"WHILE THE “SHORT-FALL” LITERATURE CONTINUES TO BE A SOURCE OF DEBATE AND ITS SCIENTIFIC SIGNIFICANCE MINIMIZED BY SOME,123 THE POTENTIAL IMPACT OF THESE FINDINGS ON CRIMINAL PROSECUTIONS IS ENORMOUS.124 WHERE DOCTORS WOULD PREVIOUSLY HAVE BEEN CERTAIN THAT AN INFANT WAS SHAKEN, IN MANY CASES125 A FALL MUST NOW BE ENTERTAINED AS AN EXPLANATION FOR INJURIES.126 ONCE THE THRESHOLD OF FORCE SUFFICIENT TO CAUSE THE INJURIES AT ISSUE HAS BEEN CAST INTO DOUBT, SCIENTIFIC IDENTIFICATION OF A CAUSAL MECHANISM THAT IS ABUSIVE127 BECOMES PROBLEMATIC. PUT DIFFERENTLY, THE MEDICAL TESTIMONY CAN NO LONGER DO THE WORK OF ESTABLISHING MENS REA. NOTWITHSTANDING THESE RATHER SEISMIC SHIFTS, THE CRIMINAL JUSTICE SYSTEM HAS – WITH ONLY RARE AND RECENT EXCEPTION – BEEN UNYIELDING TO NEW THINKING ABOUT A DIAGNOSIS THAT PROVES A CRIME."
PROFESSOR DEBORAH TUERKHEIMER;
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Professor Deborah Tuerkheimer,of the University of Maine School of Law, has written a definitive article on Shaken Baby Syndrome for the Washington University Law Review; (March 6, 2009: Vol. 87, 2009;)
The article is aptly titled: "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts."
An abstract of the article reads:
Every year in this country, (The U.S.A) hundreds of people are convicted of having shaken a baby, most often to death. In a prosecution paradigm without precedent, expert medical testimony is used to establish that a crime occurred, that the defendant caused the infant's death by shaking, and that the shaking was sufficiently forceful to constitute depraved indifference to human life. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis of murder, one based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. New scientific research has cast doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS convictions. Outside the United States, this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change, yet the response has been halting and inconsistent. To this day, triad-based convictions continue to be affirmed, and new prosecutions commenced, as a matter of course. This Article identifies a criminal justice crisis and begins a conversation about its proper resolution. The conceptual implications of the inquiry - for scientific engagement in law's shadow, for future systemic reform, and for the notion of innocence in a post-DNA world - should assist in the task of righting past wrongs and averting further injustice.;
This article is so refreshing, insightful and compelling that I have chosen to run it in its entirety in seven installments: The introduction. (I have chosen to run the article without the incredibly useful footnotes. Readers who wish to consult them will find the entire article on line with footnotes at: http://ssrn.com/abstract=135465;
III. SCIENTIFIC EVOLUTION;
As a categorical matter, the science of SBS can no longer support a finding of proof beyond a reasonable doubt in triad-only cases 54 – cases which represent a significant number of SBS prosecutions.
Put simply, here “change has raised the real possibility of error.”55
In the past, the mere presence of retinal hemorrhaging, subdural hematoma, and cerebral edema was taken to mean that a baby had been shaken hard enough to produce what were conceptualized as whiplash forces.56
According to the conventional understanding of SBS,57 “[t]he application of rotational acceleration and eceleration forces to the infant’s head causes the brain to rotate in the skill.
Abrupt deceleration allows continuing brain rotation until bridging veins are stretched and ruptured, causing a thin layer of subdural hemorrhage on the surface of the brain.”58
Retinal hemorrhages were thought to result from a similar causal mechanism.59
Most significantly, the triad of symptoms was believed to be distinctly characteristic – in scientific terms, pathognomonic – of violent shaking.60
Despite its lingering presence in the popular imagination, the scientific underpinnings of SBS have crumbled over the past decade61 as the medical establishment has deliberately discarded a diagnosis defined by shaking.62
Although no single nomenclature has emerged in its place,63 doctors are now in widespread agreement that SBS is an unhelpful characterization,64 and that the presence of retinal hemorrhages and subdural hematoma cannot conclusively prove that injury was inflicted.65
Although it may be tempting to conclude simply that “science evolves,” and leave the inquiry there, the story is more complex; an object lesson in scientific overreaching and the challenge of correction.
A. Flawed Science:
A number of forces coalesced to transform SBS from a certain diagnosis into its current state of flux.
Most importantly, in the mid- to late-1990s,66 medical research, including the SBS literature, became subject to a heightened level of scrutiny.
