Shaken baby syndrome: Medical uncertainty casts doubt on convictions

Wisconsin Law Review

Volumn 2007, Issue 3, 2007, Pages 701-727

  Gena, Molly ^a  

^a NONE

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EID: 38749101376     PISSN: 0043650X     EISSN: None     Source Type: Journal    
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References (336)

1. R v. Cannings, [2004] EWCA (Crim) 1, ¶ 179, 2 Crim. App. 7 (H.L.) (appeal taken from Winchester).
2. Sieve Shaip. Dittberner Jury Is Selected. WATERTOWN DAILY TIMES (Watertown, Wis.), June 21, 2005, at 1.
3. Watertown Man Accused of Shaking to Death Son Is Found Not Guilty, DULUTH NEWS TRIB., July 11, 2005 [hereinafter Watertown Man Accused].
4. Id.
5. Sharp, supra note 2.
6. See When Babies Cry, 70 TEX. B.J. 409, 409 (2007);
7. Alan Mayor Sokobin, Shaken Baby Syndrome: A Comparative Study: Anglo-American Law and Jewish Law -Legal, Moral, and Ethical Issues, 29 U. TOL. L. REV. 513, 518 (1998)
8. Telephone Interview with Donna Kuchler, Todd Dittberner's Defense Attorney (Jan. 5, 2006).
9. Id.
10. Steve Sharp, Eye Expert Testifies for Dittberner, WATERTOWN DAILY TIMES (Watertown, Wis.), June 30, 2005, at 1.
11. Watertown Man Accused, supra note 3.
12. Sharp, supra note 9.
13. Id.
14. Telephone Interview with Donna Kuchler, supra note 7.
15. Id.
16. Sharp, supra note 2.
17. Id.
18. Id.
19. Sharp, supra note 9.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Telephone Interview with Donna Kuchler, supra note 2.
27. Id.
28. Id. Daycare workers also testified that Riley had trouble with his lungs, and that they were concerned because he often struggled to breathe.
29. Sharp, supra note 9.
30. Telephone Interview with Donna Kuchler. supra note 7.
31. Id.
32. Watertown Man Accused, supra note 3.
33. While retaining experts may be prohibitively expensive in some cases, another problem for defendants is that some doctors might be afraid to testify. One defense expert. John Plunkett-who has testified in more than 100 SBS cases-was charged with false swearing based on his testimony that the traditional triad of symptoms is not necessarily diagnostic of SBS. Mark Hansen, Battle of the Expert, A.B. A. J., Dec. 2005, at 52, 54.
34. See, e.g.. State v. Ostlund, 416 N.W.2d 755, 760 (Minn. Ct. App. 1987).
35. See Richard Guilliatt, When the Bough Breaks, GOOD WEEKEND, Nov. 20, 2004, at 18, 19.
36. See Joseph D. Hatina, Note, Shaken Bahv Syndrome: Who Are the True Experts?, 46 CLEV. ST. L. REV. 557, 567 (1998).
37. See Guilliatt, supra note 33.
38. See Charles A. Phipps, Responding to Child Homicide: A Statutory Proposal, 89 J. CRIM. L. & CRIMINOLOGY 535, 537 (1999).
39. See Sharp, supra note 9;
40. Telephone Interview with Donna Kuchler, supra note 7.
41. See R v. Cannings, [2004] EWCA (Crim) 1, ¶ 7, 2 Crim. App. 7 (H.L.) (appeal taken from Winchester) ("In the vast majority of cases of murder, there is no doubt that someone has caused or contributed to the death of the deceased in some way . . . . Unusually, but not uniquely, the primary and stark question in [this infant-death case] was whether either of these children was killed at all.") Although Cannings was not an SBS case, it did involve infant deaths.
42. See id. f 9.
43. See Lee Scheier, Shaken Baby Syndrome: A Search for Truth, CHI. TRIB., June 12, 2005, Magazine, at 10, 12.
44. See id.
45. Matthew D. Ramsey, A Nuts and Bolts Approach to Litigating the Shaken Baby or Shaken Impact Syndrome, 188 MIL. L. REV. 1, 3 (2006).
