At issue in State v. Dye (PDF) was whether a criminal defendant is denied a fair trial by allowing a developmentally disabled victim to testify with the assistance of a comfort dog. Such trial management decisions are reviewed for abuse of discretion. Based on the evidence presented to the trial court at a hearing on the special dispensation request, the Washington Supreme Court concluded, there was no abuse of discretion.
Douglas Lare lives and works with multiple cognitive and physical disabilities. His onetime girlfriend, Alesha Lair, committed several financial crimes against Lare, including racking up roughly $42,000 in credit card debt in Lare’s name and pilfering $59,000 from Lare’s retirement account. Her subsequent boyfriend, Timothy Dye, later used Alesha’s key to Lare’s apartment to enter Lare’s residence at night where he confronted Lare and then stole several household items that he later pawned. This experience understandably left Lare fearful and very upset.
At trial, the prosecution sought permission to allow Lare to testify with the aid of a facility dog or service dog – a Golden Retriever trained and cared for by one of the prosecutor’s at Dye’s trial. The trial court held a hearing on the prosecutor’s request at which it considered the reasons for including the dog – Lare’s anxiety about testifying, developmental disabilities, and emotional trauma from the burglary – and Dye’s request that he be allowed to testify with his baby on his lap. The trial court permitted Lare to testify with the assistance of the facility dog and denied Dye’s request. At the close of trial, the jury was instructed not to make any assumptions or draw any conclusions based on the presence of the facility dog.
Dye was convicted of residential burglary. The Court of Appeals affirmed, and Dye sought review, arguing that the facility dog violated his right to due process and a fair trial.
The Court (Justice Wiggins, writing for an eight-member majority) first clarified the appropriate standard of review: even though Dye argued that the trial court’s decision concerning the facility dog denied him the right to a fair trial, the trial court’s decision would be reviewed for abuse of discretion, similar to other trial management decisions. This review, the Court explained, focuses on whether the decision (1) is manifestly unreasonable (i.e., falls outside the range of acceptable choices, given the facts and applicable legal standard); (2) based on untenable grounds (i.e., factual findings unsupported by the record); or (3) is based on untenable reasons (i.e., based on an incorrect standard or the facts do not meet the requirements of the correct standard). The court further noted that courts in other jurisdictions also applied an abuse of discretion standard to decisions allowing a dog to accompany a witness.
Having determined the appropriate standard of review, the Court next clarified that the governing legal standard was whether the “special dispensation for a vulnerable witness is necessary” and that it is the prosecution’s burden to prove necessity. Highlighting the deference given to trial courts’ discretionary decisions, the Court further noted that it would not overrule the trial court’s decision in this case “unless the record fails to reveal the party’s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons.”
After setting forth the governing principles on review, the Court marched through each factor in its abuse of discretion analysis:
- The special dispensation was supported by tenable grounds. The trial court’s findings that Lare was developmentally disabled and endured significant emotional trauma were well supported by the record. Further, the evidence showed that the facility dog was expected to be – and was – unobtrusive and had no interaction with Dye to make him look dangerous or untrustworthy.
- The trial court also had tenable reasons for allowing the special dispensation in light of the evidence presented at a hearing on the prosecution’s request that established why the dog’s presence was needed. This evidence supported an implicit finding of necessity (the trial court did not make an explicit finding) and established a record for meaningful appellate review.
- Nor was the special dispensation manifestly unreasonable as nothing in the record supported Dye’s various theories that dog’s presence prejudiced him or effectively vouched for Lare’s credibility. The Court further noted that defense counsel managed to thoroughly cross examine Lare.
Having found no evidence of unfairness and noting that any prejudice was mitigated by the limiting instruction, the Court affirmed.
Justice Gordon McCloud concurred in the result but criticized the majority for not recognizing the symbolism of the facility dog, referencing restrictions on negative symbols such shackles and prison garb. In Justice Gordon McCloud’s view, the facility dog “conveyed a deeply reassuring, yet silent, message of comfort, security, and support” and a “silent message about Mr. Lare’s status as a sympathetic and truthful victim who is worthy of support.” To neutralize any possible advantages gained by the prosecution, Justice Gordon McCloud suggested that a defendant likewise be permitted to testify with a facility dog. Justice Gordon McCloud then questioned the validity of the presumption that juror follow instructions, especially where powerful symbolism is involved.
Beyond the issue of special dispensations in criminal trials, Dye is significant for three principal reasons.
First, it reinforces the principle that trial courts enjoy broad discretion, within bounds of reason, to manage trial activities to facilitate witness testimony. The discretion exercised here is particularly important for the consideration showed to individuals living with disabilities and the procedural flexibility that courts have to include persons with disabilities in the judicial process. This approach will likely become more common and important as greater numbers of individuals with disabilities become increasingly integrated in workplaces, school environments, and other aspects of contemporary society and therefore become more likely to be involved in court proceedings.
Second, it clearly articulates the factors that appellate courts consider in reviewing for abuse of discretion and how the different factors – untenable grounds, untenable reasons, manifestly unreasonable – overlap and differ from one another. Unfortunately, the Court did not make a long overdue statement about what standard of review applies to legal errors that are part of a discretionary ruling. Federal authorities abound that such legal questions are reviewed de novo. It would be helpful to practitioners and lower courts alike if the state supreme court would clarify this point.
Third, Dye illustrates the importance of creating a record. The trial court did not make an explicit finding about necessity but the evidence presented supported the conclusion of an implicit finding. On the other side of the coin, the defense failed to put forth evidence in support of its claims of prejudice, and those arguments on appeal were summarily rejected.