogous, but an epileptic defendant with a therapy animal would be another example.)
posted by Room 641-A at 5:32 PM on August 8, 2011


Or if they decide it was not allowable does he just walk? How does this work?

No, he doesn't walk. Usually what I see is that prejudice like this can win a defendant a new trial - probably without the dog for the testifying witness - and as far as I know, she may not have to testify again - it's possible they'd use transcripts of her prior testimony. (I work in appeals but IANAL).
posted by agregoli at 5:48 PM on August 8, 2011


Well, you could just balance it all out by giving the defendant a basket of kittens to hold during the trial.
posted by drinkyclown at 5:51 PM on August 8, 2011 [2 favorites]


Insofar as it is always repugnant for an innocent person to be punished for something they did not do, sure. But that's a separate question from how we organize...

Your comment is the longest straw man in the history of this site. Actually, it might have been a double-bluff-- is there a tactic where you go on forever using syntactically correct but wholly irrelevant sentences until everyone gives up and says "they must have a sound point to write so much,"?

Regardless, I mostly parsed what you typed and it doesn't seem to actually address my comment beyond the suggestion of the first sentence. You can help me maintain an actual discourse by clarifying something for me: does convicting someone of a crime without considering their actual guilt rectify past injustice?

My argument was that it does not, and the contrary tone established in your opening suggests that you disagree. You're entitled to your opinion, but I can't engage you if I can't understand your position. I'm not necessarily blaming you, you understand-- if I'm mentally enfeebled, I'd probably be the last one to recognize it. Help me out here.
posted by Mayor Curley at 6:04 PM on August 8, 2011


After reading ericb's research,* I'm starting to think that the best result here might be that an appellate court issues a very narrow ruling, i.e. therapy dogs aren't categorically impermissible, but they are disfavored, and you need facts at least as bad as these to get them in.

What I'd really like to do is see the defendant's brief. Which probably isn't going to happen, as it wouldn't surprise me if the record were sealed, and those sorts of things aren't usually uploaded anyway. It's possible they just did a bad job. You would not believe the crap that gets submitted to county courthouses on a daily basis, and the state criminal docket is not exactly known for scholarly brilliance. Don't get me wrong: most public defenders are fine, dedicated attorneys. But they're frequently saddled with impossible case loads** and almost no administrative support. Even a mid-sized defense firm would probably have sunk upwards of a few dozen attorney hours into this, which is more than many PD offices can afford to do.

*Which has been real yeoman's work. Bully for you.

**The Dutchess County Public Defender's Office handles about 6,500 cases a year, and only transitioned to all full-time attorneys in the last twenty years or so. I'm guessing they've got twenty attorneys, at best. My firm, which does civil defense, handles maybe a third of that, and we've got forty-odd full-time attorneys and a handful of part-timers.

posted by valkyryn at 6:18 PM on August 8, 2011 [1 favorite]


As someone with a therapy golden (yes, I know this info is useless without pictures), I agree that having Benson (who's a good boy? Benson's a good good boy!) flopping in the lap of a witness would be problematic since the entire world is his fan club.

But the larger issue raised upthread about how we can possibly make vulnerable underage witnesses -- especially very young ones -- capable of giving testimony in what is by definition an intimidating situation while still protecting defendants' rights -- that's a thorny one. Heck, when I testified for like 2 minutes in a nearly empty courtroom to get an amicable divorce and the other party wasn't even present, I was hella nervous.

And when it comes to the need for the alleged victim to testify, isn't the conventional wisdom that sexual assault defendants are seldom convicted in cases where the "accusing witness" doesn't provide testimony, regardless of the amount and "slam-dunkness" of physical evidence?
posted by FelliniBlank at 6:28 PM on August 8, 2011 [4 favorites]


I wonder if there are any cases where a defendant required a therapy dog for stress-related trauma (e.g., a veteran with PTSD) and if there were any objections and/or appeals based on the dogs potential influence on the jury.

From the Courthouse Dogs FAQ: "And a courthouse dog is there for everyone – victims, witnesses, defendants, lawyers, judges, law enforcement officers, anyone who can benefit from the calming influence of a well trained dog."
posted by homunculus at 6:42 PM on August 8, 2011


Your comment is the longest straw man in the history of this site.

Are you complaining or admiring that he took the championship belt away from your comment?
posted by Etrigan at 6:52 PM on August 8, 2011 [3 favorites]


The fairness deck is stacked against these witnesses. The dog doesn't even come close to levelling the playing field.

