Tagged: criminal convictions

Shaken Baby Syndrome Science and the Judicial Response: Limits and Obligations of the Law

WRITTEN BY: Sally Phillips, Ph.D. Candidate at School of Law, Birmingham City University, United Kingdom.

Sally Phillips is a second-year Ph.D. student with the law school at Birmingham City University, UK. Her research focus is on the intersection of science and law, particularly in cases concerning Shaken Baby Syndrome/Abusive Head Trauma. Coming from a background in Criminology and Forensic Studies with a firm foundation in the natural sciences, she has a great interest in the use of science in criminal prosecutions and the judicial response to this complex juncture of disciplines.

The Controversy
The ‘traditional hypothesis’ of “Shaken Baby Syndrome” (SBS) surmises that if a child were to present with a brain bleed and bleeding behind the eyes, but was absent a history of accidental trauma, then that child had likely been violently shaken. Despite extensive scientific research, this hypothesis remains subject to significant criticism which suggests the underpinning science is uncertain and that some SBS diagnoses may be inaccurate. This debate has generated tensions amongst medical professionals and in criminal proceedings involving medical evidence of the diagnosis. In the UK, in 2016, neuropathologist Dr. Waney Squier had her medical licence revoked (and subsequently reinstated on appeal, with a 3-year ban on testifying), for her part as a defense expert in SBS cases. Additionally, convictions have been overturned and charges dropped in prosecutions in both the US and England and Wales, due to perceived uncertainty in SBS. Despite similarities in criminal justice processes in these two jurisdictions, their response to this alleged uncertainty has differed. To put these responses into context, a closer look at the science is warranted.

The Science
A review of relevant scientific literature highlights five areas of significant debate. These areas are reflected in US and English case law, as key points of contention between defense and prosecution. First, is the important question of what level of force is sufficient to produce the SBS-associated injuries. Although, some argue that an individual cannot shake a baby hard enough to harm it, most accept that shaking is a dangerous practice. Experiments using animals, dummies and computational models continue to better simulate a live infant, but so far no certain answer can be given about exact levels of force needed to cause SBS (Nadarasa et al., 2014).

Second, the possibility of a period where the child appears ‘fine’ after shaking, has been discussed. The defendant in SBS cases will almost always be the individual with the child when they became symptomatic (known as collapse), so the possibility of this ‘lucid interval’ raises the question of potential alternative perpetrators who have cared for the child in the days or hours leading up to collapse. However, the evidence suggests lengthy, non-symptomatic, lucid intervals are extremely rare (Arbogast et al, 2005).

Third are theories that suggest an innocent explanation for just one SBS symptom, of which there are many. Although a child is unlikely to have three innocent explanations for the three individual symptoms, this is a possibility which needs to be ruled out in each case. Many natural diseases and accidental injuries have potential to cause injuries that appear to mimic those seen in SBS. However, these are often testable and distinguishable if investigated thoroughly (Jenny, 2014).

The fourth category of uncertainty is closely related to the third – the possibility that a single innocent explanation triggered all three symptoms. Events such as severe coughing, seizures or forceful vomiting have been considered in the literature. Aside from a few case reports, these theories are presently unsubstantiated. It is for this reason that the fifth category of debate is key. This is whether diagnostic procedures are adhered to closely enough to effectively apply current scientific knowledge clinically, preventing misdiagnoses. The standardisation and efficacy of proper diagnostics cannot be underestimated when cases of potential SBS are brought to physicians.

The Tension
This evolving and uncertain science does not fit harmoniously with the rigid, process-driven attitude of criminal justice. More technologically-aware juries expect scientific evidence in criminal trials, and lawyers perceive a need for increasingly captivating and certain science in order to obtain convictions. These expectations and perceptions may stem from knowledge of examples where science, such as DNA technology, has been invaluable in prosecutions. However, often science and law are not congruent. This has been attributed to differing approaches of law and science to finding ‘truth’ (Jasanoff, 2005). While science builds corroboratively to generate evidence that can be generalized and expanded upon, law is concerned with conclusive end-points in the narrow context of a particular case. In science, an inconclusive result is unsatisfactory, but does not carry the same consequences as in criminal proceedings, where a conviction must be conclusive “beyond reasonable doubt.”

