44 Pages Posted: 27 Oct 2009
Date Written: October 26, 2009
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.
Suggested Citation: Suggested Citation
Imwinkelried, Edward J., Shaken Baby Syndrome: A Genuine Battle of the Scientific (and Non-Scientific) Experts (October 26, 2009). UC Davis Legal Studies Research Paper No. 194. Available at SSRN: https://ssrn.com/abstract=1494672 or http://dx.doi.org/10.2139/ssrn.1494672