Given the near limitless resources of the state to prosecute, not to mention the sheer omnipotence of the state in relation to the accused, this statement strikes me as completely divorced from reality.

This is why half of the Bill of Rights deals exclusively with the rights of the accused.
posted by quintessencesluglord at 6:54 PM on August 8, 2011


This motion won't be granted, and I agree that the posturing by the defense is frivolous. I'm basically a rights-of-the-accused absolutist, and RTFA shows that the dog was almost entirely out of sight to the jury and the judge's instructions about the courthouse dog minimized any potential prejudicial aspect.

Further, sample jury instructions from the National Crime Victims Law Institute and Courthouse Dogs LLC point out that dogs "used in a courthouse setting to help reduce witness anxiety and are available to any witness who requests one". This has been pointed out upthread too, but if the defendant wanted a dog, he was also entitled to one. If anything, this is a failure of defense strategy.
posted by Chipmazing at 7:04 PM on August 8, 2011 [3 favorites]


Your comment is the longest straw man in the history of this site. Actually, it might have been a double-bluff-- is there a tactic where you go on forever using syntactically correct but wholly irrelevant sentences until everyone gives up and says "they must have a sound point to write so much,"?

Whoa! This is crazy hostile, and insulting to boot. You are acting like a jerk.

Regardless, I mostly parsed what you typed and it doesn't seem to actually address my comment beyond the suggestion of the first sentence.

I don't think you parsed it at all. I was trying to put your question in a more defensible form. You were claiming that "if you value freedom, you generally find the notion of an innocent person in jail repugnant no matter how many similarly-charged-and-also-guilty people have gone free."

And that's obviously true, even of the people you were claiming disagreed. Everyone thinks an innocent person is sent to jail, and having many similarly-charged-and-also-guilty people go free only makes it more repugnant. Nobody was arguing otherwise. They were arguing that we should have a greater tolerance for convicting innocent people so that we could get the guilty ones.

That's what I thought you really wanted to object to. And that's what my comment was about. Yeah, it was long, but it was an explanation of why we can't our belief that too many guilty people are going free doesn't justify tilting the scales toward conviction by removing protections for defendants.

In other words, I was agreeing with what I thought your position would be, if you'd thought about it and phrased it more carefully.

You can help me maintain an actual discourse by clarifying something for me: does convicting someone of a crime without considering their actual guilt rectify past injustice?

No problem. It does not rectify past injustice, but is a further injustice--even if we think too many guilty people are going free. Here's my explanation why.
posted by Marty Marx at 7:06 PM on August 8, 2011


Marty Marx:
"In other words, I was agreeing with what I thought your position would be, if you'd thought about it and phrased it more carefully."

I appreciate that, but it's just not necessary. If I wanted to express myself in a 600 word, incoherent polemic, I would have written one.
posted by Mayor Curley at 7:23 PM on August 8, 2011


Hm. When my brother was tried, the "victim"* was allowed to have a rape trauma/crisis advocate on the stand with her. She hugged the girl, encouraged her, handed her tissue, etc. I've always felt that was horribly prejudicial and unfair; I don't know that I would have felt the same way if it was a dog in the box with her. It does certainly add an air of legitimacy to her case.

*I feel obliged to add that I believe that there are horrible people in the world who do horrible things and should be punished. That was not the case here, and without going into the whole story, she was coerced into testifying by a police department with an axe to grind, and my brother's lawyer offered no defence, called no witnesses, and did not visit/consult him a single time.
posted by guster4lovers at 7:26 PM on August 8, 2011


paragraph 1: The response cites my argument as if it were a rebuttal, but doesn't address it.

I don't know what else I can say other than this: no one disagrees with what you literally wrote, including the people you were attacking. Some people disagree with a claim similar to the one you were making and that you seem to be arguing for, but they should not. I suppose I could have been clearer or more concise, but yeah, you just misunderstood what I wrote.

I appreciate that, but it's just not necessary. If I wanted to express myself in a 600 word, incoherent polemic, I would have written one.

I sincerely do not understand what you are angry about, or why you are being so nasty.
posted by Marty Marx at 7:32 PM on August 8, 2011 [3 favorites]


It really is fascinating how rape cases bring out the hawks in liberal people.

About 60 percent of the posts in this thread express concern that this defendant did not receive a fair trial. I have never seen a reaction approaching this in threads here about the trials of people accused of hate crimes, police officers accused of brutality, or bankers accused of embezzlement. Fascinating indeed.
posted by Ralston McTodd at 7:58 PM on August 8, 2011 [1 favorite]


From the Courthouse Dogs FAQ: "And a courthouse dog is there for everyone – victims, witnesses, defendants, lawyers, judges, law enforcement officers, anyone who can benefit from the calming influence of a well trained dog."