46. See infra Part II.C.
47. See Clare Dyer, "Innocent Parents at Risk" in Baby Death Cases Too Complex for Juries, GUARDIAN (London), Nov. 7, 2005, at 15.
48. J.F. Geddes & J. Plunkett, Editorial, The Evidence Base for Shaken Baby Syndrome, 328 BMJ 719, 719 (2004).
49. Genie Lyons, Comment & Note. Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 UTAH L. REV. 1109, 1110 (2003):
50. see also Patrick D. Barnes, Ethical Issues in Imaging Nonaccidental Injury: Child Abuse, 13 TOPICS IN MAGNETIC RESONANCE IMAGING 85, 86 (2002).
51. Commonwealth v. Woodward, 694 N.E.2d 1277, 1281 (Mass. 1998).
52. See Phipps, supra note 36, at 536.
53. This figure is based on a March 5, 2007 LexisNexis search for '"shaken baby syndrome' OR 'shaken infant syndrome' OR 'shaken impact syndrome'" performed on federal and state cases reported within the previous year.
54. See R. Uscinski, Shaken Baby Syndrome: Fundamental Questions, 16 BRITISH J. NEUROSURGERY 217, 217 (2002).
55. See Sokobin, supra note 6, at 518;
56. see also Michael Levenson, Lawmakers Target Shaken Baby Syndrome, BOSTON GLOBE, Oct. 27, 2005, at B1 ("It's not uncommon to feel extremely frustrated when you're trying to care for a crying baby, so much so that probably everybody has had the thought aboul shaking a baby .... But the important thing is that you don't carry out the act.").
57. See Levenson, supra note 50.
58. See Sokobin, supra note 6, at 518.
59. Levenson, supra note 50.
60. National Center on Shaken Baby Syndrome, http://www.dontshake.com/ (last visited July 17, 2007).
61. Id.
62. See, e.g., Barnes, supra note 45, at 86;
63. Mark Donohoe, Evidence-Based Medicine and Shaken Baby Syndrome: Part I: Literature Review, 1966-1998, 24 AM. J. FORENSIC MED. & PATHOLOGY 239, 240-41 (2003);
64. Geddes & Plunkett, supra note 44, at 719;
65. Lyons, supra note 45, at 1120-25.
66. See John Caffey, On the Theory and Practice of Shaking Infants, 124 AM. J. DISEASES & CHILDREN 161, 161, 169 (1972).
67. See John Caffey, The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities with Whiplash-Induced Intracranial and Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 PEDIATRICS 396, 396 (1974).
68. See, e.g., John Plunkett, Shaken Baby Syndrome and the Death of Matthew Eappen, 20 AM. J. FORENSIC MED. & PATHOLOGY 17, 17 (1999);
69. Sam Lister, Q & A: Shaken Baby Syndrome, TIMES ONLINE, Feb. 14, 2006, http://www.timesonline.co.uk/tol/news/uk/ article546383.ece; Letter from William H. Perloff to Troy Cross, Assistant District Attorney, Columbia County, Wis., at 3 (Jan. 9, 2005) (on file with the Wisconsin Law Review).
70. Lyons, supra note 45, at 1110.
71. Id.
72. Hatina, supra note 34, at 559 n. 15.
73. Id.
74. Phipps, supra note 36, at 545.
75. See James Le Fanu, Wrongful Diagnosis of Child Abuse - A Master Theory, 98 J. ROYAL SOC'Y MED. 249, 251 (2005);
76. Robert Tharp, Shaken-Baby Theory Questioned, DALLAS MORNING NEWS, Mar. 10, 2006, at 2B (referring to SBS as a "law enforcement theory").
77. Phipps, supra note 36, at 543.
78. Id. at 544.
79. See id.
80. Hatina, supra note 34, at 570 n. 109.
81. See infra Part I I.B.I.
82. See Lyons, supra note 45, at 1112-13.
83. See, e.g., Levenson, supra note 50;
84. Kieran Nicholson, Toddler Shaken, Doctor Testifies, DENVER POST, Sept. 8, 2000, al B2;
85. Scheier. supra note 39.
86. 662 P.2d 168(Colo. 1983).
