Appellate Court of Illinois Finds Victim's Use of a Service Dog While Testifying Did Not Create Undue Sympathy For Her

The Americans With Disabilities Act defines a "service animal" as

any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

So, assume that a trial judge allows a victim/witness to testify with a service dog sitting with him in the service box. Would this create undue sympathy for the victim and prejudice the defendant? This was the question addressed by the Appellate Court of Illinois, Second District, in its recent opinion in People v. Tapley, 2020 WL 7417620

In Tapley, David J. Tapley, was charged with aggravated criminal sexual abuse against R.L., a minor. Before trial,

the State filed a motion in limine to allow R.L., who was 16 years old at the time, to testify in the presence of her “facility dog.” The State alleged that R.L. suffered from PTSD as a result of defendant's abuse and that R.L. had a facility dog that accompanied her everywhere. The State alleged that R.L. had previously suffered from PTSD episodes that affected her ability to go to school and communicate effectively but that the use of the facility dog had enabled her to attend school again. The State alleged that it had reason to believe that R.L. might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury.

The court granted the motion, and Tapley was thereafter convicted. Subsequently, Tapley appealed, claiming, inter alia, "that the dog's presence violated his right to a fair trial because it created undue sympathy for R.L." The court disagreed, finding that

“[a]ll of the courts which have examined a challenge to the use of a comfort dog in a courtroom have concluded that the dog's presence is not inherently prejudicial.” Commonwealth v. Purnell, 233 A.3d 824, 836 (Pa. Super. Ct. 2020). In particular, the Washington Supreme Court examined this issue in the context of a facility dog in State v. Dye, 309 P.3d 1192 (Wash. 2013). The defendant there argued that, among other things, the dog's presence improperly bolstered the main witness's credibility by giving his testimony an “‘aura of truth and sympathy’” and that the dog made the witness look pitiful and like a victim who was telling the truth....The court stated that none of the defendant's theories had any basis in the record and that defense counsel had conducted an extensive cross-examination of the witness....It further stated that “whatever subconscious bias may have befallen the jury was cured by the trial court's limiting instruction, which cautioned the jury not to ‘make any assumptions or draw any conclusions based on the presence of this service dog.’”...Similarly, in People v. Tohom, 109 A.D.3d 253, 268 (N.Y. App. Div. 2013), the court concluded that a facility dog's accompaniment of the 15-year-old alleged victim “did not adversely affect the defendant's due process right to a fair trial or compromise his constitutional right of confrontation.” The court stated that it was not unmindful that the dog “may have engendered some sympathy for [the witness] in the minds of the jurors,” but it noted that there was “no proof that such sympathy was significantly greater than the normal human response to a child's testimony about his or her sexual abuse at the hands of an adult.”...The court further noted that the trial court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like the facility dog.

Applying this analysis to the case at hand, the court concluded that

A similar analysis applies here, with even greater consideration given to R.L.'s position because she requested the dog's presence under the ADA. The trial court had to balance defendant's right to a fair trial with R.L.'s rights under the ADA and as a minor who was a victim of sexual abuse. Indeed, according to the record, R.L. allegedly suffered from PTSD in the first place because of defendant's actions....We also note that the Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the “Court will honor the choice of the individual, unless it demonstrates that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of Court activities or undue financial and administrative burdens.”...The trial court had a gate installed on the witness box to obstruct the jury's view of the dog and held a separate hearing with the dog present so that the parties could view how the dog would be seated next to R.L. during the trial. R.L. and the State disclosed that the dog would probably get on her lap while she testified, because it was one of the dog's “commands” when R.L. was anxious, and the trial court stated that R.L. should minimize that as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before R.L. and the dog got up. Before R.L. testified, the trial court instructed the jury in detail regarding the dog, stating:

 

“Ladies and Gentlemen of the Jury, I want to instruct you at this time that the witness has a service dog with her while she testifies.

 

You are not to draw any inference in favor or against either side because of the dog's presence. And the focus of your attention should be on the testimony of the witness.

 

The presence of the service dog in the courtroom shall not be considered in any way in the jury's deliberations or verdicts.”

-CM