Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions

63 Pages Posted: 5 Feb 2019 Last revised: 10 Feb 2019

See all articles by Keith A. Findley

Keith A. Findley

University of Wisconsin Law School

D. Michael Risinger

Seton Hall University School of Law

Patrick D. Barnes, MD

Stanford University - Pediatric Radiology and Neuroradiology

Julie Mack

Pennsylvania State University - Penn State Hershey Medical Center

David A. Moran

University of Michigan Law School

Barry Scheck

Professor of Law, Cardozo Law School, Co-Director, Innocence Project

Thomas Bohan

American Academy of Forensic Sciences

Date Written: February 4, 2019

Abstract

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

Findley, Keith A. and Risinger, D. Michael and Barnes, Patrick D. and Mack, Julie and Moran, David A. and Scheck, Barry and Bohan, Thomas, Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions (February 4, 2019). Univ. of Wisconsin Legal Studies Research Paper No. 1461, 2019. Available at SSRN: https://ssrn.com/abstract=3328996 or http://dx.doi.org/10.2139/ssrn.3328996

Keith A. Findley (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States
608-262-4763 (Phone)
608-263-3380 (Fax)

HOME PAGE: http://www.law.wisc.edu/facstaff/biog.php?iID=269

D. Michael Risinger

Seton Hall University School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States
(973) 642-8834 (Phone)

Patrick D. Barnes

Stanford University - Pediatric Radiology and Neuroradiology ( email )

United States

Julie Mack

Pennsylvania State University - Penn State Hershey Medical Center ( email )

500 University Dr
Hershey, PA 17033
United States

David A. Moran

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

Barry Scheck

Professor of Law, Cardozo Law School, Co-Director, Innocence Project ( email )

40 Worth Street
New York, NY 10013
United States
212-364-5390 (Phone)

Thomas Bohan

American Academy of Forensic Sciences ( email )

United States

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