In the decade before 1900, tracking dogs began to be used to find suspects. The courts of the time struggled with the issues of how and when to admit this kind of testimony, which involved a silent witness not available for cross-examination. A case decided by the Kentucky Court of Appeals in 1898 reversed a conviction of two men accused of burning a barn who had, according to the evidence, fled to a tenement building “occupied by a large number of families and individuals, many of whom were of bad repute.” A dog had tracked to this location, and the testimony of other witnesses led to their conviction.
The dog was a major link in the evidence and the Kentucky appellate court held that the reliability of the dog was not sufficiently established. The case was remanded for a new trial. The court noted that bloodhounds had been used in the not too distant past for tracking runaway slaves and were still used to track convicts. A partial concurrence/partial dissent is, in my opinion, even more interesting than the majority opinion in providing an overview of what was changing about the law of dog tracking at the end of the 19th century. I quote the central part of Judge Guffy’s argument:
"I concur in the reversal of the judgment in this case, but dissent from so much of the majority opinion as holds that the trailing or proven trailing of the defendant by a bloodhound can be introduced as evidence upon the trial of such person charged with any crime. It is true that the majority opinion so restricts such proof, and requires so many conditions precedent, that, if the opinion in question should be strictly adhered to, no great injustice would very often result from evidence admitted under the ruling in question. It, however, seems to me, with due respect to the majority opinion, that such a rule of evidence is contrary to all other rules of evidence, and, if not in violation of the letter of the constitution, is manifestly in violation of the spirit, as heretofore expounded by this court. Such a rule seems to me an innovation upon all the heretofore established rules of testimony. The use of bloodhounds was, perhaps, necessary to efficiently and effectually uphold the institution of slavery, as well as to aid in the arrest and capture of persons accused of crime in the Dark Ages. In such cases, however, the object sought was the arrest or capture of known fugitives. If the dog in fact took up and followed the trail of a fugitive, and found him, or aided his pursuers to find him, the object was accomplished, and there could be no mistake as to whether he was the party sought or not; his guilt and right of capture having been theretofore established, and in fact being unquestioned. If the hound took the wrong trail, and brought to bay the wrong party, that fact would be ascertained so soon as the pursuers reached the party, and the utility of the hound in that regard then ceased. It is now proposed to use the hound, not to capture a fugitive, but to ascertain or furnish evidence to convict some citizen of crime. It seems to me that this new use of the bloodhound is a radical departure from the former purposes for which they were used; but, whether this be so or not, it seems to me that neither the life nor liberty of a citizen should be taken away or even jeopardized by the mere fact that some person testified that the hound was well trained to track human beings, etc., and that he had trailed the accused from the scene of the crime to the habitation of the accused, or until he came upon the accused party. There is danger that the effect of the majority opinion will likely be to greatly promote the raising and training of bloodhounds, or hounds that will be called bloodhounds. It is a well-known fact that the owners of hounds, as well as other property, usually hold such property in high esteem; and, as the owner or trainer of hounds will be engaged in the business for pay, it will be greatly to their interest to always have well-trained hounds. In fact, I presume there will be none but trained and expert hounds in a few years; at least such will be the opinion of their owners, for it would be utterly useless to have any other sort. It is common tradition, and doubtless believed by quite a large number of persons, that bloodhounds are capable of wonderful feats of trailing. In fact, the many wonderful stories told of the achievements of bloodhounds (mostly in the imagination of those originating them) have instilled into the minds of quite a number of persons such wonderful notions of the unerring, if not infallible, knowledge and intelligence of the hounds, that the fact that the hound said that a certain person had lately been at the place where the crime was committed would be the most conclusive proof that could be produced."
This kind of skepticism of tracking evidence has remained in the law, perhaps at a higher level than the science now justifies. Pedigo v. Commonwealth, 103 Ky. 41 (1898).