Sunday, September 11, 2011

Dogged Testimony

In upstate New York, an interesting case about jury bias is entering the appeals process. Why is it interesting? Because it involves a cute dog:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.

When the trial ended in June with the father’s conviction, the teenager “was most grateful to Rosie above all,” said David A. Crenshaw, a psychologist who works with the teenager. “She just kept hugging Rosie.”
The convicted father's lawyers are appealing the decision on the grounds that Rosie's presence will, in and of itself, lead a jury to believe that any juror accompanied by a therapy dog will be more believable: whenever Rosie comfortingly nuzzles her witness, they argue, she reinforces the idea that the witness is telling the truth. (The defence is pointedly not arguing another troubling idea: namely, that someone lying on the stand would likely undergo stress and therefore trigger the dog's learned response to nuzzle and cuddle someone visibly nervous.)

As much as we want child witnesses to feel comfortable testifying, this does raise questions. when prosecutors say, quite bluntly, that a therapy dog in court can mean "the difference between a conviction and an acquittal," we should naturally question whether the dog is being more than a helpful assistant in producing quality testimony. Certainly it is not a stretch to argue that a 15-year-old girl in court alone might not be as persuasive or sympathetic a witness as a 15-year-old girl cuddling a dog in court.

How should this case be decided? Speaking for myself: I remain undecided. Can a dog create a prejudicial atmosphere for a jury? Certainly. Appearances matter in a criminal courtroom: it's why the accused is allowed to dress as he or she likes (and if they're smart, they dress up), and even if currently in jail or prison is not required to wear their prisoner's uniform. Any honest assessment of our culture is one where we admit that we live in a society where people react strongly - and typically beneficially - to cute dogs.

But on the other hand, I can believe that the dog is potentially prejudicial while also sympathizing with a child witness who has been traumatized, and who can be helped by a friendly dog taking the stand alongside them, and I think that the fact that at some point someone realized that maybe a traumatized child could be helped by having a friendly dog with them during their testimony speaks well of our society. Is there a way to balance the usefulness of therapy dogs with their obvious potential for creating prejudice?

Of course, regardless of what happens, the defence in this case knows that it can't appear to be antagonistic towards a cute dog:
Rosie, [the defence] wrote, “is a lovely creature and by all standards a ‘good dog,’” and, they added, the defendant “wishes her only the best.”
One might suggest that the defence feeling it necessary to point out that they had nothing personal against Rosie is an argument in favour of their case.
- Christopher Bird, Toronto

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