The new “evidence-based medicine” standards required doctors to derive their research from methods that are scientific and statistically rigorous.67
The change triggered a review of the evidence supporting a number of areas of medicine,68 and included a comprehensive effort to examine the science underlying SBS.69
The application of the evidence-based framework to the SBS literature resulted in a remarkable determination: the medical literature published prior to 1998 contained “inadequate scientific evidence to come to a firm conclusion on most aspects of causation, diagnosis, treatment, or any other matters pertaining to SBS.”70
More specifically, “[s]erious data gaps, flaws of logic, [and] inconsistency of case definition” meant that “the commonly held opinion that the finding of SDH [subdural hematoma] and RH [retinal hemorrhage] in an infant was strong evidence of SBS was unstainable.”71
A logical fallacy of profound importance was uncovered by a close examination of the pre-1999 SBS literature: researchers had chosen subjects for study based on the presence of subdural hematomas and retinal hemorrhages and, with little or no investigation into other possible causes of these symptoms, simply concluded that the infants were shaken.72
Scientists accordingly inferred that subdural hematomas and retinal hemorrhages must necessarily result from shaking.73
Put differently, researchers “select[ed] cases by the presence of the very clinical findings and test results they [sought] to validate as diagnostic.
Not surprisingly, such studies tend[ed] to find their own case selection criteria pathognomonic of SBS.”74
The circularity of this logic is 71 represented by the following equation: “SBS = SDH + RH [inclusion criteria], therefore SDH + RH = SBS [conclusion].”75
Other studies purporting to support the validity of the SBS diagnosis relied on
“confessions” to establish the mechanism of injury.
Here, too, a number of problems undermined the validity of the research.76
Putting aside momentarily the possibility that a suspected abuser would be less than candid with doctors and investigators,77 the classification of an account as a confession in these studies was highly problematic from a methodological perspective: “where caretakers said that they shook the baby, it was never detailed how much they shook the baby, how long they shook the baby, and did the baby’s symptoms precede the shaking or did they follow the shaking.”78
Once the edifice upon which SBS had been constructed cracked, researchers began looking beyond the child abuse literature to the expertise of neurosurgeons, biomechanical engineers, and pathologists. Knowledge gained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shaking and the SBS triad.81
Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantly altered the diagnostic universe.82
Compared to its precursor, computed tomography (CT), MRI enabled a far more detailed assessment of the “pattern, extent, and timing” of central nervous system injuries.83
New radiological findings challenged what had become akin to scientific gospel,84 revealing the presence of triad symptoms in the “mimics” of abuse: accidental injury and medical disorders manifesting as SBS.85
And as technology and scientific methodology advanced, researchers questioning the basis for SBS reached a critical mass.
Knowledge gained from these disciplines further eroded confidence in the existence of a pathognomonic relationship between shaking and the SBS triad.81
Around the same time, magnetic resonance imaging (MRI) revolutionized the field of radiology and significantly altered the diagnostic universe.82
Compared to its precursor, computed tomography (CT), MRI enabled a far more detailed assessment of the “pattern, extent, and timing” of central nervous system injuries.83
New radiological findings challenged what had become akin to scientific gospel,84 revealing the presence of triad symptoms in the “mimics” of abuse: accidental injury and medical disorders manifesting as SBS.85
And as technology and scientific methodology advanced, researchers questioning the basis for SBS reached a critical mass.86
This momentum was catalyzed by the high-profile prosecution of British au pair Louise Woodward, which in 1997 brought shaken baby syndrome into international spotlight.87
The case was widely perceived as “one of the more intriguing legal dramas of the age – one that [left] unresolved a mystery of sickening fascination to parents everywhere.”88
In its wake, an already divided scientific community became even more polarized.
Physicians felt “compelled to speak out regarding the scientific evidence as
portrayed in the trial of Louise Woodward,” contending that “medical publicity
surrounding the case has led to considerable sentiment that she was convicted despite allegedly irrefutable scientific evidence presented by the defense that the infant’s injuries had occurred days to weeks earlier.”89
And critics of the SBS diagnosis were galvanized by a legal and symbolic victory that commanded the world’s attention.
In response to these developments, an uneasy equilibrium has been reached.
Once considered a “fringe” group, scientists challenging the SBS dogma have emerged as a significant force in terms of numbers as well as influence.
Meanwhile, rather than abandon it altogether, defenders of the validity of the diagnosis have adapted it in subtle but important ways: SBS has been reincarnated to reflect a shifted consensus.90
B.B. Shifted Consensus:
Since the mid-1990s, the science surrounding SBS has undergone a striking transformation.
With little attention outside of the medical community, universally held tenets have been undermined, leading a segment of the scientific establishment – including some formerly prominent supporters of its validity – to perceive the diagnosis as illegitimate.
Others, equally distinguished in their respective fields, have responded to the new research by defending SBS against attack.91
Thus, despite the progression of scientific discourse, the current debate about shaken baby syndrome is remarkably polarized.92
Scientists on each side of the controversy espouse their respective views with a passion and certainty matched in intensity by that of their opponents.93
This polarization, and the bitterness that accompanies it, can tend to obscure a significant area of consensus that has developed around the invalidity of previously accepted dogma.
Doctors who defend the legitimacy of SBS and dismiss many of its critics’ attacks are willing to concede that the science has evolved – and that even mainstream thinking has changed in a number of areas.
