Fairfax ruling from the Circuit Court allows comfort dog to be present for criminal complainant in sexual abuse prosecution

A Fairfax ruling this month from the Circuit Court allows the presence of a comfort / facility dog with a testifying sexual assault complainant, after reviewing Virginia’s very liberal law allowing such dogs for both sides’ witnesses, and reviewing the state of the law in several other jurisdictions. As a Fairfax criminal lawyer, I want to narrow that liberal Virginia statute to usually bar such dogs, in order to strengthen criminal defendants’ Constitution rights fully to confront the witnesses against them and their Fifth and Fourteenth Amendment rights to not be deprived of their liberty without due process of law. Commonwealth of Virginia v. Rodrigo Alonzo Vargas, Fairfax County Circuit Court Criminal No. FE-2021-632 (Judge Robert Smith).

What does the facility dog statute say that is addressed in the Alonzo Fairfax ruling?

The Alonzo Fairfax ruling by Circuit Court Judge Robert J. Smith — before whom I started appearing when he was first on the Fairfax County General District Court — addresses the following Virginia statutory language: “The court may enter an order authorizing a dog to accompany a witness while testifying at a hearing… if the court finds by a preponderance of the evidence that … 1. The dog to be used qualifies as a certified facility dog; 2. The use of a certified facility dog will aid the witness in providing his testimony; and 3. The presence and use of the certified facility dog will not interfere with or distract from the testimony or proceedings.” Virginia Code § 18.2-67.9:1(C). Alonzo readily finds solid legal and factual ground to allow such a dog to testify at his trial alleging sexual assault of a minor.

Why do Virginia criminal defense lawyers and other defenders of the accused oppose letting a comfort dog accompany an alleged crime victim on the witness stand?

Allowing a comfort animal — and worse a human being — on the witness stand with an alleged crime victim, not only interferes with a Virginia criminal defendant’s Sixth Amendment Constitutional right to directly confront and cross examine the witnesses against them, but also with the accused’s Fifth and Fourteenth Amendment Constitutional right to not be deprive of their liberty without due process of law, in that the very presence of a comfort animal can engender undue bias and sympathy by the jury in favor of the comforted witness and against the Virginia criminal defendant. (See this law review article addressing risks to criminal defendants when child prosecution witnesses seek comfort on the witness stand.) Granted, the Virginia comfort dog applies to all witnesses, but is likely most often to be exercised with alleged crime victims, as they are the people most likely to want such assistance. (It is interesting to note that this statute only addresses dogs as comfort animals, rather than cats, for instance, possibly because dogs are more often trained for such a role.) Only as a for instance, will the witness feel buffered and distracted from questioning by the facility dog and look to the facility dog for comfort after certain questions? Of course, the situation could be worse than that with a comfort human present at the witness stand. Is allowing the witness to hold a teddy bear or doll any less prejudicial, whereby the touching of the teddy bear or doll by the witness would be more obvious than simply having the comfort animal present. Then again, will a comfort dog physically alert to the perceived fears  and discomfort of the prosecution witness, and will that also prejudice the Virginia criminal defendant? All of this is important food for thought in addressing this Fairfax ruling when challenging future Fairfax and other prosecution motions to allow facility dogs.

Study(ies) on comfort dogs do not seem to be in-depth nor extensive enough to permit comfort dogs to appear on the witness stand with Virginia prosecution witnesses

Virginia criminal defendants’ Constitutional rights to a fair trial with the full right to confront and cross examine witnesses against them to me means that comfort dogs should not be permitted to accompany prosecution witnesses to the witness stand without sufficiently convincing evidence that such dogs will not prejudice criminal defendants at all. Such evidence seems absent at present. It appears that the most extensive study that suggests little to no prejudice is based on insufficiently limited data, let alone whether that data has been sufficiently analyzed and interpreted by the people who presented the report on this study. The study of which I speak is addressed in “Facility Dogs in the Courtroom: Comfort Without Prejudice?“, by Kayla Burd and Dawn McQuiston (May 2, 2019). This report talks of only two experiments, with it being questionable whether the test subjects sufficiently represent jurors themselves when considering the way they were recruited (for instance through an Amazon platform for at least one of the experiments) and what type of people would volunteer (and not volunteer) for putting in so much time where at least one of the experiments paid them under $10 total. I do not see reference to this foregoing study in the Fairfax ruling in the Alonzo case.

This Fairfax ruling about comfort dogs at criminal trials will be added to the other court rulings permitting them

Being a Fairfax Circuit Court letter opinion, this Fairfax ruling in the Alonzo case is not binding on other judges, but certainly is likely to be added to the other court rulings permitting facility dogs on the witness stand when judges in the future receive Virginia criminal defendants’ motions to exclude such dogs. Fortunately, the Virginia facility dog gives judges discretion to deny the use of such dogs, and I look forward to seeing such denials.

Fairfax criminal lawyer Jonathan Katz has for decades successfully defended thousands of criminal defendants prosecuted for alleged DUI, felony and misdemeanor offenses. Regardless of whom you hire as your Virginia criminal defense lawyer, you will be one leg up with your defense and confidence in your defensive prospects by meeting with Jon Katz early in your prosecution. Call 703-383-1100 for your free in-person confidential consultation with Jon about your court-pending case.