Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions
2019 Wisconsin Law Review (2019 Forthcoming)
63 Pages Posted: 5 Feb 2019 Last revised: 29 May 2019
Date Written: February 4, 2019
Few medico-legal matters have generated as much controversy "both in the medical literature and in the courtroom" as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to "diagnose" child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in which medical opinion claims to fully occupy the legal field. As controversies flare up increasingly in the legal arena, child abuse pediatricians and prosecutors now respond by claiming both that there is actually no real controversy about SBS/AHT, and that it is a purely medical "diagnosis" and not a legal conclusion, so testimony in support of the SBS hypothesis should not be challenged in court. This article, coauthored by four law professors, two physicians, and a physicist, demonstrates that there is very much a live controversy about the SBS/AHT hypothesis and maintains that, under traditional principles of Evidence law, physicians should not be permitted to "diagnose" abuse in court (as opposed to identifying specific symptoms or medical findings).
Keywords: shaken baby syndrome, abusive head trauma, Daubert, expert evidence, child abuse, differential diagnosis, differential etiology
JEL Classification: K42
Suggested Citation: Suggested Citation