Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome

57 Pages Posted: 28 Mar 2010 Last revised: 1 May 2011

Date Written: March 27, 2010


The path of scientific change is unforeseeable and may be marked by abrupt shifts in course. When these shifts occur, our criminal justice system is ill-equipped to respond expeditiously; it thus lags behind scientific frontiers. In an age where science-dependent prosecutions are proliferating, this failure is of particular concern. Because it is fully constructed by and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises in stark form the problems that arise when science outpaces law — most troublingly, the prospect that we are imprisoning people who have committed no crime. The trajectory of SBS in the criminal courts reveals fundamental limitations of our system’s ability to absorb forensic advances in a manner consistent with the administration of justice. The law may ultimately align itself with the latest scientific thinking, but it is doing so slowly, arbitrarily, and in a wholly unreasoned (and unstudied) fashion. In the interim, we are witnessing patterned injustice.

This Article constructs a conceptual framework that describes and critiques how criminal justice evolves in the wake of scientific change. It thus begins the process of reforming institutions, laws, and practices to better account for the tentative nature of scientific orthodoxy. By priming the system to deal more effectively with epistemic contingency, we affirm our commitment to protecting the innocent.

Keywords: Shaken Baby Syndrome, Forensic Science, Expert Testimony

Suggested Citation

Tuerkheimer, Deborah, Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome (March 27, 2010). Alabama Law Review, Vol. 62, p. 513, 2011, Available at SSRN:

Deborah Tuerkheimer (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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