Monday, July 11, 2016

Does a Facility Dog that Accompanies a Child Witness to the Stand Have to Be Trained as a Service Dog? A Growing Number of State Legislatures Say Yes

The Only Witness for the Defense
There is no doubt that service dogs learn skills that are useful when it comes to designing a training program for a facility dog whose function is to remain calm at the side or feet of a child or vulnerable witness testifying in a criminal prosecution, often facing a defendant accused of having abused the witness.  Many service dogs are trained to remain close to their handlers while they are working, such as guide dogs wearing a halter.  Psychiatric service dogs may be trained to press against the side or back of a person with PTSD when they sense the person's anxiety level rising.  Yet service dogs are generally adapted to a single master, with whom they may spend most of their lives.  Therapy dogs are taught to remain calm when visiting a series of patients in a hospital or residents in a  nursing home, often sitting before them or at their sides for minutes, perhaps an hour on a home visit. Facility dogs move from witness to witness as needed.  Even many pets are comfortable with remaining beside a master or member of a family for a long period of time, often reducing someone's anxieties without any training at all. Does there need to be a single type of training, administered by trainers accepted into a single national training organization, to create a facility dog?  I do not believe so, but many state legislatures say I am wrong. 

I have updated my online article on the website of the Animal Legal and Historical Center of the School of Law of Michigan State University.  I have completed this update only three months after the last revision of the article.  I felt this was necessary because there have been four new appellate decisions and two new statutes and after three months the article was already out of date.  Even as this updated version was being prepared there was an additional case out of Ohio that I will describe at the end of this blog, but which will not be added to the ALHC article until the next revision, hopefully (for the sake of my other commitments and for the sake of the ALHC staff) towards the end of the year. 

I have also used this revision of the article to add a table concerning the statutes that have been passed, now by a total of six states: Arizona, Arkansas, Florida, Hawaii, Illinois, and Oklahoma.  Eight states have had decisional law on dogs accompanying witnesses:  California, Connecticut, Michigan, New York, Ohio, Tennessee, Texas, and Washington, and several of these states have more than one decision. 

Cases and Statutes Increasingly at Odds

What is particularly dramatic is how cases and statutes regarding facility dogs go in increasingly different directions.  Of the eight states with decisions, all trial judges have made sure that the dog would behave and threatened sanctions should this not be the case, but none rejected a dog because it was not trained by or registered with any national organization.  Most opinions gave minimal attention to the training a dog had received, and often used terms like service, therapy, and comfort interchangeably in describing the dog that accompanied a witness. 

In contrast, of six states with statutes, two (Hawaii and Illinois) specify that the dog must be a graduate of a member of Assistance Dogs International, a third (Arkansas) says that the dog must be trained by an ADI or similar nonprofit organization without making clear what if anything would be considered similar to ADI, and a fourth (Arizona) does not refer to ADI specifically but lays out an organizational requirement in such a way that only ADI would likely be able to satisfy the test.  Only two states (Florida and Oklahoma) have statutes broad enough to include therapy dogs such as might be trained by Pet Partners, Therapy Dogs International, or Therapy Dogs Inc. 

Thus, while courts have used a case-by-case, dog-by-dog approach, legislatures are increasingly creating a monopoly for Assistance Dogs International.  Defense counsel in states other than Arizona, Arkansas, Hawaii, or Illinois now have a possible argument that ADI training should be required and that any dog, whether a therapy dog or dog that has satisfied AKC public access tests, should not be allowed into a courtroom because of the possibility of disruption. However, as I discuss ad nauseam in my article, a disturbing number of defense attorneys in these cases have been asleep at the wheel during trial proceedings and only woke up to object when it was often too late at the appellate level.  The following table lists the states that have either case or statutory law on the subject.  It is to be noted that only the states with statutes have organizational requirements. 

 States with Court Decisions or Statutes for Facility Dogs:
Training Described or Organization Affiliation Required

Case Law

Assistance dog member of ADI-like organization

Trained by ADI or similar nonprofit organization
California (2 cases)
Would have been removed if behaved improperly (1); trained in providing support (2)

Service dog that had not been certified but had reached testing age of two


Service or therapy dog evaluated and registered according to national standards

Dog graduate of ADI organization 

Graduate of ADI organization
Therapy dog, also described as support animal

New York
Trained to sense stress and anxiety and present herself to be petted, unobtrusive presence in courtroom

Ohio (3 cases)
Companion dog presumably certified service dog (1); facility dog not otherwise described (2); dog described as facility, companion, or working dog (3)


Dog trained and certified by AKC, Therapy Dogs International or equivalent organization
Service dog with 2 years training in obedience that had passed public access tests and handler had received 2-week training program

Service dog available from Child Advocacy Center

Washington (2 cases)
Trained by and living with prosecutor, could not growl at defendant (1); dog referred to as a service or comfort dog (2)

Total Requiring Organizational Certification or Registration

If any of the states with decisional law were to pass an organizationally restrictive statute, as New York for one is considering, the case law of the state may no longer be authoritative as to the qualification of a dog accompanying a witness.  New York’s proposal (A00389), known as Rosie’s Law, would also require that a dog be “a graduate from an assistance dog organization accredited by Assistance Dogs International.”  That is not something New York v. Tohom required.

