{"id":59,"date":"2018-07-12T09:44:27","date_gmt":"2018-07-12T13:44:27","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=59"},"modified":"2018-07-12T09:44:27","modified_gmt":"2018-07-12T13:44:27","slug":"allowing-complaining-witness-to-testify-with-support-dog-leads-to-reversal-of-criminal-conviction","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2018\/07\/12\/allowing-complaining-witness-to-testify-with-support-dog-leads-to-reversal-of-criminal-conviction\/","title":{"rendered":"Allowing Complaining Witness to Testify With Support Dog Leads to Reversal of Criminal Conviction"},"content":{"rendered":"

by John M. Simpson<\/a><\/p>\n

In People v. Shorter<\/em>, ___ 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.\u00a0 The matter was remanded for a new trial.\u00a0 <\/p>\n

The complaining witness, who was the only witness other than the defendant to the events in question, was a non-disabled\u00a0adult.\u00a0 Relying upon a prior Michigan case (People v. Johnson<\/em>, 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\u00a0to\u00a0use the support animal because it\u00a0 would “‘limit her [the witness’] emotional display on the stand.'”\u00a0 2018 WL 2746384 at *3.\u00a0 The appellate court found this to be\u00a0reversible error for several reasons, including the following:<\/p>\n

\u2022 While Johnson<\/em> and\u00a0cases\u00a0elsewhere 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\u00a0Michigan, but apparently nationwide.”\u00a0 Id<\/em>. at *4.<\/p>\n

\u2022 The statute invoked by the Johnson<\/em> court only applied where the witness is under 16 years of age or is a person older than 16 years with a developmental disability.\u00a0 Id<\/em>.<\/p>\n

\u2022 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.\u00a0 Id<\/em>.<\/p>\n

\u2022 Johnson<\/em> made no mention of allowing the animal handler to accompany the witness.<\/p>\n

\u00a0\u2022 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<\/em>. at *5.<\/p>\n

\u2022 Nor was the court\u00a0“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.”\u00a0 As the court observed:<\/p>\n

\n

“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.\u00a0 In that context, it was particularly improper to allow a comfort dog to help the complainant ‘control her emotions’ while testifying.”<\/p>\n<\/blockquote>\n

Id<\/em>.\u00a0 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.”\u00a0 Id<\/em>. (footnote omitted).<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … <\/p>\n

Continue reading “Allowing Complaining Witness to Testify With Support Dog Leads to Reversal of Criminal Conviction”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[49,5,51,52],"ppma_author":[697],"class_list":["post-59","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal-law","tag-john-simpson","tag-support-animal","tag-support-dog"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/59","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=59"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/59\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=59"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=59"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=59"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=59"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}