TRENDS in state courts“

Scratch a dog and you’ll find apermanent job.

”

—Franklin P. Jones (humorist)

From the Doghouseto the Courthouse:
Facility Dogs as Trial
Aids for Vulnerable
Witnesses
Christine M. McDermottInterdisciplinary Social Psychology PhD Program, University of Nevada, Reno

Shawn C. MarshDirector of Judicial Studies and Associate Professor of Communication Studies
and Social Psychology, University of Nevada, Reno

Monica K. Miller

Foundation Professor, Criminal Justice Department and Interdisciplinary Social
Psychology PhD Program, University of Nevada, Reno

Taylor Forte

Criminal Justice Department, University of Nevada, Reno

In 1989 a seeing-eye dog named Sheba was used to comfort
abused children in the Special Victims Bureau in Queens,
New York. Largely believed to be the first “facility dog,”
the practice did not gain traction until 2003, when Ellen
O’Neill-Stephens began using her dog to comfort witnesses
in courtrooms. She established the Courthouse Dog
Foundation, which provided training for facility dogs andeducation for judges (Mariani, 2020). Today, 262 facility
dogs are used in 41 states, formally or informally, tocomfort witnesses (https://courthousedogs.org/).
Though courtroom proceedings are stressful for mostpeople, children and other vulnerable witnesses mightfind testifying in court to be especially stressful. For
example, many cases involving child abuse never goto trial, as children are often too stressed, anxious, orotherwise unable to provide effective testimony of theirexperiences. Due to the special challenges associated withprosecuting cases involving vulnerable complainants,
special accommodations are sometimes made to lessen
the stress of testifying and to aid cases in going to trial,
thereby improving outcomes for victims (Caprioli andCrenshaw, 2017).

Different types of support dogs are becoming a common sight in courtrooms.
What do judges and court staff need to know about using support animals to aid
witnesses during trials?

These accommodations, also known as trial aids,
include screens, support persons, and video testimony.
Unfortunately, many established trial aids lead jurors to
doubt the credibility of the witness (Chong and Connolly,2015). The consequence of such effects (e.g., biased
verdicts) makes understanding the effects of trial aidson all parties important. An increasingly popular trial
aid involves facility dogs, also known as therapy dogs or
courthouse dogs. Currently, more than 40 states allow
facility dogs in courtrooms during some portion of a legal
process.1 How dogs are used also varies greatly (whether
the witness is able to interact with the dog, whether thejury is allowed to see the dog), as does the dog’s ownership(if the dog belongs to the judge or prosecutor or to acommunity member).
This article reviews the current state of dogs as trial aids.
Specifically, we discuss why dogs are so popular as trial
aids; describe the different types of support dogs and theirrespective rights; present current research, practice, andcaselaw/legal precedent involving facility dogs; and offer
considerations for judges who are contemplating using dogs.

Why Dogs Provide Comfort
MacLean and Hare (2015) asked: “Why do we feel
genuine friendship, love, and social attachment . . . withdogs?” (p. 281, emphasis added). The answer is complex,
emerging, and beyond this article’s scope. However,efforts to understand the form, function, and trajectoryof human-animal bonds have engaged fields such as
philosophy, evolutionary psychology, biology, genetics,
and public health. Although more research is needed andsome findings are mixed (e.g., mere dog ownership is
not universally associated with lower levels of depression
or increased exercise; Mueller et al., 2018), evidence isaccumulating that the human-dog relationship is uniqueand beneficial to the well-being of both across myriad
domains (Menna et al., 2019).
Specifically, various health benefits of human-dog
interactions include lower blood pressure, fewer depression
symptoms, and improved functioning after social loss (suchas divorce or the death of a loved one). Petting a dog reducesanxiety and enhances mood, perhaps due to release of1“feel good” hormones in both human and dog. Human-dog
encounters provide comfort, calm, and reciprocal bonding(Powell et al., 2019). This effect provides rationale for use of
appropriately selected dogs to promote well-being in various
stressful settings (e.g., universities, airports, or hospitals).

