"GIVEN THE IMPORTANCE PLACED ON THE CRITERION OF GENERALLY ACCEPTANCE WITHIN THE “RELEVANT” SCIENTIFIC COMMUNITY – EVEN IN DAUBERT JURISDICTIONS, WHERE IT IS NOT DISPOSITIVE – THE CONSENSUS AMONG PEDIATRICIANS HAS BEEN GIVEN PARTICULAR EMPHASIS BY ADMITTING TRIAL JUDGES.189 IN THE ABSENCE OF LEGALLY BINDING PRECEDENT, JUDGES ARE WELL AWARE THAT “FOR SOME TIME, COURTS IN OTHER STATES HAVE FOUND SHAKEN BABY SYNDROME TO BE A GENERALLY ACCEPTED DIAGNOSIS IN THE MEDICAL COMMUNITY.”190 JUDGES HAVE ALSO NOTED THAT RESEARCH INTO SBS HAS BEEN PEER REVIEWED, AND THAT THERE HAS BEEN "CONSIDERABLE LITERATURE PUT OUT BY PROFESSIONAL SCIENTIFIC ORGANIZATIONS THAT SUBSTANTIATE THE FINDINGS."191
PROF. 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 - beginning today with Part One: 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;
PART ONE: INTRODUCTION:
IV. SBS AND THE LAW:
B. Evidentiary Challenges:
Defense motions to exclude expert testimony regarding SBS have, almost without exception, proven unsuccessful.
Despite new challenges to the scientific underpinnings of the diagnosis, the admission of SBS testimony is facilitated by its once-uncontroversial nature.
Even recently, and in cases involving triad symptoms alone, courts in both Daubert and Frye jurisdictions186 have rejected arguments that SBS is not generally accepted in the medical community187 and that it is not based on reliable scientific methods.1
Given the importance placed on the criterion of generally acceptance within the “relevant” scientific community – even in Daubert jurisdictions, where it is not
dispositive – the consensus among pediatricians has been given particular emphasis by
admitting trial judges.189
In the absence of legally binding precedent, judges are well aware that “for some time, courts in other states have found shaken baby syndrome to be a generally accepted diagnosis in the medical community.”
Judges have also noted that research into SBS has been peer reviewed, and that there has been "considerable literature put out by professional scientific organizations that substantiate the findings."191
While at least one court has explicitly recognized “the absence of a known rate of error,” this void was dismissed as merely “reflect[ing] the limitations of the subject matter.”192
The standards for determining the admissibility of scientific evidence in effect
privilege the institutionalized theoretical framework – even despite serious doubts about the validity of underlying methodologies.
Perhaps judicial reluctance to keep evidence of SBS from the jury derives from faulty evaluations of the science, or from an overly deferential respect for the establishment that recommends it.
But it is also quite likely that judges are allowing testimony regarding SBS because our justice system is structured in a way that makes its admission the default.
“[T]he standard of admissibility is relevance and reliability, not certainty,” as courts often remark when allowing SBS testimony.193
As is widely recognized, the law of evidence is fundamentally premised on the
functioning of our adversary system.
As the United States Supreme Court emphasized in Daubert v. Merrill Dow Pharmaceuticals, Inc., “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”194
Courts often justify the admission of SBS testimony by reference to this foundational principle.
For instance: “[t]he ‘gatekeeping function of the court was never meant to supplant the adversarial trial process.
The fact that experts disagree as to methodologies and conclusions is not grounds for excluding relevant testimony;”195 “[a] party confronted with an adverse expert witness who has sufficient, though perhaps not overwhelming, facts and assumptions as the basis for his opinion can highlight those weaknesses through effective cross-examination.’”196
Admissibility determinations are also grounded in the proper allocation of decision-making authority between judge and juror.
In a recent reversal on interlocutory appeal of a trial judge’s order excluding the prosecution’s SBS testimony, this consideration was explicitly invoked:197 “[t]he gatekeeping function of the trial court is restricted to keeping out unreliable expert testimony, not to assessing the weight of the testimony.
This latter role is assigned to the jury.”198
Even more emphatically, “[t]he court is only a gatekeeper, and a gatekeeper alone does not protect the castle.”199
Systemic factors construct a presumption of admissibility: if the evidence is not
“pseudoscientific” or “junk science,”200 it comes in.
This presumption is overcome only rarely by still-evolving research.201
In recent years, testimony regarding SBS has been excluded only twice.202
In Kentucky, after hearing from experts on both sides, a trial court concluded that the diagnosis “presupposes the cause.”203
The court’s order continued: “[t]o allow a physician to diagnose SBS with only the two classical markers, and no other evidence of manifest injuries, is to allow a physician to diagnose a legal conclusion.”204
Accordingly, the judge precluded the state from presenting expert testimony regarding SBS based exclusively on subdural hematoma and retinal hemorrhage and in the absence of “any other indicia of abuse.”205
As noted, this order 195was subsequently reversed.206
The defendant has appealed the decision to the state Supreme Court.207
The other court to exclude SBS evidence did so in a case also involving a diagnosis based on retinal hemorrhage and subdural hematoma.208
After hearing testimony from experts on both sides, the Missouri trial judge determined that the SBS diagnosis “appears to have gained considerable acceptance… among pediatricians.
However, there is substantial, persistent and continuing criticism of this diagnosis among many in the medical and scientific research communities.”209
In its unpublished order, the court concluded that the state had failed to meet its burden of establishing that SBS is generally accepted in the scientific and medical communities.210
The state was thus precluded from offering testimony that the infant was a victim of violent shaking based on the diagnostic triad alone.211 This ruling was not appealed.
Although the two trial court decisions to exclude testimony about SBS are outliers, they foretell more aggressive defense challenges to the admissibility of the science, as well as greater pressure on judges to restrict the scope of expert testimony.
If research in this area continues to erode the foundations of the diagnosis, evidentiary rulings will evolve accordingly – but only after a lag guaranteed by judicial deference to precedent, to physicians, and to the workings of the adversary system.
For now, with few exceptions, if an SBS case goes to trial, juries will decide the worth of the science and the fate of the accused.
Next part: 4C: Jury Verdicts;
Harold Levy...hlevy15@gmail.com;
