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Michigan Court of Appeals Orders New Trial After Adult Witness Was Permitted To Testify With Support Dog

On June 7th, 2018, the Court of Appeals released their decision in People v Shorter, ___ Mich App ___; ___ NW2d ___ (2018)(Docket No. 338629) holding that it was error for the trial court to permit the Complainant to testify while accompanied by a support dog and its handler. As a result, the Defendant's convictions for criminal sexual conduct-third degree and criminal sexual conduct-fourth degree were reversed and he is entitled to a new trial.

The Defendant and the Complainant, who were apparently platonic friends up to this point, had returned to the Complainant's home around 4:30 a.m. after attending a rodeo together. The Complainant permitted the Defendant to stay at her home and sleep before leaving the next day. Complainant said the parties agreed that they would share the Complainant's queen-size bed but there was an additional agreement that they would not be intimate in any way. She claimed that she awoke around 6:30 a.m. in the shared bed to find that the Defendant was sexually assaulting her. The Defendant alleged that there was no such agreement for non-intimacy and that he woke up in the shared bed to find the Complainant cuddling up to him. He denied engaging in any sexual acts.

At the trial, the prosecutor intended to have the Complaint testify while accompanied by a support dog and the animal's handler. The Defendant's attorney was not notified prior to the trial of this intent and objected to it. The prosecutor alleged that the support animal was necessary because it would help control the Complainant's emotions and make the trial go smoother. The trial court granted the request and the Complainant testified with the support of the dog and its handler. The Defendant was convicted and now appeals.

The trial court relied on the decision in People v Johnson, 315 Mich App 163; 889 NW2d 513 (2016) where a six-year old witness was permitted have a support dog accompany her during her testimony. That decision also held that the statute requiring prosecutorial notice (MCL 600.2162a(4)) to the other side concerned "support persons" but not support animals. As a result, the prosecutor was not required to notify the defendant ahead of trial.

The Court of Appeals held that the Johnson decision does not apply to this case because of the dissimilar facts. A support animal to assist a six-year old child in testifying is very different from a support animal assisting a grown adult such as the Complainant in testifying. Up to this point, the use of support persons or support animals in Michigan has historically been used for witnesses that are either children or developmentally disabled adults. The Complainant did not fall into either of these categories.

Additionally, the prosecutor argued to the jury that several witnesses described the Complainant as having extreme emotional reactions after the incident such as shaking, acting hysterical and being unable to speak. Yet, the prosecution requested the use of a support dog to control the Complainant's emotions during trial. The Court of Appeals reasoned that the Defendant was prejudiced by the jury being unable to evaluate the Complainant's emotional state "uninfluenced by outside support" when the prosecutor was arguing that such emotional reactions were evidence of the Defendant's guilt.

Since this case turned almost entirely on the testimony of one witness, it is unfairly prejudicial to allow devices that artificially mute the Complainant's emotions which might prevent the jury's ability to objectively determine her credibility. The Defendant certainly would not be entitled to the assistance of a support person or animal during his testimony. While there are certainly public policy reasons to permit support persons or support animals for children and the developmentally disabled, allowing this concession for fully-abled adults during testimony undermines a fair trial.

Being a witness is a stressful event, not only because you are answering questions under penalty of perjury with dozens of eyes upon you but also because the witness's integrity and credibility is on display. One could hardly blame the witness for wanting to make the experience more comfortable if that was possible. However, the Defendant's right to a fair trial means that the jury should have every entitlement to see a witness's response to questioning to determine if he or she is truthful or not. Unnecessary methods that increase or disguise credibility distort the jury's ability to assess truthfulness and ultimately distort the justice system. The witness will certainly go home at the end of the day, but a criminal defendant may go to jail or prison based on a lie. The Michigan Court of Appeals rightfully protected the integrity of the criminal justice system and the independence of juries in this opinion.

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