Utah Law Review2003 Utah L. Rev. 1109
LENGTH: 12354 words
COMMENT & NOTE:Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept
Genie Lyons
SUMMARY:
Shaken baby syndrome in its most extreme form – assuming abuse when a child has two specific
brain injuries but no other signs of trauma – quite possibly does not exist. Other countries aren’t
so quick to find abuse where there are no external indicia: Eva Lai Wah Fung, a Hong Kong
researcher writing in Pediatrics International, states, “Retinal hemorrhage and subdural
hematoma without external signs of injury in Japan [and Hong Kong] is usually attributed to
accidental, trivial head injury, whereas subdural hemorrhage associated with external signs of
trauma to the face or head were commonly found in cases of genuine child abuse. In spite of the
many scientific studies that uncritically accept the existence of SBS, an adequate link between
shaking a baby and the two SBS markers has never been scientifically verified and the latest
evidence points strongly to organic reasons for the babies’ distress, as opposed to shaking.
Courts should admit, under Daubert, that evidence showing that the two classic medical signs
used to show that a child had been deliberately shaken to the point of injury or death (subdural
hematoma and retinal hemorrhaging in a child) is insufficient proof that a crime has been
committed.
Conclusion
For many years now, attorneys have been willing to prosecute, and juries have been willing to
convict, people whose only clearly established mistake was caring for a baby that died.
Considering the confused state of the medical evidence surrounding SBS, especially since it
appears that shaking cannot harm a baby in the manner that has been described for the last thirty
years, we should return to the standard proposed in 1962 (166). That is, people should not be
accused of child abuse on the basis of subdural hematoma and retinal hemorrhaging alone.
Courts should admit, under Daubert, that evidence showing that the two classic medical signs
used to show that a child had been deliberately shaken to the point of injury or death (subdural
hematoma and retinal hemorrhaging in a child) is insufficient proof that a crime has been
committed.
It should be acknowledged that although shaking a baby is never a good idea, innocent light
shaking alone, without some other sign of intentional abuse, does not produce the SBS
symptoms. Confession to shaking a baby after it stops breathing (an understandable last resort in
dire circumstances) should never be used as an admission of guilt. Rather, child abuse should
only be assumed as a last resort: if other indicia of abuse are present such as long-bone injuries, a
fractured skull, bruising, or other indications that abuse has actually occurred. Sometimes
children just die, and there is no one to blame.
HIGHLIGHT: The problem isn’t what we don’t know.
The problem is what we do know that isn’t so (1).
Source:
http://www.childabuselaw.info/lawnews/Lyons_G_SBS_Utah_Law_Review_2003.pdf
_______________________________________________________________________
Military Law ReviewA NUTS AND BOLTS APPROACH TO LITIGATING THESHAKEN BABY OR SHAKEN IMPACT SYNDROME
Lieutenant Colonel Matthew D. Ramsey∗
“Did he fall, or has he suffered inflicted injury?” is a
question faced frequently by clinicians caring for infants and toddlers with traumatic brain injury. Published court cases, with widely divergent medical opinions, illustrate the dilemma of distinguishing between inflicted and accidental causes, especially when there are no other signs of abuse but just an uncorroborated, alleged accident, often [a] fall. Although there has been resistance to diagnose abuse there may also be over enthusiasm to do so, although there is an increasingly prevalent opinion that short falls can never cause serious injury; this, too is still open to debate.
ExcerptI. Introduction
One of the most difficult cases for counsel to litigate is one involving an infant or toddler alleged to have died as a result of violent, non-accidental shaking or shaking in connection with some form of cranial impact. Often referred to as the “shaken baby syndrome” 2 (SBS) or “shaken impact syndrome” 3 (SIS), these cases not only contain the emotional turmoil of a dead child, but must also be tried using evidence that is highly dependent on complex circumstantial medical data. Interpretation of this highly complex data is typically dependent on expert testimony and is extremely vulnerable to subjective interpretations. Consequently, practitioners often find themselves easily overwhelmed and in a highly-charged atmosphere where emotions and the personal agendas of the purported experts can run roughshod over logic, science, and the law.
