58 Pages Posted: 6 Mar 2009 Last revised: 5 Oct 2010
Date Written: August 6, 2009
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.
These developments have not attracted the attention of legal scholars. In the face of this void, 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.
Keywords: shaken baby syndrome, SBS, innocence, forensic science
Suggested Citation: Suggested Citation
Tuerkheimer, Deborah, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts (August 6, 2009). Washington University Law Review, Vol. 87, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1354659