Tagged: United Kingdom

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.

The LIBOR Trials: An Example of Prosecution Overreach?

From our most recent guest contributor, Julie Pabon, Esq., a 2006 Graduate of Elisabeth Haub School of Law at Pace University and currently serving as Senior Counsel of an Am Law 100 Firm focusing on environmental law, read the author’s review of a three month long trial in the United Kingdom, in which three men, all former low-level employees of Barclays Bank, were sentenced for activities that the U.K. Serious Fraud Office alleged to constitute  “manipulation” of the London Interbank Offered Rate (“LIBOR”), a global interest rate benchmark.

Read the full article entitled The LIBOR Trials: An Example of Prosecution Overreach? 

International Legal Ethics Conference: Ethics in Criminal Advocacy

The seventh International Legal Ethics Conference took place last week at Fordham Law School’s Stein Center for Law and Ethics. The conference is supported by the International Association of Legal Ethics and was sponsored, in addition, by a variety of  law firms and law schools, including our own law school. We were proud to sponsor this provocative and informative conference.

One of the panels at the conference was devoted to current ethical issues in criminal advocacy from an international and comparative perspective. Panelists addressed a variety of fascinating issues arising in Germany, Israel, the United Kingdom, Chile, Australia and the United States. The panel was moderated by Prof. Lissa Griffin, of the Elisabeth Haub School of Law. A summary of the presentations follows:


CURRENT ISSUES IN DEFENSE ETHICS 

Anat Horovitz, Hebrew University, Israel
Re-trials are the procedure prescribed under Israeli law through which a person who claims to have been wrongfully convicted can try to reverse his conviction. From a legal perspective, the chances of success in an application for re-trial are extremely limited. Since 1948, the Supreme Court has granted a re-trial in only 28 cases, which resulted in the exoneration of 21 convicts. Thus, one of the important challenges that the Public Defender’s Office has focused upon in recent years is the need to bring about change within Israeli society and its legal system in respect to recognition and treatment of wrongful convictions.

Under the Israeli Public Defender Law, the National Public Defender can file a request for re-trial on behalf of a convict, if he or she “determined that there is room to file a request for re-trial on his behalf”. Over the past few years, the Re-trial Department in the Israeli Public Defender’s Office has received between 30-40 applications a year, and following a long and tedious process, filed on average one request a year.

In my presentation, I intend to focus on the extent to which the Public Defender’s Office may take into account its institutional role and aspirations when deciding upon the cases it chooses to pursue and the manner in which these cases should be presented. Examples for dilemmas that can arise in each of these two stages include 1) whether or not to file a request on behalf of inmates who raise only partial claims of innocence, and 2) to what extent a Public Defender’s Office should attempt to prove another person’s guilt as a means to secure its client’s innocence. Had it been a legal clinic, in the first example, or a private attorney, in the second example, I doubt if these issues would have been regarded as problematic, but in the context of a Public Defender’s Office it is unclear how they ought to be approached and to what extent strategic and ideological considerations should impact the way these applications and cases are handled.


Stephanie Roberts, University of Westminster, UK
My presentation looks at the role of defence lawyers in wrongful convictions in England and Wales. I am currently doing an empirical study on our Court of Appeal and I will be using a sample from that where the grounds of appeal have been lawyer errors to see which ones will result in the conviction being overturned. We have had a large number of cases here where asylum seekers have been wrongly convicted of criminal offences such as arriving with a false passport because their lawyer has not explained to them that there is a statutory defence available and they have pled guilty to the charge. The Court of Appeal has now dealt with a number of these and quashed the conviction so I can link the discussion of defence lawyer ethics.  In the limited time for presentations, I will go through the empirical findings of what errors result in an overturned conviction.


CURRENT ISSUES IN PROSECUTION ETHICS 

Shawn Marie Boyne, IU McKinney School of Law, US
For decades, German prosecutors were bound by the principle of mandatory prosecution that mandated that they prosecute any case in which sufficient evidence exists to suspect that a crime has occurred. Beginning in the 1970s however, changes in the legislative code and changes in prosecutorial practice began to erode the force of that principle.  As a result, in the vast majority of “minor” crime, cases are settled with a fine, a deferred sentence, or a dismissal.  At first glance, this practice appears to be consistent with American plea bargaining. However, in contrast to American practice, the crimes that fall into the “minor” crimes category include crimes that are considered to be felonies in the United States, notably rape and corruption. Though those classification decisions are made by the German legislature, they are compounded by the organizational incentives in German prosecution offices that favor efficiency over painstaking investigation and prosecution. These factors, plus the German system’s comparatively lenient sentencing practices, play a large role in explaining why German prosecutions have not fueled an American-style incarceration explosion. In domestic violence and rape cases, these factors prevent German prosecutors from using the criminal justice system to reinforce the goal of gender equality.  Indeed, German prosecutors’ turn towards efficiency has undermined what Damaska labelled as the role of the activist state in the criminal justice process.