The purpose of this article is to provide trial and defense counsel with a basic foundation for use when preparing to litigate a case where SBS or SIS is alleged. A comprehensive guide covering every conceivable nuance of a SBS/SIS case is beyond the scope of this article. Instead, this article will define SBS/SIS as it is most commonly regarded by the medical and legal community, outline the medical terminology and definitions common to such cases, provide a framework for requesting expert assistance and using and challenging expert testimony at trial, and conclude with a discussion of several of the current controversies surrounding SBS/SIS.
ConclusionIf the issues are much less certain than we have been
taught to believe, then to admit uncertainty sometimes
would be appropriate for experts. Doing so may make
prosecution more difficult, but a natural desire to
protect children should not lead anyone to proffer
opinions unsupported by good quality science. We need
to reconsider the diagnostic criteria, if not the existence,
of shaken baby syndrome.
Should one automatically conclude that a child who shows
symptoms of traumatic brain injury without any form of external cranial
trauma is suffering from SBS? Does the average adult have sufficient
strength to shake a child to the point of causing traumatic brain injury?
Or, are there other sound medical explanations for a child who has
traumatic brain injury but no corresponding external cranial trauma? The
answers to these questions are nebulous and, as demonstrated, have
divided the best minds of the medical community. As such, it is
incumbent upon military practitioners faced with a potential SBS/SIS
case to fully and independently educate themselves on the controversies
surrounding SBS so as to ensure the administration of justice is based on
fact and vetted scientific theories, instead of conjecture merely masked
as such. As succinctly noted by Dr. Uscinski, “[W]hile the desire to
protect children is laudable, it must be balanced against the effects of
seriously harming those who are accused of child abuse solely on the
basis of what is, at best, unsettled science.
Sources:
Lexis Nexis
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doc&docid=188+Mil.+L.+Rev.+1&src&srcid=3B15&key=a1468b0a98a6befebe1a12378e0eed6a
Vlex: All Law And Press. A Unique Search Engine
http://vlex.com/vid/nuts-bolts-litigating-shaken-43025846
Lieutenant Colonel Matthew D. Ramsey
Curriculum Vitae
http://people.vanderbilt.edu/~matthew.ramsey/cv.pdf
___________________________________________________________________________
The Next Innocence Project:Shaken Baby Syndrome and theCriminal Courts
Deborah Tuerkheimer
DePaul University – College of Law; University of Maine School of Law
Washington University Law Review, Vol. 87, 2009
Abstract:
Every year in this country, 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. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.
In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change: for the first time, an SBS conviction was overturned last year because “newly discovered” scientific evidence would likely create a reasonable doubt about the defendant’s guilt; also for the first time, a state Supreme Court is considering whether a trial judge erred in excluding as unreliable the prosecution’s expert testimony regarding SBS; and the U.S. Supreme Court is now reviewing a petition seeking review of a habeas grant in an SBS case. 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 our understanding of innocence in a post-DNA world—should assist in the task of righting past wrongs and averting further injustice.
