What Is That Dog Doing in the Witness Box?

Source: David Walsen /Wikimedia Commons

A 12-year-old girl sits in a witness box. She is here to testify about being raped by her stepfather, who sits at the defendant's table and glares at her threateningly. The girl avoids eye contact with him, looking mostly at the lawyers and the judge, but occasionally she looks down and touches something near her chair. What she is touching is screened from the jury. When the jury was absent, a Golden retriever was brought into the courtroom and nestled out of sight of the jurors in the witness box. How and why that dog got here is a complex story involving vulnerable witnesses or victims of crimes, psychologists (both clinical and research), judges, and a pack of lawyers (including prosecutors and defense attorneys) snarling at each other, trying to invalidate or to support the right for that dog to be present. Dogs, such as this one, are therapy dogs, which in this context are sometimes referred to as "facility dogs" or "courthouse dogs".

Why Dogs Are Allowed in the Courtroom

Testifying in court is a stressful experience for most people, but it can be especially difficult for young witnesses, the elderly, or emotionally challenged and vulnerable individuals. It is certainly the case that the criminal justice system was not designed with a child's needs in mind. Many stages are involved, each more stressful than the next. It starts with forensic interviews and court preparation, and it all reaches a crescendo when the child must testify at preliminary inquiries and public trials. Children are often reluctant or too scared to testify in an open courtroom, especially since it requires facing the alleged offender and having to discuss difficult subject matters such as sexual or physical abuse. All of this can lead to high levels of stress and anxiety, and may even cause the witness to refuse, or to be too distressed and unstable, to testify in court.

Psychological research has shown that some relief from anxiety can be achieved in children if they have with them a "comfort object" such as a teddy bear or favorite doll. The research on such stress reducers was strong enough that the Victims of Child Abuse Act of 1990 allowed for special accommodations for children. Depending upon the circumstances, children are allowed such comfort toys (or even a support person) to accompany them in the courtroom.

Further psychological research has shown that the presence of a dog, especially if the person can make physical contact with it, is a much more effective stress reducer than a doll or teddy bear, so when dealing with emotional witnesses it would make sense to bring a dog into a courtroom to support a fragile and sensitive witness.

The Legal Precedent

The landmark case occurred in 2003 in Seattle, where a Labrador retriever named Jeeter was called in to help calm down two 7-year-old twin girls in an emotionally charged sexual abuse case against their father. The girls were terrified in the courtroom and initially refused to bear witness in open court. Since the girls had taken a liking to Jeeter the prosecutor asked the judge to allow the dog to accompany the young witnesses while they testified. The judge reasoned that the dog would serve the same function as a teddy bear which was already permitted as a comfort object in other trial proceedings.

The defendant was convicted and this triggered a series of appeals. This is been the pattern in a vast number of cases where a therapy dog was allowed to assist witnesses. The judgments are typically appealed. The usual arguments at appeal by defendants who have lost their cases, have been that the visual attractiveness of the dog induced undue sympathy for the victim, thereby violating the defendant's right to a fair trial. Alternatively it is argued that some labels given to the animal, like "therapy dog" might imply that the child needs help and this endorses his or her status as a victim. While losing prosecutors have argued that the calming effect of a dog could have led jurors to believe that the witness was not severely harmed or that their testimony was coached.

Does the Data Support the Appeals?

Such arguments have drawn psychological researchers into the controversy. Perhaps the most cited studies are two by Kayla Burd (Iowa State) and Dawn McQuiston (Wolford University) who used mock jurors to test the outcomes when a child witness was accompanied by a dog, a teddy bear, or had no accommodation. In both studies the presence of a therapy dog did not affect mock jurors' perception of the defendant or witness, nor did it alter the outcome of their deliberations. This should invalidate the arguments against the use of courtroom dogs (if there were no such things as lawyers).

Whether this research played a role in any of later rulings is unclear, however every appellate decision I could find upheld the validity of using therapy dogs to assist witnesses in the courtroom.

You might think that with so many rulings already in the judicial register, appeals against the use of courtroom dogs would stop. However, lawyers are a tenacious group, and recently a new set of appeals against the use of therapy dogs at trials have arisen, triggered, as usual, by prosecutors or attorneys whose defendants have lost their cases. Now the argument is not against all courtroom dogs but just against black dogs.

Black Dog Bias?

Surprisingly, this is based on actual appeals and even some scientific data. The argument is that certain dogs, and by extension the witnesses they testify with, might be discriminated against because of their coat color. The issue is something which is known as "black dog bias". Numerous reports from animal shelters claim that black dogs are often discriminated against, resulting in lower adoption rates and higher rates of euthanasia. The belief is that black dogs are sometimes viewed as having less desirable personalities and more dubious temperaments than dogs with other coat colors.

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I actually contributed some data bearing on this issue. In my study, people judged the personality characteristics of black, brown, or yellow Labrador Retrievers (mixed with other particolored dogs) based on photographs. My data confirmed that the black dogs were viewed as being less friendly and potentially more aggressive than dogs of other colors. However the legal issue is whether or not that bias against black dogs will transfer and carry over to affect how the testimony of the witnesses that they are assisting are viewed by juries.

Fortunately, a new study headed by Kylie Kulak (University of Nevada, Reno) provides some direct data on this issue. In this study, a child witness testifying about a sexual assault was either comforted by a black dog, a white dog, or no dog. They summarize their results by saying that "perceptions of the witness were not affected by the facility dog" and "facility dogs do not unfairly sway jurors toward either legal party".

I am sure that this data and subsequent rulings by appellate courts, will not settle the issue. Lawyers are a combative breed and are dedicated to finding reasons (or even faint possibilities) that might overturn the validity of legal judgments that have gone against their clients. I am sure that at some future time appeals will be made against therapy dogs in the courtroom based on the differing perceptions of dogs with bobbed tails versus those with full feathered tales, or perceived biases for and against dogs with flat faces versus those with elongated faces and so forth.

At the time of this writing, over 40 states in the U.S. allow the use of courtroom dogs. Hopefully, in the absence of scientific evidence that might suggest that attitudes toward a specific type of dog affects the validity of judgments by juries, the courtroom therapy dogs will be allowed to continue to do their work, comforting and supporting vulnerable witnesses and allowing such stressed and frightened individuals to give needed testimony in judicial proceedings.

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