Because lay jurors in Germany seldom affect a case’s judicial outcome, there are three main “checks” on prosecutorial decision-making. To begin, victims may appeal a prosecutor’s dismissal decision to the General Public Prosecutors Office. Also, assuming that a sex crimes case makes it to trial, German law allows victims to be represented by a private prosecutor (Nebenklager) who functions like a party in the American system. Finally, if a prosecutor’s work product falls below standards or if a prosecutor breaks the law, the prosecutor may face administrative sanctions.

In this presentation, I argue that taken together, these checks on prosecutorial discretion do not adequately protect victims of sex crimes and domestic violence. As I point out the deficiencies of these systems of control, I will address the question: Why aren’t prosecutors more assertive in prosecuting these types of cases? Is it simply a matter of resources or is it attributable to larger issues in German society?


Marny Requa, Georgian Court University, US
This talk focuses on decisions to pursue criminal cases against police officers and members of the military in Chile for torture and mistreatment. The Chilean criminal justice system has undergone significant reform since 2000. Incidents that arose before the reforms are still dealt with under the old system, generally with magistrates investigating and making prosecutorial decisions after private parties have initiated a case. In the past 15 years, magistrates have been more willing to prosecute these cases. Recent incidents are most commonly prosecuted by a new, independent public prosecutor’s office (Ministerio Público), although a vast number of these are not pursued. Decision-making in both types of cases raises political as well as ethical considerations that have changed over time, a point emphasized in empirical research conducted as part of an ongoing research project titled Lawyers, Conflict and Transition, funded by the UK Economic and Social Research Council. The talk will cover key points from that research impacting on prosecutorial decisions as well as formal and informal forms of accountability.


Lawrence Hellman, Oklahoma City University School of Law, US
Prosecutorial misconduct is now understood to be widespread in the American criminal justice system.  Official misconduct was a factor in half of the 1800+ known wrongful convictions in the United States that have been corrected by post-conviction remedies since 1989.  However, existing accountability systems provide insufficient deterrents to misconduct by prosecutors, and they do little to motivate and enable prosecutors to deter official misconduct on the part of other state actors involved in prosecutions.

I propose consideration of a new approach to prosecutorial accountability that draws on the successful transition to a proactive management-based regulatory system that has been adopted in Australia for incorporated legal services providers.  I will describe how a proactive management-based model of prosecutor accountability might function and suggest how it might be implemented without necessarily applying it to the entire American legal profession.  The proactive model would supplement, not replace, the current reactive system.  It would be designed to reduce not only the misconduct of prosecutors themselves, but also misconduct of other state actors, such a police, investigators, and laboratory scientists.  By reducing official misconduct in the criminal advocacy process, wrongful convictions should become less common and meritorious prosecutions should reach more reasonable outcomes.


Kellie Toole, University of Adelaide, Australia
In Australia, a prosecutor must be satisfied of a ‘reasonable prospect of conviction’ before prosecuting a person for a serious crime. The assessment of the reasonable prospects often involves a relatively objective assessment of available evidence. However, ethical issues arise where witness credibility is critical, as with sex offences, and jury decisions can be unpredictable or even undesirable. Prosecutors have to decide whether to proceed where they assess that a jury might convict but should not, or might not convict but should. This situation raises issues about the prosecutorial role of the community (through the jury) and the State (through the prosecutor), and the fine line between prosecutors properly exercising their discretion, and improperly usurping the decision-making role of the jury.

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:

News

Articles

Governmental Publication

Online Resolution of Disputes

A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various online dispute resolution systems currently operating in various jurisdictions, including one involving the resolution of traffic infractions. These systems are designed to improve access to justice for those who cannot afford the exorbitant cost of in-court litigation. The UK Traffic Penalty Tribunal enables appellants to appeal, upload evidence and follow their cases, and allows adjudicators to manage their cases, view evidence, and communicate with parties. Hearings are done by telephone conference, at which all participants can view the same evidence under supervision by the adjudicator. To be sure, there are pros and cons.

Food for thought, though, for anyone who has participated in the in-court adjudication of a traffic infraction; more importantly, since the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.

To read the full report, including a survey of current on-line dispute resolution processes worldwide, click the below:

Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil Claims, Civil Justice Council (February 2015).