When an infant’s brain is injured, the result for the infant can be catastrophic: permanent brain impairment, or death. There can also be a grave consequence for the infant’s caregiver. She or he may face a charge of child assault or murder. This can happen solely because a physician concludes the child’s injuries could only have resulted from intentional violence by an adult. This is so even though many physicians think the underlying scientific theories are incorrect.
Shaken Baby Syndrome and Abusive Head Trauma
In the 1970’s, a physician suggested that an infant’s brain could be badly damaged if the child were shaken by an enraged adult. In short order, this theory went from a hypothesis to a medical syndrome accepted by many physicians. It was called “shaken baby syndrome” (SBS). Some doctors spoke of the “whiplash mechanism” of injury; this referred to the back-and-forth movement of a baby’s head when an adult holding it by the torso would shake it.
Other physicians were not convinced that the SBS and whiplash mechanism theory was sound. One could not shake babies to test it, of course, and other evidence, those physicians thought, was weak.
In the face of this criticism, some physicians whose work focused on detecting and prosecuting child abuse changed their terminology. They stopped speaking of shaken baby syndrome and instead diagnosed infants they believed had been abused as having suffered “abusive head trauma” (AHT).
AHT is remarkable because it says nothing about the mechanism of injury. In essence, an AHT diagnosis says, “This child has suffered head trauma, and I don’t know how it happened except that I know it was child abuse.” The question raised is this: If you don’t know how it happened… if you don’t know the mechanism of injury… how can you know it was child abuse?
Physicians and others who investigate and prosecute suspected child abuse also sometimes say a child has “non-accidental injury” (NAI). This term also says the child has been abused but says nothing about what form the abuse took.
Proponents of SBS and AHT often speak of a “triad”—three injuries to an infant which are said to be found only when the child has been violently abused:
- Subdural hematoma
- Cerebral edema
- Retinal hemorrhages
A subdural hematoma is a mass of blood under the dura, a covering of the brain. It results from bleeding within that space.
Cerebral edema is swelling of the brain.
A retinal hemorrhage is a discharge of blood into the retina of the eye. Some child abuse physicians distinguish among retinal hemorrhages according to their shape; they think some indicate child abuse and others do not.
Absence of other Injuries
The most peculiar shaken baby allegations are those in which the child has suffered no other injury. If the treatment of a child is violent enough to cause brain injury, some physicians expect to see other injuries, too.
No Injury on the Surface of the Head
If a child’s head strikes a hard surface, the brain will have what experts call “rapid deceleration.” In other words, it will come to a sudden stop against the inside of the skull. This sudden stop can injure the brain seriously.
At the same time, the child should sustain some injury—at least a bruise—on the outside of the skull, at the point of contact with the hard surface. The absence of a contact injury causes doubt about whether the brain injury was caused by violent treatment of the child.
No Injury to the Neck
If a baby were shaken as proponents of shaken baby syndrome hypothesize, the baby’s head would move in whiplash fashion, creating great rotational forces on the head. These forces, according to SBS proponents, cause brain injury.
Experiments suggest, though, that such rotational forces should also injure the baby’s neck. If an infant has no neck injury and no contact injury, one should question whether the baby’s brain injury came from child abuse.
Mimics of Abuse
Physicians who question shaken baby syndrome have identified several conditions that call “mimics.” That means these are conditions that can produce the symptoms other physicians have said result only from violent child abuse.
The Grave Risk that an Innocent Caregiver Will be Convicted
False allegations of child abuse are a problem in all forms of child abuse. The natural sympathy adults have for children inclines juries and judges to accept child abuse allegations without close scrutiny. Vigorous defense is almost always needed.
But the risk posed by a false allegation of shaking a baby or causing abusive head trauma is especially severe. The evidence of abuse in such cases is usually very little—maybe nothing—but a doctor’s opinion that the child’s injuries couldn’t have happened except through abuse by the child’s caregiver. Jurors and judges have not been to medical school, so it is difficult for them to question such a doctor’s opinion.
The Fierce Debate among Physicians
Fortunately, there are some physicians who do not accept the theories of child abuse physicians that certain injuries can only result from violent physical child abuse.
Physicians who are willing to express such doubts publicly are attacked in the medical community by the physicians who assert the theories. They are condemned for supposedly helping child abusers go free. Some of the attacks have come in complaints to medical licensing boards—essentially attempting to take away their ability to practice medicine.
The physicians who will testify for the accused in these cases are thus a courageous group. We owe them deep gratitude.
How to Defend an SBS/AHT Case
Every allegation that someone has inflicted a brain injury on an infant rests on a medical diagnosis of shaken baby syndrome, abusive head trauma, or something similar. The defense must respond with its own evidence from medical experts and perhaps other experts.
