"SBS is a case study in the intersection of science and law, and the distorting influence that each may have on the other.
The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science.
It may do so by placing pressure on scientists to articulate opinions more extreme – and certainly with more confidence – than those they actually hold."
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;
V. CONCLUSION:
SBS is a case study in the intersection of science and law, and the distorting influence that each may have on the other.
The construction and persistence of SBS raises the distinct possibility that our adversarial system of criminal justice may be corrupting science.
It may do so by placing essure on scientists to articulate opinions more extreme – and certainly with more confidence – than those they actually hold.346
And it may do so by raising the stakes for those who have testified in court, under ath, to their version of scientific reality.
The natural course of scientific evolution has resolved many past medical conflicts.
In the case of SBS, as well, ongoing research could ultimately answer the open questions.347
New technological developments would facilitate this process.
But SBS. from inception to current iteration, is fully embedded in the domain of law.
This reality creates a special kind of urgency: around the country, murder convictions are resulting weekly from evidence that is a source of significant scientific controversy.
Even if it were possible for research to progress on this front “naturally” – a dubious proposition given what has come before348 – organic processes take time, hich, here, is of the essence.
Even more untenable is the suggestion that this scientific dispute be decided in the courts.
As the cautionary tale of SBS demonstrates, our adversarial, atomized system of justice, with its need for finality, is a poor forum for this debate.
The institutional norms of science and law often collide; in this case, with tragic results.
Without proper differentiation of their respective functions, both scientific certainty and individualized justice suffer.
To the greatest extent possible, then, a comprehensive inquiry must take place apart from the fray.349
Perhaps only the National Academy of Sciences (NAS)350 – or, even more fittingly, a similar undertaking by a newly created National Institute of Forensic Sciences351 - can provide this space.
In the meantime, until scientific consensus has been achieved, the criminal justice system must find its own solutions to the problem of a diagnosis already morphed and still in transition.
To date, our system has failed. In place of adaptation, we have seen massive institutional inertia.
Once the SBS prosecution paradigm became entrenched, the crime became reified. Deferential review standards and a quest for finality perpetuated the system’s course.
How expeditiously, and how deliberately, this course is righted will inform the meaning of justice.352
Complicating the endeavor, SBS prosecutions raise discomfiting possibilities that diverge from those presented by the innocence archetype.
Here, no other perpetrator can be held accountable; indeed, no crime at all may have occurred.
The problem is not individual, but systemic, and its source is error, not corruption.
Responsibility is diffuse: prosecutors and scientists may each legitimately point fingers.
Most fundamentally, scientific developments have cast new doubt without yet creating certainty in its place.
The story of SBS thus challenges current notions of wrongful convictions. Underlying conceptual frameworks must evolve accordingly.
For now, we find ourselves situated in an extraordinary moment; one which tests our ommitment to innocence that is not proven, but presumed.
352 I pursue the question of reform in a future Article.
Harold Levy...hlevy15@gmail.com;
