It did not violate the defendant’s constitutional right to confront witnesses, the Court of Appeals ruled for the first time on Thursday, for his child victim to have a support dog at her feet while testifying against him.

“Put simply, easing a testifying witness’s discomfort doesn’t violate a defendant’s confrontation rights,” wrote Judge Craig R. Welling for the three-member appellate panel.

The Sixth Amendment gives criminal defendants the right to confront the witnesses against them. Colorado’s constitution also enshrines the right to “meet the witnesses … face to face.” Although defendant Cory Rex Collins had argued that confrontation “necessarily requires a certain level of subtle emotional and psychological tension between the accused and the witness,” both the trial and appellate courts agreed the presence of the dog violated neither constitutional requirement.

Daniel P. Rubinstein, the Mesa County District Attorney whose office prosecuted the case against Collins, said the judicial district employs two facility dogs in most cases involving child witnesses where the charges range from sexual assault and child abuse to domestic violence.

Rubinstein found it “disturbing” that Collins had argued to the court “that he essentially has a constitutional right to intimidate a child victim, and that his constitutional rights to confront his accuser are violated if his ability to cause his victim a greater ‘degree of discomfort’ during trial is hampered by the use of a dog sitting at the feet of a child victim, out of the view of the jury.”

In Collins’ case, according to court records, the father of a young girl reported in late 2013 that he suspected his daughter had been sexually abused while living with her biological mother. Although the girl would not disclose any sexual abuse to police at the time, she exhibited further abnormal behavior, leading the girl’s father and stepmother to learn that Collins reportedly had inappropriately touched the child. 

Around this time, the girl began seeing a counselor, where she also reported Collins had touched her genitals. The counselor, the father and the stepmother all reported these allegations to the county’s department of human services.

Following a November 2014 interview with the girl, police arrested Collins. Prosecutors charged him with four counts of sexual assault on a child. After a mistrial, a second trial ended in Collins’ conviction for sexual assault on a child and sexual assault on a child by one in a position of trust. Collins maintained that it was a friend of the mother’s who abused the girl, and that repeatedly questioning the girl about Collins had prompted her to name him as the abuser.

Collins received a sentence of four years to life in the Department of Corrections.

Upon appealing his conviction, Collins contended that the dog who sat at the girl’s feet on the witness stand reduced the reliability of her testimony by making her more comfortable in naming him as her abuser.

At the time of the second trial, there was no state law to prohibit or allow the use of support dogs. In 2019, the General Assembly approved a bill for specially-trained court facility dogs that provide support for testifying witnesses. Judges may allow the dogs if they reduce a witness’s anxiety and enhance the ability to receive accurate testimony, without causing an interference to the trial.

District Court Judge Valerie J. Robison ruled that she was familiar with Tilly, a yellow lab, and had neither seen nor heard the dog in previous proceedings where Tilly was present. The judge determined Tilly would assist the victim with her testimony in Collins’s case.

“She will be, as much as possible, outside of the view of the jury,” Robison said of the dog. “There will be an instruction that will be given, that the jury is not to make any inferences for or against either side due to Tillie’s [sic] presence.”

Welling, writing for the appellate panel, explained that prior court precedent “doesn’t stand for the proposition that crime victims must endure stress while testifying to satisfy the right to confrontation.”

Although there were no Colorado cases at the time to address the necessity of a facility dog, the majority of other states whose courts have evaluated the issue found no requirement that a witness’s comfort item first be deemed necessary. In Washington, a trial court judge allowed two 9-year-old girls to hold a doll while testifying, observing that “children do present different issues and different considerations.”

Aya Gruber, a professor of criminal law at the University of Colorado, explained that the concept of face-to-face confrontation is intended to make witnesses uncomfortable with lying. While the presence of a dog still allows for such confrontation, it is possible such an accommodation would “make it more likely for the witness to be comfortable with lying.”

“I’m surprised that the defendant did not bring up the potential prejudicial effect the dog could have on the jury,” she added. For instance, “it could stand as a fact supporting that the crime happened because the child needs a support dog. Also a dog is cute and draws sympathy.”

The Court of Appeals did side with Collins on his argument that prosecutors improperly elicited testimony from an expert witness who was not familiar with the facts of Collins’ case, but spoke generally about child sexual abuse. The panel determined the prosecutor asked questions too closely related to the facts of the case, but that the expert’s responses did not substantially affect the verdict.

Rubinstein, the district attorney, agreed with the appellate panel’s analysis, and called the 2019 law change a victory for victims.

“This valuable tool in assisting witnesses in their ability to calmly recount the facts of the case enhances the truth-seeking function of the trial process,” he said.

For a court to decide otherwise, said Ian P. Farrell, an associate professor of law at the University of Denver, “would be akin to saying that a witness who suffered from migraines could be ordered not to take Tylenol before testifying, or prohibiting an anemic witness from wearing warm clothing.” 

The case is People v. Collins.