The practical consequences of this tension, is that when experts testify in criminal cases, their language and reasoning may not be translating accurately to judges, lawyers and juries. For example, the phrase, “reasonable degree of medical certainty” is a common one in expert medical testimony, but is not used in normal clinical practice. There is evidence to suggest that experts understand and use this phrase to describe a different level of certainty, with some believing it to be close to 100%, while others see it as 50% or more (Gena, 2007). Faulty translations like this, can be misleading for a jury and only exacerbate the areas of uncertainty in SBS.

The Case Law
In the US, the judiciary has employed avoidance techniques in response to much scientific debate. A strict adherence to finality interests and legal process often trumps any substantive examination of contentious scientific evidence. Trial judges are charged with assessing reliability of expert testimony under Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Daubert’s criteria was carefully considered by the Law Commission in England and Wales (Law Commission, 2011). However, as the Law Commission noted, there is still significant confusion and inconsistency if and/or when Daubert is applied. Daubert urges courts to take a more active role in dealing with science, but there is clear discomfort when it comes to applying the guidelines in a way which involves a thorough examination of scientific concepts.

Review of the US appellate opinions reveals increased awareness of scientific issues in SBS cases. However, when it comes to a critical examination, judges will focus on legal frameworks, but pay little attention to the application of them to SBS. A range of arguments are used to dis-apply reliability frameworks, such as Daubert, leaving SBS testimony to enter court un-examined. Judgement of reliability is often left to the jury, as judges will conclude that flaws in expert testimony go to the weight, not admissibility of the evidence. Appeals will often focus on procedural claims, allowing the judiciary to bypass critical scientific examination in favour of procedural analysis. Cases which confront the science head-on are few and far between, and often overruled.

In England and Wales, courts have made more concerted attempts to address the problem. Extensive opinions, such as R v Harris and Others [2005] EWCA Crim 1980 and R v Henderson and Others [2010] EWCA Crim 1269, probe deeper into SBS and this has resulted in specific CPS guidelines being issued for cases of Non-Accidental Head Injury (a broader term for SBS). These guidelines caution against the bringing of prosecutions solely based upon SBS injuries, and advise that other supporting evidence such as broken bones, bruises or confessions be present before a case is prosecuted. There is also guidance in place by way of the Criminal Procedure Rules and Practice Directions, which list factors that may render expert testimony reliable.

Forward Thinking
The courts should not be expected to ultimately resolve the current scientific debate in SBS; however, they cannot ignore the issue altogether. Stakeholders across the scientific and legal communities must develop and apply guidelines that keep unreliable science from entering the courtroom. A failure to do so will continue to result in wrongful convictions.

References and Further Reading:

  • Arbogast, K., Margulies, S. & Christian, C., Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 Pediatrics 180 (2005).
  • Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
  • Gena, M., Shaken Baby Syndrome: Medical Uncertainty Casts Doubt on Convictions, 2007 Wisconsin Law Review 701.
  • Jasanoff, S., Law’s Knowledge: Science for Justice in Legal Settings, 95 American Journal of Public Health s49 (2005).
  • Jenny, C., Alternate Theories of Causation in Abusive Head Trauma: What the Science Tells Us, 44 Pediatric Radiology 543 (2014).
  • Law Commission, Expert Evidence in Criminal Proceedings in England and Wales (Law Com. No. 325) (2011).
  • Nadarasa, J., Deck, C., Meyer, F., Willinger, R. & Raul, J., Update on Injury Mechanisms in Abusive Head Trauma – Shaken Baby Syndrome, 44 Pediatric Radiology 565 (2014).
  • R v Harris and Others, [2005] EWCA Crim 1980.
  • R v Henderson and Others [2010] EWCA Crim 1269.

Left Out: How the Criminal Justice System Fails Victims

BY: Laurence Banville, Esq., trial attorney and founding partner at Banville Law, a plaintiffs’ law firm based in New York City.

In 1982, after their son Scott was murdered, the Campbell family was barred from entering the courtroom when the murderer was tried. They were not allowed to make sentencing recommendations and only learned of the killer’s subsequent release from prison through media reports. The Campbells were not alone. Victims at this time were not simply a blind spot, a group that the criminal justice system simply failed to include in its calculations. They were actively marginalized.

Throughout the latter decades of the 20th century, victims of crime were granted no formal legal status. To the criminal justice system, these people – who had been injured and traumatized – were little more than witnesses or sources of evidence, likely to be re-traumatized by their encounters with law enforcement and prosecutors. It comes as little surprise that victims were frequently, if not systematically, excluded from criminal proceedings.

