United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge David R. Grand
DENYING GOVERNMENT'S MOTION IN LIMINE TO ALLOW
CANINE ADVOCATE TO ACCOMPANY MINOR VICTIMS
AT TRIAL , DENYING DEFENDANT'S
MOTION FOR ORDER FOR IN CAMERA INSPECTION OF
NON-PUBLIC COURT FILES , DENYING
DEFENDANT'S MOTION IN LIMINE TO EXCLUDE
INFLATABLE PLASTIC DOLL , AND ADJOURNING
DECISION ON DEFENDANT'S MOTIONS TO
AMEND/CORRECT WITNESS LIST [108, 110]
Gershwin A. Drain United States District Court Judge
March 13, 2016, the Court held a hearing to resolve five
outstanding motions prior to the beginning of trial. The
Court indicated its rulings on the record during the hearing,
and noted this short order would follow to further explain
the Court's rulings.
Government's Motion in Limine as to Use of a
February 22, 2017, the Government filed a motion seeking to
allow a canine advocate to accompany the minor victims while
they testified at trial. Dkt. No. 99. At the hearing on March
13, 2017, the Court denied the Government's motion.
child victims of sexual abuse, MV-1 and MV-2 may properly
seek protections and rights offered by 18 U.S.C. § 3509.
The section, titled “Child Victims' and Child
Witnesses' Rights, ” offers various tools to lessen
the potential harm a child may suffer while testifying at
trial. Id. A child's testimony may be taken by a
two-way closed circuit television, 18 U.S.C. §
3509(b)(1), or by video deposition prior to trial, 18 U.S.C.
§ 3509(b)(2). The Court may order that the courtroom be
closed to all persons, including members of the press, who do
not have a direct interest in the case if requiring the child
to testify in open court would cause substantial
psychological harm to the child or would result in the
child's inability to effectively communicate. 18 U.S.C.
§ 3509(e). Most analogous to the present motion is that
a child testifying has the right to be accompanied by an
adult attendant to provide emotional support to the child. 18
U.S.C. § 3509(i). The Court may allow the adult
attendant to remain in close physical proximity or in
physical contact with the child while she testifies.
Id. The attendant may not answer questions directed
to the child or otherwise prompt the child. Id.
Where an adult attendant accompanies a child witness during
trial testimony or deposition, the image of the attendant is
to be recorded on videotape. Id.
3509 does not provide for a support animal to accompany a
child in addition to the adult attendant. The Government has
not provided any precedent where another federal court has
allowed a support animal to accompany a witness at trial.
Further, MV-1 and MV-2 have been able to previously
testify-albeit in a closed courtroom during preliminary
examination-without assistance. The Government has not pled
facts that indicate that MV-1 and MV-2 will be unable to
testify in the absence of a support animal.
Court has previously analyzed this issue in the context of an
adult witness and noted the strong support in state courts
for allowing a support animal. See United States v.
Gardner, No. 16-CR-20135, 2016 WL 5404207 at *7-8 (E.D.
Mich. Sept. 28, 2016) (collecting cases where support dogs
have been allowed to accompany witnesses in criminal trials).
Although the facts here are more persuasive than those in
Gardner, the Government has not shown that a support
animal is supported by statute or federal case law.
Accordingly, the Government's motion is denied.
the Court will not allow a support animal to be present in
the courtroom during the minor victims' testimonies in
front of the jury, the Government may bring the canine into
the building to assist the witnesses before their testimony,
during breaks, and after their testimony has concluded. The
canine may be present in the hallway outside of the courtroom
or in the attorney conference room being used by the
Defendant's Motion for Order for In Camera
Inspection of Court Files
March 7, 2017, Defendant filed a motion seeking a court order
for in camera inspection of non-public court files.
Dkt. No. 103. At the hearing on March 13, 2017, the Court
denied Defendant's motion.
Government objected to Defendant's request for the
non-public court files, and to any admission of the personal
protection order or the contents therein. Dkt. No. 105. Based
on review of the filings and oral argument, Defendant has not
established that the court files, the protection order, or
the allegations of abuse or drug use by non-victims in the
years prior to the crimes charged are relevant. See
Fed. R. Evid. 401. Furthermore, the probative value of these
matters is substantially outweighed by their prejudicial
nature. See Fed. R. Evid. 403. Thus, the Court
denies Defendant's motion as to the court files, personal
protection order, and the allegations made within that order.
Defendant's Motion in Limine to Exclude