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Abstract
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Courts and prosecutorial offices around the nation have started using service dogs to support emotionally frail child witnesses who are unwilling to testify but for the calming presence of a dog. Proponents claim that this new type of therapeutic jurisprudence helps bring criminal defendants to justice in cases where the testimony of the complaining witness is crucial to the prosecution’s case. Opponents fear the infringement of the defendants' rights to a fair trial because of the dogs' potential to prejudice a jury to come out in favor of the witnesses.
This article analyzes the legal foundations supporting the use of service dogs for emotional support of complaining witnesses in open court. Currently, the Federal Rules of Evidence give trial judges wide discretion to allow evidence presentation methods deemed effective for the ascertainment of the truth. Other federal law allows child witnesses to give testimony with the emotional support of an adult attendant or through alternative methods such as closed-circuit television or recorded statements. However, a defendant's Sixth Amendment confrontation rights may be held violated by such alternative methods, especially after the recent landmark case Crawford v. Washington. In contrast, this is less likely to be the case if a witness gives live testimony, even with the potentially prejudicial presence of a service dog. Case precedent demonstrates that defendants’ right to a fair trial and the protection of the confrontation right have been upheld in similar cases where minor witnesses used comfort objects for support.
The article concludes that legally sound reasons exist for allowing the use of service dogs in court, but only in cases where the witness can demonstrate a truly compelling need for the emotional support and only where the proper balancing with defendant's rights is performed. |