Critical Issues in the Investigation and Prosecution of the
Shaken Baby Infant Case
Brian K. Holmgren
Assistant District Attorney General
Davidson County District Attorney General’s Office
Nashville, TN
National Center for Prosecution of Child Abuse
99 Canal Center Plaza
Suite 510
Alexandria, VA 22314
703-549-6259
THE PROSECUTOR’S PERSPECTIVE:
ARREST IS NOT THE OBJECTIVE - CONVICTION IS
Patience and Finesse
Verification and Corroboration
Caretaker explanations are the starting point - thorough investigations establish the true
end point
Doctors make mistakes too - competent investigations supplement the medical opinion they are not controlled by it
Law enforcement may have a broader picture than medical personnel because of access
to additional information including examination of the scene and statements from
additional witnesses
Many doctors are reluctant to identify abuse or will hedge on definitive identification of
injuries as abusive
Lots of doctors are not specifically trained in identifying child abuse injuries or lack
substantive knowledge of this highly specialized area of practice
See, e.g., Jenny, C., et al., (1999), Analysis of Missed Cases of Abusive Head Trauma,
JAMA, 281, 621-626. Dr. Jenny reported on 173 children examined at Children’s
Hospital in Denver between 1990-95 in which abusive head trauma was missed in 31% of
the initial diagnosis. The research strongly suggested that the perceived socio-economic
status, family dynamics and the stability of the people presenting the child for care were
associated with missed diagnosis, suggesting that doctor’s perceptions of “nice family
values” may lead them to be less suspicious and hesitant to allege abuse.
A recent study published in Pediatrics (July 1998) by Dr.’s Carol Berkowitz and Mary
Ann Limbos indicates that despite major efforts to improve the identification of
maltreated children over the last two decades, and the importance of proper medical
record documentation in abuse cases, doctors today are no better than they were 15 years
ago at making appropriate notations in medical records. “Most aspects of emergency
department documentation in suspected child physical abuse have changed little.”
Wilbur L. Smith, Abusive Head Injury, 7 APSAC Advisor 16 (1994)
“In one series, over 95% of the initial histories supplied by the caretakers of abused
children were false. This certainly mirrors our experience.”
“We have received a correct initial history in very few cases, and even in those cases the
extent of trauma was minimized. The specious history often features a fall or choking
event, rather than the true cause...”. “
Serious injuries take serious trauma, and a child with serious head injury who is not
involved in an automobile accident or a fall from several stories should be considered a
possible victim of child abuse...”
Difficulties With Abuse Cases
Conceptualizing parent as abuser
Absence of visible trauma - grave internal injuries
Delayed recognition of crime
Lack of documentation and scrutiny of caretaker explanations for child’s injuries
Multiple crime scenes; privacy; lack of control
Establishing requisite “mens rea”
Multiple potential perpetrators
Timing of injuries
Misdiagnosis of abuse by physicians
Failure of CPS, law enforcement and prosecutors to understand significance of medical
findings
Public perceptions and “backlash”
Inadequate laws
Conflicting medical evidence
Uneducated judiciary
Defense experts
“There is hardly anything not palpably absurd on its face that cannot now be proved by
some so-called expert.”
Chaulk v. Volkswagen of Am. INC., 808 F.2d 639, 644 (7th Cir.. 1986)
“The law extends equal dignity to the opinions of charlatans and Nobel Prize winners.”
Donald Elliot - Yale Law Professor
STRATEGY OF DEFENSE EXPERTS
To establish other “possibilities” for the child’s medical findings
To suggest possible causes or conditions that were not eliminated
To substantiate D’s claim that shaking was done to revive or wake up child
To expand the time frame or window of opportunity for the injuries
To support D’s claim of “I didn’t know...”
To challenge the general science and existence of SBS
Federal Rules of Evidence Rule 703
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to him at or before the hearing. If
of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not be admissible in evidence.
Potentially permits defense expert to rely on inadmissible evidence in formulating
opinion, including defendant’s hearsay statements.
Some case law excludes expert testimony based on scientific techniques or information
which is not widely accepted in the scientific community. See People v. Wernick, 674
N.E.2d 322 (N.Y. 1996); State v. Cressey, 628 A.2d 696 (N.H. 1993).
For a discussion of ethical principles in presenting expert medical testimony, see
Chadwick, D. & Krous, H.F. (1997). Irresponsible Testimony by Medical Experts in
Cases Involving the Physical Abuse and Neglect of Children. 2(4) Child Maltreatment
313.
Federal Rules of Evidence Rule 704
Testimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Federal Rules of Evidence Rule 704(b)
No expert witness testifying with respect to the mental state or condition of a defendant
in a criminal case may state an opinion or inference as to whether the defendant did or
did not have the mental state or condition constituting an element of the crime charged or
of a defense thereto. Such ultimate issues are matters for the trier of fact.
Federal Rules of Evidence Rule 705
The expert may testify in terms of opinion or inference and give his reasons therefor
without prior disclosure of the underlying facts or data, unless the court requires
otherwise. The expert may in any event be required to disclose the underlying facts or
data on cross-examination.
Advisory Committee’s Note. If the objection is made that leaving it to the crossexaminer to bring out the supporting data is essentially unfair, the answer is that he is
under no obligation to bring out any facts or data except those favorable to his opinion.
The answer assumes that the cross-examiner has the advance knowledge which is
essential for effective cross-examination. This advanced knowledge has been afforded ,
though imperfectly, by the traditional foundation requirement. Rule 26(b)(4) of the Rules
of Civil Procedure … provides for substantial discovery in this area, obviating in large
measure the obstacles which have been raised in some instances to discovery of findings,
underlying data, and even identity of the experts. These safeguards are reinforced by the
discretionary power of the judge to require preliminary disclosure in any event.
