Deborah Tuerkheimer, Science-Dependent Prosecution and the Problem of Epistemic Contingency: A Study of Shaken Baby Syndrome, 62 ALABAMA L. REV. 513 (2011).
With rare exception, SBS prosecutions rest entirely on the testimony of medical experts.
The construction of crime in this manner is rather extraordinary, particularly since— as a general proposition—scientific understandings develop over time. In the specific context of SBS, dramatic changes have occurred since the 1990s, when the prosecution template emerged. While forensic claims on this area remain highly contested, the science underlying SBS has decisively evolved. By this, I mean both that the evidentiary basis for SBS has been effectively challenged18 and—notwithstanding outstanding points of dispute—that large and highly significant areas of consensus surrounding SBS have shifted. Three areas of changed consensus are, from a criminal justice perspective, of critical importance.
First, research has shown that retinal hemorrhages and subdural hematomas can result from forces other than shaking. In effect, the myth of pathonomony—which told that the diagnostic triad was necessarily and exclusively induced by shaking—has been debunked.
Second, the existence of lucid intervals has been established, proving that an earlier trauma (i.e., one occurring before the infant came under the suspect’s care) can cause an infant’s later symptoms. Doctors now concede the possibility of a lag between injury and neurological manifestation.
Third, there has been increasing awareness of a variety of medical disorders that can “mimic” the symptoms of SBS.