This is the only mention of defendants in the linked FAQ, which is more of a general FAQ about the logistics of the program. However, there is a link on that page to another FAQ: Using a Courthouse Dog in the Courtroom, which is written entirely from the view of the witness/prosecution.

This part in particular, in the "Presenting the motion to the judge" section, also stood out to me (emphasis theirs):
Avoid using the term “therapy dog” because the use of this term may create grounds for a mistrial or raise an issue on appeal. This term originated in the medical and psychiatric fields and connotes that the recipient of the dog’s attention is in need of physical or psychiatric therapy. A defense attorney could argue that the use of the term “therapy dog” by the judge or the prosecutor implies to the jury that the witness is in fact a victim in need of therapy and could be construed as a comment on the evidence. It is up to the jury to decide if the witness was victimized by the defendant. You don’t want to retry a case and put the witness/victim through this ordeal a second time."
The FAQs don't really address my question* at all, and since this was posted as a reply to my question I wanted to clarify that.

*Which, once again, was just asking about cases where a defendant made use of a therapy animal and whether or not it was claimed that the animal influenced the jury.
posted by Room 641-A at 7:58 PM on August 8, 2011


It really is fascinating how rape cases bring out the hawks in liberal people.
Ralston McTodd: About 60 percent of the posts in this thread express concern that this defendant did not receive a fair trial. I have never seen a reaction approaching this in threads here about the trials of people accused of hate crimes, police officers accused of brutality, or bankers accused of embezzlement. Fascinating indeed
Yeah, I was (pleasantly) surprised, because when this thread started I also expected mine to be the minority opinion. It's nice to see that people can debate the merits and balance of justice, and whether we should allow for this sort of thing as a general rule, while mostly avoiding the sandtrap of what this particular case was about.


guster4lovers: Wait, so what happened?
posted by hincandenza at 9:34 PM on August 8, 2011


I think the story as initially portrayed would lead many people to suspect that a fair trial may have been at risk. However, subsequent data, such as the judge's ruling, and the knowledge of the extent and brutality of the crimes being prosecuted; as well as how the dog was, for all intents and purposes, hidden from the jury by being led in and placed in the witness box *before* the jury or the witness came into the room, my personal belief is that it was a fair trial, and that little girl is braver than I have ever been.
posted by dejah420 at 10:23 PM on August 8, 2011 [2 favorites]


OK, so when the jury's emotional responses are the same when viewing an uncute, un-appealing-ethnic (whatever that may be depending on local bigotry), (including what she's wearing and how she talks), child's testimony versus a charismatic, "good little girl" type, then I'll say the dog throws things off too much. Not before.
posted by The otter lady at 11:15 PM on August 8, 2011 [1 favorite]


Hint: A service animal is not a pet.

What makes this particular dog a service animal and not merely a pet?
posted by ShutterBun at 12:30 AM on August 9, 2011


JFC, is that a serious question? Rosie isn't even associated with the victim's family. She's a therapy dog and she's helped with other children too.

(Not that being more permanently associated with one person precludes an animal from being a service animal. Here, educate yourself.)
posted by kmz at 5:51 AM on August 9, 2011 [1 favorite]


It really is fascinating how rape cases bring out the hawks in liberal people.

The type of case this is really should have no bearing at all as to whether the trial is seen as unfair or not. The issue at hand is the use of the dog, and my concern over that would then stand for every case out there where a dog has been used in the same manner.

I personally think the case is deplorable and if the evidence supports the guy's guilt, I hope he really receives a severe sentence. But again, that doesn't meant I want something technically unrelated to the facts of the case to lead to juror judgments when it's preventable. True there are so many things that aren't (appearance, prejudices, publicity), but that doesn't mean we shouldn't attempt to control the things that we can.
posted by bizzyb at 8:03 AM on August 9, 2011


I enjoyed the article. Bright, breezy writing style.
posted by ClaudiaCenter at 8:05 AM on August 9, 2011


I get the overwhelming impression that the cuteness of dogs is prejudicing this thread…
posted by Jeremy at 8:36 AM on August 9, 2011


Indirectly regarding the service dog question, check out the comments on the NYT site--there's a comment there from a guy who says he's a litigator with a service dog, and that he feels juries respond positively to his dog and that it has improved his success rate at trial.
posted by phoenixy at 2:00 PM on August 8 [2 favorites +] [!]


