In “dog courts” throughout the United States, the victim’s rights are potentially compromised because the governing ordinances are missing certain essential provisions, and the hearing officers do not know how to conduct a fair hearing. For that reason, the victim needs a lawyer who must determine which laws the animal control department intends to enforce (those of the state, county or city), and then evaluate whether the applicable rules are fair to the victim. Attention should be focused on the following points:
- A defense attorney in “dog court” should be required to make an “offer of proof” before cross-examining any witness, especially the victim, or introducing a particular item of evidence.
- The “judge” should be required to rule on whether the questioning or evidence is closely related to the issues raised by the dangerous dog law. In making each ruling, the “judge” should apply a balancing test that weighs the probative value of the evidence against the victim’s right of privacy and right to be free of harassment. If the questioning fails to pass any of these tests, it should not be allowed.
- The victim must be permitted to have legal representation at the hearing, including the active participation of the victim’s lawyer.
- The victim’s attorney must be permitted to voice objections, call and question witnesses, introduce evidence, cross examine defense witnesses, and make opening and closing statements.
- The victim’s attorney should receive copies of all notices, correspondence and documents pertaining to the case and the defense, and a copy of the department’s final decision.
Alternatively, the victim should be allowed to submit a declaration under penalty of perjury, with exhibits such as photographs of the injuries. The dog owner obviously would not be entitled to cross-examine but of course could present opposing evidence.
Furthermore, the city or county ordinance must protect the victim’s privacy. In the above described case, the animal control department gave the defense lawyer the victim’s entire medical file. The ostensible purpose was so that he could see the evidence that established the degree of bodily injury. However, the victim’s medical history and the details of her injury and treatment were hardly required to assess the severity of the damage done to her arm — it was hanging off.
There was no reason for the animal control department to get the victim’s signature on a medical records release, or to give her medical file to the defense lawyer. By federal law, the victim was entitled to a right of privacy with respect to the information there. Even in a civil case, the defense is not allowed to get any records it pleases. This is a loophole in how the case is processed there and elsewere throughout the United States. The ordinance could have stated that the hearing officer could base his decision on testimony, photographs or any other reasonable evidence, short of having the victim at the proceeding and giving her medical chart to the defense lawyer.