Arizona State Law Journal is previewing its upcoming articles in the winter publication. This article is written by third-year student, Dan Orenstein.
For decades, the theory of Shaken Baby Syndrome (SBS) has been an accepted scientific reality – one many Americans first became aware of in the late 1990s during the highly publicized trial of British au pair Louise Woodward. SBS is the diagnosed etiology for perhaps thousands of injuries or deaths each year in the United States, and it remains the basis for hundreds of criminal convictions annually. According to the theory, shaking an infant produces a unique and readily identifiable pattern of symptoms from which the cause, time, and non-accidental nature of injury can all be extracted. This theory has been the sole basis for many criminal trials where there were no witnesses, no other injuries to the child, and no acceptable alternative explanations offered by the accused, such as a car accident or significant fall.
Recently, however, many in the scientific and medical communities have come to question the scientific underpinnings of SBS theory, and some have produced evidence indicating that the injuries previously thought to be uniquely associated with shaking could also be produced by minor falls, infections, or other non-intentional means. This change in opinion has begun to have a ripple effect through the criminal justice system. Some persons accused of shaking a child to death are now having their cases dropped by the prosecution before trial due to a lack of evidence. Courts are struggling with admitting SBS evidence under Daubert. Other nations have launched investigations into old criminal convictions premised on SBS theory. In this environment, there are serious questions to be answered regarding how the American criminal justice system can and should address the issue of post-conviction relief in cases premised on science now called into question.
In my comment, Shaken to the Core: Emerging Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome, I trace the recent decline of the scientific theory of SBS from nearly unquestioned medical and legal dogma to hotly debated hypothesis. In the context of recent changes in scientific evidence generally (e.g., DNA exonerations, questions about forensic fire science), I examine the legal ramifications of this dramatic change in scientific opinion, with emphasis on what developing questions regarding the reliability of the theory mean for those already convicted and serving prison sentences solely on the basis of ambiguous scientific evidence. I also propose a testing model (based on forensic science methodology recommendations from the National Academy of Sciences) that begins to address the uncertainties that continue to plague SBS science and stand in the way of meaningful resolution of the issue in the legal sphere. To learn more about the history, current developments, and potential future avenues of scientific research and legal challenge regarding Shaken Baby Syndrome, please see my comment in the Winter Issue of the Arizona State Law Journal.