Lawyers Warned "To Guard" Against Dr. Charles Smith's Testimony Back In 1993;

"NEVERTHELESS, MEMBERS OF THE PROFESSION WHO PROSECUTE OR DEFEND SUCH AN ALLEGATION (BABY-SHAKING SYNDROME) MUST BE ALIVE TO THE VERY CONTROVERSIAL MEDICAL BASIS OF THE PHENOMENON ITSELF, NOT TO MENTION THE POSSIBILITY OF A RARE PROCESS OF ILLNESS OR INJURY TO ACCOUNT FOR THE SYMPTOMS;"

FROM "THE SHAKEN-BABY SYNDROME - A RESEARCH GUIDE":

The authors of a paper on "Shaken-Baby Syndrome" published in the Criminal Law Quarterly in 1993 followed a passage of Dr. Charles Smith's testimony with a warning.

"At bottom, counsel must guard against such testimony which consists of educated guesses", the authors write. "Any opinion as to the number of shakes must be predicated upon a sound understanding of biomechanics."

Biomechanics is a specialty in itself: the science concerned with the action of forces, internal or external, on the living body;

The authors of the paper, published in Volume 36 at Page 108, were:
0" Gilles Renaud: Counsel,Crimes Against Humanity and War Crimes Section, Department of Justice, Ottawa;

0: Myriam Renaud, a member of the Ontario Bar; and,

0: Dr. Patricia Horsham, described as a Child Abuse Specialist at Children's Hospital in Eastern Ontario.

Dr. Smith's testimony comes under scrutiny in a section of the paper called, "the forces involved in Shaken-Baby Syndrome."

In one case, for example, the judge in the Lawrence case described Smith's very definite evidence on bio-mechanical matters as follows.

"He (Smith) described as "tremendous" the force that must have been used to kill the little girl.

The degree of force required to produce lesser injuries in animals involves forces of 13 to 15 times the force of gravity...

He said it would more likely take minutes than seconds to administer the amount of shaking that was required to kill the child...

He thought that there would be 25 or 30 shakes, probably more than that, and more likely much more than that.

He described...how hard one would have to work at killing the child to deliver the actual force that was needed to kill (her;"

(Testimony like this must be a prosecutor's dream!);

The authors also give the example of a case involving a 20-month-old boy weighing more than 12 kilos at the relevant time (the Cadieux case) in which Smith was asked to comment on the force required to occasion lethal shaking;

"He (Smith) responded, "They would have to be strong. If they weren't an adult, they would have to be a well-built teenager I would think.

"He (Smith) added, The extent of the injury that's required, or the extent of force that's required is very significant. It is not a trivial injury, it's not...a normal type of injury."

Smith ventures even further into the area of biomechanics in this case, according to the authors, when he reflects on the age range of the youth, saying, "That may be related to the fact that it takes, it's more work, it takes more injury to inflict that type of injury."

As yet another example of Smith's straying beyond his area of expertise, the authors discuss the Dovak case, in which Smith testified that,"It's fascinating to see the G-forces with the acceleration or deceleration type injuries or forces that come to play here and the significant differences between acceleration-deceleration from shaking versus a blunt impact, which obviously has much greater forces."

"And so I, you know their conclusions, I think are very interesting," Smith continued. "That is that it may be the 10 0r 2-G forces of the shaking, but rather it may take some help beside that."

Smith's evidence in these cases takes on a fascinating perspective when viewed in the context of his testimony during the trial in the Timmins case - one of the cases considered during the Chief Coroner's review;

(This case involved a 12-year-old Timmins girl who was charged with manslaughter after a 16-month-old child she was babysitting suffered injuries in her home and later died.

Smith concluded the youth had shaken the baby to death.

But nine experts described by Provincial Court Judge Patrick Dunn as "at the top of their fields" testified that death was caused by an accidental fall.

Dunn acquitted her.)

The authors say that: "It must be noted that during the trial of R. v. M. (S). Dr. Smith remarked that he was not an expert in bio-mechanics.

He (Smith) added in discussing the possible number of shakes leading to a fatality of a 16-month-old girl weighing 25 Lb:

"I'm just pulling that figure out of the air, Mr. Renaud.

"I don't want to engage in a discussion of the number of shakes because it's not simply the number that's important.

I believe it's also other biomechanical factors which I know so little about...

The whole area of bio-mechanics I think I have underscored here is one which I have looked at interesting statements in the literature statements in the literature but I'm not an expert..."

This is the point at which the authors warn counsel to guard against Smith-type testimony, "which consists of little more than educated guesses" and is the antithesis of "sound understanding of biomechanics."

The authors acknowledge that, "a criminal prosecution (or a child protection application) may be initiated responsibly in cases of suspected child abuse where the young baby or infant is admitted to the hospital emergency ward with indications of retinal haemorrhaging, bilateral subdural haematomas and the absence of visible trauma and no satisfactory explanation to account for the symptoms," subject to a big "nevertheless."

"Nevertheless, members of the profession who prosecute or defend such an allegation must be alive to the very controversial medical basis of the phenomenon itself, not to mention the possibility of a rare process of illness or injury to account for the symptoms."

Judge Dunn was had no doubts about the necessity to consider other causal factors than "baby-shaking syndrome."

"I turn first to some of Dr. Smith's assumptions, he wrote.

"The defence doctors all showed they could consider the possibility of shaking.

They knew there were elements present in this case that could be taken as suggestive of of that diagnosis, if they were seen in isolation.

On the other hand, Dr. Smith would not consider the possibility of a subdural haemorrhage and brain swelling from a small fall, but then even he admitted he is not current in the biomechanical understandings of falls.

He would allow for the possibility of a subdural haemorrhage, but with bruising, in a fall of one story, as he said, or from a full flight of stairs as he suggested on another occasion.

There is an expression lawyers use, justice must not only be done, but must be seen to be done.

It would behoove Dr. Smith in making such an important decision as a diagnosis of shaking that would lead to a manslaughter charge, to show he seriously considered possibilities other than shaking."

"In the final analysis," the authors conclude, "it is hoped that this review will have identified some of these subtleties and to have oriented counsel to the literature (and experts) who may be of assistance in cases involving the so-called "shaken-baby syndrome";"

Harold Levy;