Courthouse Dogs: Witness Comforts, Defendant’s Rights

Summary: Although the 2013 case People v. Tohom explicitly determined that courthouse dogs are constitutional, the debate over whether or not the court was justified in prioritizing witness’ rights continues.

From their beginnings with New York City attorneys in the 1980s, courthouse dogs have become a contentious and sensitive issue. Initially used to comfort abused children during interviews with prosecutors and therapists, courthouse dogs are now being proposed as a nationwide method of accommodating child witnesses inside the courtroom, not just outside of it. Although the 2013 case People v. Tohom explicitly determined that courthouse dogs are constitutional, the debate over whether or not the court was justified in prioritizing witness rights continues.

Those who oppose the decision argue that courthouse dogs are especially problematic for defendants. By prejudicing the jury, courthouse dogs jeopardize a defendant’s right to a fair trial. When judges allow courthouse dogs to be present, for example, they communicate to the jury that the comfort of the animal is required precisely because trauma has occurred. The dog serves as a confirmation of the defendant’s guilt, and the jury presupposes what they are supposed to decide on in the first place. Jurors may also find themselves sympathizing more with the witness; swayed by the presence of an animal, or perhaps reminded of their own pets, jurors would subconsciously side with the witness. Courthouse dogs, then, provide another mechanism for attorneys to rely on emotion, not fact. Abuse cases may already evoke emotion in the jury, and the presence of courthouse dogs only exacerbates this.

Courthouse dogs can also violate the defendant’s rights under the 6th Amendment. The Confrontation Clause of the 6th Amendment guarantees defendants the right to “effective confrontation” through “meaningful cross-examination.” Courthouse dogs by nature limit cross-examination because they perceive and alleviate stress regardless of its cause. A witness who is stressed by lying is comforted just the same as a witness who is stressed by recalling her trauma. Unintentionally, the dogs provide a buffer between the potentially untruthful witness and the cross-examiner. They protect witnesses who do not necessarily warrant protection, enabling them to better recall coached testimony or withstand a cross-examination that would otherwise expose dishonesty. In this sense, courthouse dogs deprive defense attorneys of the chance to attack the child witnesses’ credibility. Additionally, because defense attorneys cannot cross-examine the dog, they cannot explain or show the jury why the child may be upset. The combination of miscommunication and bias makes courthouse dogs especially problematic for defendants.

As pressing as these concerns may seem, the court is equipped to address them without banning courthouse dogs altogether. While it may be difficult, for example, for defense attorneys to communicate the details behind what a dog is intended to do, it is less difficult for a judge. Extensive jury instruction from the judge could explicitly communicate to the jury that causes of emotional distress are not necessarily benign. The judge could similarly warn the jury against presupposing innocence, guilt, or credibility. Finally, if seeing the dog prejudices jurors, judges can simply hide the dog. In one Indiana case, the dog lay in the witness box near the witness’ feet, hidden from the jury for the entirety of the trial. Adapting an “out-of-sight, out-of-mind” approach with courthouse dogs preserves the benefits to the child witness while minimizing the harms to the defendant.

In fact, preserving the benefits to child witnesses should remain the court’s top priority, as the very existence of an abuse trial depends on the presence of the child witness. In abuse cases, the victim is often the main, if not the only, witness. The absence of victim participation, then, results in the absence of the case. Courthouse dogs may limit effective cross-examination, but they ultimately enable prosecution – as many witnesses would either refuse to appear in court or be physically unable to without the dogs. In one case, a golden retriever named Rosie helped a fifteen-year-old sexual assault victim speak about her experience during therapy and later, during testimony. And in another, a witness agreed to appear in court specifically because of the dog.

While the potential for courthouse dogs to limit defendants’ rights still exists, the alternative is too harmful to accept. Sanctioning an environment in which witnesses can be intimidated and effectively bullied out of testifying would set a dangerous precedent not only for child witnesses but all witnesses. Courthouse dogs limit the trauma child witnesses face in court, allowing them to freely tell their stories and assist in effective prosecution. The extent, then, to which legalizing courthouse dog programs prioritizes child abuse victims’ rights is necessary. The vulnerability of children and the fragility of acquiring crucial testimony demands it.

Isadora Toledo is a freshman from Buffalo, New York planning to pursue a major in public policy and a minor in education.


Indefinite Solitary Confinement Ruled Unconstitutional in British Columbia

Summary: The Supreme Court of BC has classified indefinite solitary confinement as a form of torture and a breach of Canadian prisoners’ rights.

On January 17, 2018, the Supreme Court of British Columbia ruled Canadian prisons’ use of indefinite solitary confinement unconstitutional. The court ruled that the practice of allowing the wardens to place an unjustified expiration date on prisoners’ time in solitary was equivalent to torture and placed them at an increased risk of self-harm and suicide. Justice Peter Leask wrote in his decision that this indefinite administrative segregation violated the rights afforded to prisoners under Section 7 of the Charter of Rights and Freedoms, specifically the right to not be deprived of the security of life and the person protected by this section. While this section does clarify that these rights are subject to seizure in accordance with the principles of fundamental justice, Leask did not believe that this practice was necessary to carry out proper justice. He based this decision on the belief that indefinite administrative segregation does not succeed in preparing inmates to be returned to society and, instead, produces more violent and damaged inmates. Leask also feared that the practice was being used to discriminate against the “mentally ill, disabled, and First Nations.”

This case was brought before the Court by the B.C. Civil Liberties Association and the John Howard Society of Canada. Mirroring a similar ruling in Ontario, the ruling caught the attention of the Public Safety Minister, Ralph Goodale, who has helped introduce a bill before Parliament that intends to place limits on how long inmates can be placed in solitary confinement. The ruling comes on the heels of multiple tragic deaths of inmates as a result of the administrative segregation program. One inmate, Edward Snowshoe, took his own life after spending five months in solitary at two different institutions.

The topic of solitary confinement has become highly politicized in the push for prison reform. The United Nations has even become involved. In 2011, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claimed that any form of solitary confinement of the mentally ill and any solitary confinement lasting longer than 15 days is to be considered a form of torture in their eyes. However, as the Convention currently stands, countries face no consequences of ignoring this decision other than receiving a condemnation from the UN, which will do little to incentivize any further action on the topic, considering that over 25 of current members of the UN engage in some form of solitary confinement longer than 15 days.

The Minister of Justice, Jody Wilson-Raybould, opposed the BC ruling, claiming that administrative segregation was not torturous or as bad as it has been made out to be since inmates placed under administrative segregation have “daily opportunity for meaningful human contact,” as opposed to disciplinary segregation, which has very little human interaction and is capped at a maximum of 30 days. In response to the ruling, the Minister of Justice asked for a twelve-month suspension before the practice could be ruled illegal in order to allow for the government to prepare the proper legislation to make the necessary changes.

Hunter Snowden is a junior majoring in Political Science and Philosophy from Dallas, Texas.