Police and CPS should investigate suspicions of child abuse thoroughly, keeping in mind the possibility that no wrongdoing may have occurred. Even if someone hurt a baby, it may be difficult or impossible to prove who it was. That is an unsatisfactory state of affairs, but police as well as doctors must resolve to “first do no harm.” Accusations have potential to do irreparable harm, not only to accused persons but to a widening circle of innocents: children, family and friends. The use of psychological interrogation techniques designed for use with hardened criminals should be avoided if a suspect has no criminal history. Police should not lie to suspects. Law-abiding citizens trust police to tell the truth and are shocked to learn truth-telling by police during questioning is optional in the United States. If a family has no history of abuse, CPS should perhaps give parents an option to keep children at home if they agree to place cameras in the home and pay for monitoring. The presence of cameras will deter abuse and provide proof if it occurs. In either case, CPS will gain insight into what’s happening in the home. In some cases, it may become apparent that violent abuse is highly unlikely in that home. In other cases, intervention to help caretakers improve their skills would be a better use of CPS resources than breaking up families and sending people to prison. No charges should be filed until all medical records have been obtained and examined. Judges should hold prosecutors responsible to gather all relevant records and provide them to the defense immediately. Prosecution and defense medical experts might jointly examine medical records in an effort to discover truth and clarify areas of agreement and disagreement. Society should have reasonable expectations of CPS workers. In cases of abuse, the ABUSER is much more responsible than CPS. Society should not pressure CPS to “protect” children at all costs or remove them in order to be “better safe than sorry.” The “cure” can be worse than the “disease.” Intervention can “cure the disease but kill the patient.” Reporters should be circumspect when writing news stories about suspected abusers and perhaps bar public comment on those stories, which tends to be vicious. Readers are horrified to hear someone has hurt a baby and jump to the conclusion that the defendant is guilty. Journalists are welcome to Contact Us for contextual information, including information specific to their locale. Prosecutors should not assume that a crime occurred because of a doctor’s opinion about the cause of medical findings. Potentially exculpatory evidence must be carefully evaluated with an open mind before charges are filed. The benefit of doubt should go to the defendant. Conviction Integrity Units should be established in more jurisdictions to examine Shaken Baby Syndrome cases to determine if new trials are warranted. Perhaps thousands of convictions, including those based on plea bargains, need to be overturned. Judges should not allow expert testimony based on the Shaken Baby Syndrome hypothesis. Only what’s TRUE should be spoken under oath. The assertion that medical findings such as retinal and subdural bleeding point only to one cause, violent shaking, is not true. Convictions cannot be based on assumptions or speculation. Official apologies should be issued to people who have been harmed by wrongful accusations. The path forward will not be easy, but it can be JUST. It is not too late to correct yesterday’s mistakes.

There is plenty of blame to go around. It is more productive to focus on what can be done now to rectify the situation. The problem goes back decades. Doctors too quickly embraced the Shaken Baby Syndrome hypothesis as fact. By the time biomechanical testing was first conducted in the late 1980s, SBS was mainstream. Several people had been convicted. It would have been difficult, perhaps humbling, to re-evaluate the hypothesis critically. Instead, proponents of the hypothesis doubled down, many motivated by a strong desire to protect children regardless of cost, even if it meant an occasional wrongful conviction. Police, CPS, and the courts trusted “the experts.” Once there was legal precedent for admitting testimony about Shaken Baby Syndrome, even judges with grave doubts had difficulty barring it. SBS has indeed been “generally accepted” by doctors for decades, but that doesn’t prove it’s true. Bloodletting was “generally accepted” for a century after scientists knew it did no good and could do harm.

Most witnesses who testify in court are fact witnesses. Fact witnesses are asked questions about anything they observed that would establish a fact. They are not allowed to give any opinions. Expert witnesses may give opinions if the Court rules that their scientific, technical or other specialized knowledge will help the trier of fact (the jury or the judge in a bench trial) to understand evidence or to determine a fact in issue. Expert witness testimony was first used in 1782 but was not widely used until the landmark case Frye v. United States. Frye wished to present an expert to testify that the defendant took a type of lie detector test that proved he was telling the truth. The Court refused to admit the testimony and Frye was convicted of murder. He appealed to the Court of Appeals of the District of Columbia, which ruled that expert testimony must be based on scientific methods that are generally accepted in the relevant scientific community. The type of lie detector test Frye sought to introduce was not generally accepted. Therefore, the appellate court affirmed the conviction.

In some states, laws have been made or introduced to allow for second opinions. In most states, it is not allowed. If abuse is suspected, children may be removed from parental custody and therefore unavailable to be seen by another doctor.

