There is no greater assault on American families by the State than the current use of junk science to accuse and convict mothers, fathers, brothers, sisters, grandparents, friends and babysitters of abusing babies by so-called “shaken baby syndrome” (SBS).
This article is the first in a series presented to suggest ways to first understand the history and background of the scientific disputes about the SBS diagnosis and then, in turn, defend cases of alleged shaken baby syndrome (SBS). Part I is about some of the major scientific flaws in the theory of shaking as a cause of pediatric brain injury. Part II is about alternative theories of causation, such as, accidental short falls, as explanations for the signs and symptoms commonly attributed to shaking. Part III is about how to make a (state) Daubert or Frye motion to challenge the State’s science in cases of alleged shaken baby syndrome.
The Elephant On The Moon
In Part I, “The Elephant on the Moon,2” we saw that in the world of science, if one sets out to prove a hypothesis, one risks proving a fallacy and creating pseudo science rather than reliable science. The syndrome called “shaken baby syndrome” or “SBS” is based on faulty assumptions that, in the past half century, many set out to prove, but few set out to test.
While shaking may cause injury to a child’s brain stem, cranio-cervical junction and upper cervical cord, it has now been falsified as a mechanism of causing intracranial bleeding above the convexities of the brain and to other areas of the brain.
Matter Of Gravity
In Part II, we look at another area of pediatric head injury—short falls—and we ask the question: Can they kill? Or, are the stories of short falls nothing more than tall tales woven by the guilty to obscure their evil acts of abuse? And, what of stories of children who fall and seem fine, only to fail and die later? Can some children experience a lucid interval with few or no symptoms after a traumatic brain injury (TBI) caused by a short fall or an alleged act of lethal shaking?
These are forensic issues of “mechanism of injury”—how much gravity on the head is too much?—and “timing of injury”—can there be a delay between TBI and death? These are questions that defendants charged with child abuse by blunt impact and/or shaking must be able to answer. If they do not, twelve angry people, bent on avenging the death of an innocent, surely will.
Eighth Circle Of Fire
Junk science lurks in child abuse cases of every variety, whether they are alleged sexual molestation, or other physical and mental abuse cases. Parts I and II of this series covered the scientific flaws of a specific area of child abuse: so-called “shaken baby syndrome” (SBS) cases, and the scientific flaws in short falls cases.1 This article2 will cover some of the ways to characterize and challenge those flaws in a pretrial Daubert or Frye motion using the rules of evidence governing the admissibility of scientific evidence. (If you do not have a SBS case, you may still find the section on scientific evidence rules helpful because it applies not only to cases of alleged SBS, but to all scientific evidentiary issues in all civil or criminal cases.) To the extent that the judge agrees to exclude testimony that is not based on reliable science, testimony that is not based on the correct application of reliable science to a case, or testimony proposed by an ‘expert’ who is not qualified to give it, a pretrial motion serves to: (1) possibly minimize the use of some of, if not all, unfairly prejudicial testimony before a jury; (2) educate the trial judge that there are issues of junk science that are more unfairly prejudicial than probative; (3) flush out a refinement of the State’s theories on causation and timing of injury; (4) create an opportunity to discuss a possible plea by educating the State about the weaknesses in its scientific case; and/or (5) build a record for appeal on the junk science issues.
As a matter of strategy, if you do not want to make a pretrial motion challenging the science, consider using the information in this article to help construct cross examination for the purposes of moving for a directed verdict and/or motion to set aside the verdict in cases where the State relies predominantly on medical testimony to establish causation and timing.
House Of Innocents
Evil events are rarely committed to paper. The history of child abuse inherently involves pain inflicted in the dark and behind closed doors, providing us with only the barest of facts. We know that royal children were poisoned and murdered for convenience or for their crowns and that the ancient Greeks disposed of handicapped children at birth. We hear words like “beaten,” “burned,” “raped,” and “exploited,” but these do little to reveal the enormous tragedies
for which they are mere codes.
Today, there is a vast infrastructure of child protective services (CPS) in America. It is funded by billions of federal and state tax dollars. History has been turned on its head. Instead of children being ‘seen and not heard,’ or having no right
of survival at birth, children are now revered as precious, as our modern day mocking birds. The entire ‘village’ is involved in their protection and welfare.
About The Author
Shaken Baby Syndrome
Elaine Whitfield Sharp has gained a nation-wide reputation for providing the best and most knowledgeable representation for parents and care-providers wrongly accused of child abuse. Working closely with nationally-known experts, she investigated and developed the medical and scientific defense of Louise Woodward in the “Boston Nanny” case. Ms. Woodward, who was facing life in prison, was released after serving 279 days in jail because the trial judge understood and accepted the defense of which Elaine Sharp was the architect for trial
Elaine Whitfield Sharp and Daniel S. Sharp are trial attorneys providing quality representation for people in state and federal courts. They represent people and families who have been injured and need help. They represent people who have been wrongly accused of crimes. They do not represent “big business” or insurance companies.
Among other types of cases, Elaine Whitfield Sharp represents parents and care-providers who have been wrongly accused of child abuse, particularly so-called “Shaken Baby Syndrome.” She has recently represented “Shaken Baby” clients in Massachusetts, Connecticut, New Jersey, New York, Rhode Island, Kentucky, Kansas, and Florida. She has been retained as a consultant by attorneys in Georgia, South Carolina, Alabama, Texas, Iowa, California, Idaho, and Kansas.
Daniel S. Sharp, with Elaine Whitfield Sharp, represents people who have been injured as the result of professional malpractice, accidents, and the misconduct of police officers. They have also been retained by numerous attorneys to help them with cases that have gone to higher courts, such as the supreme courts of Michigan and Massachusetts and the United States Court of Appeals for the First Circuit (in Boston) and the Sixth Circuit (in Cincinnati.)
NOTE: the Firm name is Whitfield Sharp & Sharp
Please note that the email address of the author is