Re: Shaken baby Syndrome - a forensic pediatric response

[Phil Bates <p.d.bates@xxxxxxxxxxxxx>]

While I would not presume to question the expertise of the 
distinguished paediatricians whose views were expressed in the 
message forwarded by Tom Hanna, I think the following passage causes 
some difficulty:

>  Let those who would challenge
>  the specificity of these diagnostic features first do so in the
>  peer-reviewed literature, before speculating on other causes in court.
>  Indeed, the courtroom is not the forum for scientific speculation, but
>  rather the place where only, according the the U.S. Supreme Court in
>  Daubert vs. Merrill Dow, peer reviewed, generally accepted, and
>  appropriately tested scientific evidence should be presented.

Whatever the value of Daubert in other forms of litigation, I wonder
whether it is realistic to expect child abuse assessments to achieve
the same degree of general acceptance as other forms of scientific
analysis. These areas are almost always going to be controversial,
and it might be unfair and misleading to exclude minority opinions
from the courtroom. New theories may take many years to be
peer-reviewed and generally accepted; what are people who are
accused of child abuse supposed to do in the meantime?

In an English case which involved contested evidence about the causes 
of a child's injuries, Mr Justice Wall said:
'... there are sometimes cases in which there is a genuine
disagreement on a scientific or medical issue, or where it is
necessary for a party to advance a particular hypothesis to explain
a given set of facts. Where that occurs, the judge [or jury] will
have to resolve the issue which is raised. Two points must be made. 
In my view, the expert who advances such a hypothesis owes a very 
heavy duty to explain to the court that what he is advancing is a 
hypothesis, that it is controversial (if it is) and to place before 
the court all the material which contradicts the hypothesis. 
Secondly, he must make all his material available to the other 
experts in the case. It is the common experience of the courts that 
the better the experts the more limited their areas of 
disagreement, and in the forensic context of a contested case 
relating to children, the objective of the lawyers and the experts 
should always be to limit the ambit of disagreement on medical issues 
to the minimum.'
Re AB (Child Abuse: Expert Witnesses) [1995] 1 FLR 181
 
I would respectfully suggest that this approach might be more 
appropriate than attempting to exclude certain viewpoints from the 
courts completely until they have achieved general acceptance.

Any thoughts?

Phil Bates
lecturer in law
p.d.bates@reading.ac.uk