87. Id. at 169.
88. Id.
89. Id.
90. See id. at 170. An acute hematoma is sudden, while a chronic hematoma can develop over a period of time.
91. See Lyons, supra note 45, at 1110-11.
92. Kailey, 662 P.2d at 170.
93. Id.
94. Id.
95. State v. Ostlund, 416 N.W.2d 755, 757 (Minn. Ct. App. 1987).
96. Id.
97. Id.
98. Id. at 758.
99. See id. at 758-61. There were no witnesses to the incident,
100. id. at 757, although several relatives testified that Ostlund had lightly shaken the child on previous occasions.
101. See id. at 763.
102. The Ostlund court held that "[a] conviction may be based on circumstantial evidence and will be upheld if the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt."
103. Id. at 758
104. (citing State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1986)).
105. In re Welfare of M.D.O., 450 N.W.2d 655, 656 (Minn. Ct. App. 1990) (summarizing the Ostlund decision).
106. 694 N.E.2d 1277, 1281 (Mass. 1998);
107. see also Phipps, supra note 36, at 536;
108. Scheier, supra note 39, at 12.
109. Woodward, 694 N.E.2d at 1281.
110. See Phipps, supra note 36, at 537
111. (quoting Commonwealth v. Woodward, 7 Mass. L. Rep. 449, 452, No. Crim. 97-0433, 1997 WL 69114 at *6 (Super. Ct. 1997)).
112. See Woodward, 694 N.E.2d at 1287. Interestingly, the Kailey court had earlier rejected this theory.
113. See People v. Kailey, 662 P.2d 168, 170 (Colo. 1983).
114. Woodward, 694 N.E.2d at 1287.
115. Id.
116. Sec MASS. GHN. LAWS eh. 111, § 24K (2006);
117. see Levenson, supra note 50.
118. This law aims to teach parents how to calm a crying baby without resorting to shaking. See id.
119. See. e.g., Donohoe, supra note 56, al 241;
120. Lyons, supra note 45, at 1111-12:
121. Scheier, supra note 39, at 12.
122. See, e.g., Eva Lai Wah Fung et al., Unexplained Subdural Hematoma in Young Children: Is It Always Child Abuse?, 44 PEDIATRICS INT'L 37, 37 (2002);
123. Scheier, supra note 39. at 12;
124. Lyons, supra note 45, at 1111.
125. Scheier, supra note 39, at 12.
126. See, e.g., Kristy B. Arbogast et al., Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries, 116 PEDIATRICS 180, 181 (2005);
127. Scott Denton & Darinka Mileusnic, Delayed Sudden Death in an Infant Following an Accidental Fall: A Report with Review in the Literature, 24 AM. J. FORENSIC MED. & PATHOLOGY 371, 371 (2003);
128. Mary G. Gilliland, Interval Duration Between Injury and Severe Symptoms in Nonaccidental Head Trauma in Infants and Young Children, 43 J. FORENSIC SCI. 723, 723 (1998).
129. See, e.g., Donohoe, supra note 56, at 241;
130. Lyons, supra note 45, at 111112;
131. Scheier, supra note 41, at 12
132. See, e.g., Mark Donohoe, Shaken Baby Syndrome (SBS) and Non-Accidental Injuries (NAI), Aug. 20, 2001, § 1.2.1, available at http://www.whale.to/v/sbs.html (giving a "framework for assessing assumptions and evidence" regarding SBS).
133. See id.;
134. see also Lyons, supra note 45, at 1111.
135. See Barnes, supra note 45, at 86.
136. See generally John Plunkett, Fatal Pediatric Head Injuries Caused by Short-Distance Falls, 22 AM. J. FORENSIC MED. & PATHOLOGY 1 (2001).
