There are particular issues in the field of evidence that arise in dog bite cases. Here are tips and tricks on some of those issues.
Photographs
Without a doubt, a photo is worth 1000 words when the victim has lacerated, avulsed and bruised skin. You must be assured that your photographic evidence is admissible. Pay strict attention to not only the rules of evidence, but also the state and local court rules, and the pretrial order.
When disclosing trial exhibits, be sure to show the defense the enlargements you plan to use at trial, not just the 4x6 prints. It was held in one case that the plaintiff was restricted to the smaller prints because those were the ones that had been filed pursuant to a pretrial order, and had been stipulated to by the defense. Mills v. Smith, 9 Kan. App. 2d 80, 84 (1983). The Mills court reasoned as follows:
[I]t is contended that the trial court abused its discretion in excluding enlargements of certain photographs. The pretrial order required the parties to file all exhibits no later than fourteen days before the trial date. Before trial the defendants stipulated that the 4" x 6" prints were admissible. On the day of the trial the plaintiff offered the enlargements. The trial court sustained the defendants' objection on the ground that the plaintiff had not shown the enlargements to the defendants, but admitted the smaller prints into evidence.
A pretrial order controls the course of the action unless modified to prevent manifest injustice. Sieben v. Sieben, 231 Kan. 372, 376, 646 P.2d 1036 (1982); K.S.A. 60-216. Moreover, the trial court noted that the enlargements showed nothing more than the smaller prints and there is nothing to indicate that the plaintiff's rights were prejudiced. We conclude that the trial court did not abuse its discretion in denying plaintiff's request to admit the enlargements.
Breed characteristics
The characteristics of a breed, as opposed to the defendant's own dog, might be admissible at trial because of their probative value as to particular issues, provided that some evidence exists that the dog itself had behaved or possessed those same characteristics.
The most famous example of the successful use of breed evidence is the Diane Whipple case (People v. Knoller), which Attorney Kenneth Phillips has described as a "breed specific prosecution." In that trial, the jury heard evidence that the defendants were associates of a prison gang that was establishing a business to breed and sell the most dangerous dog they knew of, the Presa Canario; the defendants knew the dangerous characteristics of the breed, and the dogs involved in the killing of Diane Whipple had those characteristics. The judge and jury specifically disbelieved the defendant, Marjorie Knoller, when she testified that her dogs were safe. Attorney Phillips' interview of the jury foreman after the trial revealed that the jury's general feeling about Knoller and her attorney was that they were untruthful. The verdict was guilty on all counts, including second degree murder (reckless homicide) which carried a possible sentence of 20 years in prison.
However, there are many cases in which the courts have excluded evidence of the characteristics of a breed. The common element in these cases is that the offered evidence consisted of a general characteristic to engage in aggressive behavior against humans, plus an absence of evidence that the particular dog ever exhibited the same propensity. Applying a rule similar to the prohibition against using character evidence to prove specific conduct, the courts often refuse to admit evidence about breed characteristics under these circumstances.
Attorneys who represent victims therefore are advised to base their cases not upon breed evidence but on specific acts by the dog that attacked the plaintiff.
Viciousness against animals
The propensity of the defendant's dog to attack other domestic and feral animals might be admissible at trial on a particular issue, but should not be relied upon to prove that the dog was vicious toward people. Courts repeatedly have ruled that there is no value to evidence that the dog in question chased and killed animals, when such behavior was offered to show that the dog was dangerous to people.
However, the propensity to attack animals can be very relevant in particular cases. A good example would be a dog that is hyper vigilant in its own backyard, attacking anything that moves within the yard, in a case where a neighbor of the dog owner was bitten by the dog as the neighbor stood on his own side of the common fence separating his backyard from the defendant's backyard. Evidence of the dog's propensity to attack animals in the owner's backyard would be relevant to proving that the cause of the accident was the dog's propensity and not the victim's alleged negligence.
Another example would be the propensity of an "at large" pit bull to attack other dogs, in a case where the victim was attacked by the pit bull while she was walking her dog in a rural area that did not have a leash law or a law prohibiting dogs from being at large. It is commonly known that all pit bulls without exception have the propensity to fight other dogs. For that reason, it can always be contended in such a case that permitting a pit bull to go at large is negligent, because of the breed's tendency to attack other dogs and the human tendency to protect one's pet. (The tendency to rescue one's own dog when it is under attack is discussed at Legal Rights of Rescuers Who Incur Dog Bites.)
Admissibility of statement that "the dog bit me"
In many dog attacks, only the victim is present. When he is a child of tender years, defense attorneys sometimes attack his compentence to testify. There are several ways to handle this, depending on the circumstances.
Where the defense suggests that there is insufficient evidence to prove that the dog actually bit the victim, the child's physician may be called to testify that the wounds were made by a dog. The opinion can be based upon the spacing of the punctures or lacerations, the depth of the wounds, or the type of infection that developed.
If the child immediately exclaimed that "the dog bit me," his statement may be admissible under the excited utterance exception or, in Federal Court, the exception for statements made in aid of medical treatment or, in state court, the exception for statements about the declarant's prior physical condition.
Some states use the res gestae exception to admit facts, statements or things done which form the basis or gravamen for a legal action. For example, where a state dog bite statute might apply only to a bite by a dog, then a child's exclamation that "the dog bit me" may be admissible as res gestae.
Expert testimony by canine professionals
The topic of expert testimony by canine professionals is explored in some depth at The Use of Experts In Dog Bite Cases. Several tips are offered here.
Courts have excluded or given little weight to an expert's opinion testimony that the defendant must have known about the dangerous propensity of a dog, when the facts upon which the opinion is based consist of general characteristics of the breed as opposed to specific instances of behavior by the dog that attacked the plaintiff. In other words, expert testimony about what the defendant knew should not be relied upon as the cornerstone of a dog bite case.
Generally, the presence of a canine expert at trial can be distracting and misleading if handled incorrectly. The jury might get the incorrect impression that the trial is about the dog's "state of mind," or that the owner lacked the necessary expertise to predict that his dog would attack the plaintiff. Therefore, the attorney for the victim should use canine expert testimony on very narrow, very specific issues, and only when expertise is really necessary to prove an aspect of the case.
