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Thursday, February 19, 2009

The Bloodhound Gang: Detroit Free Press Article Addresses Admissibility Of Bloodhound Tracking Evidence

An article in Monday's Detroit Free Press mentions that "[a]s an annual treat for Free Press staffers, a few dog owners participating in the 2009 Detroit Kennel Club’s dog shows Feb. 28 and March 1 brought their dogs in for a visit." In providing information about the bloodhounds, the article indicates that:

Their background as scent hounds gives bloodhounds the distinction as the only breed whose testimony is admissible in some courtrooms. They have to prove their training and background and their handler has to be sworn in, not the dog.

This is an accurate statement. As the Court of Appeals of South Carolina found in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

Moreover,

[a] foundation for the admission of dog tracking evidence is sufficient if it provides evidence as to (1) the extent of the handler's experience and training; (2) the dog's characteristics of scent acuity and power to discriminate between human and other scents; and (3) the handler's assessment of the dog's reliability.

On the other hand, a minority of states (including Illinois), hold that dog tracking evidence is per se inadmissible because

(1) the actions of the bloodhounds are unreliable; (2) the evidence constitutes hearsay; (3) the defendant is deprived of his constitutional right to confront the witnesses against him; (4) the defendant should not be placed in jeopardy by the actions of an animal; (5) a defendant cannot cross-examine the dogs; and (6) a jury might be awed by such testimony and give it much greater weight and importance than warranted."

And at least with regard to this second conclusion, I disagree with these courts because, as I noted in a previous post, in People v. Centolella, 305 N.Y.S.2d 279 (N.Y.Co.Ct. 1969), the court correctly found that bloodhound tracking evidence

falls into the category of opinion evidence rather than hearsay. The animals are not witnesses against a defendant any more than a microscope or a spectograph. They are not subject to cross-examination any more than the animal. It is the handler who is the witness and he is merely asked to testify to what the animal actually did, not his opinion as to guilt or innocence of a person. A person is no more placed in jeopardy by the action of an animal than he is by a breath analyzer or a blood test.

Of course, some courts go in the other direction and "conclude that evidence of tracking by a dog is admissible where the dog is not a bloodhound as long as the final three foundation requirements [from the first test above] are satisfied. State v. Green, 334 S.E.2d 263, 265 (N.C.App. 1985).

-CM

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