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.

Fifth Circuit addresses an open issue concerning admission of medical statements under the Confrontation Clause; circuit also notes that “there is no constitutional right to confront the victim of a crime” where the government elects not to call the victim at trial, in United States v. Santos, _ F.3d _ (5th Cir. Dec. 2, 2009) (No. 08-31225). On the issue of “whether out-of-court statements made during medical treatment are testimonial,” the circuit was guided by two recent Supreme Court decision. The first case involved dicta from the Court’s most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, noting that “medical reports created for treatment purposes . . . would not be testimonial.” Melendez-Diaz v. Massachusetts, 129 S. Ct. at 2533 n.2. The second case concerned Davis v. Washington, which involved an emergency 911 telephone call. The Court concluded that statements to a 911 operator to “enable police assistance to meet an ongoing emergency” were not testimonial. Davis v. Washington, 547 U.S. 813, 828 (2006).

I have had this issue in a court-martial. The case was a spouse physical assault case. It happened overseas, the spouse refused to testify. The military judge found that the wife was not subject to or not properly subpoenaed for trial. But her “excited utterances” and statements at the emergency room were admitted as the sole evidence against the client over hearsay and Crawford objections, along with testimony of the MP who was called to the scene and saw physical injuries.