The Hearsay Implications of Defining Dogs as People

I posted this story from the New York Times on my page about Philosophy of Mind earlier, but I then realized that its title, "Dogs Are People, Too," and its implications -- that MRI research on dogs indicates that they have sentience and mental states and that they should be granted some form of personhood -- have interesting legal consequences.

Take, for example, the law of hearsay.  A statement is hearsay if it is made out of court and is introduced at trial for the truth of the matter asserted in the statement.  Rule 801 of the Federal Rules of Evidence defines "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."  Notice that one can only make a "statement" if one is a "person."

During the summer after my first year of law school, I interned in the Los Angeles Office of the District Attorney.  One case I worked on involved an eyewitness account that a murderer had, after killing the victim, fled from the victim's home across the lawn and jumped over a fence.  To corroborate the eyewitnesses, a trained dog was brought to the scene.  The dog, after smelling clothing belonging to the defendant, ran across the lawn to the fence -- taking the same path that the eyewitnesses said the killer had taken.

There was some dispute over whether the dog had been properly trained and whether too much time had past since the murder had taken place, but as I recall, this challenge did not succeed.

On the other hand, a far stronger challenge could be made against this evidence if the dog were considered to be a person.  The dog's action of running across the lawn was taken by the trainer (and introduced in court) as an indication of the path the killer had taken.  This indication would probably be considered an assertion -- while the dog was not speaking, it was nonverbally displaying the path of the scent it had been given.  If the court were to accept that the dog's action was a nonverbal assertion rising to the level of a statement, and if the dog were to be considered a "person," the court would probably need to conclude that the dog's statement was hearsay.

I am not sure how often this problem would arise.  Many situations involving dogs typically involve dogs that are trained to "alert" upon smelling drugs, with these alerts giving rise to probable cause for police to search people, vehicles, or packages for drugs.  These alerts would probably not be deemed hearsay, however, since they would typically be introduced for the limited purpose of showing why police acted the way they did after the dog's alert.  Moreover, even if the dog alert were hearsay, under Rule 1101, this wouldn't prevent the police from using the alert to obtain a search or arrest warrant.

People who advocate for the personhood of dogs and other animals must take into account all of the legal implications that follow from such a determination.  Assigning this status to dogs may have far-reaching consequences that could paralyze law enforcement.  Doing the same for cats, on the other hand, would not raise these concerns, at least not as far as I am aware.