A growing number of courts in Virginia are taking advantage of a 2018 law that permits a “certified facility dog” to be present with a witness during a criminal proceeding. According to the law a "certified facility dog" means a dog that

1. has completed training and been certified by a program accredited by Assistance Dogs International or by another assistance dog organization that is a member of an organization whose main purpose is to improve training, placement, and utilization of assistance dogs and
2. is accompanied by a duly trained handler.

Va. Code § 18.2-67.9:1(A). According to its website, Assistance Dogs International is a worldwide coalition of not-for-profit programs that train and place Assistance Dogs. The law states that “[i]n any criminal proceeding, including preliminary hearings, the attorney for the Commonwealth or the defendant may apply for an order from the court allowing a certified facility dog to be present with a witness testifying before the court.” Va. Code § 18.2-67.9:1(B).

The requesting party should apply at least 14 days beforehand and the court may enter an order authorizing a dog to accompany a witness while testifying at a hearing if it 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.

Va. Code § 18.2-67.9:1(C)-(D). The court may make such orders as necessary to preserve the fairness of the proceeding, including imposing restrictions on and instructing the jury regarding the presence of the certified facility dog during the proceedings. Va. Code § 18.2-67.9:1(E).

Many other states have similar formally enacted laws or otherwise established policies permitting the use of therapy dogs to assist witnesses when testifying in court. But not without pushback from defendants who often argue that the presence of a therapy dog is prejudicial, creates sympathy for the witness, unfairly influences credibility, and could cause the jury to improperly conclude that the witness has been traumatized by the defendant’s actions which may therefore affect the defendant's right to be presumed innocent and have a fair trial. While courts have generally concluded that a comfort dog's presence in the courtroom is not inherently prejudicial, see Commonwealth v. Purnell, 2020 PA Super 127, 233 A.3d 824, 836 for a collection of cases, they have likewise embraced procedures to minimize the potential impact the presence the dog may have on jurors. See COLUMN: ANIMAL LAW: COURTROOM CANINES ARE LEADING COURTROOM ACCOMMODATIONS FOR CHILDREN, 95 Fla. Bar J. 34.

Federal courts, while often acknowledging the benefits of a therapy dog to the witness, have been much more reluctant permit their use in court, particularly in front of a jury. See United States v. Jackson, for a discussion on the difficult issue of pitting the alleged victim's emotional wellbeing against the defendant's right to be presumed innocent in a fair trial, No. 3:20-CR-76 DRL-MGG, 2021 U.S. Dist. LEXIS 77577, at *20 (N.D. Ind. Apr. 22, 2021). However, the Courtroom Dogs Act (S.2121 and H.R.4159), currently referred to the Judiciary Committee in both the Senate and House of Representatives, if passed into law would assist the federal courts in providing best practice guidelines for the use of dogs in federal courtrooms.

In contrast to objections to the use of facility dogs from defendants claiming prejudice, a study on this issue found no evidence to suggest that a facility dog, compared to a comfort item or no accommodation, prejudicially influenced mock jurors’ decisions regarding defendants when it came to verdict, verdict confidence, or sentencing. Kayla A. Burd & Dawn E. McQuiston, Facility Dogs in the Courtroom: Comfort Without Prejudice?, 44 CRIM. JUSTICE R. 515 (2019). Therefore, between their effectiveness and the increasing number of laws expressly permitting their use – don’t be surprised to see a facility dog next time you’re at the courthouse!

If you have questions about this article, please contact Allison Rienecker (arienecker@setlifflaw.com) at (804) 377-1272, or Steve Setliff (ssetiff@setlifflaw.com) at (804) 377-1261.