137. See Hatina, supra note 34, at 566.
138. P.E. Lantz et al., Perimacular Retinal Folds from Childhood Head Trauma, 328 BMJ 754, 756 (2004).
139. Ramsey, supra note 41, at 11.
140. Id. at 12.
141. See, e.g., Letter from William H. Perloff to Troy Cross, supra note 59, at 3.
142. J.F. Geddes et al., Dural Haemorrhage in Non-Traumatic Infant Deaths: Does It Explain the Bleeding in 'Shaken Baby Syndrome'?, 29 NEUROPATHOLOGY & APPLIED NEUROPATHOLOGY 14, 20 (2003).
143. Scheier, supra note 39, at 12.
144. Faris A. Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 FORENSIC SCI. INT'L 71, 72 (2005).
145. Id. at 78.
146. Id.
147. Id.
148. See Scheier, supra note 39, at 26.
149. No. 04-CR-205, at 21 (Greenup County Cir. Ct. Apr. 17, 2006).
150. See id. at 23.
151. Id. at 22.
152. See id. at 23.
153. Barnes, supra note 45, at 89.
154. Marcus B. Nashelsky & Jay D. Dix, The Time Interval Between Lethal Infant Shaking and Onset of Symptoms: A Review of the Shaken Baby Syndrome Literature, 16 AM. J. FORENSIC MED. & PATHOLOGY 154, 154 (1995) (reviewing medical literature that expresses this view and mentioning the lack of study into the length of the interval).
155. See, e.g., Arbogast et al., supra note 98, at 181;
156. Denton & Mileusnic, supra note 98, at 374.
157. Arbogast et al., supra note 98, at 184.
158. The study included 314 children: 37 percent sustained inflicted injuries, 13 percent fell, and 49 percent were in motor-vehicle crashes. Id. at 181. Therefore, the study did not exclusively deal with SBS cases.
159. Id.
160. Id.
161. Robert W. Huntington, III, Letter to the Editor, Symptoms Following Head Injury, 23 AM. J. FORENSIC MED. & PATHOLOGY 105 (2002).
162. Id.
163. Id.
164. Id.
165. State v. Gist, No. 2-98-1103 (111. App. Ct. May 2, 2000).
166. Id. at 7.
167. See id. at 9-11.
168. Id. at 10-11.
169. Id. at 12-13.
170. Id. at 14.
171. Id. at 15. In addition, the court noted that, even if it believed the doctor who placed the infliction of the injuries closer to the death, the state did not establish that the parents could not have committed the crime; they were only fourteen steps away.
172. Id. at 17.
173. In re Winship, 397 U.S. 358, 361 (1970).
174. See Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty about "Reasonable Medical Certainty," 57 MD. L. REV. 380, 382 (1998)
175. In re Winship, 397 U.S. at 361-62.
176. See Steve Sheppard, The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence, 78 NOTRE DAME L. REV. 1165 (2003).
177. See id. at 1166.
178. Winship, 397 U.S. at 363-64.
179. See Sheppard, supra note 140, at 1200
180. (quoting Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850)).
181. Id. at 1201.
182. Id.
183. Id. at 1210-11
184. (citing State v. Jefferson, 10 So. 199, 200 (La. 1891)).
185. See Victor v. Nebraska, 511 U.S. 1, 16-17 (1994) ("At the same time, however, we do not condone the use of the phrase [moral certainty]. As modern dictionary definitions of moral certainty attest, the common meaning of the phrase has changed since it was used in the Webster instruction, and it may continue to do so to the point that it conflicts with the Winship standard. Indeed, the definitions of reasonable doubt most widely used in the federal courts do not contain any reference to moral certainty.");
186. see also Sheppard, supra note 140, at 1222-23.
187. See Sheppard, supra note 140, at 1239-40 ("The defendant in the face of the modern reasonable-doubt instruction must convince the jury of his innocence.").
188. See Lewin, supra note 138, at 382;
189. see also Addington v. Texas, 441 U.S. 418, 430 (1979) (deeming this the appropriate standard). Courts and witnesses use the term "reasonable medical certainty" interchangeably with "reasonable degree of medical certainty."
