EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS
By: Kyle R. Kroll, Volume 100 Online Managing Editor
In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious issues regarding the Fair Housing Act (FHA), this author believes it will be cited most frequently by pet owners for its animal-friendly evidentiary holding. The evidentiary issues in the case centered on the court’s power to admit evidence and to use discretion to not exclude evidence under Fed. R. Evid. 403. The Eleventh Circuit affirmed the admission of a dog as a demonstrative exhibit in the courtroom and on the stand. Quickly dispensing with the appellant’s argument that the dog’s presence was unfairly prejudicial—an argument that seems to at least pass the proverbial sniff test—the panel held that the trial judge did not abuse its discretion.
The Bhogaita case prompts important questions about whether courts should continue to admit animals as demonstrative exhibits. Furthermore, the Eleventh Circuit’s brief discussion of the matter left much to be desired; it ignored strong arguments that animal exhibits should be excluded for cumulativeness, unfair prejudice, or irrelevance. This article aims to challenge the Eleventh Circuit’s cursory examination of this interesting evidentiary question. After evaluating these arguments, it appears that there is very little reason to admit an animal as a live demonstrative exhibit in the courtroom and that there are many risks in doing so.
Demonstrative Exhibits and Animals in the Courtroom
Demonstrative exhibits are materials that represent actual or real things on disputed factual issues. They are not materials that have a direct or indirect part in the controversy of a case, such as a smoking gun, for example. Rather, demonstrative exhibits merely help a fact-finder visualize or understand other, real evidence by referring to it or replicating it. For example, the presence of a dog might indirectly show the necessity of the dog’s presence to keep someone calm; the dog itself cannot be real evidence of that necessity, but its presence may be demonstrative of the same.
Before a demonstrative exhibit is admissible, there must be sufficient evidence to support a finding that the exhibit is what the proponent claims it is (that the demonstrative exhibit truly references or replicates something). Usually, this foundation is established by witness testimony. But even if an exhibit can be authenticated, it must also be relevant by tending to make a fact of consequence more or less probable. Most importantly, the exhibit must assist the trier of fact in understanding testimony or some other evidence in the case. It must showcase, illustrate, or clarify evidence; this is its primary function.
Demonstrative exhibits are especially susceptible to exclusion under the “catch-all,” “fall-back” Fed. R. Evid. 403. This is because demonstrative exhibits can have tremendous convincing power and appeal. Scholars warn such exhibits are likely to be overvalued, mislead, create confusion, and spur inflammatory or passionate juror reactions. For example, jurors may react strongly to an attorney or witness brandishing a gun in court and using it as an aid to explain an encounter. For these reasons, demonstrative exhibits can be highly prejudicial, and trial courts have broad discretion to determine whether to admit or exclude demonstrative exhibits. Although this generous discretion with respect to demonstrative exhibits has never been affirmed by the Supreme Court, a court’s broad power to make 403 exclusions has been upheld.
Animals have mostly been absent in U.S. courtrooms as demonstrative exhibits, but in pre-1800s Europe, animals were frequently hauled into court for serious crimes. Medieval courts charged domesticated and wild animals with everything from the mundane (crop depredation) to the dastardly (homicide). During the trials, the animals were allowed to serve as demonstrative exhibits of their own demeanor and character. A donkey, for example, was once acquitted after the court observed that the donkey had “virtue and good behavior.” How the court was able to discern such a quality from the donkey’s presence is lost to history.
Animals are no longer considered culpable actors in most legal systems; hence, they are rarely seen in court. In last century, animals have made very few documented courtroom appearances. In every instance, they have been admitted as demonstrative evidence, either as proof of a substantive issue or as a medium through which to explain a witness’s testimony. For example, during a dispute over a jersey cow’s ownership, the cow was brought into court to prove the plaintiff’s claims that the plaintiff owned the cow. The plaintiff called the cow by name, and the cow crossed the courtroom and “rubbed [its] nose lovingly in the plaintiff’s face.” After both the plaintiff and the defendant repeated this “cattle call” exercise three times—with the result each time in favor of the plaintiff—the court declared the plaintiff the owner.
When animals do make courtroom appearances, courts have primarily used them for identification purposes. A dead cat in an Igloo cooler, for instance, was admitted into evidence during a conversion suit as a demonstrative exhibit to prove the death of the cat and the veracity of the attacking-dog’s bites. Relatedly, courts have allowed juries to observe a dog’s condition and demeanor in bite cases, when the dog’s dangerous nature is in dispute. Animals have only appeared in court for these rare and limited circumstances. The Bhogaita case extended this leash, though, by affirming a new role for animals as demonstrative exhibits.