Types of Dogs Used to Promote Well-Being
Although it is becoming more common to use animals
to support well-being in public spheres, their presence
remains somewhat controversial (see news stories of
emotional support peacocks and other exotic animals
brought onto airplanes). Contributing to this controversy isa misunderstanding of the differences in training and legalaccess rights between types of assistive animals. Officially,
there are four recognized classes of dogs that aid humans:
working dogs (excluded from this discussion, as they do
not work in courtrooms), service dogs, therapy dogs (which
includes facility dogs), and emotional support dogs. Eachdiffer in their training and legal rights.
Service animals are individually trained to help a specificperson with a disability and have full public-access rights
under the Americans with Disabilities Act. Currently,
only dogs and miniature horses can be certified as service
animals. Emotional support animals
also support a specific owner.
Unlike service dogs, emotional
support dogs have norequired training, no
species limitations, andhave limited legal rights(landlords cannot refuse torent to people with emotional
support animals). Emotional
support animals are notgranted public-accessrights, although they
may be granted airplane
access. Unlike service
and emotional
support animals,
therapy or
facility animals(mainly dogs)

See Courthouse Dogs Foundation. Perma link: https://perma.cc/P948-SENW.

From the Doghouse to the Courthouse: Facility Dogs as Trial Aids for Vulnerable Witnesses | 48

are not trained to work with a specific human. Instead,they are trained to be comfortable in new environments
and interact with strangers (e.g., patients, witnesses, or
students). Therapy dogs must complete a certificationtraining program, the contents of which differ amongorganizations. These dogs generally do not have publicaccess rights but are increasingly accepted in courtrooms
and other stressful environments, such as post-disastercrisis intervention.

Facility Dogs in the Courtroom
Although the use of facility dogs is increasingly popular,some concerns include:●

the visual appeal of dogs might cause jurors
to perceive witnesses as more vulnerable,
likeable, or sympathetic;●

some labels applied to facility dogs (“therapydog” or “advocate dog”) imply the child needs
therapy and endorse his or her status as a
victim;●dogs might distract jurors or witnesses;●

jurors might transfer their feelings toward dogs
(good or bad) onto the witness;●a dog in the courtroom limits access to people
who are allergic to or afraid of dogs; and●the calming effect of a dog could lead jurors tobelieve the witness was not severely harmed or
was coached.

The overarching concern is that the dog’s presence could
bias the jury; for example, the dog could lead the jury tothink the victim must be really injured if she needs a dog
to testify, or that the dog is a ploy to trick the jury into
thinking her injuries are severe. There is less controversy
about using dogs at hearings without juries, although judges
could also be influenced by the dog’s presence.

Research indicates that the presence of a facility dog does
not bias jurors (Burd and McQuiston, 2019). In the two
known studies, participants read a detailed case summary
and a partial trial transcript in which a child testifies
with either a teddy bear, a facility dog, or no trial aid. In
both studies, the facility dog did not affect mock jurors’
perceptions of the defendant or witness. Even so, the written
nature of the manipulations lacks verisimilitude and,
therefore, such findings should be interpreted with caution.
Based on this research and the general fund of knowledge
regarding human-animal interaction, proponents offacility dogs believe that facility dogs calm children,
improve testimony, and aid witnesses who would otherwise
not be emotionally capable of testifying (Caprioli andCrenshaw, 2017). Legal experts tend to view facility dog
use as an improvement over other trial aids, as they do
not interfere with the defendant’s right to confront
their accuser (as has been said of CCTV and other video
testimony; Crawford v. Washington, 2004). Nor do they
offer the potential distraction of nonverbal cues from a
support person through unconscious reactions of disgust
toward the defendant or empathy for the child. Judges
have generally recognized that the benefits outweigh thepotential drawbacks, with nearly 90 percent of judges
surveyed indicating that they would welcome the presenceof a facility dog in their courtroom (Firth, 2020). However,most of these benefits and drawbacks have not been tested
empirically, and there is a need for continued research ondogs as trial aids.

