MILITARY LAW REVIEW
Volume 210 Winter 2011
SHAKEN BABY SYNDROME: DAUBERT AND MRE 702’S
FAILURE TO EXCLUDE UNRELIABLE SCIENTIFIC
EVIDENCE AND THE NEED FOR REFORM
MAJOR ELIZABETH A. WALKER
Audrey Edmunds’ day as a child care provider began like any other,
but ended in her being accused of murdering seven-month-old Natalie
Beard.1 Natalie was fussy that morning when her mother dropped her off
at approximately 7:30 a.m..2 Edmunds placed Natalie in the master
bedroom, gave her a bottle, and left her alone while she dressed her own
daughters.3 When Audrey checked on Natalie thirty minutes later, the
baby was limp and unresponsive.4 Audrey immediately called 911 and an
Judge Advocate, U.S. Army. Presently assigned as a Litigation Attorney, Army
Litigation Division, U.S. Army Legal Services Agency, Arlington, Va. LL.M., 2010, The
Judge Advocate General’s Legal Center and School, Charlottesville, Va.; J.D., 2000,
Vermont Law School; B.S., 1997, University of Illinois-Urbana-Champaign. Previous
assignments include Government Appellate Attorney, Government Appellate Division,
U.S. Army Legal Services Agency, Arlington, Va., 2008–2009; Officer-in-Charge/Trial
Defense Counsel, 4th Infantry Division Branch Office, U.S. Army Trial Defense Service,
Fort Hood, Tex., 2006–2008; Senior Defense Counsel, 4th Infantry Division Field Office,
U.S. Army Trial Defense Service, Camp Liberty, Iraq, 2005–2006; Trial Defense
Counsel, 4th Infantry Division Branch Office, U.S. Army Trial Defense Service, Fort
Hood, Tex., 2004–2005; Trial Counsel, United States Army Field Artillery Center and
School, Fort Sill, Okla., 2003–2004; Administrative Law Attorney/Ethics Counselor,
U.S. Army Field Artillery Center and School, Fort Sill, Okla., 2002–2003; Legal
Assistance Attorney, U.S. Army Field Artillery Center and School, Fort Sill, Okla.,
2001–2002. Member of the bars of Massachusetts, the Army Court of Criminal Appeals,
the Court of Appeals for the Armed Forces, and the Supreme Court of the United States.
This article was submitted in partial completion of the Master of Laws requirements of
the 58th Judge Advocate Officer Graduate Course.
1 State v. Edmunds, 598 N.W.2d 290, 293 (Wis. Ct. App. 1999); see also Deborah
Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal
Courts, 87 WASH. U. L. REV. 1, 1–2 (2009).
2 Edmunds, 598 N.W.2d at 293.
2 MILITARY LAW REVIEW [Vol. 210
ambulance rushed the baby to the hospital; Natalie died later that night.5
The state charge Audrey charged with murder based upon a medical
opinion that the baby died from “extremely vigorous shaking.”6 The baby
was diagnosed with retinal and subdural hemorrhages.7 No witnesses
testified that Audrey shook the baby and the government presented no
other physical evidence of trauma.8 Audrey maintained her innocence,
yet the court convicted her of murder and sentenced her to eighteen years
in prison based on the medical examiner’s testimony that the baby
suffered from shaken baby syndrome.9
The case of Audrey Edmunds describes the characteristic facts and
prosecution of shaken baby syndrome (SBS). Shaken baby syndrome is a
“diagnosis” in which doctors believe a caregiver of an infant grabs the
infant by the torso and violently shakes the infant, causing the head to
thrust back and forth, resulting in a whiplash effect. Studies on SBS
originated in the late 1940s when an article written by Dr. John Caffey10
introduced the diagnosis of “battered infant syndrome.”11 In the decades
that followed, several clinical studies examined infants who presented to
hospitals with subdural hematomas, retinal hemorrhaging, and long bone
fractures, with no external signs of trauma and no explanation from the
parents about the cause of such injuries.12 Collectively, these clinical
examinations fostered the “diagnosis” known as SBS.13
8 Id. at 294.
10 Dr. Caffey was a pediatric radiologist who first wrote on the topic of “battered infant
syndrome.” See infra note 12 (listing many of Dr. Caffey’s published articles).