Sources:
http://lawreview.wustl.edu/in-print/the-next-innocence-project-shaken-baby-syndrome-and-the-criminal-courts/
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659
_____________________________________________________________________________
Shaken Baby Syndrome:A Genuine Battle of the Scientific (andNon-Scientific) ExpertsEdward J. Imwinkelreid
University of California, Davis – School of Law
October 26, 2009
Abstract:
The national campaign against child abuse has changed the face of American evidence law during the past 30 years. The campaign has led to the relaxation of witness competency standards for alleged child victims, the recognition of new procedures for presenting child testimony such as the use of support persons, the creation of new hearsay exceptions, and the development of novel species of expert testimony. One of the most controversial new types of expert testimony is shaken baby syndrome. The proponents of the syndrome claim that the violent shaking of an infant by an adult can generate enough force to inflict fatal brain injuries on the infant even without impact. Many pediatricians and pathologists subscribe to this theory. However, many biolmechanical experts dispute the theory. To date, the vast majority of courts have admitted testimony based on the syndrome. The purpose of this article is to critically evaluate the available empirical data relevant to the question of the validity of the syndrome. The article concludes that this is one of the rare situations in which both sides’ expert claims pass muster under Federal Rule of Evidence 702 and the Supreme Court’s leading decisions, Daubert and Kumho. Once a decision-maker posits the validation standard enunciated in Daubert, it is possible to have genuine battles of the experts. In this case, the syndrome opponents can point to relatively well designed experiments finding that even violent shaking by an adult cannot generate enough force to cause fatal injuries to the infant brain. However, syndrome opponents note that in a large number of cases in which infants suffered such fatal brain injuries, the infant’s custodian admitted shaking without impact. It may be tempting to conclude that classical experimentation should always trump more anecdotal expert reasoning. However, that conclusion is indefensible as a matter of both statutory construction and epistemology.
Source:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1494672
___________________________________________________________________________________
Criminal Justice at a Crossroads:Science-Dependent Prosecution andthe Problem of Epistemic ContingencyDeborah TuerkheimerDePaul University – College of Law
Alabama Law Review, Forthcoming
The path of scientific change is unforeseeable and may be marked by abrupt shifts in course. When these shifts occur, our criminal justice system is ill-equipped to respond expeditiously; it thus lags behind scientific frontiers. In an age where science-dependent prosecutions are proliferating, this failure is of particular concern. Because it is fully constructed by and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises in stark form the problems that arise when science outpaces law – most troublingly, the prospect that we are imprisoning people who have committed no crime. The trajectory of SBS in the criminal courts reveals fundamental limitations of our system’s ability to absorb forensic advances in a manner consistent with the administration of justice. The law may ultimately align itself with the latest scientific thinking, but it is doing so slowly, arbitrarily, and in a wholly unreasoned (and unstudied) fashion. In the interim, we are witnessing patterned injustice.
This Article constructs a conceptual framework that describes and critiques how criminal justice evolves in the wake of scientific change. It thus begins the process of reforming institutions, laws, and practices to better account for the tentative nature of scientific orthodoxy. By priming the system to deal more effectively with epistemic contingency, we affirm our commitment to protecting the innocent.
Abstract:
Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?
Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study.
Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.
See Source For Full Paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394##
Brigham Young University Law ReviewBy Matthew B. Seeley
Unexplained Fractures in Infants and Child Abuse: The Case for Requiring Bone-Density Testing Before Convicting CaretakersUltimately, researchers may have little power to prove or
disprove by direct evidence whether child abuse is the cause of
unexplained infantile fractures in a given case because of ethical and
practical constraints. Medical practitioners do, however, have the
technology to prove, by direct evidence and with a high degree of
accuracy, whether a given infant with fractures has low bone density
that may have predisposed the child to fractures during nonabusive
handling. Mandating the use of this commonly available and
relatively inexpensive technology would close a major evidentiary
gap, which, ironically, allows room for both innocent caretakers to
be convicted and guilty caretakers to be acquitted. Our
understanding of nonabusive conditions that can mimic child abuse
has evolved to the point where it is simply no longer appropriate to
presume child abuse based solely on the presence of unexplained
fractures—even when those fractures are paired with intracranial
hemorrhaging. Since the technology to measure infant bone density
exists and is relatively ubiquitous, its use should be mandated in cases
where unexplained fractures will be used as evidence of abuse so that
“beyond a reasonable doubt” will mean in practice what it says on
paper in cases of alleged infant abuse
Source:
http://lawreview.byu.edu/articles/1325789487_13Seeley.FIN.pdf
LENGTH: 12354 words
COMMENT & NOTE:Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept
Genie Lyons
SUMMARY:
Shaken baby syndrome in its most extreme form – assuming abuse when a child has two specific
brain injuries but no other signs of trauma – quite possibly does not exist. Other countries aren’t
so quick to find abuse where there are no external indicia: Eva Lai Wah Fung, a Hong Kong
researcher writing in Pediatrics International, states, “Retinal hemorrhage and subdural
hematoma without external signs of injury in Japan [and Hong Kong] is usually attributed to
accidental, trivial head injury, whereas subdural hemorrhage associated with external signs of
trauma to the face or head were commonly found in cases of genuine child abuse. In spite of the
many scientific studies that uncritically accept the existence of SBS, an adequate link between
shaking a baby and the two SBS markers has never been scientifically verified and the latest
evidence points strongly to organic reasons for the babies’ distress, as opposed to shaking.
