Is sharing the witness stand with a dog unfairly prejudicial?

The New York Times had a great article about allowing victims and children the presence of a therapy dog while testifying on the witness stand.  The victim may be more inclined to testify if they have the comforts of a canine friend on the stand with them.  Meanwhile, defense attorneys are in an uproar because the presence of the dog and the dog’s reactions to the victim may impact how the jury views the victim’s testimony.

One issue is whether or not the presence of a therapy dog is unfairly prejudicial because the jury can see the reaction of the dog to the victim.  Are juries easily swayed by the cuteness of the therapy dog as they see the victim struggle through her testimony?  Is the dog’s reaction a form of hearsay?  If so, would there be a Confrontation Clause issue?  In Crawford v. Washington, the Supreme Court held that defendants must have the opportunity to cross examine prior statements if the witness is unavailable.

But, none of this applies here because 1) a dog can not commit hearsay because they are not human; 2) it is not a form of hearsay because it is not an out of court statements taken for the truth of the matter stated.  Instead, it is a current court statement/gesture/observation; 3) the “witness aid” is not unavailable.  But, the “witness aid” can not testify or be confronted because it is a dog.

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