Legal Considerations
Although research suggests that dogs have little negative
effect, there have been a small number of legal challenges
to the use of dogs in the courtroom, especially during trials.
Most of these appeals include claims that the presence ofa facility dog enhanced the perceived victimhood of thewitness (e.g., California v. Chenault, 2014; California v. Spence,
2012; Jones v. State, 2020; New York v. Tohom, 2013; Statev. Hasenyager, 2016). In all these cases, the courts ruledthat facility dogs do not bias the jury’s decisions. Anothercase admitted the possibility of some bias stemming fromfacility dog use but found that the court’s attempt tominimize the stressful impact of testifying for witnesses
outweighs the defendant’s objection to the facility dog(State v. Lacey, 2018).

From the Doghouse to the Courthouse: Facility Dogs as Trial Aids for Vulnerable Witnesses | 49

An additional claim is that facility dogs violate due-processrights (Michigan v. Johnson, 2016; Smith v. Texas, 2016;
Washington v. Moore, 2014) and the confrontation clause(California v. Spence, 2012). These claims were also rejected,
citing the discretion of the court and other rulings making
trial aids admissible (California v. Chenault, 2014; New Yorkv. Tohom, 2013; Washington v. Dye, 2013).
While most cases involved the use of facility dogs forchildren, two cases also approved their use for adults witha mental disability (State v. Dye, 2013) or post-traumaticstress disorder (Jones v. State, 2020). Many judges haveallowed the use of facility dogs, citing the Victims ofChild Abuse Act of 1990 and the Uniform Child Witness
Testimony by Alternative Methods Act, which allow the useof a teddy bear or support person.
In sum, every appellate decision we could find upheld theuse of facility dogs. This paves the way for their use incourtrooms nationwide.

Considerations for Judges
A 2020 survey of judges by the National Judicial College
indicated that the vast majority are in favor of using facility
dogs (88.65 percent of 881 respondents; Firth, 2020).
Supporting the use of facility dogs and using facility dogs
in court, however, are different issues. Specifically, what
are the practical considerations for judges who want to use
facility dogs in court?2 As judges are ultimately responsible
for the practices and climates of their courtrooms, we offersome common considerations for both the human and dog
elements of the interaction.
First, not all people like dogs, and some people are
extremely fearful of dogs, possibly because of traumatic
histories. Thus, introducing a facility dog to the court will
require strong communication with both staff and litigants
about the procedure—and their ability to decline directcontact with the dog. Perhaps a more difficult situationarises when someone is allergic to dogs, whereby residual
hair or dander can trigger itching, eye watering, or evenbreathing difficulties (approximately 30 percent of the U.S.
population has allergies to cats and dogs; www.aafa.org/pet-

dog-cat-allergies). Nonetheless, precautions can limit theseissues (e.g., avoiding contact, routine cleaning, use of hypoallergenic breeds, or strong grooming practices). Awarenessof potential health challenges related to actual humananimal contact is important to acknowledge and plan for
before introducing a facility dog to court.
Handlers should obtain any required certifications
for their dogs, which vary by jurisdiction. Dogs shouldhave a specified job description, which identifies their
responsibilities, limitations, evaluations, and day-to-day
duties—and the human responsible for the dog. This ensures
everyone in the courtroom understands the dog’s role.
Trainers and handlers of facility dogs are excellent sources
for suggestions for mitigating potential contact challenges,
as are organizations such as Courthouse Dogs. These sources
are also well situated to advise on the overall care of the
dog to ensure its health and safety. This includes feeding,grooming, regular exercise, a bed, a place to urinate/defecate, stimulation/recreation, and other day-to-day
considerations of good pet guardianship. In some cases,
facility dogs might be trained and handled by a court
employee, external guardians, or specialized organizations,such as the Courthouse Dogs Foundation.
Finally, judges can take steps to mitigate the dogs’ effects.
The dog’s handler can bring the dog in when the jury is outof the courtroom, and the dog can be placed outside of thejury’s view. Judges can issue special instructions to juries
to ignore the dog and any feelings it might evoke. Such
instruction has been upheld (e.g., People v. Chenault, 2014;
State v. Dye, 2013). These steps mitigate potential biases.

