Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right

Keith A. Findley University of Wisconsin Law School

Patrick David Barnes Stanford University – School of Medicine
David A. Moran University of Michigan at Ann Arbor – The University of Michigan Law School
Waney Squier John Radcliffe Hospital
April 30, 2012
Houston Journal of Health Law and Policy, Forthcoming
Univ. of Wisconsin Legal Studies Research Paper No. 1195

Abstract:
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly with the anatomy and physiology of the infant brain, that there are many natural and accidental causes for these findings, and that the onset of symptoms does not reliably indicate timing. In the last issue of this journal, Dr. Sandeep Narang marshaled the arguments and evidence that he believes support the diagnostic specificity of the medical signs that are used to diagnose SBS/AHT. Dr. Narang does not dispute the alternative diagnoses but nonetheless argues that, in the absence of a proven alternative, the SBS/AHT hypothesis is sufficiently reliable to support criminal convictions. The cited studies do not, however, support this position since they assume the validity of the hypothesis without examining it and classify cases accordingly, often without considering alternative diagnoses. To address this problem, Dr. Narang argues that, in diagnosing SBS/AHT, we should rely on the judgment of child abuse pediatricians and other clinicians who endorse the hypothesis. Reliance on groups that endorse a particular hypothesis is, however, antithetical to evidence-based medicine and Daubert, which require an objective assessment of the scientific evidence. In the past decades, thousands of parents and caretakers have been accused “and many convicted” of abusing children based on a hypothesis that is not scientifically supported. While we must do everything in our power to protect children, we must refrain from invoking abuse as a default diagnosis for medical findings that are complex, poorly understood and have a wide range of causes, some doubtlessly yet unknown. To this end, we are calling for collaboration between the medical and legal communities for the sole purpose of “getting it right.”

See prior posts here, here, here, and here.

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

Paul C. Giannelli Case Western Reserve University – School of Law
20 J.L. & Pol’y 443 (2012)
Case Legal Studies Research Paper No. 2012-24

Abstract:
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

And, the ever resourceful and confrontation-litigant Professor Richard D. Friedman, “Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited,” blogPost, 19 June 2012.

For an interesting pre-decision discussion.

Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause?

Ronald J. Coleman Georgetown University Law Center

Paul F. Rothstein Georgetown University Law Center
January 22, 2012

Georgetown Public Law Research Paper No. 12-007

Abstract:
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.
The debate, originally published on Public Square.net, includes the following parts:

• Part 1: Ronald J. Coleman: Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause
• Part 2: Paul Rothstein: Surrogate Witnesses Just Won’t Cut It: A Response to Ronald Coleman
• Part 3: Ronald J. Coleman: More on Williams v. Illinois: A Response to Paul Rothstein
• Part 4: Paul Rothstein: Williams v. Illinois: Responses to Coleman’s Arguments

The military judge also questioned why experts for the defense continue to have difficulties obtaining payments for work done on Bozicevich’s behalf as attorneys prepare for a February 2011 capital court-martial trial.

The humor is that this is neither a new problem nor a problem limited to the 3ID, or the Army for that matter.

And in a current case the defense expert requests took weeks to get approved. But on the 7th of the month the prosecution request for an expert was submitted and it was approved on the 8th of the month. This is no different than witnesses. For some reason it takes weeks to get defense witnesses approved, but days if not hours for prosecution witnesses.

The joke is on Article 46, UCMJ.

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses. Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony. Basically, this is a preemptive strike at the Daubert/Kumho Tire issues. CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply. MJ: Please do so. That’ll be going into my pretrial orders in the future.

My Article 32, UCMJ, production requests and my pretrial discovery requests ask for much of this information required by Rule 26(a)(2). But having taken another look at the rule I think I’ll update my basic requests.

Disclosure of Expert Testimony. (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. (B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report — prepared and signed by the witness — if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. (C) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made: (i) at least 90 days before the date set for trial or for the case to be ready for trial; or (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B), within 30 days after the other party’s disclosure.

To my knowledge she’s the only military judge who has had such a rule, although on the record she’d mentioned another judge guided her. Suffice it to say we were focused on litigating a contentious burglary and rape case at the time and I forgot to ask the name of the other judge.

Of course the government already knows what defense experts are going to say because you’ve had to explain in excruciating detail why you need the expert, how it will help your case, how the prosecution can best defeat your expert, and why you can’t do it yourself. So this rule had some benefit to the defense.

Equally applicable could be the following federal rule of criminal procedure. Don’t be discouraged that the rule went away with Judge Vowell’s retirement. Someone else might decide it’s a good idea. Fed. R. Crim. Pro. 16(a)(1)(G) says:

(G) Expert Witnesses. At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.

And Fed. R. Crim. Pro. 16(b)(1)(C) says (of course this provision is largely OBE because of R.C.M. 703(d):

(C) Expert Witnesses. The defendant must, at the government’s request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if — (i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or (ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition. This summary must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications[.]

On a different note, how many defense counsel object when the prosecution hires non-DoD experts and you don’t get to hear about it until the time to disclose witnesses? R.C.M. 703(d) clearly applies to the prosecution, so how come the prosecution hasn’t given notice, etc.? What’s the remedy? How about the military judge ordering disclosure of the various communications. Have had one do that despite – ha – a trial counsel claim of privilege. I have seen one Air Force case where the prosecution followed R.C.M. 703(d).

Article 36, UCMJ, says:

(a) Pretrial, trial, and post trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. (b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress.

Thanks to Gene Fidell for some input.