Allowing Complaining Witness to Testify With Support Dog Leads to Reversal of Criminal Conviction

by John M. Simpson

In People v. Shorter, ___ N.W. 2d ___, 2018 WL 2746384 (Mich. App. June 7, 2018), the Court of Appeals of Michigan reversed a conviction for third degree criminal sexual conduct and fourth-degree criminal sexual conduct because the trial court erred by granting the prosecution’s motion to allow the complaining witness to testify while accompanied by a support dog and its handler.  The matter was remanded for a new trial. 

The complaining witness, who was the only witness other than the defendant to the events in question, was a non-disabled adult.  Relying upon a prior Michigan case (People v. Johnson, 315 Mich. App. 163, 889 N.W.2d 513 (2016)) that permitted two children to testify with a support dog in a sexual assault case, the trial court granted the prosecution’s request to use the support animal because it  would “‘limit her [the witness’] emotional display on the stand.'”  2018 WL 2746384 at *3.  The appellate court found this to be reversible error for several reasons, including the following:

• While Johnson and cases elsewhere had permitted a child or persons with a developmental disability to testify in a criminal case with a support animal, “allowing support animals for able-bodied adults would be unprecedented, not only in Michigan, but apparently nationwide.”  Id. at *4.

• The statute invoked by the Johnson court only applied where the witness is under 16 years of age or is a person older than 16 years with a developmental disability.  Id.

• While the trial court had the inherent authority to control the courtroom, “allowing an able-bodied adult witness to have support animals or persons with them during testimony is … different” from a situation involving a child.  Id.

Johnson made no mention of allowing the animal handler to accompany the witness.

 • Even if the trial court had the authority to permit such a procedure, “we would not approve its use where the basis for it was simply that doing so will allow the witness to be “more comfortable” or because “that this is something she wants.” Id. at *5.

• Nor was the court “convinced that allowing a support animal or person so that the witness will be better able to ‘control her emotions’ necessarily aids the truth-finding process.”  As the court observed:

“This is particularly so in this case, where the prosecution presented evidence from four different witnesses that the complainant was hysterical, shaking, and barely able to speak following the alleged assault, and argued to the jury that her emotional reactions were evidence of defendant’s guilt.  In that context, it was particularly improper to allow a comfort dog to help the complainant ‘control her emotions’ while testifying.”

Id.  The error in allowing the support animal was not harmless because while a juror “can readily accept that a child might need support simply to be in a courtroom to be able to answer questions,” with a “fully abled adult, a juror is far more likely to conclude that the reason for the support animal or support person is because the complainant was traumatized by the actions for which the defendant is charged.”  Id. (footnote omitted).

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