More and more, dogs are being allowed into court as a form of support for alleged victims providing testimony.
The presence of dogs in public settings has been quickly increasing over the past few years, even in Michigan courtrooms. This phenomenon has raised much debate among prosecutors and criminal defense attorneys. Our own attorneys here at The Kronzek Firm have dealt with this issue in multiple counties.
Why are dogs being allowed in the courtroom during trials?
The belief is that for victims of crimes, specifically those most vulnerable, such as children, having a support dog accompany them during their testimony at trial is likely to have the effect of providing emotional and mental support to the victim. Some advocates believe it will make the whole court process slightly more tolerable.
The ability of witnesses (mostly alleged victims) to use support animal in Michigan courts comes from MCL 600.2163a(20) which allows the courts to use the wording that “[t]his section is in addition to other protections or procedures afforded to a witness by law or court rule.” The court also looks to MCL 600.216a(4) which states, “[a] witness who is called upon to testify shall be permitted to have a support person sit with, accompany, or be in close proximity to the witness during his or her testimony.”
The court has interpreted that support person can also encompass a support dog. A support animal has been defined by the courts to include, “an animal that provides comfort to a witness while the witness testifies.” People v Johnson, 315 Mich.App. 163 889 NW2d 513 (2016).
Wait! Can that be prejudicial to the defendant?
Many defense attorneys have argued that the use of a support dog by the victim during their testimony violates the defendant’s Constitutional right to due process and is inherently prejudicial. The court has stated that “[e]very defendant has a due process right to a fair trial, which includes the right to be presumed innocent.” People v Rose, 289 Mich.App. 499, 517 808 NW2d 301.
Furthermore, the court has said that “[i]n certain circumstances, courtroom procedures or arrangements undermine this presumption of innocence because the procedure or arrangement is deemed inherently prejudicial.” For Michigan courts to determine whether a court practice is inherently prejudicial, the court must look to whether, “the practice gives rise primarily to prejudicial inferences or whether it is possible for the jury to make a wider range of inferences from the use of the procedure.” Rose, 289 Mich.App. at 518 808 NW2d 301.
Defense attorneys have argued that a jury will interpret the victim’s need to have a support dog present with them doing their testimony when they face the defendant, as a sign that expresses the defendant’s guilt. Their argument is that if the defendant was innocent, the victim would not need the support dog. The court has held that there are procedures and rules that the court can follow during the time the dog is in the courtroom to try and reduce any prejudice the dog might cause to the defendant.
Are there any rules regarding the dog being in a Michigan courtroom?
The court in People v Chenault held that the court should attempt to, “make the presence of the support dog as unobtrusive and as least disruptive to the proceedings as reasonably possible.” 227 Cal.App.4th 1503, 1517 (2014). The court has identified some ways this can be done:
“Hav[ing] the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and the dog leave the courtroom. In certain physical courtroom settings, it may be possible to have the support dog lie on the floor near the witness, entirely out of the jurors’ view. If not, the support dog should be positioned, if possible, so its presence is not significantly distracting to the jurors.
Furthermore, whenever the support dog’s presence becomes known, or is likely to become know, to the jury, it generally will be the preferred practice for the court to give an appropriate admonishment to the jury to avoid, or at least minimize, any potential prejudice to the defendant. For example, the court may admonish the jury that it should disregard the dog’s presence, and should not be biased either for or against the witness, the prosecution, or the defendant based on the dog’s presence.”
If these methods or not possible or if it is determined that there is nothing the court can do to eliminate or reduce whatever level of prejudice determined to exist, the court should prohibit the use of a support dog in a courtroom. The court therefore has discretion in allowing the use of a support dog in the courtroom and whatever procedures and rules will apply.