Summary
Engaging appropriately trained dogs to support humans
during stressful court proceedings is increasingly popular,
but certainly neither universally practiced nor evenaccepted.3 Education and research on the legal and ethicaluse of dogs in this capacity—as well as benefits and risks—is
an important endeavor. Judges largely appear supportiveof this growing trend of adopting “human’s best friend” toserve as a partner in the administration of justice.

2 People interested in beginning a facility dog program should consult Jones and Miller (2021) and Courthouse Dogs Foundation for a discussion ofbest practices. Perma link: https://perma.cc/E953-533Q.
3 This article discusses facility dog use during normal operating conditions; however, the COVID-19 pandemic has forced many trials to occur virtually.
During virtual trials, a witness could potentially use their own well-behaved pet at the judge’s discretion.

From the Doghouse to the Courthouse: Facility Dogs as Trial Aids for Vulnerable Witnesses | 50

References
Burd, K. A., and D. E. McQuiston (2019). “Facility Dogs in
the Courtroom: Comfort Without Prejudice?” 44 Criminal
Justice Review 515.
Caprioli, S., and D. A. Crenshaw (2017). “The Culture ofSilencing Child Victims of Sexual Abuse: Implications
for Child Witnesses in Court.” 57 Journal of Humanistic
Psychology 190.
Chong, K., and D. A. Connolly (2015). “Testifying Throughthe Ages: An Examination of Current Psychological Issues
on the Use of Testimonial Supports by Child, Adolescent, andAdult Witnesses in Canada.” 56 Canadian Psychology 108.
Firth, A-L. (2020). “Survey: Nearly 9 out of 10 Judges
Welcome ‘Man’s Best Friend’ into Court.” National Judicial
College, September 8. Perma link: https://perma.cc/43UXURYC.
Jones, H. D., and M. K. Miller (2021). “Courthouse Facility
Dogs: Considerations for Prosecutors and Defense
Attorneys.” Court Call, February 1.
MacLean, E. L., and B. Hare (2015). “Dogs Hijack the Human Bonding Pathway.” 348 Science 280.
Mariani, J. (2020). “Courthouse Facility Dogs: A Witness’s
Best Friend.” Criminal Justice Magazine, summer.

Mueller, M. K., N. R. Gee, and R. M. Bures (2018). “HumanAnimal Interaction as a Social Determinant of Health:
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Cases Cited
California v. Chenault, 227 Cal. App. 4th (2014).
California v. Spence, 212 Cal. App. 4th 478 (2012).
Jones v. State, 841 S.E.2d 112 (2020).
Michigan v. Johnson, 502 Mich. 541 (2016).
New York v. Tohom, 969 N.Y.S.2d 123 (N.Y.A.D. 2 Dept., 2013).
Smith v. Texas, 491 S.W.3d 864 (Tex. App. 2016).
State v. Hasenyager, 67 N.E.3d 132 (Ohio, 2016).
State v. Lacey, 122 N.E.3d 216 (Ohio 2018).
Washington v. Moore, 2014 WL 1917289 (Wash.App. Div. 2, 2014).

Menna, L. F., A. Santaniello, M. Todisco, A. Amato, L.
Borrelli, C. Scandurra, and A. Fioretti (2019). “The HumanAnimal Relationship as the Focus of Animal-Assisted
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