190. Id.
191. See Lewin, supra note 138, at 418-20.
192. See Barnes, supra note 45, at 90.
193. See Lewin. supra note 138, al 398;
194. Glenn E. Bradford, Dissecting Missouri's Requirement of "Reasonable Medical Certainty," 57 J. MO. BAR 136, 142 (2001). Black's Law Dictionary defines "reasonable medical certainty" as "[i]n proving the cause of an injury, a standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought." BLACK'S LAW DICTIONARY 1294 (8th ed. 2004).
195. See Bradford, supra note 152, at 141.
196. Lewin, supra note 138, at 402;
197. Bradford, supra note 152, at 137-38.
198. Lewin, supra note 138, at 402;
199. Bradford, supra note 152, at 141 ("It apparently means whatever the testifying physician thinks it means.").
200. Barnes, supra note 45, at 90 ("The testimony offered by the expert witness must be based upon a reasonable degree of medical or scientific certainty. That is, in the judgment of the expert witness, the causal relationship between an event and the outcome is probable, or more likely than not. The quality of the evidence, therefore, rises above speculation and conjecture and may be considered by the jury.").
201. Lewin, supra note 138, at 402-03 & n.88.
202. 405 F.3d 66, 73 (1st Cir. 2005).
203. Id. at 90.
204. Id. at 90-91.
205. See id. at 91.
206. Id.;
207. see also Draper v. United States, 358 U.S. 307, 313 (1959) ("Probable cause exists where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [arc] sufficient in themselvesto warrant a man of reasonable caution in the belief that' an offense has been or is being committed."
208. (quoting Carroll v. United States, 267 U.S. 132, 162 (1925))).
209. Bradford, supra note 152, at 136.
210. Lewin, supra note 138, at 403-06.
211. Id. at 402.
212. Bradford, supra note 152, at 142.
213. Lewin, supra note 138, at 490-92.
214. See, e.g., State v. Hunt, 2004 WI App 68, ¶ 3, 271 Wis. 2d 818, 677 N.W.2d 732 ("A DNA test subsequently established to a high degree of medical certainty that Hunt was the father of the baby.");
215. United States v. Hammer, 404 F. Supp. 2d 676, 762 (M.D. Pa. 2005).
216. Howard v. State, 853 So. 2d 781, 803 (Miss. 2003).
217. Id.
218. Id. at 803-04 ("How can Dr. West testify outright that these marks were left by this individual; yet an expert testifying to DNA evidence (the most special and unique makeup of our bodies) is not allowed to testify that the blood is the defendant's or the victim's, but rather has to give a statistical probability regarding the likelihood that the blood is the defendant's or victim's? This makes no sense.").
219. See, e.g., Letter from William H. Perloff to Troy Cross, supra note 59, at 3;
220. State v. Ostlund, 416 N.W.2d 755, 758-59 (Minn. Ct. App. 1988).
221. See Bradford, supra note 152. al 141.
222. See supra Part II.C.
223. See, e.g., People v. Wong. 619 N.E.2d 377, 380 (N.Y. 1993) ("An autopsy performed on the child revealed that he had died as a result of internal brain injuries, including ruptured blood vessels, thai could only be attributed to 'shaken baby syndrome.'").
224. Telephone Interview with Patrick Turski, Neuroradiologist, Univ. of Wis.Madison (Nov. 16, 2005);
225. see Barnes, supra note 45, at 91.
226. See Sophia Kazmi, Lawyer Says Caregiver Did Not Injure Baby Girl, CONTRA COSTA TIMES (Walnut Creek, CaI.), Nov. 10, 2005 ("Doctors commonly hear an excuse for injuries, such as the baby fell from a bed or sofa.");
227. see also Sharp, supra note 9;
228. Rachel McCormick, Ex-Raider Charged with Child Abuse, J. TIMES (Racine, Wis.), Oct. 15, 2005, at 13A;
229. Baby Sitter Rejects Plea Deal in Shaken Baby Case, POSTCRESCENT (Appleton, Wis.), Dec. 2, 2005, at IC.
230. See, e.g., Sharp, supra note 9;
231. State v. Ostlund, 416 N.W.2d 755, 758 (1988) ("It is inconceivable that these injuries could have occurred from a fall off a couch.").
