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United States v. Neuhard

United States District Court, E.D. Michigan, Southern Division

March 14, 2017

United States of America, Plaintiffs,
v.
Jonathon William-Durand Neuhard, Defendant.

          United States Magistrate Judge David R. Grand

         ORDER DENYING GOVERNMENT'S MOTION IN LIMINE TO ALLOW CANINE ADVOCATE TO ACCOMPANY MINOR VICTIMS AT TRIAL [99], DENYING DEFENDANT'S MOTION FOR ORDER FOR IN CAMERA INSPECTION OF NON-PUBLIC COURT FILES [103], DENYING DEFENDANT'S MOTION IN LIMINE TO EXCLUDE INFLATABLE PLASTIC DOLL [106], AND ADJOURNING DECISION ON DEFENDANT'S MOTIONS TO AMEND/CORRECT WITNESS LIST [108, 110]

          Gershwin A. Drain United States District Court Judge

         On 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.

         A. Government's Motion in Limine as to Use of a Canine Advocate

         On 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.

         As 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.

         Section 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.

         This 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.

         Although 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 Government.

         B. Defendant's Motion for Order for In Camera Inspection of Court Files

         On 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.

         The 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.

         C. Defendant's Motion in Limine to Exclude ...


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