11 John Caffey, Multiple Fractures in the Long Bones of Infants Suffering from Chronic
Subdural Hematoma, 56 AM. J. ROENTGEN 163 (1946). See infra note 12 (listing many of
Dr. Caffey’s published articles).
12 Id.; A.N. Guthkelch, Subdural Effusions in Infancy: 24 Cases, BRIT. MED. J. 233, 233
(1953); A.N. Guthkelch, Infantile Subdural Haematoma and Its Relationship to Whiplash
Injuries, 2 BRIT. MED. J. 430 (1971); John Caffey, On the Theory and Practice of Shaking
Infants: Its Potential Residual Effects of Permanent Brain Damage and Mental
Retardation, 124 AM. J. DISEASES CHILD. 161 (1972) [hereinafter Caffey, On the Theory
and Practice of Shaking Infants]; 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, 402 (1974) [hereinafter Caffey, The Whiplash Shaken Infant Syndrome].
13 Caffey, Multiple Fractures in the Long Bones of Infants, supra note 11, at 163.
2011] MRE 702 AND THE NEED FOR REFORM 3
For decades, doctors hypothesized that the forces from the shaking
resulted in the brain being thrust back and forth inside the skull, causing
small veins to tear and bleed inside the skull. The forces from the
shaking also have been thought to result in retinal bleeding and brain
swelling.14 The medical criteria for a shaken baby diagnosis eventually
developed into the “triad” of symptoms: retinal hemorrhages (bleeding of
the back inner surface of the eye), subdural hemorrhages (bleeding
between the hard outer layer and the membranes that surround the brain),
and cerebral edema (brain swelling).15 A case in which an infant who
presented to a hospital with these three symptoms, but without external
signs of trauma and no explanation from the caregiver as to the cause of
these physical symptoms, resulted in a shaken baby diagnosis.16 The
diagnosis of SBS permeated the pediatric medical community, virtually
unchecked and unchallenged for years.
Biomechanical and clinical studies challenged the assumptions,
science, and methodology behind the SBS diagnosis.17 Biomechanical
studies demonstrated the impossibility that a human being could create
enough force by shaking alone to cause brain injuries in young infants
and children.18 Other studies concluded that the amount of shaking force
necessary to cause brain injuries would result in neck and spinal injuries
before brain injuries would occur.19 Yet, further studies demonstrated
that shaking alone would not cause retinal hemorrhaging.20 Collectively,
these studies created a contentious debate between pediatricians and
15 See Caffey, On the Theory and Practice of Shaking Infants, supra note 12, at 167;
Tuerkheimer, supra note 1, at 3. Hereinafter, the term “triad” will refer to subdural
hemorrhages, retinal hemorrhages, and brain edema.
16 Ann-Christine Duhaime et al., The Shaken Baby Syndrome. A Clinical, Pathological,
and Biochemical Study, 66 J. NEUROSURGERY 409 (1987); Mark N. Hadley et al., The
Infant Whiplash-Shake Injury Syndrome: A Clinical and Pathological Study, 24
NEUROSURGERY 536 (1989); Faris A Bandak, Shaken Baby Syndrome: A Biomechanics
Analysis of Injury Mechanisms, 151 FORENSIC SCI. INT’L 71 (2005).
17 See generally Duhaime et al., supra note 16; Hadley et al., supra note 16; Bandak,
supra note 16; Sarah Smith et al., Infant Rat Model of the Shaken Baby Syndrome:
Preliminary Characterization and Evidence for the Role of Free Radicals in Cortical
Hemorrhaging and Progressive Neuronal Degeneration, 15 J. NEUROTRAUMA 693
(1998); Patrick D. Barnes et al., Traumatic Spinal Cord Injury: Accidental Versus Non-
accidental Injury, 15 SEMINARS PEDIATRIC NEUROLOGY 181 (2008).
18 Duhaime et al., supra note 16, at 414; Smith et al., supra note 17, at 700–03.
19 Bandak, supra note 16, at 78; Panos Koumellis et al., Spinal Subdural Hematomas in
Children with Nonaccidental Head Injury, 94 ARCHIVES DISEASES CHILD. 216–19 (2008).
20 K. Ommaya et al., Whiplash Injury and Brain Damage: An Experimental Study, 204 J.
AM. MED. ASS’N 285, 285 (1968).