Shaken Baby Syndrome: Daubert and MRE 702's Failure to Exclude Unreliable Scientific Evidence and the Need for Reform

• Author: Elizabeth A. Walker
• Position: Judge Advocate, U.S. Army
• Pages: 1-50

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.

3 Id.

4 Id.

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

5 Id.

6 Id.

7 Id.

8 Id. at 294.

9 Id.

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

14 Id.

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).