Tuesday, August 09, 2011

Order in the Court (by res ipsa)

Trigger warnings for rape and incest.

Yesterday I read this NYT story about a New York rapist whose appeal of his conviction is based on the trial judge permitting the prosecution to use Rosie, a therapy dog, during the victim's testimony. The victim is a teenager and the now-convicted defendant was her father. The dog's role was to comfort the victim during moments of stress that might occur as she testified. I understand the defense's objection about being unable to cross-examine the dog to determine if the victim is experiencing stress because she is telling the truth or because she is lying. But I'd counter that objection by saying, "So why didn't you bring on an animal behavior expert to testify that while the dog may sense and respond to stress, that there's no way of knowing what sort of stress the dog sensed?" The jury would have to add the expert's opinion to its consideration of the facts. The defense also claims that it the dog's presence was unfair, i.e., the dog biased the jury. Their argument is that the dog's presence was dispositive, but I doubt that a dog, no matter how cute, can outweigh the ugliness of a victim's testimony about her rape, and in this case, by her parent. In any case, the jury may also be asked to consider that the dog's presence may predispose it to favor the victim.

What do you think?