S.O.S. for S.B.S.? Not quite
by Catherine Guthrie, Staff Researcher
Despite international controversy over the Shaken Baby Syndrome (SBS) diagnosis, recent cases illustrate that American courts are still willing to admit evidence of SBS through expert testimony and demonstrative exhibits.
The theory of SBS primarily grew out of two studies; C. Henry Kempe's The Battered-Child Syndrome in 1962 and John Caffeys The Whiplash Shaken Infant Syndrome in 1974.1 The syndrome occurs when a violent, shaking force causes an infant's head to rapidly accelerate and decelerate backwards and forwards in a whiplash motion. Abrupt "deceleration occurs when the victim's chin strikes the chest and subsequently when the occiput strikes the interscapular region of the back at the base of the neck."2 This force results in telltale diagnostic signs, including: (1) subdural / subarachnid hematoma, (2) retinal hemorrhage, and (3) diffuse brain swelling. SBS commonly causes death, blindness or brain damage.
Three characteristics of SBS make it particularly appealing to prosecutors. First, the shaking motion generally does not result in external wounds. Thus SBS can be alleged even if there is no sign of other injuries such as bruising, abrasions or lacerations.3 Second, some have linked shaking behavior to normally loving adults that have simply "snapped" under the stress of parenting.4 This means that SBS can be proposed even if there is no history of prior abuse. Third, this syndrome involves scientific evidence, and fact finders may perceive such evidence as infallible.5 Therefore jurors and judges may too readily accept a suggestion of SBS without sufficiently considering the validity of the underlying medical principles.
It is thus not surprising that attorneys eagerly rely on SBS to explain injuries in child abuse and homicide cases. Alleged incidences of SBS are also used to justify custody determinations and to impose liability against child care facilities. As such the syndrome has become entrenched in American jurisprudence over the past decade.6 The issue even garnered international attention during the highly-publicized trial of British au pair, Louise Woodward, who was convicted in Massachusetts for the shaking death of an infant in her care.7
However, recent research suggests that the three indicia associated with SBS may also be unintentionally generated by a short-distance fall,8 apnea9, or vaccine reaction.10 Such claims cast doubt upon the certainty of SBS diagnoses, especially when based solely on identification of the triad of intracranial injuries. The impact of this research was perhaps best illustrated overseas when, in 2005, it led the Court of Appeal in England to review four SBS-based convictions.11 Out of these four appeals, two convictions were overturned, one was reduced, and the other was unsuccessful. One commentator summarized the issue when he wrote, [i]f one thing is clear now, it is that we do not understand the pathophysiology of infant brain injury nearly as well as we thought.12
Despite these criticisms the number of SBS-related cases in American appellate courts has continued to rise, increasing from about fifty in 2000 to over eighty in 2006.13 For example, just this past year a Florida District Court of Appeal held that expert testimony about SBS was not subject to the heightened level of scrutiny normally applied to "new or novel" scientific principles. The court drew this conclusion in not one but two cases, both decided in the same week.
The first case, Johnson v. State, involved an appeal from a first-degree felony murder charge.14 The defendant, Johnson, argued that the medical examiner's expert statements about SBS should have been subjected to a Frye analysis. Under this analysis, proffered evidence must be accepted in the relevant scientific community to be admissible in court.15 Frye applies to evidence that involves new or novel scientific principles or methods. Johnson specifically used the controversy over SBS diagnoses to support his claim. At first the court seemed to agree with the defendants argument when it wrote: Florida courts must conduct a Frye hearing if one has not previously been conducted Shaken Baby Syndrome has not previously been subjected to a Frye analysis in Florida. However the appellate court then held against Johnson, finding that the medical principles underlying SBS were neither new nor novel. The court based its opinion on precedent from multiple jurisdictions, including Florida, Minnesota, New York, Connecticut, and New Jersey. The court also noted that the testimony was an expert opinion based on personal experience and training, which is not normally reviewed under Frye. The same district court issued a strikingly similar opinion a few days earlier in Herlihy v. State.16 The defendant in this manslaughter case claimed that his attorney should have requested a Frye hearing for medical testimony about a diagnosis of shaken baby syndrome. Once again, the court held that a Frye analysis was not required for admission of the experts statements.
Expert testimony is not the only conduit for SBS evidence. In mid-2006 a Louisiana Court of Appeals directly upheld the admissibility of demonstrative evidence of shaken baby syndrome.17 The defendant in the case, Joe Galliano, was convicted of second degree cruelty to a juvenile after allegedly shaking his fiancées two-year-old son. Although the child survived, he sustained debilitating injury. Galliano appealed his conviction, arguing that the lower court should not have allowed a police officer to demonstrate how the victim was shaken. At trial the officer had left the witness stand, knelt down on the court floor, and aggressively shook a legal notepad while the prosecutor counted up to 30 seconds in 10 second intervals.18 Galliano claimed that this evidence represented the officer's own interpretation of events rather than the defendants taped explanation. Arguably this may have misled the jury and constituted reversible error. Nonetheless the appellate court held against Galliano on the issue. The court reasoned that (1) Galliano himself had also demonstrated how he shook the victim, and (2) the jury had heard Galliano's taped statement and could thus compare it to the officers demonstration. Other appellate courts have likewise upheld the admission of demonstrative SBS evidence in the form of computer animations, power point presentations and artistic renderings.19
These and other recent cases indicate the persistent popularity of SBS claims in the face of alleged scientific doubt. This attitude frustrates some medical professionals and legal scholars.20 Such critics propose various cautionary solutions including interagency review of suspected abuse cases, improved training for pathologists, and heightened judicial scrutiny of expert evidence.21 Only time will tell whether these measures will be adopted.
