Hear Spot Bark: Washington Court of Appeals Rejects Argument that Dog Barking Constitutes Hearsay

Yesterday, in State of Washington v. Russell, the Washington Court of Appeals rejected Roy W. Russell's appeal of his conviction resulting from the slaying of 14 year-old Chelsea Harrison.  The teenage victim was found dead in Russell's basement after a teen drinking party hosted by the then 45 year-old Russell.  Russell was sentenced to life imprisonment without parole pursuant to Washington's "three strikes" law for repeat felons.

One of Russell's arguments on appeal was that the trial judge improperly allowed his neighbor, Christine Bisson, to testify that her dog barked every time she saw Russell.  Russell claimed that the admission of this testimony violated his rights under the Confrontation Clause because the dog was the supposed [sic] witness and not [Bisson]."

The court of appeals, however, noted that Washington Rule of Evidence 801, which states that a declarant is "a person who makes a statement," ruled out the possibility that the hearsay rule might apply to sounds that animals make.  The court thus concluded that Bisson could testify that her dog was barking without violating the hearsay rule because Bisson was the declarant and not her dog.

The court of appeals was correct in making this decision as is made clear from my favorite case involving alleged animal hearsay, People v. Centolella, 305 N.Y.S.2d 279 (N.Y.Co.Ct. 1969).  In Centolella, the prosecution sought to have a state trooper testify that two bloodhounds trailed the defendant to prove his guilt. See id. at 280. 

The defendant argued that this proposed testimony constituted hearsay, but the court countered that "[s]uch 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."  Id. at 282.

-CM