By Paul Sussman, From The Connecticut Law Tribune

The Connecticut Supreme Court has ruled that it’s legally acceptable for “comfort dogs” to accompany children who must testify in court in criminal sexual abuse cases.

In an issue of first impression in Connecticut, the justices overturned a state Appellate Court opinion stating that a trial judge had abused his discretion by allowing a yellow Labrador retriever to sit at the feet of an 8-year-old alleged sex abuse victim who was testifying against her attacker. Defense counsel had argued that while state statutes governing sex abuse cases spell out a number of contingencies for young witnesses — including the use of anatomically correct dolls and permitting an adult with whom the child is familiar to sit close by — the laws make no mention of the use of dogs.

But a unamimous Supreme Court, in an opinion authored by Justice Peter Zarella, ruled that “the trial court has inherent discretionary authority, separate and apart from the statute, to order special procedures or accommodations to assist a witness in testifying… We conclude that the trial court may exercise its discretion to permit a dog to provide comfort and support to a testifying witness.”

Increasingly, dogs are being used to comfort children in therapy as well as those with developmental disabilities. More recently, the trend has moved to courtrooms, where experts say some young witnesses may be less anxious and better able to testify about traumatic experiences if they have a dog at their side. Defense lawyers often object to the idea, claiming that a cuddly animal’s proximity to prosecution witnesses may prejudice jurors and prevent defendants from getting a fair trial.

The Connecticut Supreme Court cited five other cases nationwide — in California, New York and Ohio, among other places — in which courts have considered challenges to a trial court’s decision to permit a dog to sit with a testifying witness “to provide comfort and support. All have concluded that the trial court may exercise its discretion to permit such an accommodation.”

Quoting a 2015 Ohio Court of Appeals decision in State v. Jacobs, the Connecticut court ruled that in each of the out-of-state cases, “the appellate court upheld the trial court’s exercise of discretion when it was clear from the record that the dog’s presence ‘would likely assist or enable [the witnesses] to testify completely and truthfully without undue harassment or embarrassment.”’

‘Unique Challenges’

The issue arose in a Connecticut case called State v. Devon D. The defendant’s full name is not used in court documents to protect the identities of the minors who allege abuse. Devon D. was convicted of sexually assaulting his 6-year-old daughter several times and inappropriately touching his 8-year-old and 10-year-old sons’ private parts while bathing them. In addition to the comfort dog question, the Appellate Court also ruled that the three cases were improperly joined. The Supreme Court rejected that determination as well, and remanded the case to the Appellate Court with order to reinstate the conviction.

The Supreme Court prosecution brief was written by Senior Assistant State’s Attorney Denise Smoker. In addition to noting that other states had approved the use of comfort dogs in court, she stated: “Moreover, the courts of this state have permitted similar accommodations, such as testifying while holding a stuffed animal or in the company of a family member or guardian ad litem.”

Assistant Public Defender James Streeto represented the defendant. In a previous interview, he said he thinks the use of service dogs could be prejudicial to defendants. He cited an example from a case in another state in which a witness became upset and then the dog rose up and licked the girl on the face. Generally, comfort dogs sit in the witness box out of view from the jury.

“Use of a live animal in a court proceeding presents some unique challenges,” said Streeto. “You’re dealing with the use of a live animal which doesn’t understand the purpose for which the proceeding is going on. That carries a certain degree of volatility.”

In the Devon D. case, the retriever named Summer belonged to Branford psychologist David Meyers, who was training it as a service dog. A prosecutor contacted Meyers, thinking the dog’s presence might ease the young girl’s anxiety during testimony. It was the first time permission to employ a dog in this manner had been sought in the state.

Superior Court Judge John Carbonneau Jr. called for a hearing on the request. Beforehand, Meyers brought the dog into the courthouse and watched it interact with the girl. After seeing her grow increasingly comfortable with the dog, Meyers opined at the hearing that Summer’s presence would help ease the girl’s anxiety. If she were less anxious, he said, she would likely be better able to express her memories while testifying.

Carbonneau approved the use of the dog. The defense argued that he had erred. Attorneys said he was required to find, by clear and convincing evidence, that the state had shown a compelling need for the use of Summer. Defense counsel said that had not happened and suggested that alternative procedures were available, such as having the child testify outside the presence of the jury on closed circuit television, or letting her hold a teddy bear, or letting a trusted adult sit by her during her testimony.

But the Supreme Court rejected that argument. Justices said the first priority for trial judges is to ensure truthful testimony in the cases before them, and that they had broad discretion in figuring out how to elicit that testimony. Specifically, before using a comfort dog, the Supreme Court said that the court must “balance the extent to which the accommodation will help the witness to testify reliably and completely against any possible prejudice to the defendant’s right to a fair trial.”

The Supreme Court said a trial court judge “should consider the particular facts and circumstances for the request to have a dog accompany the particular witness, the extent to which the dog’s presence will permit the witness to testify truthfully, completely and reliably, and the extent to which the dog’s presence will obviate the need for more drastic measures to secure the witness’ testimony.

“The trial court should balance these factors against the potential prejudice to the defendant and the availability of measures to mitigate any prejudice, such as limiting instructions and procedures to limit the jury’s view of the dog.”

For more on this story go to: http://www.ctlawtribune.com/id=1202759578299/Conn-Court-Allows-Comfort-Dogs-to-Aid-Testimony-of-Child-Witnesses-in-Sex-Abuse-Cases#ixzz4B5kprcZy