The Bhogaita Case
On May 4, 2010, the Altamonte Heights Condominium Association, Inc. (“Altamonte”) demanded that Bhogaita, a US Air Force veteran with PTSD, remove his dog, Kane, from his unit. Altamonte’s occupancy rules prohibited dogs weighing more than twenty-five pounds, and Kane exceeded the limit. In response, Bhogaita provided Altamonte with three letters from his psychiatrist stating that Kane was an emotional support animal and was necessary for treatment. The doctor described Kane as being therapeutic: “[Bhogaita] is able to work with the assistance of his emotional support animal. Otherwise his social interactions would be so overwhelming that he would be unable to perform work of any kind.”
Bhogaita brought suit against Altamonte under the FHA for disability discrimination and failure to make reasonable accommodations. A jury was called to determine whether Bhogaita was disabled and whether the dog was necessary as a reasonable accommodation. The court allowed Kane to accompany Bhogaita throughout trial and on the witness stand as a demonstrative exhibit of the dog’s necessity. Altamonte objected, on 403 grounds, that Kane’s presence was unfairly prejudicial, “as it suggested that Bhogaita required the dog at all times,” which was an issue of fact at trial. The district court disagreed, and the court of appeals affirmed, finding that the district court did not abuse its discretion.
Bhogaita is the latest federal case to admit an animal as a demonstrative exhibit. The scant number of opinions and secondary sources reporting this occurrence suggests that animals are not usually introduced as exhibits, either because they are unnecessary or because cases generally do not involve live animals. This low incidence may also reflect a lack of interest in introducing animals as demonstrative exhibits, for any number of logistical and reputational reasons. Regardless of this fact, there are at least three important evidentiary considerations that advise against the admissibility of animals as demonstrative exhibits: cumulativeness, unfair prejudice, and irrelevance. The strength of these considerations depends on a case’s context.
First, when a proponent seeks to admit an animal as a demonstrative exhibit, it is unlikely that the animal is the sole source of evidence about a factual issue. Arguably, an animal cannot prove anything that other forms of evidence can prove, such as witness testimony, documents, opinions, etc. Thus, when an animal is sought to be introduced merely in an effort to corroborate witness testimony or other evidence, the animal should be considered needlessly-cumulative. Courts hold that when evidence adds very little to the probative force of other evidence, it should be excluded for being needlessly cumulative.
In Bhogaita, Kane’s presence with Bhogaita at trial and on the stand was cumulative evidence of Bhogaita’s need for Kane for the treatment of PTSD. As the court itself recognized, Bhogaita’s doctor’s three letters essentially prescribing Kane’s presence as a form of treatment were more than sufficient to prove the fact that Bhogaita needed Kane in his apartment building. Thus, Kane’s presence had little additional probative value to proving this fact. In addition, Kane’s small probative value was arguably substantially outweighed by a danger of needlessly presenting cumulative evidence. This is because presence of an animal in the courtroom may greatly decrease judicial efficiency as well as disrupt a courtroom. This goes to the efficiency aspect of the reason to exclude under 403 for needlessly-cumulative evidence. In most cases, as in the Bhogaita case, animal exhibits simply accompany testimony and other evidence, rather than supplement it, and are wholly unnecessary to proving or helping the jury understand a fact. Thus, courts should admit animals only when the animals are the single available evidence of a fact or are needed to tip the balance of conflicting evidence—a circumstance unlikely to ever come to pass.
Animals also present serious concerns of unfair prejudice (another Rule 403 consideration) because most people have sympathy for and enjoy animals. The unfair prejudice generated from sympathy or antipathy should substantially outweigh an animal exhibit’s usually-low probative value because it is likely to be unnecessary. By allowing an animal to supplement impersonal, neutral evidence (such as a doctor’s note), the court runs the risk of both inviting the jury to decide a case based on passions and emotions and enabling a jury to double-count evidence supporting the same fact. This could lead to the fallacious conclusion that more or greater evidence supports the proponent’s case. In Bhogaita, the issue was also the unfounded implications drawn from the court’s implicit agreement with the necessity of the dog at trial, which prejudiced Altamonte’s defense. As this illustrates, the mere presence of an animal at trial can be unfairly prejudicial.
Lastly, courts should be cautious in cases in which an animal could be admitted as a demonstrative exhibit in order to prove a fact through its actions and decisions (as in the case of the beckoned cow). In these instances, a far stronger argument supports exclusion: the evidence is irrelevant under Rule 401 because it does not have a tendency to make a fact more or less probable. Since the late 1700s, society has recognized that animals are not generally conscientious actors, and it is beyond dispute that they do not appreciate the duty to act and make representations truthfully in court. Animals’ actions are primarily instinctual, not purposeful; this is why society no longer holds animals criminally responsible.
