US’s First Shaken Baby Syndrome Evidence Ban Weighed by NJ (1)

The New Jersey Supreme Court wrestled with whether it should be the first state high court to bar trial evidence from doctors that parents killed or injured their children through shaking, the latest in renewed national skepticism over “shaken baby syndrome” convictions.

A marathon three-hour oral argument dove into the science around why doctors believe they can diagnose with medical certainty when a child has been injured through shaking without any evidence of external trauma, such as bruising, or injuries to the child’s neck. The argument kicked off just as Texas death row inmate Robert Robertson was expected to testify before the state legislature after getting a temporary reprieve from the state’s all-Republican Supreme Court.

The case centered on, and tested the boundaries, of how courts judge reliable science—a renewed area of scrutiny in shaken baby cases brought by biomechanical experts, defense attorneys, and parents rights groups, who have won new trials for defendants in selected cases across the country but struck a larger blow in New Jersey. Last year the state’s Superior Court Appellate Division upheld a first-in-the-nation lower court ruling that this evidence was inadmissible due to its unreliability as a diagnosis, and dismissed criminal charges.

“There is not a consensus; there is not a body of literature to support this,” said Cody Mason, attorney with the New Jersey Public Defender Office and the lawyer of a father blocked from seeing his children while he fought the testimony of a doctor who said he abused his child. “When you dig down, which is what this court does and has to do, there is no support to prosecute.”

The weight of medical opinion is overwhelmingly on the side of prosecutors. Doctors in pediatrics and other specialties both local—such as the American Academy of Pediatrics and the Centers for Disease Control and Prevention—and international have signed consensus statements, indicating broad acceptance of “abusive head trauma” as a diagnosis, which doctors come to after ruling out other possibilities.

“Eight amicus organizations filed on the defense side, but not a single brief was filed by a medical association,” said David M. Liston, attorney for the Middlesex County Prosecutor’s office. “The question here is general acceptance—we look to the scientific community to determine that.”

‘House of Cards’

Justices probed defense, prosecutors, and attorneys for amicus about when judges can make a judgment call about science.

On one side was Justice Rachel Wainer Apter who at several points voiced skepticism that a trial judge could look at an entire medical world in agreement on a diagnosis and disregard it.

“Who gets to decide if it’s a house of cards? Is it the relevant medical societies who are all accepting this, or is it a judge?” she said.

On the other side was Chief Justice Stuart Rabner, who kept trying to pin down Liston on whether courts look beyond consensus to the actual evidence underpinning a theory—a process called a “Frye test,” after the 1923 US Court of Appeals for the District of Columbia Circuit case that created it, Frye v. United States.

“You’re not suggesting that the general acceptance under Frye is determined by doctors? Respectfully then, what are we doing here?” Rabner said. “The question of admissibility and reliance is a question of legal admissibility—who decides that?”

Mason tried to focus argument on the leaps doctors appear to be making when lumping in various kinds of potential abuse into “abusive head trauma"—an umbrella diagnosis for children who suffer injuries due to shaking, striking and other physical abuse. Medical associations state that this diagnosis can be reliably given when children exhibit three symptoms in a triad—retinal bleeding, bleeding between the brain and the skull, and brain damage caused by a lack of oxygen or blood flow.

However, the engineer who created this theory has since backtracked, saying that decades of research has been unable to prove that shaking alone can cause these things. Animal tests—even where animals were shaken so violently they died—didn’t reproduce consistent results. Neither have models, Mason said, showing that while there may be consensus for a diagnosis when visible trauma is involved there’s no basis for “shaken baby syndrome” without that extra proof.

“To have a reliable differential diagnosis, you have to rule in only possible causes,” Mason said. “It’s meaningless if they rule in something that has not been proved to cause it, otherwise you wind up with a situation where a doctor says, ‘Well, I ruled everything out, maybe it’s abuse, maybe it’s telekinesis.”

Pulling Diagnoses Apart

Liston and the state’s backers relied upon consensus statements from medical groups showing up to 95% of pediatricians surveyed accepted the diagnosis.

But the justices pulled that apart, urging Liston to make a distinction between what doctors say about shaking-only diagnoses and instances where children’s heads are impacted. They also brought up how medical associations had been wrong for years about peanut allergies, advising mothers to not eat peanuts during pregnancy and not feed their children peanuts for several years after birth—a mistake that led to a massive increase in peanut allergies in America.

Before Liston returned for his rebuttal argument Gary Mitchell, a lawyer for the New Jersey Office of Parental Representation, argued that the child safety considerations weren’t completely on the prosecutors’ side of the argument. Outside of the criminal context, the diagnosis can break up families and seems to shift the burden on to parents to disprove the theory, he said.

A New Jersey mother had a parental rights termination case brought against her because she disagreed with the shaken baby syndrome diagnosis for her child and that her husband was the abuser.

“What we have in shaken baby syndrome theory is a desire to explain a child’s condition rooted in conjecture,” he said. “That kind of conjecture this court has held has no place in cases protecting children.”

Liston went back and forth with all of the justices on the panel, in a lengthy rebuttal seeking clarity on what there actually is consensus over. Several justices said they were confused, as characterizations, definitions and theories overlapped, and they asked Liston whether the lack of consensus in the biomedical engineering field—the field from which the diagnosis first derived—should impact whether courts reject this evidence.

Infants can’t testify about who harmed them, and often impact can’t be determined unless there’s an autopsy when a child dies, he said.

“The court should trust that doctors should not accept an unreliable diagnosis,” Liston said.

The case is: New Jersey v. Nieves, N.J. Super. Ct., No. A-26-23, oral argument held 10/21/24.