Yes, but not directly. Child Abuse Pediatricians are paid a salary to do a job which includes examining medical records, issuing expert opinions and testifying when subpoenaed. The money they’re paid comes from a combination of sources that may include government grants, hospitals, child advocacy centers, police and child protection. Defense experts do not have jobs that include such activities. It takes a great deal of time to review relevant records and issue an informed expert opinion. Defense doctors must do the work outside of their regular medical duties. It is reasonable that they should be compensated for their time. Prosecutors may lead a jury to believe that defense experts are testifying for the money while their experts are doing it out of the goodness of their hearts. That is not true. Child Abuse Pediatricians are not directly compensated, but they do not work or testify for free. Defense experts are directly compensated. Some defense experts are retired and can afford to work pro bono (for free). Ironically, if they do so, a prosecutor may imply it indicates the doctor is an advocate rather than an impartial expert.

If the hypothesis is officially abandoned, thousands of criminal convictions would need to be overturned and defendants given new trials without reference to Shaken Baby Syndrome. Thousands of prosecutions since the 1980s relied heavily on the hypothesis that retinal and subdural bleeding in babies can only be caused by violent trauma. Prosecutors might choose to drop charges rather than take cases back to trial. Compensation will need to be paid for the years innocent individuals spent locked up in prison. Because doctors have absolute immunity in cases of suspected child abuse, it’s unlikely that lawsuits against them would succeed, but the reputations of some doctors would be badly damaged. Sadly, there may be a general loss of trust in institutions such as Children’s Hospitals and the criminal justice system when the public realizes the injustice that has occurred. The way for such institutions to regain public trust is to acknowledge error, apologize and make right the wrongs that have been done in the past. Prosecutors in a number of locations are establishing Conviction Integrity Units (CIUs) equipped to restore justice.

In 2009. Physician child advocates formed the Helfer Society in the 1990s and lobbied for subspecialty certification. It was approved in 2006 and the first exams took place in 2009. Several doctors were grandfathered and did not have to take the exam. All 191 physicians who took the exam in 2009 passed it. There are currently about 350 CAPs. Doctors are generally more interested in treating patients than testifying in court and enduring the pressure of cross-examination. They are happy to have CAPs do that instead.

Sometimes, sadly, it is not safe. Every baby with a bruise, however small, will be evaluated for child abuse. Once a Child Abuse Pediatrician is called, it’s nothing you say may be accepted as true, regardless of whether it is true. Most seriously ill children eventually end up at Children’s Hospitals, including those with the rarest of rare diseases. Yet Child Abuse Pediatricians at those hospitals still diagnose according to what they believe is statistically most common, generally abuse. A problem is there is no accurate way to correct a wrongful diagnosis of abuse, as there is when an incorrect medical diagnosis is made and the child does not respond to treatment for it.

Not necessarily, any more than a “not guilty: verdict proves that a defendant is innocent. A “not guilty” verdict should mean that a person has not been proved guilty beyond a reasonable doubt and is thereby innocent in the eyes of the law. A “guilty” verdict may indicate that jurors expected a better explanation of what happened from the defense than that advanced by the prosecution. A “guilty” verdict means a person is guilty in the eyes of the law. The goal of the justice system should be to ensure, to the highest degree possible, that the guilty are convicted and the innocent are not. In questionable cases, defendants must receive the benefit of doubt. Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.” Jurist William Blackstone in the 1760s. Jurors are more likely to convict an innocent person of a heinous crime than a run-of-the-mill crime. The reason is that heinous crimes evoke visceral emotions including rage. “Justice” (i.e. vengeance) is demanded! It can seem more important for someone to be punished than for the correct person to be punished. Cool critical thinking evaporates under the heat of emotion. Having diagnosed a case … with certainty and having classified its symptoms correctly, we are in a position to translate symptomatology into etiology, and we may then boldly demand confirmation of our suspicions from the patient. We must not be led astray by initial denials. If we keep firmly to what we have inferred we shall in the end conquer every resistance by emphasizing the unmistakable nature of our convictions. —Dr. Sigmund Freud

You cannot be sure. That is why the burden of proof must rest firmly on accusers and the benefit of doubt must be afforded to defendants. That means some guilty people will escape conviction, a possibility that child advocates abhor. The alternative, though, is imprisoning innocent people, which should be even more abhorrent. To be 100% sure no adult ever abuses a child, all adults would need to be incarcerated. The justice system will never achieve perfection. In many cases ground truth is not and cannot be known. When juries acquit in an SBS case, proponents of the diagnosis say they got it wrong. At the same time, they use convictions as supporting the hypothesis. When doctors do not agree after 50 years, how can a jury be expected to sort out the truth in a short week or two? All they can reasonably do is trust what is said by one or another expert when no expert is lying about what he sincerely thinks is true.