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Dogs in the Courtroom: An Update
Ellie, the first courtroom facility dog, is almost eleven years old now.

Ellie is now nearly eleven years old. She still loves going to work every day and has no plans to retire. “She loves coming to work with me, and just seems to be getting better and better at her job,” says Page Ulrey, a King County Deputy Prosecutor and Ellie’s handler.

Ellie is the first facility dog who was trained specifically for use by a prosecuting attorney’s office, to assist victims of crime during witness interviews and courtroom testimony. I first wrote about Ellie, and Jeeter—the facility dog who helped get the idea going in Seattle, Wash.—in 2007. While Page prosecutes cases involving elder and vulnerable adult abuse, Ellie continues to help with a wide variety of cases within the office. Ellie has been working almost nine years now, and in that time has attended a trial every few months, perhaps as many as forty total. She’s had a huge, beneficial impact on how many victims of crime experience the legal system.

Ellie—and other courthouse dogs like her—had to do some convincing along the way. As in other states where facility dogs have been introduced into criminal courtroom proceedings, defense counsel and/or judges in counties across Washington State have often objected when a facility dog accompanies a victim or witness to the stand for testimony. This is especially true the first few times a facility dog is used. Some cases, after a conviction at the trial court level, are appealed in part on the basis that the dog created a bias in favor of the prosecutor’s witness and case, interfering with the defendant’s right to due process. In Washington, most of those cases ended in the state’s appellate level courts with convictions affirmed and the use of the facility dog approved.

Now, however, the Washington State Supreme Court has weighed in. After an appellate court affirmed a conviction and the use of Ellie to comfort a victim while testifying, the case was appealed again to the state’s highest court. The Washington State Supreme Court issued a decision September 26, 2013—State v. Dye— making it clear that the use of facility dogs in the courtroom should be allowed so long as certain facts are established and precautions are followed.

What makes State v. Dye an especially strong case for the use of facility dogs is that the defendant’s counsel made several common objections to the use of Ellie at trial—preserving the issues for appeal—so that the Supreme Court could address them in detail. The victim in the case, though 56 years old, was a developmentally delayed man who functioned at a mental age of six to twelve years. When interviewed by defense counsel prior to trial, Ellie comforted him. Page, as prosecutor at trial, laid the foundation for using Ellie to assist the victim because he felt anxious about testifying, much like any child would. Ellie accompanied the victim to the witness stand. Not only did defense counsel object to Ellie, saying her presence with the victim was extremely prejudicial to the defendant, but also because the prosecutor on the case was Page—Ellie’s handler—who could possibly signal Ellie in some way. And finally, defense counsel objected on the basis that the defendant and even defense counsel might have allergies to dogs, or be intimidated by the dog.

The Supreme Court said that trial judges may exercise their discretion in allowing a special measure such as a facility dog to accompany vulnerable witnesses. The analysis is the same in situations when child witnesses are allowed to take a doll or teddy bear with them to the witness stand. There should be a showing by the prosecutor that the witness would have difficulty testifying without the special measure. The trial judge can then determine whether the special measure would unduly prejudice the defendant.

The Supreme Court noted that Ellie’s behavior in the courtroom was never disruptive; she never left the witness’s side; and she never made any gesture (growling, lunging) toward the defendant that would cause a jury to consider him dangerous or untrustworthy. And finally, the trial judge instructed the jury to not make any assumptions based on Ellie’s presence.

The allergy objection has been a common one in the early stages of using facility dogs like Ellie in courtrooms. In the Dye case, the judge offered to allow the defendant to prove such an allergy with a note from his doctor, and if proven, make accommodations for him. The defendant never produced such a note and the objection was overruled. The Supreme Court approved this approach.

Both the Washington Court of Appeals and the Supreme Court upheld the trial judge’s decision to allow Ellie to assist the victim while testifying. A concurring opinion to the Supreme Court decision did voice some concerns, however. Justice McCloud felt that because Ellie was such a powerful symbol in the courtroom— “…her mere presence conveyed a deeply reassuring, yet silent, message of comfort, security and support”—that in the interest of fairness to the defendant, the trial judge might consider additional steps, for example allowing a facility dog to accompany the defendant’s key witness to the stand, to balance things out. Defense counsel didn’t seek such balancing steps, so no error occurred at the trial level. Justice McCloud was also concerned that a simple instruction to the jury to not draw any conclusions from Ellie’s presence was insufficient, that it’s well known that jurors often fail to follow a court’s instructions. “[T]he presumption that jurors follow instructions is especially inapplicable where the challenged procedure—here, the presence of the adorable dog Ellie—is a procedure that works only because it provides such powerful symbolism.”

There is still room for novel objections to the use of facility dogs in the courtroom. Those objections will wind their way through the appeals process. It’s all part of how our legal system sorts through these concerns and comes to the best possible solutions. Page isn’t worried. Ellie, and facility dogs in general, have become a common sight in King County’s courtrooms; most of the judges have become quite comfortable with their use. I’m sure that’s the case in many other jurisdictions across the country as well, and will become more common in the future.

As for defendants also having access to facility dogs in the courtroom, as suggested by Justice McCloud?  “I think that's fair,” said Page. “Although I don't think the prosecutor's office is under any obligation to supply defense with a dog.”

State v. Dye, No. 87929-0, published September 29, 2013, can be found at:

http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=879290MAJ

Courthouse Dogs Foundation (www.courthousedogs.com) - promoting justice with compassion through the use of professionally trained facility dogs to provide emotional support to everyone in the justice system.

For the first report on courtroom dogs by Rebecca Wallick see, or for previous update .

 

 

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Rebecca Wallick is an attorney and a Bark contributing editor; she and her dogs live in Washington.

Ellie photos courtesy of Page Ulrey

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