New Ohio Decision

Some  states have had more than one decision, including Ohio. In Ohio v. Hasenyager, CA No. 27756 , decided June 22, a 13-year-old girl testified that her great uncle, Bruce Hasenyager, had been inappropriately touching her since she was seven years old.  Hasenyager was convicted of rape and gross sexual imposition and was sentenced to an indefinite term of life in prison without eligibility for parole after 20 years.  On appeal, Haysenyager assigned error to the trial judge’s allowing a facility dog to accompany the victim witness during her testimony.  The Ohio appellate court discussed the prior Ohio appellate decision of Jacobs, which is described in my article.  Although Hasenyager argued that he had been prejudiced by the dog’s “movements and interruptions,” the appellate court in Haysenyager stated:

[T]he trial court record does not reflect that the dog became agitated or that defense counsel objected to the dog’s continued presence due to its purported agitation. It is impossible to discern from the record how the facility dog was behaving during cross-examination, as defense counsel failed to object to the dog’s behavior or cause the record to reflect any behavior that he intended to challenge. Accordingly, we determine that Hasenyager has both failed to preserve this portion of his argument and to meet his burden of supporting such an argument with citations to the record.

Thus, this is another case where defense counsel did not make a timely objection to the use of a facility dog.  The Ohio appellate court rejected other assignments of error and affirmed. 


I will let the article on the Animal Legal & Historical Center website speak for itself, but I want to emphasize that I believe this is an area where a rush to legislate is unnecessary.  Decisions by judges at all levels have been generally well considered, particularly given the frequent absence of preparation by defense counsel, and there is no trend in the case law that needs to be reversed by legislatures that regard themselves as better informed than the judiciary.  Rather, it appears to me that the appeal of these statutes lies in the fact that legislators get to portray themselves as defenders of innocent victims and have their photographs appear in the news media next to very kindly looking dogs.  Admittedly there has not yet been any effective lobbying by any major therapy dog organization, so if the legislative trend continues, anyone doing this work with a therapy dog will have to consider their ability to do so may be time-limited.

I have to acknowledge a certain respect for those who want to create a bulletproof facility dog for children and vulnerable witnesses, a dog that will be as steady in the performance of its responsibilities as a guide dog is with a blind person or a mobility impairment dog is with a child with cerebral palsy, a dog that will not disrupt the courtroom by standing up to seek attention, bark at the noise of sirens in the street outside the courthouse, that will perhaps press against the child on sensing her anguish.  That is a good thing.  The domestic dog has been reliably performing functions for us since the beginning of the Neolithic period in Eurasia, however, and quite possibly, it is now argued by a certain group of geneticists and archeologists, for thousands if not tens of thousands of years before that. The amount of training involved for those functions has always been variable from culture to culture, function to function, and we have always accepted the help we could get. The dog that spooked the game was confined to the hut or cave, while the dog that remained quiet until loosed for the chase was taken with the hunter.  The amount of training was not the sole issue.  The disposition, the inquisitiveness, the ability to look and sniff before barking--in short, the personality of the dog was also considered by the ancient hunter in deciding whether he wanted the animal beside him as he carried his bow and arrow into the forest.

When tracking of escaped convicts and perpetrators from crime scenes came before American courts, particularly in the American South after the Civil War, the judges who heard the cases were often hunters who owned dogs, sometimes several types of hunting dogs, such as hound dogs to track the deer and greyhounds to run the deer down.  They knew the limits of dogs and fashioned practical standards to apply in determining the admission of "bloodhound testimony."  That sort of wisdom eventually left the bench, or became so rare that many opinions on tracking dogs and scent identification dogs showed little understanding of how dogs actually operate, and the judges were often persuaded by the party in the case that had prepared most carefully on the canine evidence that was being produced. Here, however, with facility dogs in courtrooms, the judges who have heard the cases are familiar with what is needed for the efficiency and decorum of the courtroom, and I have seen no indication that they have been unable to determine that a dog can help a witness get through an hour on the stand, whether that dog is a service dog trained for two years, a therapy dog trained for six months, or a calm and steady Labrador owned by a lawyer or police officer that has shown its ability to do courtroom work without anything more than a basic obedience class. 

Where police and prosecutors can afford, or get donations that allow, the use of expensively trained service dogs for court work, this use of dogs could grow despite the restrictions on those who can provide the dogs.  For more strapped public agencies, however, it could mean that a dog would not be available when needed even if there is one that could easily be evaluated and found adequate to the task. I regret that state legislators have begun to insist on interfering with a judicial function that, as near as I can see, has been working quite well.  

Thanks to Brad Morris and L.E. Papet for suggestions and corrections.