Courts should admit, under Daubert, that evidence showing that the two classic medical signs
used to show that a child had been deliberately shaken to the point of injury or death (subdural
hematoma and retinal hemorrhaging in a child) is insufficient proof that a crime has been
committed.
Conclusion
For many years now, attorneys have been willing to prosecute, and juries have been willing to
convict, people whose only clearly established mistake was caring for a baby that died.
Considering the confused state of the medical evidence surrounding SBS, especially since it
appears that shaking cannot harm a baby in the manner that has been described for the last thirty
years, we should return to the standard proposed in 1962 (166). That is, people should not be
accused of child abuse on the basis of subdural hematoma and retinal hemorrhaging alone.
Courts should admit, under Daubert, that evidence showing that the two classic medical signs
used to show that a child had been deliberately shaken to the point of injury or death (subdural
hematoma and retinal hemorrhaging in a child) is insufficient proof that a crime has been
committed.
It should be acknowledged that although shaking a baby is never a good idea, innocent light
shaking alone, without some other sign of intentional abuse, does not produce the SBS
symptoms. Confession to shaking a baby after it stops breathing (an understandable last resort in
dire circumstances) should never be used as an admission of guilt. Rather, child abuse should
only be assumed as a last resort: if other indicia of abuse are present such as long-bone injuries, a
fractured skull, bruising, or other indications that abuse has actually occurred. Sometimes
children just die, and there is no one to blame.
HIGHLIGHT: The problem isn’t what we don’t know.
The problem is what we do know that isn’t so (1).
Source:
http://www.childabuselaw.info/lawnews/Lyons_G_SBS_Utah_Law_Review_2003.pdf
_______________________________________________________________________
Military Law ReviewA NUTS AND BOLTS APPROACH TO LITIGATING THESHAKEN BABY OR SHAKEN IMPACT SYNDROME
Lieutenant Colonel Matthew D. Ramsey∗
“Did he fall, or has he suffered inflicted injury?” is a
question faced frequently by clinicians caring for infants and toddlers with traumatic brain injury. Published court cases, with widely divergent medical opinions, illustrate the dilemma of distinguishing between inflicted and accidental causes, especially when there are no other signs of abuse but just an uncorroborated, alleged accident, often [a] fall. Although there has been resistance to diagnose abuse there may also be over enthusiasm to do so, although there is an increasingly prevalent opinion that short falls can never cause serious injury; this, too is still open to debate.
ExcerptI. Introduction
One of the most difficult cases for counsel to litigate is one involving an infant or toddler alleged to have died as a result of violent, non-accidental shaking or shaking in connection with some form of cranial impact. Often referred to as the “shaken baby syndrome” 2 (SBS) or “shaken impact syndrome” 3 (SIS), these cases not only contain the emotional turmoil of a dead child, but must also be tried using evidence that is highly dependent on complex circumstantial medical data. Interpretation of this highly complex data is typically dependent on expert testimony and is extremely vulnerable to subjective interpretations. Consequently, practitioners often find themselves easily overwhelmed and in a highly-charged atmosphere where emotions and the personal agendas of the purported experts can run roughshod over logic, science, and the law.
