The Unreasonably Uncertain Risks of 'Reasonable Medical Certainty' in Child Abuse Cases: Mechanisms for Risk Reduction

54 Pages Posted: 26 Jun 2018

See all articles by Lucy Johnston-Walsh

Lucy Johnston-Walsh

Pennsylvania State University, Dickinson Law

Carrie Russell

Independent

Mark Dias

Pennsylvania State University - College of Medicine

Susan Boehmer

Pennsylvania State University - College of Medicine

Raquel Muñiz

Boston College

Benjamin Levi

Pennsylvania State University - College of Medicine

Date Written: May 1, 2018

Abstract

The use of the phrase “reasonable medical certainty” is common in highstakes child abuse legal trials. Yet, a review of cases since the phrase entered the legal lexicon, as well as a survey of medical professionals, reveals that the meaning of the phrase remains unclear. Using Pennsylvania as a case study, the Authors surveyed legal professionals in the Commonwealth to examine their understanding of the definition of the phrase. The Authors found there is limited to no agreement on the meaning of the phrase within the community of legal professionals. The lack of agreement is concerning given the common use of the phrase in high-stakes child abuse cases. The risks of using the phrase in court without an agreed-upon meaning are high: a perpetrator can be found not guilty or an innocent person can be erroneously convicted. To reduce the risks, the Authors recommend that the legal field remove the phrase from the legal lexicon or adopt a model definition that provides greater clarity.

Keywords: reasonable medical certainty, evidence, child abuse

JEL Classification: K41, K36

Suggested Citation

Johnston-Walsh, Lucy and Russell, Carrie and Dias, Mark and Boehmer, Susan and Muñiz, Raquel and Levi, Benjamin, The Unreasonably Uncertain Risks of 'Reasonable Medical Certainty' in Child Abuse Cases: Mechanisms for Risk Reduction (May 1, 2018). Drake Law Review, Vol. 66, No. 2, 2018, Available at SSRN: https://ssrn.com/abstract=3194150

Lucy Johnston-Walsh (Contact Author)

Pennsylvania State University, Dickinson Law

150 S College St
Carlisle, PA 17013
United States

Carrie Russell

Independent ( email )

Mark Dias

Pennsylvania State University - College of Medicine ( email )

United States

Susan Boehmer

Pennsylvania State University - College of Medicine ( email )

United States

Raquel Muñiz

Boston College ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

Benjamin Levi

Pennsylvania State University - College of Medicine ( email )

United States

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