In recognizing this point, an animal’s actions or decisions in court cannot reliably make a fact more or less probable than it would be without evidence. For example, Kane’s presence by Bhogaita’s side could not, by itself, tend to show either Kane’s ability to help with PTSD or Bhogaita’s need for Kane. This is both because Kane cannot conscientiously act in a way that would show that Kane is needed and because the necessity of Kane for treatment can only be shown by Bhogaita’s reaction to the dog—evidence completely independent of the dog’s presence. Therefore, as demonstrative evidence, Kane was irrelevant and also unhelpful. Although potentially a cruel proposition, Kane’s lack of presence in the courtroom would have been more relevant evidence of the necessity of Kane for Bhogaita’s treatment. Bhogaita’s reaction to a lack of presence would have tended to make the fact of Kane’s necessity more probable. Combining the above thesis with that of a 403 analysis yields an interrelated argument for exclusion: if evidence is irrelevant, it has no probative value, so it is always outweighed by any amount of prejudice, whether large or small.
The Bhogaita and related cases demonstrate courts’ willingness to admit animals as demonstrative exhibits. While the practice is rare, the Bhogaita case’s holding may lead to an increase in the number of animals serving as demonstrative exhibits. The admissibility of such evidence rests on an unsteady foundation, however, and there are formidable arguments for excluding animal exhibits on cumulativeness, unfair prejudice, and irrelevance grounds. Since the admissibility decisions involved under Fed. R. Evid. 401 and 403 are reviewed only for abuse of discretion, though, it is unlikely that a trial court’s ruling on the admissibility of animal demonstrative exhibits will be reversible error unless highly inefficient or prejudicial.
 Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277 (11th Cir. 2014).
 Id. at 1290-91.
 See Michael H. Graham, 2 Handbook of Fed. Evid. § 401:2 (7th ed. 2014).
 Fed. R. Evid. 901(a).
 See Robert E. Larson, Navigating the Federal Trial § 8:44 (2014 ed.).
 Id. (citing Fed. R. Evid. 401, 402).
 Graham, supra note 3.
 See, e.g., Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008).
 Anila Srivastava, “Mean, Dangerous, and Uncontrollable Beasts”: Mediaeval Animal Trials, 40 Mosaic (Winnipeg) 127 (2007).
 See id.
 Flotsam and Jetsam, 39 Can. L.J. 216, 216 (1903).
 Douglas Holt, Dog Court Cases Can Bring Out the Animal in Humans, Chi. Trib. (July 27, 1994), http://articles.chicagotribune.com/; see also State v. Callaway, 267 P.2d 970, 972-73 (Wyo. 1954) (allowing for the exhibition of a cow head, hide, udder, and legs for purpose of showing that the particular cow was stolen, over objection the carcass was too gruesome for the jury); Bender v. Appelbaum, 123 A.D. 563, 565 (N.Y. App. Div. 1908) (allowing a horse to be introduced in evidence for purposes of determining the horse’s identity).
 E.g., Arnold v. Laird, 621 P.2d 138, 141-42 (Wash. 1980).
 Id. at 1281.
 Id. at 1282.
 Id. at 1283.
 Id. at 1284.
 Id. at 1290.
 Id.; Reply Brief of Appellant at 16-18, Bhogaita v. Altamonte Heights Condo. Ass’n, 765 F.3d 1277 (11th Cir. 2014) (Nos. 13-12625-B, 13-13914-BB), 2014 WL 494908 (“Allowing the jury to see Bhogaita and the dog together . . . was inflammatory and invited the jury to decide the case based upon improper influences such as sympathy and . . . unfounded suggestion[s] . . . .”).
 Bhogaita, 765 F.3d at 1291 (holding that the decision did not rest, inter alia, on an errant conclusion of law).
 Prior to Bhogaita, an animal was not used as a demonstrative exhibit since 2003. See United States v. Kapp, No. 02 CR 418-1, 2003 WL 1484908, at *2 (N.D. Ill. Mar. 20, 2003).
 Fed. R. Evid. 403.
 See United States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996).
 Bhogaita, 765 F.3d at 1289.
 George Blum et al., General Rule, 29 Am. Jur. 2d Evid. § 362 (last updated May 2015).
 Cf. Miles v. City Council of Augusta, GA., 551 F.Supp. 349, 350 n. 1 (S.D. Ga. 1982) (remarking on superfluous information about the observed abilities of a cat named ‘Blackie’ that could say “I love you”).
 Christine Dell’Amore, U.S. Pet Poll: Most Prefer Dogs, 18 Percent Want Dinosaur, Nat. Geo. (June 21, 2013), http://news.nationalgeographic.com/news/2013/06/130619-pets-poll-animals-united-states-nation-dogs-cats/?rptregcta=reg_free_np&rptregcampaign=2015012_invitation_ro_all# (“Perhaps not surprisingly, one in five people said they’d prefer to spend time with their animals than with other people.”).
 Fed. R. Evid. 401(a).
 See Srivastava, supra note 13, at 127-29.
 See Fed. R. Evid. 401(a).