Today, there is little doubt that victims of crime have been granted some place at the table. But this place was only formally set in 2004, when Congress passed the Crime Victims’ Rights Act (18 U.S.C. § 3771) – granting victims and their families the right to be informed of trial developments and a limited role in criminal proceedings. This was certainly a step in the right direction; however, victims and families are often nevertheless left on their own. Compensating victims – especially for the non-financial harms – has traditionally been an afterthought.

As an aspect of sentencing, restitution is only mandated in about one-third of states, and it’s usually limited to violent felony offenses. Even where restitution is required, courts make no room for losses that cannot be strictly quantified. Pain, suffering and psychological trauma – in many cases the most lasting harm to victims – are not accounted for in the equation.

Perhaps more onerous, although certainly easier to rationalize, restitution frequently requires conviction. Of course, there is a glaring disparity between the rationale underpinning this conviction requirement and the reality of criminal justice – one that becomes more obvious in sexual assault and abuse cases. Convictions are few and far between. In cases of assault and battery, only 41 out of every 10,000 criminal offenses will lead to a criminal conviction, according to the Rape, Abuse & Incest National Network (RAINN). Thus only a small minority of victims will receive the “justice” made possible through criminal proceedings, let alone the private remuneration promised by restitution.

Thankfully, conviction usually isn’t required for victims to receive compensation through a state-administered compensation fund. In most cases, an arrest isn’t required, either. But prompt reporting is, and victims are required to cooperate fully with criminal investigations. But even here, we find a glaring disparity. Only 34% of rapes are ever reported, according to the Bureau of Justice Statistics, often because the victims are related to the perpetrators and fear retaliation. When children are the victims, the statistics become even less heartening.

And while there has been progress compensating victims for physical injuries, recognition of compensable psychological injuries has been less successful. Some state programs only compensate victims, even direct victims, for physical injuries. The legislative process is slow, and we can’t expect federal and state legislatures to capture every scientific development instantaneously; but a maturing neurobiology of trauma has closed the gap between “psychological” harm and physical damage. Brains are flexible and trauma is real. Where children are concerned, we now understand that brain development “grows” around traumatic experience. It’s time that we brought “pain and suffering” under the heading of physical injuries, where a robust science of victimization tells us it belongs.

For now, civil action completes the picture, making up for the deficits inherent in the criminal justice system and expanding the scope of those damages which are considered compensable.

Likewise, the bright line separating criminal and civil proceedings – public and private wrongs – has been obscured in recent years. Victims have been granted a limited role in criminal proceedings and, in increasing numbers, are learning that they have a right to private action.

These developments are critical, and while parallel proceedings can produce significant complexities for prosecutors and civil attorneys, a truly rational justice system demands both concern for societal health and individual lives.

Is America Becoming a Nation of Ex-Cons?

POST WRITTEN BY: John Humbach, Professor of Law at Pace Law School.

graphMuch has been written about the extraordinary rates of incarceration as a pressing criminal justice problem. Mass incarceration is, however, only part of the challenge posed by the American criminal justice system. Already, an estimated 25% of U.S. adults have a criminal record and, with a million new felony convictions per year—one every 30 seconds—America’s ex-offender population is growing exponentially (see chart to the right). Our country is well on its way to becoming a nation of ex-cons.

The effects of being a “criminal” do not, moreover, end with release from prison. Newly released inmates are immediately met by a growing assortment of law-prescribed “collateral consequences” that now number in the tens of thousands. In their cumulative impact, these legal disabilities greatly reduce the ability of ex-offenders to find housing, make a living, get an education, obtain bank loans, support their children or, generally, to enjoy the usual rights and amenities of citizenship that are essential for a reasonable quality of life.  As a result, our nation’s criminal-justice policy is literally re-making America into a legally divided multi-stratum society with an entrenched system of law-sanctioned discrimination against a large and growing underclass with a legally-prescribed inferior civic status.

Already, the ex-offender class is the nation’s largest legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain. But whatever the details, this is surely not good path for the nation to be on.

Graph Source: 

Related Readings: 

  • John Humbach, Is America Becoming a Nation of Ex-Cons?, 12 Ohio St. J. Crim. L. 605 (2015) (SSRN) (Pace Digital Commons).  

Focus on Collateral Consequences of Conviction

BY: Lissa Griffin & Lucie Olejnikova

As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.

NICCCThe ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.

Related Readings:



Governmental Publication