The Dog Ate My Defense

Every day in Ohio courts, jurors are told this.

You are the judges of the facts, the credibility of the witnesses, and the weight of the evidence.
To determine the greater weight of the evidence, you must consider the credibility of the witnesses. You will use the tests of truthfulness that you use in your daily lives.
These tests include the appearance of each witness upon the stand; the witness' manner of testifying; the reasonableness of the testimony; the opportunity the witness had to see, hear, and know the things about which the witness testified; and the witness' accuracy of memory, frankness or lack of it, intelligence, interest, and bias, if any, together with all the facts and circumstances surrounding the testimony. Use these tests and assign to each witness' testimony such weight as you think proper.
You are not required to believe the testimony of any witness simply because the witness was under oath. You may believe or disbelieve all or any part of the testimony of any witness. It is your duty to decide what testimony to believe and what testimony not to believe. The testimony of one witness if believed by you is sufficient to prove any disputed fact.

Look at that witness.  

Does he seem nervous?  Uncomfortable?  Unsure?

Or is she confident? Calm? Controlled?

Does he look the defendant in the eye or turn away?

Does he look at the jurors or is he turning to the prosecutor for protection or comfort?

If it's hard for the witness, that's something for the jurors to consider in deciding whether to believe or disbelieve the testimony.

None of that's a sure thing, of course.  There's no telling what any particular juror will find a sign of honesty.  Or of fabrication.  

But it's their job, the jurors' job, to decide what, and especially whom, they're going to believe.   To aid in that, the framers gave us the Confrontation Clause.  It's right there in the 6th Amendment.

In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .

And that confrontation is supposed to be face to face.  Justice Scalia explained in Coy v. Iowa.

We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U. S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting). For example, in Kirby v. United States, 174 U. S. 47, 55 (1899), which concerned the admissibility of prior convictions of codefendants to prove an element of the offense of receiving stolen Government property, we described the operation of the Clause as follows: "[A] fact which can be primarily established only by witnesses cannot be proved against an accused . . . except by witnesses who confront him at the trial, upon whom he can look while being tried, whom he is entitled to cross-examine, and whose testimony he may impeach in every mode authorized by the established rules governing the trial or conduct of criminal cases." Similarly, in Dowdellv. United States, 221 U. S. 325, 330 (1911), we described a provision of the Philippine Bill of Rights as substantially the same as the Sixth Amendment, and proceeded to interpret it as intended "to secure the accused the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination." More recently, we have described the "literal right to `confront' the witness at the time of trial" as forming "the core of the values furthered by the Confrontation Clause." California v. Green, supra, at 157. Last Term, the plurality opinion in Pennsylvania v. Ritchie, 480 U. S. 39, 51 (1987), stated that "[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination."

The Sixth Amendment's guarantee of face-to-face encounter between witness and accused serves ends related both to appearances and to reality. This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial in a criminal prosecution." Pointer v. Texas, 380 U. S. 400, 404 (1965). What was true of old is no less true in modern times. President Eisenhower once described face-to-face confrontation as part of the code of his hometown of Abilene, Kansas. In Abilene, he said, it was necessary to "[m]eet anyone face to face with whom you disagree. You could not sneak up on him from behind, or do any damage to him, without suffering the penalty of an outraged citizenry. . . . In this country, if someone dislikes you, or accuses you, he must come up in front. He cannot hide behind the shadow." Press release of remarks given to the B'nai B'rith Anti-Defamation League, November 23, 1953, quoted in Pollitt, supra, at 381. The phrase still persists, "Look me in the eye and say that." Given these human feelings of what is necessary for fairness, the right of confrontation "contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails." Lee v. Illinois, 476 U. S. 530, 540 (1986).

The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is." Z. Chafee, The Blessings of Liberty 35 (1956), quoted in  Jay v. Boyd, 351 U. S. 345, 375-376 (1956), (Douglas, J., dissenting). It is always more difficult to tell a lie about a person "to his face" than "behind his back." In the former context, even if the lie is told, it will often be told less convincingly. The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions. Thus the right to face-to-face confrontation serves much the same purpose as a less explicit component of the Confrontation Clause that we have had more frequent occasion to discuss — the right to cross-examine the accuser; both "ensur[e] the integrity of the factfinding process."  Kentucky  v.  Stincer, 482 U. S., at 736. The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential "trauma" that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.

The thing is, we're too often unwilling to pay those costs.  After all, the accused is guilty.  Why run the risk of letting him off just because the Constitution mandates some dumb rule?

Which brings us to New York and to the story of Rosie the wonder don't-call-her-therapy [see here] dog.  William Glaberson had the story in the Times.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress. Both prosecutors and defense lawyers have described her as adorable, though she has been known to slobber.

Prosecutors and defense lawyers are talking about Rosie because she's also the courtroom dog who helps kids and other accusers testify on the witness stand calmly and coolly without any of the stress associated with falsely accusing lying telling the truth. 
Also she coaches the witness.

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
. . .
At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose.

Those leaning in and nose-pushing things.  You know, because the dog knows the truth and helps to get it out.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
In written arguments, the defense lawyers claimed it was “prosecutorial misconduct” for the Dutchess County assistant district attorney handling the rape case, Kristine Hawlk, to arrange for Rosie to be taken into the courtroom. Cute as the dog was, the defense said, Rosie’s presence “infected the trial with such unfairness” that it constituted a violation of their client’s constitutional rights.
Ms. Hawlk declined to discuss Rosie. In written arguments, she said that all Rosie did was help a victim suffering from serious emotional distress, and she called the defense claims “frivolous accusations.”

Really, it's all there.  The witness is prejudged a "victim."  The jury is denied the opportunity to evaluate the witness's stress and figure out what it means.  The dog can't be cross-examined.

As Gideon said.

A dog, on the other hand, has its own motives and moves on its own, in all its doggy wisdom. How do we ask the dog why it chose that precise moment to nudge the witness or nuzzle up against it?

And Scott Greenfield puts it this way.

As wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn't wrong, or isn't lying, and that the real victim in the courtroom isn't the defendant.

See,  despite the string of accuser's rights laws and amendments, they're really just accusers unless the jury says otherwise.  The court isn't supposed to coddle them in advance, to provide comfort, to make it easy so that they can be understood to be compelling because how damn hard it is to have to face the person they're accusing - regardless of whether the accusation is true.  The accuser, that is, has no legal presumption of victimhood.

The accused, on the other hand, is not only presumed innocent.  The accused is innocent unless and until the jury says otherwise having been convinced by proof beyond a reasonable doubt - truth untainted by a presumption that the accuser is truthful.

Greenfield again.

And no one has yet suggested that the defendant be allowed a cute, adorable, slobbering dog to sit at his feet, to lend his loving dog-eyes to the warmth of the accused, just in case he's the person suffering trauma in that courtroom.

Yeah.