The purpose of this article is to provide trial and defense counsel with a basic foundation for use when preparing to litigate a case where SBS or SIS is alleged. A comprehensive guide covering every conceivable nuance of a SBS/SIS case is beyond the scope of this article. Instead, this article will define SBS/SIS as it is most commonly regarded by the medical and legal community, outline the medical terminology and definitions common to such cases, provide a framework for requesting expert assistance and using and challenging expert testimony at trial, and conclude with a discussion of several of the current controversies surrounding SBS/SIS.
ConclusionIf the issues are much less certain than we have been
taught to believe, then to admit uncertainty sometimes
would be appropriate for experts. Doing so may make
prosecution more difficult, but a natural desire to
protect children should not lead anyone to proffer
opinions unsupported by good quality science. We need
to reconsider the diagnostic criteria, if not the existence,
of shaken baby syndrome.
Should one automatically conclude that a child who shows
symptoms of traumatic brain injury without any form of external cranial
trauma is suffering from SBS? Does the average adult have sufficient
strength to shake a child to the point of causing traumatic brain injury?
Or, are there other sound medical explanations for a child who has
traumatic brain injury but no corresponding external cranial trauma? The
answers to these questions are nebulous and, as demonstrated, have
divided the best minds of the medical community. As such, it is
incumbent upon military practitioners faced with a potential SBS/SIS
case to fully and independently educate themselves on the controversies
surrounding SBS so as to ensure the administration of justice is based on
fact and vetted scientific theories, instead of conjecture merely masked
as such. As succinctly noted by Dr. Uscinski, “[W]hile the desire to
protect children is laudable, it must be balanced against the effects of
seriously harming those who are accused of child abuse solely on the
basis of what is, at best, unsettled science.
Sources:
Lexis Nexis
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doc&docid=188+Mil.+L.+Rev.+1&src&srcid=3B15&key=a1468b0a98a6befebe1a12378e0eed6a
Vlex: All Law And Press. A Unique Search Engine
http://vlex.com/vid/nuts-bolts-litigating-shaken-43025846
Lieutenant Colonel Matthew D. Ramsey
Curriculum Vitae
http://people.vanderbilt.edu/~matthew.ramsey/cv.pdf
___________________________________________________________________________
The Next Innocence Project:Shaken Baby Syndrome and theCriminal Courts
Deborah Tuerkheimer
DePaul University – College of Law; University of Maine School of Law
Washington University Law Review, Vol. 87, 2009
Abstract:
Every year in this country, 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. Most recently, after a seventeen-month investigation costing $8.3 million, a Canadian commission recommended that all SBS cases be reviewed.
In contrast, our criminal justice system has failed to absorb the latest scientific knowledge. This is beginning to change: for the first time, an SBS conviction was overturned last year because “newly discovered” scientific evidence would likely create a reasonable doubt about the defendant’s guilt; also for the first time, a state Supreme Court is considering whether a trial judge erred in excluding as unreliable the prosecution’s expert testimony regarding SBS; and the U.S. Supreme Court is now reviewing a petition seeking review of a habeas grant in an SBS case. 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 our understanding of innocence in a post-DNA world—should assist in the task of righting past wrongs and averting further injustice.