232. See, e.g., Plunkett, supra note 102, at 10.
233. Letter from William H. Perloff to Troy Cross, supra note 59, at 3.
234. See, e.g., id. (referring to witness statements that the child was "playing normally" and then was later "described as abnormal," and the defendant's statements defendant that she "possibly" shook her son).
235. Interview with Norman Fost, Pediatrician, Univ. of Wis.-Madison, in Madison, Wis. (Nov. 1, 2005).
236. See, e.g., Letter from William H. Perloff to Troy Cross, supra note 59, at 1.
237. See Louis B. Schlesinger, A Case Study Involving Competency to Stand Trial: Incompetent Defendant, Incompetent Examiner, or "Malingering by Proxy"?, 9 PSYCHOL. PUB. POL'Y & L. 381, 385 (2003). Researchers found that clinical impressions among psychologists were influenced by various patient traits.
238. See id. They then would ask specific questions to support their hypothesis.
239. Id. It has also been noted that an examiner bias is common in forensic sciences.
240. See id.; Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 AM. J. PUB. HEALTH S107, Sill (Supp. I 2005). An examiner might have been exposed to "irrelevant case information, increasing the likelihood of a false positive."
241. Id.
242. See Letter from William H. Perloff to Troy Cross, supra note 59, at 1 ;
243. see also Schlesinger, supra note 184, at 385 ("Here, the forensic psychologist finds in the defendant (nonexistent) signs, symptoms, or disorders that were initially suggested by the referring attorney. . . . The effect, which could be called 'malingering by proxy,' derives from the forceful opinions of the legal advocate, which can be quite contagious.").
244. See Geddes et al., supra note 108, at 20.
245. See Geddes & Plunkett, supra note 44, at 719-20.
246. See id.
247. See Barnes, supra note 45, at 91.
248. See id. at 91-92.
249. See FED. R. EVID. 702.
250. See FED. R. EVID. 702 advisory committee's note.
251. Commonwealth v. Davis, No. 04-CR-205, at 21 (Greenup County Cir. Ct. Apr. 17,2006).
252. Le Fanu, supra note 65, at 251.
253. Sam Lister, Q & A: Shaken Baby Syndrome, TIMES ONLINE, Feb. 14, 2006, http://www.timesonline.co.uk/tol/news/uk/ article546383.ece.
254. R v. Cannings, [2004] EWCA (Crim) 1, ¶¶ 2, 4, 2 Crim. App. 7 (H.L.) (appeal taken from Winchester).
255. Id. 122.
256. Id. 1178.
257. R v. Harris & Ors, [2005] EWCA (Crim) 19801 4 (Eng.);
258. Lister, supra note 59.
259. Lister, supra note 59.
260. Harris & Ors, [2005] EWCA (Crim) 1980, at ¶ 1.
261. Id. ¶ 3. These four appeals constituted a test case regarding the reliability of medical evidence in SBS cases.
262. Lister, supra note 59.
263. Harris & Ors, [2005] EWCA (Crim) 1980, at ¶ 153.
264. Id. ¶ 13.
265. Id. ¶ 152.
266. Id. ¶ 44.
267. Id. ¶ 45.
268. Id. ¶¶ 222-23.
269. Id. ¶ 44.
270. Id. 250.
271. Id. ¶ 266.
272. Lister, supra note 59.
273. Harris & Ors, [2005] EWCA (Crim) 1980, at ¶ 56-100.
274. Id. ¶ 270.
275. Id. ¶ 271.
276. Id. ¶ 275.
277. Lister, supra note 59.
278. N. Stoodley, Controversies in Non-Accidental Head Injury in Infants, 79 BRIT. J. RADIOLOGY 550, 553 (2006).
279. Dyer, supra note 43.
280. Id.
281. Id.
282. See id.
283. R v. Court [2003] WASCA 308.
284. Id. ¶ 9.
285. Id ¶ 11.
286. Id.
287. Id. ¶ 74.
288. Id. ¶ 46.
289. Id. ¶ 217.
290. Guilliatt, supra note 33, at 19-22.
291. Jane O'Hara, The Babysitter Didn't Do It, MACLEAN'S, May 14, 2001, at 62.
292. See id.
293. Id. He did not obtain X-rays of the body, speak with the doctor who operated on the baby, or examine the tissue under a microscope before making a diagnosis.
