"UNTIL ONLY RECENTLY, SBS HAS BEEN EMBRACED NEARLY UNANIMOUSLY BY THE SCIENTIFIC
COMMUNITY, AND IT STILL COMMANDS THE FAITHFUL ADHERENCE OF A MAJORITY OF PHYSICIANS.
TO THE GENERAL PUBLIC, THE DIAGNOSIS HAS COME TO BE UNDERSTOOD AS A MEANINGFUL MARKER OF CRIMINALITY.
SUBSTANCE ASIDE, THESE MEASURES OF ACCEPTANCE SERVE AS POWERFUL PROXIES FOR TRUTH, ENABLING JURORS TO DISCOUNT THE INSIGHTS OF THE SKEPTICS AND THE CHALLENGES RAISED BY THEIR RESEARCH."
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;
C. Jury Verdicts:
Little is known about the operation of juries in shaken baby cases.213
One national trial consultant who assists the defense in this area has estimated a conviction rate of 95%;214 a prosecutor widely recognized as a national authority on SBS has suggested that the figure is closer to 50%;215 and a forensic pathologist Who has consulted on many hundreds of cases for the defense places the figure somewhere between the two.216
In the absence of meaningful empirical documentation,217 the impressionistic data of those who see the largest number of these cases – and have done so for at least a decade – becomes a helpful source of information.
Such experts in SBS trial outcomes seem to agree upon certain basic propositions.
Juries continue to convict based on medical testimony about the triad of symptoms.218
They are, however, acquitting more frequently today than ever before.219
Although the most important predictor of an acquittal is the defense presentation Of nationally prominent experts who challenge the science,220 the presentation of this type of evidence still results in conviction more often than acquittal.221
Therefore, while an increasing reliance on defense experts222 and a growing population of such experts for defendants to draw on223 should be expected to result in a greater number of acquittals proportionally, there is every reason to believe that SBS-based convictions will persist.
In prosecutions that rely on science to prove causation, mens rea and identity, how can jurors faced with genuine scientific debate as to each of these elements be
convinced of guilt beyond a reasonable doubt?
To make sense of this question, consider how the prosecution’s burden of proof may be effectively eased, first, by the skepticism that greets the “differential diagnosis” offered by the defense experts and, second, by the sheer inertial force of SBS.
In SBS cases, the differential diagnosis is a list of possible causes of the infant’s
symptoms.
It results from a methodology that seeks to eliminate those factors that cannot Have contributed to the injuries.224
The current state of the science does not typically allow the defense to identify one cause with certainty.
Instead, experts provide a complex forensic analysis. From the defendant’s perspective, the differential diagnosis is strategically important because it provides an alternative version of events – albeit a less definitive one – that Gives jurors a different way of thinking about what happened.
But the differential diagnosis is also dangerous, as it tends to functionally shift the prosecutor’s burden of proving its theory of the case onto the defense.225
At the heart of the state’s winning argument to juries is this: the defendant has not
established what caused the child’s death: The prosecution experts were in full agreement regarding their diagnosis.
They told you what the three presenting symptoms mean – how they are caused, how much force is required, how soon after the trauma the baby would have lost consciousness.
The defense experts gave you a list of various possibilities, but admitted that they could not be sure about what happened here.
And, indeed, they did not even agree amongst themselves regarding this child’s death.226
In the Edmunds post-conviction hearing, where the determination for a judge was
whether new scientific research would probably result in a different outcome at Trial,227 the prosecutor made this appeal: “the primary flaw [in the defendant’s theory of postconviction relief] is the fact – and it’s not an opinion; it is a fact – that no one on this defense team could agree on the cause of death in this case.”228
In fact, no defense expert testified to certainty regarding any particular theory of death.229
This reasoning would seem to have considerable traction with jurors.230
Indeed, the differential diagnosis – or, from the perspective of the Prosecution, “a veritable laundry list of alternative medical possibilities which are commonly proffered” by the defense231– has become a critical area of contention in SBS trials.
The defense must concede that it cannot definitively prove a mechanism of injury.233
According to the accused in an SBS case, testimony regarding other plausible
diagnoses is important not because it definitively establishes the occurrence of a scenario other than the one hypothesized by the prosecution, but because it casts doubt on the claim that no other scenario could explain the symptoms.
This mode of argument tends to be deeply unsatisfying to the human psyche and, as a consequence, problematic for jury decision-making.
Widely recognized is that “fact finders look for stories, not just nuggets of fact to fit into a set of legal rules.”234
Burdens of proof notwithstanding, a consensus that identifies a single narrative will almost invariably trump an amalgam of possibilities that challenge it.235
In SBS cases, what the defense asks the jury to do is surmount this psychological barrier236 and acquit.
The likelihood of this occurring is diminished by the context in which the medical
dispute is presented to jurors.
In a typical SBS case, as a matter of law, the prosecution must establish that the presence of retinal hemorrhages, subdural hematoma and cerebral edema proves beyond a reasonable doubt that the defendant on trial shook the baby to death.
If the science cannot bear this burden, the jury must acquit – even in the absence of a known cause.237
The reality is quite different on the ground, where, to prevail at trial, a defendant must disprove the validity of a medical diagnosis with impressive establishment bona fides.
Until only recently, SBS has been embraced nearly unanimously by the scientific
community, and it still commands the faithful adherence of a majority of physicians.
To the general public, the diagnosis has come to be understood as a meaningful marker of criminality.
Substance aside, these measures of acceptance serve as powerful proxies for truth, enabling jurors to discount the insights of the skeptics and the challenges raised by their research.
Next section: 4D: Insufficiency Claims
