Shaken Baby Syndrome – Prosecutions on the rise.

Written by Luke McMahon, Lawyer, Doogue + George Defence Lawyers

In Boston in 1997, a nineteen-year-old British nanny Louise Woodward was accused of murdering Matthew Eappen an 8-month-old child under her care.

At trial, medical doctors, such as Dr. Patrick Barnes from Stanford University provided expert evidence that the injuries to Eappen ‘could only’ have resulted from Woodward having violently shaken the baby.

The case made headlines throughout the world and thrust Shaken Baby Syndrome (‘SBS’) into the international spotlight. 

Protesting her innocence, Woodward was represented at trial by superstar barrister Barry Scheck. Scheck had previously formed part of the “dream team” that represented O.J. Simpson in the “trial of the century”. Scheck is also the co-founder of the Innocence Project, which has exposed thousands of wrongful convictions in the U.S., largely based on D.N.A. evidence.

One of Scheck’s key strengths as an advocate was his knowledge of forensic science. During Woodward’s Trial he drew on a slew of scientists to dispute the medical evidence presented against Woodward. In particular, the scientists disputed the very basis for the belief that certain brain injuries could only be caused by violent shaking.

Despite the rigorous defence, Woodward was convicted of murder and initially sentenced to 15 years in prison, although her conviction was downgraded to manslaughter on appeal and Woodward served less than a year.

Controversy over Shaken Baby Syndrome, or SBS as its commonly referred and its diagnosis has continued to rage in courtrooms throughout the world over the past couple of decades.

There have been hundreds of convictions, many for murder. Five people have been sentenced to death in the U.S. There have also been many reversals of convictions, and several doctors who initially provided evidence for the prosecution changed their mind.

Dr. Patrick Barnes, who gave evidence that helped convict Louise Woodward, is one of those doctors.

A paediatric radiologist at Stanford University, Dr. Barnes, “started realising there were a number of medical conditions that can affect a baby’s brain and look like the findings that we used to attribute to shaken baby syndrome or child abuse”.

In 2014, the Swedish government was concerned enough about the convictions occurring in that country to commission an independent review of Shaken Baby Syndrome.

The Swedish Agency for Health Technology Assessment and Assessment of Social Services (SBU), one of the oldest medical assessment organizations in the world, appointed a panel of experts to review the scientific quality of the SBS evidence base to advise whether SBS is a reliable diagnosis.

The expert group spent more than two years formulating their study and reviewing the literature. Three scientific boards within the SBU reviewed the group’s findings, which were also assessed by external scientists before being published in 2016. The findings of the review were also published in a peer-reviewed medical journal in 2017.

The findings were clear: there is no scientific evidentiary basis for shaken baby syndrome. 

Nevertheless, a recent spate of prosecutions for shaking babies have occurred in Victoria.

At least three men have been convicted for child homicide in the past year, found to have shaken their baby. A recent article in the Australian Journal of Forensic Science Is there an evidentiary basis for shaken baby syndrome? The conviction of Joby Rowe,  by Dr. Chris Brook, raises serious concerns about these convictions, starting with the findings of the Swedish study.

Without recourse to scientific studies, the experts who testified had relied heavily on “confession studies”. Yet none of those three who were convicted confessed.

Confession studies draw conclusions from the fact that some people accused of shaking an infant based on the SBS associated brain injuries have confessed. So therefore, logically it must be true. Or is it?

In his paper, Brook systematically points out the methodological flaws in these confession studies, concluding that “current confession studies are not fit for purpose, if their purpose is to provide an evidentiary basis for SBS”.

Where does this leave shaken baby defences?

It is crucial for lawyers acting for an accused to understand these issues, to challenge the experts on the limits of their expertise: medical doctors do not have expertise in false confessions nor in Police interrogation methods.

It is also essential to call experts who question the SBS hypothesis. None of the three convictions in Victoria called their own experts to dispute the prosecution case.

In the wake of calls from one of Victoria’s top Judges that forensic science might be ‘putting innocent people behind bars’ an accused person requires representation that can adequately challenge questionable evidence.

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