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Tuesday, November 27, 2018

No Labradors for able bodied litigants


Support animals are increasingly common – we see them on airplanes, at restaurants, schools, stores and even in courtrooms.  Several prosecutor’s offices in Michigan have therapy dogs, and the Troy Police Department recently adopted a “police cat.”  They definitely serve a purpose, as I’ve written in past articles, but the Michigan Court of Appeals recently drew a line as to their appropriateness in courtroom proceedings in a June 7, 2018 ruling.



In the case People of the State of Michigan v Dakota Lee Shorter, Michigan Court of Appeals number 338629, the court declined to follow its 2016 holding in People v Johnson, 315 Mich App 163, citing the numerous differences between Shorter’s case and that of defendant Johnson.  Both men were tried and convicted of sexual assault – Johnson’s victim was a six year old family member, and Shorter’s accuser was an adult female friend. 



In each case, the lower court allowed a support dog to accompany the complainants when testifying in court.  However, the court determined there was a “fundamental difference” between the two cases – one involved testimony given by a child, and the other was testimony of a grown adult.  Additionally, the dog’s handler was also present during Shorter’s trial, which required prior notice under MCL 600.2163a(4).



The Johnson court provided a plethora of cases across many jurisdictions which lent support to the appropriateness of a support animal for a child who was called to testify.  In those instances, the court believed that jurors could easily understand why a child would be nervous in a courtroom, and why a dog would be beneficial yet not prejudicial.  However, in the Shorter case, the court opined that “[w]ith 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.” 



The appeals court was also unable to find any case in the state of Michigan or nationwide, that allowed a support animal to accompany a non-disabled adult when testifying.  The complainant in Shorter’s case did not fit the definition of a person 16 years or older with a developmental disability, nor was she a vulnerable adult.  If she was either of these, the statute would have afforded her the opportunity for a support “person.”  Instead, the prosecution argued for the use of the dog because it had made the alleged victim less emotional during trial prep.



The court went so far as to determine that the use of the dog in Shorter’s case “undermined the reliability of the verdict,” and the error was not harmless.  Specifically, the court wrote that “it was particularly improper to allow a comfort dog to help the complainant ‘control her emotions’ while testifying.  If the adult complainant’s emotional state constitutes evidence of guilt, the jury is entitled to evaluate her emotional state uninfluenced by outside support…”  In this case, there was no DNA evidence and no witnesses, and the case hinged on the credibility of those involved.  The Court of Appeals reversed and remanded Shorter’s case for a new trial.



With the popularity of support/service animals on the rise, I expect to see more legal questions about the appropriate times and places that they can sit, and stay.

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