Therapy dog used in court raised legal questions

Posted By elaine on August 8, 2011

POUGHKEEPSIE, N.Y.(New York Times) — 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.”

Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.

Seeing-eye and other service dogs have long been permitted in courts. But in a ruling in June that allowed Rosie to accompany the teenage rape victim to the trial here, a Dutchess County Court judge, Stephen L. Greller, said the teenager was traumatized and the defendant, Victor Tohom, appeared threatening. Although he said there was no precedent in the state, Judge Greller ruled that Rosie was similar to the teddy bear that a New York state appeals court said in 1994 could accompany a child witness.

The new role for dogs as testimony enablers can raise thorny legal questions, however, with defense lawyers arguing that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract — whether a witness is telling the truth or not — and some prosecutors insisting that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

At least once when the teenager hesitated in Judge Greller’s courtroom, Rosie rose and seemed to push the girl gently with her nose. Mr. Tohom was convicted and sentenced to 25 years to life.

His public defenders, David S. Martin and Steven W. Levine, have raised a series of objections that they say seem likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin said. Cute as the dog was, the defense said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.

As the lawyers prepare their appeal, Rosie has been busy. She spent much of her time in recent weeks with two girls, ages 5 and 11, who were getting ready to testify against the man accused of murder in the stabbing of their mother.

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