1Kempes study was published at 181 JAMA 17 and Caffeys study was published at 54 Pediatrics 396
2Robert R. Kirschner, The Pathology of Child Abuse, at 271-72 in The Battered Child (Mary Edna Helfer et al. eds., 5th ed., 1997). For more information on the issue visit the National Center on Shaken Baby Syndrome (last viewed December 22, 2006)
3For example, see doctors testimony in State v. Schneider, Nos. L-84-214 and CR 83-7046, 1984 WL 3719 (Ohio Ct. App. Dec. 21, 1984) that, [a]s is the case in most of the patients that I have treated, the child looked extremely healthy, well dressed, clean, absolutely no other signs of physical injury
4For example, see In re Jordan L., No. C041916, 2003 WL 21384856 (Cal. Ct. App. June 17, 2003) wherein both parents frequently and consistently displayed concern and love for [the victim However o]ne can only imagine the frustration and pain these loving parents must have felt when faced with the nightmare of continuous medical mysteries this Child displayed. Unfortunately, at least one of these parents could not take that relentless pressure and snapped as a result. That is the nature of shaken baby syndrome
5For example, see State v. Roscoe, 700 P.2d 1312 (Ariz. 1984), explaining the fear that jurors will accord scientific evidence too much weight because of its aura of special reliability and trustworthiness and will fail to consider the possibility that evidence based upon the particular scientific principle in question may be incorrect
6This is exampled not only through cases, but also in legislation, as seen in: Ind. Code § 16-41-40, Cal. Health & Safety Code § 24520 through 24522, M.S.A. § 245A.144, V.A.M.S. § 191.748, Neb. Rev. St. § 71-2102, McKinneys Public Health Law of N.Y. § 2745, 11 P.S. Chapter 16A, T. C. A. § 68-143, RCWA 43.121.140, and W.S.A. 253.15
7Cmmw. v. Woodward, 694 N.E.2d 1277 (Mass. 1998)
8For example, see: J.F. Geddes & J. Plunckett, The Evidence Base for Shaken Baby Syndrome, 328 Brit. Med. J. 719 (2004); P.E. Lantz et al., Perimacular Retinal Folds from Childhood Head Trauma, 328 Brit. Med. J. 754 (2004); Michaelt T. Prange et al., Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants, 99 J. of Neurosurgery 143 (2003); and John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 Am. J. Forensic Med. & Pathology 1, 8 (2001)
9J.F. Geddes et al., Neuropathology of Inflicted Head Injury in Children II: Microscopic Brain Injury in Infants, 124 Brain 1299, 1299, 1304 (2001)
10Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children? 37 U. Mich. J.L. Reform 353, FN 313 (Winter 2004) and C.A. Clemetson, "Elevated Blood Histamine Caused by Vaccinations and Vitamin C Deficiency May Mimic the Shaken Baby Syndrome," 62 Med. Hypotheses 533 (2004)
11R. v. Harris, 85 B.M.L.R. 75 (Court of Appeal, Criminal Division, 2005)
12Brian J. Clark, Letter to the Editor, 125 Brain 677, 677-78 (2002)
13Numbers are approximate and based on December 8, 2006 Westlaw search.
14933 So. 2d 568 (Fla. Dist. Ct. App. 2006)
15Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Note that SBS evidence has also recently survived challenges under the Daubert standard of admissibility for scientific evidence, as seen in State v. Leibhart, 662 N.W.2d 618 (Neb. 2003)
16927 So.2d 146 (Fla. Dist. Ct. App. 2006)
17State v. Galliano, No. 05-KA-962, 2006 WL 2482981 (La. Ct. App. Aug. 29, 2006)
18Id. at *13
19People v. Cauley, 32 P.3d 602 (Colo. Ct. App. 2001); State v. Adams, 124 P.3d 19 (Kan. 2005); State v. Torres, 121 P.3d 429 (Kan. 2005), respectively
20For example, see: Genie Lyons, Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 Utah L. Rev. 1109 (Winter 2003); Mark Hansen, Why Are Iowa's Babies Dying?, 84 A.B.A. J. 74 (August 1998)
21For example, see: Id. and Joseph Hatina, Shaken Baby Syndrome: Who Are the Experts?, 46 Clev. St. L. Rev. 557 (1998)