Rachel Mitchell, who prosecutes sex crimes, has seen the fear in child victims leading up to their courtroom testimony.
In one case, an 8-year-old girl “was literally sliding down the wall in the hallway,” as the judge and other adults coaxed her into the courtroom to testify. Her testimony counted for nothing. There was a mistrial and she had to do it again in a new trial.
Her second testimony was a different story, said Mitchell, a 20-year veteran in the Maricopa County Attorney’s Office Sex Crimes Bureau, which she now leads. By that time the Maricopa County Attorney’s Office had acquired Sam, a golden retriever and Irish setter mix, to provide comfort for the children who have to testify about traumatic events.
“That kid went right in, Sam was with her, she testified. She was calm and was able to be on and off the stand in 30 minutes,” Mitchell said.
County attorneys in Maricopa and Pima counties have had dogs for such use since 2009, but a bill sailing through the Legislature would make it a right for child victims to have them at their side when testifying.
The bill, HB2375, would also give judges the authority to allow adults to use a dog in court, too.
Mitchell said some judges have denied the state’s request in a few cases to allow the dogs. And defense attorneys often contest their use. But case law from other states has fallen on the side of prosecutors.
To ensure a dog’s presence doesn’t unfairly influence the jury, the bill also has a requirement for judges to instruct jurors on the role of the dog – telling them it is a trained animal.
Teddy bears and Tori
Stuffed animals have long been the comfort item of choice for firefighters, police officers and prosecutors to calm traumatized children.
But Mitchell said research exists showing dogs have a soothing effect on anxious people. Helping a person relax “goes to the truth of the matter” in testifying, she said.
Studies between 1983 and 1996 showed that petting a dog lowered blood pressure and slowed the heart rate in tense children, and it took only a few minutes to bond.
“I’ve seen kids with Teddy bears on the stand, but I’ve also seen kids with dogs on the stand and it’s a remarkable difference,” Mitchell said. “A dog just does something for a child’s feeling of safety that a stuffed animal cannot do.”
Sam was the Maricopa County Attorney Office’s first dog. He was later joined by Elle, a golden retriever, and Tori, a Labrador retriever.
Mary Picard, a victim’s advocate who works on family violence cases, is Tori’s handler. The dog lives with her.
Picard said the office’s K9 Victim Support Unit was one of the first in the nation.
Tori is trained as a service dog, knowing 90 commands, but the organization that trained her thought she would be perfect for the County Attorney’s Office because of her calm demeanor.
She also senses when a person is troubled and stressed, Picard said.
“A lot of times she’ll lay on the victim’s feet as a way to comfort them,” Picard said.
Picard said the dogs typically stay in the pews in sight of the witness during testimony, although they will sit at the witness stand in extreme cases.
The dogs are with the child during trial-preparation interviews with prosecutors, and when it comes time to testify will accompany them to the courtroom.
Picard said courtrooms have waiting rooms for witnesses, which is where the child and dog hang out together before the moment of truth.
Teenage girls who have been molested tend to develop especially strong bonds with Tori, Picard said.
“I had a teenager about a month ago who sat on the floor cross-legged and stayed in the victim room and just petted her until it was her time to testify,” Picard said. “And then when she came out she did the same thing when she was done – sat on the floor with Tori and just kind of held her.”
Sympathy for the victim
Mitchell said defense attorneys have objected in court to the use of the dogs.
“The defense is typically objecting because they think it will garner sympathy for the victim,” Mitchell said.
While some judges have refused to allow the use of the dogs, she said, there aren’t any written rulings or case law in Arizona.
Appellate courts in Washington state, California, and New York have upheld the use of the dogs in recent years, rejecting arguments that they violate a defendant’s right to a fair trial and to confront witnesses.
The New York Supreme Court Appellate Division in a 2013 decision conceded that a dog engendered sympathy for the 15-year-old molestation victim in the eyes of the jury.
“[T]here was no indication that such sympathy was significantly greater than the normal human response to a child’s testimony about her sexual abuse by an adult,” the court wrote.
The ruling upheld Victor Tohom’s conviction and sentence of 25 years to life in prison for molesting his teenaged daughter.
In the California case, the defense attorney argued that people have “very warm, loving, good feelings” about dogs, and jurors will translate those feelings to the child, leaving them unable to critically analyze whether the child is telling the truth.
The California Court of Appeals found that the trial judge went to great lengths to make the dog as unobtrusive as possible during the testimony of 11- and 13-year-old sisters who were molested by their father. And the judge gave the jury special instructions not to consider the dog’s presence in weighing evidence.
A defense attorney in the Washington case told the trial judge he didn’t mind the use of a dog during the victim’s testimony if the defendant got to testify while holding his baby.
The 2014 Washington Supreme Court ruling involved a 56-year-old burglary victim who functioned at the level of a 6- to 12-year-old.
In upholding the defendant’s conviction, the court ruled that it was the state’s burden to prove the need for a dog to assist a vulnerable witness, not the defendant’s to prove he would be harmed.