If it was a female lawyer, I'd ask if her name was Maggie Lizer.
posted by FatherDagon at 8:59 AM on August 9, 2011


FC, is that a serious question? Rosie isn't even associated with the victim's family. She's a therapy dog and she's helped with other children too.

Yep, serious question. Given that the requirements to be a "certified therapy dog" generally consist of little more than passing a Canine Good Citizenship test, along with being tested for comfortability around children, medical equipment, strangers, and non-standard circumstances (people using walkers, autistic children, etc.) there's not much difference between a "therapy dog" and a "well behaved, mellow pet."

There's a HUGE difference between this and a Seeing Eye® Dog or a drug/explosive detecting dog, police dog, etc. And the fact that the title of "therapy animal" has been bandied around as if they're some kind of walking, slobbering shaman is, to me, degrading to bona fide working animals.

Don't get me wrong, therapy dogs provide an invaluable service in places like hospitals, retirement homes, and with special needs people. But they are performing the role of a pet, nothing more. (Which is not to say that the role of a pet isn't extremely valuable)
posted by ShutterBun at 9:01 AM on August 9, 2011 [1 favorite]


I think the basis for prejudice here comes, not from the dog being cute, but from jurors being told (or assuming?) that the girl *needs* the comfort because the horrific events she is testifying to are *true.* That lends an extra air of credibility. A credibility determination is supposed to be up to the fact finder based on the plausibility of testimony, the witness's demeanor, and the presentation of supporting evidence.

This is not like an interpreter who has to be there so that the witness can be understood. An interpreter is there for the purpose of aiding the witness to speak at all, not to demonstrate to the jury that the witness needs helps speaking *the truth.*

All that said, it obviously must be a horrific thing to have to testify about. If something comforting for young children is necessary, why not strategically stick the dog under the witness box before the jury gets there? Kid gets comfort, jury doesn't know. Or, have the dog before / after in the judge's chamber for some comfort and therapeutic value. Just please, not where the jury can see.
posted by motsque at 9:17 AM on August 9, 2011


If something comforting for young children is necessary, why not strategically stick the dog under the witness box before the jury gets there?

Motsque, you must not have been reading the comments, because that's exactly what happened.
posted by EmpressCallipygos at 9:45 AM on August 9, 2011 [2 favorites]


Could they not get around the "prejudiced by cuteness" accusation by putting a barrier around the witness...or having her testify via closed-circuit? I guess if it's important to show her face as she testifies, set it up so she could pet the dog but it wouldn't be visible. I assume the dog could be trained to stay laying down or sitting.

I can't give a citation but years ago I read something, either written by Andrew Vachhs or linked from his website, about a dog that provided emotional support to a girl testifying at her abuser's trial. They brought the dog in while the jury was out. She testified with the dog lying at her feet, and there was a recess when she was excused. The jury never saw the dog.
posted by BigSky at 10:21 AM on August 9, 2011


One of the commenters at NYT suggest giving the defendant a dog too. I chuckled but why not?
posted by mokeydraws at 10:39 AM on August 9, 2011


Thank you EmpressCallipygos, I did not notice that. My point was that the jurors should never know a dog is there and it would be OK. But it's when jurors do know, which they apparently did in this case, that it would be prejudicial.

At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose.


“Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

Because if the jurors never saw the dog, I guess this would be a non-issue?
posted by motsque at 1:17 PM on August 9, 2011


You do realize that some of us don't like dogs....even cute ones? I think that should balance things out.

posted by St. Alia of the Bunnies at 5:06 PM on August 8 [+] [!]


bears repeating - some people are even scared of and hate dogs. Also, the dog was out of sight so I doubt the jury was incredibly distracted by the adorable dog.

Poor girl, this is a terribly sad situation.
posted by rainydayfilms at 4:03 PM on August 9, 2011


It's only fair if the 'stressed' accused also has the benefit of an aid dog too.
posted by 1000monkeys at 9:49 PM on August 9, 2011




New York Times: 'Courtroom dog' helps young rape victim testify.
posted by ericb at 10:17 PM on August 9, 2011


Duh ... my link to the NYT article on MSNBC's website is to the original one linked to in the FPP.

Bartender, another G&T when you have a chance!
posted by ericb at 10:23 PM on August 9, 2011


« Older Atheist Christians go to church.   |   Neon Movie Signs Newer »


This thread has been archived and is closed to new comments



Post