Expert Witnesses Needed to Defend
A radiologist is trained to interpret medical images: X-rays, CT scans, and MRIs. A radiologist can offer an expert opinion on the cause of an injury seen in a medical image.
Pediatric neuroradiology is the medical specialty most tightly focused on brain injuries to infants, but radiologists whose practice is more general can also help in the defense of “shaken baby” case.
Because retinal hemorrhages are one part of “the triad” that supposedly proves a child was abused, an ophthalmologist—an eye specialist—can sometimes provide useful evidence.
Pathologists study body tissue to learn what caused an injury or illness. Their expertise is often useful to the defense.
Although pediatrics is concerned with all of the health problems that afflict persons younger than 18, a pediatrician can have sufficient knowledge of infant brain injuries to provide valuable testimony.
Many prosecution medical experts have their primary training in pediatrics. They often also have training in “child abuse medicine,” practice at a children’s hospital and work closely with state child protection agencies and prosecutors. Few of them would ever agree to testify for a defendant.
Doctors who practice in emergency rooms have expertise in traumatic injury and can assist the defense.
Because neurosurgeons operate on injured brains, they have deep knowledge of the structures in and around the brain and sometimes of the ways those structures are damaged.
Biomechanics is the study of the mechanical laws relating to the movement or structure of living organisms. It is not a branch of medicine, and biomechanics experts are not physicians.
Biomechanics experts can explain whether a particular injury fits with a particular mechanism of injury—for example, whether an injury to a child’s head could have been caused by violent shaking of the child while holding his torso.
Evidence from the Accused
Medical expert evidence is critical in infant head injury cases. But the defense attorney should not neglect the possibility that some other kind of evidence can help clear the accused.
Jurors always wonder whether the accused is the kind of person who could do such a terrible thing to a baby. Sometimes a good way to show that the accused is not is to have the accused testify. Through testimony the jury—and the judge—get to know the accused a bit.
Interrogation Tactics Used by Child Abuse Physicians and Police
It is almost never a good idea for a criminal suspect to agree to answer questions from police. There are special perils, though, for caregivers of infants. Here’s how that can play out.
The police will often tell the suspect that there’s no doubt the infant was shaken; the doctors who’ve examined the child have determined that there is no other way the injuries could have happened. The police then ask the suspect to describe or demonstrate how he or she shook the child.
Often the suspect is extremely distraught that the child has a brain injury and also overwhelmed with guilt that he is somehow responsible. IF the doctors say someone shook the child and the suspect was the only one with the child, then, the suspect may assume, he or she must have done something that qualifies as shaking. So the suspect searches his or her memory and finds something—burping the child, for example—that involved the use of force. The suspect reports this to the police and either inflates the force used to fit the supposed medical facts, or the police inflate the facts in their report of what the suspect said.
Some suspects have been saved eventually when courts decided that a “confession” delivered under these circumstances is meaningless and should not be admitted in evidence. But not all courts are that astute. A suspect should always talk to a lawyer before talking with the police.
The same principles apply when a child abuse physician asks the questions. We find, though, that nearly every parent or other caregiver will answer a physician’s questions during an emergency out of intense desire to help in the child’s treatment. But once the child’s medical condition has stabilized, the caregiver should stop answering questions from a physician. And if the caregiver can get an attorney even before the child’s condition stabilizes, the attorney should help the caregiver respond to physician questions.
The Predicament of the other Parent
Often one parent is suspected of assaulting the child and the other parent is under no suspicion. The unsuspected parent’s legal position can nonetheless be quite delicate.
If the unsuspected parent seems unwilling to believe that the suspected parent did abuse the child, Child Protective Services may deem him or her unprotective. In other words, CPS may decide the unsuspected parent cannot be trusted to protect the child from further abuse. CPS could, therefore, seek to put the child in foster care.
But if the unsuspected parent concludes incorrectly that the suspected parent did abuse the child, this can do great and lasting damage to the family as well as to the suspected parent.
Often the unsuspected parent would benefit from attorney’s help in navigating through the situation. The two parents cannot use the same attorney because that attorney would have a conflict of interest. While it is often a financial burden for a family to engage even one attorney, early engagement of an attorney for the unsuspected parent can be relatively inexpensive and can save lots of heartache and money later.
What it’s Like to Have The Marshall Defense Firm in Your Corner
Respect and compassion are the foundation of our work. We take time to get to know you and your case. It’s where our fierce advocacy for you begins.
Then there’s our experience. For decades we have defended special-assault cases like shaken baby syndrome, abusive head trauma, and whiplash mechanism injuries. From that and our on-going study of the law, medicine, and psychology involved in these cases, we have exceptional skill.
And we pool that skill. We work as a team. We know that no one lawyer, no matter how brilliant, will have all the good ideas for your case.
Our final ingredient is relentless investigation and preparation. When we step into court to defend you, we are ready to do it well.