Sources:
http://lawreview.wustl.edu/in-print/the-next-innocence-project-shaken-baby-syndrome-and-the-criminal-courts/
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354659
_____________________________________________________________________________
Shaken Baby Syndrome:A Genuine Battle of the Scientific (andNon-Scientific) ExpertsEdward J. Imwinkelreid
University of California, Davis – School of Law
October 26, 2009
Abstract:
The national campaign against child abuse has changed the face of American evidence law during the past 30 years. The campaign has led to the relaxation of witness competency standards for alleged child victims, the recognition of new procedures for presenting child testimony such as the use of support persons, the creation of new hearsay exceptions, and the development of novel species of expert testimony. One of the most controversial new types of expert testimony is shaken baby syndrome. The proponents of the syndrome claim that the violent shaking of an infant by an adult can generate enough force to inflict fatal brain injuries on the infant even without impact. Many pediatricians and pathologists subscribe to this theory. However, many biolmechanical experts dispute the theory. To date, the vast majority of courts have admitted testimony based on the syndrome. The purpose of this article is to critically evaluate the available empirical data relevant to the question of the validity of the syndrome. The article concludes that this is one of the rare situations in which both sides’ expert claims pass muster under Federal Rule of Evidence 702 and the Supreme Court’s leading decisions, Daubert and Kumho. Once a decision-maker posits the validation standard enunciated in Daubert, it is possible to have genuine battles of the experts. In this case, the syndrome opponents can point to relatively well designed experiments finding that even violent shaking by an adult cannot generate enough force to cause fatal injuries to the infant brain. However, syndrome opponents note that in a large number of cases in which infants suffered such fatal brain injuries, the infant’s custodian admitted shaking without impact. It may be tempting to conclude that classical experimentation should always trump more anecdotal expert reasoning. However, that conclusion is indefensible as a matter of both statutory construction and epistemology.
Source:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1494672
___________________________________________________________________________________
Criminal Justice at a Crossroads:Science-Dependent Prosecution andthe Problem of Epistemic ContingencyDeborah TuerkheimerDePaul University – College of Law
Alabama Law Review, Forthcoming
The path of scientific change is unforeseeable and may be marked by abrupt shifts in course. When these shifts occur, our criminal justice system is ill-equipped to respond expeditiously; it thus lags behind scientific frontiers. In an age where science-dependent prosecutions are proliferating, this failure is of particular concern. Because it is fully constructed by and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises in stark form the problems that arise when science outpaces law – most troublingly, the prospect that we are imprisoning people who have committed no crime. The trajectory of SBS in the criminal courts reveals fundamental limitations of our system’s ability to absorb forensic advances in a manner consistent with the administration of justice. The law may ultimately align itself with the latest scientific thinking, but it is doing so slowly, arbitrarily, and in a wholly unreasoned (and unstudied) fashion. In the interim, we are witnessing patterned injustice.
This Article constructs a conceptual framework that describes and critiques how criminal justice evolves in the wake of scientific change. It thus begins the process of reforming institutions, laws, and practices to better account for the tentative nature of scientific orthodoxy. By priming the system to deal more effectively with epistemic contingency, we affirm our commitment to protecting the innocent.
Abstract:
Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?
Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study.
Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.
See Source For Full Paper:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579394##
Brigham Young University Law ReviewBy Matthew B. Seeley
Unexplained Fractures in Infants and Child Abuse: The Case for Requiring Bone-Density Testing Before Convicting CaretakersUltimately, researchers may have little power to prove or
disprove by direct evidence whether child abuse is the cause of
unexplained infantile fractures in a given case because of ethical and
practical constraints. Medical practitioners do, however, have the
technology to prove, by direct evidence and with a high degree of
accuracy, whether a given infant with fractures has low bone density
that may have predisposed the child to fractures during nonabusive
handling. Mandating the use of this commonly available and
relatively inexpensive technology would close a major evidentiary
gap, which, ironically, allows room for both innocent caretakers to
be convicted and guilty caretakers to be acquitted. Our
understanding of nonabusive conditions that can mimic child abuse
has evolved to the point where it is simply no longer appropriate to
presume child abuse based solely on the presence of unexplained
fractures—even when those fractures are paired with intracranial
hemorrhaging. Since the technology to measure infant bone density
exists and is relatively ubiquitous, its use should be mandated in cases
where unexplained fractures will be used as evidence of abuse so that
“beyond a reasonable doubt” will mean in practice what it says on
paper in cases of alleged infant abuse
Source:
http://lawreview.byu.edu/articles/1325789487_13Seeley.FIN.pdf