294. Id.
295. Id.
296. Id. He said "there is simply no doubt. There is only one conclusion I can come to."
297. Id.
298. Id. Her father sold his home and spent over $ 150, 000 for her defense, which brought in nine experts to refute Smith.
299. Id.
300. Id.
301. Kirk Makin, Ontario Orders Pathologist's Work Reviewed, GLOBE & MAIL (Can.), June 8, 2005, at A8.
302. Jane O'Hara, Dead Wrong, MACLEAN'S, May 14, 2001, at 54, 55.
303. Id.
304. Makin, supra note 238.
305. See id. O'Hara, supra note 231, at 57. Smith later left Ontario and found work in Saskatchewan, but when he applied for his license he did not disclose the Ontario investigation. Pathologist Reprimanded by Sask. College, CBC NEWS, Feb. 5, 2007, http://www.cbc.ca/health/story/ 2007/02/05/smith-reprimand.html. His Saskatchewan license was then revoked, and he has reapplied.
306. Id.
307. See Fung et al., supra note 96, at 41.
308. Id. at 40.
309. Id.
310. Id.
311. Id.
312. Id.
313. See id. at 40-41.
314. Id. at 41. This is obviously problematic because racial and class bias may influence a diagnosis. In the Uniled States, courts may determine that certain defendants do not fit the "profile" for SBS cases.
315. See, e.g., Smith v. Mitchell, 437 F.3d 884. 889 (9th Cir. 2006) ("Grandmothers, especially those not serving as the primary care-takers, are not the typical perpetrators. . . . [T]here was no evidence of any precipitating event that might have caused the Petitioner to snap and assault her grandson. She was not trapped in a hopeless situation with a child she did not want or love. Nor was she forced to singlehandedly care for a baby that had been crying all day and all night.").
316. Fung et al., supra note 96, at 41.
317. Id.
318. Eva Lai Wah Fung stated that these case conferences were arranged because of "the western experience." Id. She mentioned that western doctors who are concerned that child abuse is underdiagnosed question the Japanese study's description of an "infantile acute subdural hematoma" that can be caused by minor head trauma.
319. Id.
320. Id.
321. Even a confession is disconcerting because many caregivers might admit to shaking the child when they were frantically trying to revive it after it was not breathing. Lyons, supra note 45, at 1129-30.
322. Geddes et al., supra note 108, at 20.
323. See id.
324. See Ramsey, supra note 41, at 2.
325. Guilliatt, supra note 33, at 19.
326. Id.
327. Christopher M. Milroy, Editorial, Medical Experts and the Criminal Courts, 326 BMJ 294, 294 (2003) ("Concerns have been raised where an expert only ever appears for the prosecution or the defence and about experts who seem to be pursuing a sociopolitical agenda not based on objective evidence.").
328. FED. R. EVID. 703. The Advisory Committee notes to the rule emphasize that a physician may rely on data presented outside of the court, including "statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X-rays." FED. R. EVID. 703 advisory committee's note.
329. Id.
330. Certain instances may require inquiries about what happened to the baby for treatment purposes, such as how long it was not breathing, or the signs and symptoms observed by the caregiver. See supra Part III.C.
331. R v. Harris & Ors [2005] EWCA Crim 1980.
332. Cf. Draper v. United States, 358 U.S. 307, 313 (1959).
333. There are even prosecutors that are known to be experts on prosecuting SBS cases. See Julie Bykowicz, Father Acquitted in Baby's Death, BALT. SUN, Feb. 8, 2007, at IB ("[T]he prosecutor, Assistant State's Attorney Mary-Ann Burkhart, is a national expert on how to prosecute shaken-baby syndrome cases.").
334. Dyer, supra note 43.
335. Cf. Stephen Hunt, Shaken Baby Concept Denied, SALT LAKE TRIB., July 8, 2004, at B1.
336. Evidence-based medicine predicates "medical practice and opinions on the best available medical and scientific evidence." Donohoe, supra note 56, at 239.