Over the last several years courts have grappled with when, and how, to allow the use of court facility dogs to assist witnesses and victims in giving testimony. A hearing set for today in Maryland’s Senate will examine the subject, while 6 other states have in the 2015/2016 legislative cycle either debated or in the case of Arkansas enacted statutes regarding facility dog usage.
Arizona: criminal cases, victim under 18, jury instruction required
HB 2375 of 2016 provides a court shall afford a victim who is under eighteen years of age the opportunity to have a facility dog accompany the victim while testifying in court. The court would be obligated to inform the jury “the facility dog is a trained animal, is not a pet owned by the victim witness and that the presence of the facility dog may not be interpreted as reflecting on the truthfulness of the testimony that is offered.”
HB 2375 cleared the House Judiciary Committee on January 20 and the House Rules Committee on January 25.
Arkansas: criminal cases, witness under 18, “appropriate jury instructions” required
HB 1855 of 2015 provided, subject to the Arkansas Rules of Civil Procedure, Arkansas Rules of Evidence, or other rule of the Supreme Court, if requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated, a child witness of the party shall be afforded the opportunity to have a certified facility dog accompany him or her while testifying in court. “In a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.”
HB 1855 was enacted as Act 957 of the 2015 session.
Connecticut: criminal cases, violent crime victim, nothing on jury instructions
HB 5364 of 2015 provided that that in any criminal prosecution involving an alleged violent crime and testimony from a victim of such crime, such victim shall be permitted to be accompanied by a therapy dog while testifying in the criminal prosecution, provided such dog is not visible to the jury.
HB 5364 was filed in 2015 but never advanced out of committee.
Hawaii: any “judicial proceeding”, “vulnerable witness”, jury instructions “to the extent necessary”
HB 1668 of 2016 and the identical SB 2112 provide a court may permit the use of a facility dog involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of the vulnerable witness. “To the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings.”
Both bills are pending in their respective Judiciary Committees.
Maryland: criminal proceedings, child witness, nothing on jury instructions
SB 55 of 2016 provides a court may allow a facility dog or therapy dog to accompany a child witness. There is no mention of jury instructions.
SB 55 is pending before the Senate Judicial Proceedings Committee and it set for a hearing today (January 26).
New York: criminal proceedings, “vulnerable witness”, lengthy jury instruction
AB 389 of 2015 and the identical SB 231 provide that a court shall permit the use of a facility dog when, in a criminal proceeding involving the testimony of a vulnerable witness, the court determines by a preponderance of the evidence that it is likely that such witness will be unable to effectively communicate if required to testify without the presence of such facility dog and that the presence of such facility dog will facilitate such testimony. Both bills include a lengthy jury instruction statement
A jury instruction shall be given both before and after the appearance of the facility dog with the witness and at the conclusion of the trial. Such instruction shall include that the dog is a highly trained professional who is properly referred to as a “courthouse facility dog.” Included in this shall be the emphasis that the dog is not a pet, is not owned by the witness and is equally available to both the prosecution and defense under certain circumstances. Such instruction shall include that the presence of the facility dog is in no way to be interpreted as reflecting on the truthfulness of the testimony offered. Such instruction shall also include that the presence of the dog is a reasonable accommodation to the witness in allowing them to fulfill the obligation of testifying in a court of law.
Neither bill advanced out of committee in the 2015 session and were carried over into the 2016 session.
Tennessee: any civil or criminal proceeding, witness fitting criteria, nothing on jury instructions
HB 1987 of 2016 and the identical SB 1618 provide a court may allow the use of a courthouse facility dog for any civil or criminal proceeding for a witness. The court, in deciding on whether to permit the usage, may consider
- The age of the witness
- The nature of the witness’s relationship to the events giving rise to the proceeding
- Whether the witness suffers from any disability
- The rights of the parties to the proceeding
- Any other factors that the court deems relevant in facilitating the effective communication of information by the witness and protecting the rights of the parties to the proceeding.
HB 1987 has been filed but not yet assigned to a committee. SB 1618 is in the Senate Judiciary Committee.