The testimony of prosecution experts marks this movement.94
The movement is subtle but undeniable.
Its significance may depend upon the context in which it is being evaluated: from the perspective of “pure” science, the similarities between the two factions may be overshadowed by their unresolved differences;95 but in the criminal justice setting, the newly common ground should be of critical importance.
A brief overview of what has become uncontroversial reveals why.
1. The Myth of Pathognomony:
An emerging body of research has undermined the scientific basis for defining the triad of SBS symptoms as exclusively diagnostic of abuse.96
No longer are physicians willing to state with certainty that the constellation of symptoms that once characterized SBS individually97 and collectively98 must in every case indicate that a child was abused.99
In particular, as scientific study has generated new explanations for the presence of subdural hematomas100 and retinal hemorrhages,101 doctors have become increasingly reluctant to use the word pathognomonic when discussing these symptoms.
While many disagree vehemently with the contention that shaking alone cannot possibly cause the diagnostic triad,103 they have conceded that the triad is not necessarily induced by shaking.
This represents a dramatic evolution in mainstream scientific thinking.
Critics of the new research argue that shaking is still the most likely explanation for retinal hemorrhaging and subdural hematoma.104
Nevertheless, given that the diagnostic paradigm rests fully on the triad, the move away from pathognomony inevitably reframes ongoing debate.
2. Lucid Intervals:
In the past, defendants prosecuted for SBS were identified by the science – that is, by the certainty of doctors that the perpetrator of abuse was necessarily the person with the infant immediately prior to the loss of consciousness.
However, studies have since shown that children suffering fatal head injury may be lucid for more than 72 hours before death.105
Because the prospect of a lucid interval lessens the ability to pinpoint when an injury was inflicted, this research dramatically alters the forensic landscape.
Without other evidence, the identity of a perpetrator – assuming a crime has occurred - simply cannot be established.106
Similarly, whereas before, doctors effectively foreclosed the possibility that prior accidental injury caused an infant’s later symptoms, lucid interval studies support the notion of a lag time.
Those who dispute the importance of this research note that the concept of lucidity is ambiguous and argue that, even in an interval classified as lucid, an infant suffering from fatal head trauma would show signs of severe neurological damage.107
At least one documented case – where a hospitalized child was observed by medical personnel in a “clingy, but perfectly responsive” state for sixteen hours before her death108 – has proven otherwise.109
But here, again, the emerging consensus dwarfs the continuing disagreement.110
A period of time can exist where a child is impaired but functioning,111 making the lucid interval “a distinct discomforting but real possibility.”112
In the past, caregiver accounts of seemingly un-precipitated neurological crises were dismissed or even deemed inculpatory.113
These accounts must now be evaluated with the possibility of a lucid interval in mind.
3. Removing the Shaking from the Syndrome:
New debate has emerged regarding whether shaking can generate the force levels sufficient to cause the injuries associated with SBS.
Those who believe it cannot point to a number of biomechanical studies, as well as research using animal and computer models.114
Many of these scientists assume arguendo that rotational acceleration/deceleration forces can in theory cause retinal hemorrhage and subdural hematoma, but contend that shaking an infant with sufficient force to do so would necessarily damage the neck and cervical spinal cord or column.
Since most infants diagnosed with SBS do not present with this type of injury,115they could not have been simply shaken.116
This perspective remains subject to considerable criticism within the medical
establishment.117
But even those who vehemently dispute the conclusion that shaking alone cannot cause the triad have revised their thinking.
No longer is shaking advanced as an exclusive etiology.118
Instead, the current position of this group of physicians is that either shaking or impact may cause the classic triad.119
More important is the widespread recognition that the two possible mechanisms cannot be clinically differentiated.
Thus, the most committed defenders of the validity of the SBS diagnosis now allow that impact cannot be eliminated as a possible cause of the triad.
Once impact is acknowledged as a potential causal mechanism, the question of how much force is required to generate the types of injury associated with SBS becomes critical to whether trauma was inflicted, accidental, or undeterminable.
The latest thinking about force thresholds complicates this inquiry.
New research shows that relatively short-distance falls may cause fatal head injury that looks much like the injury previously diagnosed as SBS.120
Moreover, these signs and symptoms may not appear immediately.121
While the “short-fall” literature continues to be a source of debate122 and its
scientific significance minimized by some,123 the potential impact of these findings on criminal prosecutions is enormous.124
Where doctors would previously have been certain that an infant was shaken, in many cases125 a fall must now be entertained as an explanation for injuries.126
Once the threshold of force sufficient to cause the injuries at issue has been cast into doubt, scientific identification of a causal mechanism that is abusive127 becomes problematic.
Put differently, the medical testimony can no longer do the work of establishing mens rea.
Notwithstanding these rather seismic shifts, the criminal justice system has – with only rare and recent exception – been unyielding to new thinking about a diagnosis that proves a crime.
Next part: Part Four (A): Shaken baby syndrome and the law; Investigation and prosecution;
Harold Levy...hlevy15@gmail.com;