This rule is potentially very damaging to prosecutors in jurisdictions which do not have
reciprocal discovery and opportunity to depose the expert prior to trial. The Advisory
Committee Notes offer support for pre-trial motions to obtain this type of information in
jurisdictions following the Federal Rules of Evidence that do not provide for such
discovery statutorily.
DEFENSE EXPERT TESTIMONY
Establishing other “Possibilities” - SBS is not the mechanism for this child’s medical
findings
Osteogenisis imperfecta to explain fractures
DTP vaccinations
Meningitis
Sagittal Sinus Thrombosis
CPR and birthing process to explain retinal hemorrhages and fractures of ribs
Sudden cardiac arythmia
Accidental fall
SIDS or accidental suffocation
In a ruling earlier this month, a family court judge cleared a couple of abuse and neglect
stemming from a life threatening brain injury suffered by their 7-month-old son which
the couple claimed occurred when their son accidentally toppled onto a sterling silver
rattle in his playpen.
This account was met with suspicion by the child’s surgeon and social worker who
indicated the child suffered from SBS. The family’s attorney said the bottom line was
that they were willing to pay $60,000 for his services and the testimony of three medical
experts who helped convince the judge that an accidental fall could have caused the
child’s injuries.
A chief pediatric neurosurgeon conceded that the case had some “unusual features”
including bleeding in only one of the child’s eyes as opposed to both, which is a telltale
sign of SBS, but he insisted that the explanation the child fell on his rattle was
“implausible.”
“Obviously the more findings you have, the better it is, but if you have just a few of the
findings you have to make a judgment… the positive findings are so specific and seen so
infrequently in other medical conditions that those combination of symptoms are never
seen in anything other than shaking.”
The Reporter Dispatch, NY Sept. 30, 1995
Federal Rules of Evidence Rule 803(18) Learned Treatises
To the extent called to the attention of an expert witness upon cross-examination or relied
upon by him in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science or art,
established as reliable authority by testimony or admission of the witness or by other
expert testimony or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
Williams, R.A., Injuries in Infants and Small Children Resulting from Witnessed and
Corroborated Free Falls, 31(10) Journal of Trauma 1350 (1991).
106 children under 3 with witnessed and corroborated falls by someone besides caretaker
Only 3 serious but not life threatening injuries from falls under 10 ft.
53 children under 3 with uncorroborated falls
18 had severe injuries and 2 deaths from falls under 5 ft.
Conclusion from study is that children rarely sustain serious injuries from short falls and
presence of severe injuries resulting from claimed short falls are highly indicative of
abusive trauma
Head Injuries in Very Young Children: Mechanisms, Injury Types and Ophthalmologic
Findings in 100 Hospitalized Patients Younger Than 2 Years of Age. Pediatrics, Vol. 90,
No. 2 August 1992
“. . . [E]xcept for those (blunt head injuries) caused by motor vehicle accidents and falls
from extreme heights, they are almost always benign . . .”
Medical References and Resources:
Reece, R. ed. (1994). Child Abuse: Medical Diagnosis and Management, Philadelphia,
PA: Lea & Febiger.
Monteleone, J.A. (2d ed. 1998). Child Maltreatment: A Clinical Guide and Reference.
St. Louis, MO: G.W. Medical Publishing, Inc.
Levin, A.V., (2000). Retinal Haemorrhages and Child Abuse, in David, T,J., ed., Recent
Advances in Paediatrics, Churchill Livingstone.
Ludwig, S. & Kornberg, A.E., eds. (1992). Child Abuse: A Medical Reference, 2d ed.
New York: Churchill Livingstone.
Giardino, A.P. et al. eds. (1997). A Practical Guide to the Evaluation of Child Physical
Abuse and Neglect. Thousand Oaks, CA: Sage.
The Quarterly Child Abuse Medical Update, The Institute for Professional Education,
MSPCC, 399 Boylston Street, Boston, MA 02116 ($80 Annually)
The Pediatric Trauma and Forensic Newsletter, 160 Washington SE, #234, Albuquerque,
NM 87108 ($185 Annually, 10 Issues).
Legal References and Resources:
American Prosecutors Research Institute, National Center for Prosecution of Child
Abuse, (1993), Investigation and Prosecution of Child Abuse (2d ed.).
DerOhannessian, P. (1995). Sexual Assault Trials, Charlottesville, VA: The Michie Co.
(2d ed. forthcoming 1999).
Stern, P. (1997). Preparing and Presenting Expert Testimony In Child Abuse Litigation:
A Guide for Expert Witnesses and Attorneys. Thousand Oaks, CA: Sage.
Holmgren, B. (2001). Prosecuting the Shaken Infant Case, in Lazoritz, S. & Palusci, V.,
eds., The Shaken Baby Syndrome: A Multidisciplinary Approach, The Haworth
Maltreatment and Trauma Press. (Also published in Vol. 5, No. 1(#9), 2001, pp. 275-339
Journal of Aggression, Maltreatment & Trauma).
Holmgren, B. (1999). How the Legal System Facilitates Irresponsible Expert Testimony in
Shaken Infant Cases. Newsletter of the Shaken Baby Alliance.
Parrish, R. (1998) The Battered Child Syndrome: Investigation of Child Physical Abuse
and Homicide. United States Department of Justice.
Lyon, T.D., Gilles, E.E. & Cory, L. (1996). Medical Evidence of Physical Abuse in
Infants and Young Children. 28 Pacific Law Journal 93-167.
DEFENSE EXPERT TESTIMONY
Identify Other Causes Not Eliminated
Laundry list of other natural or accidental causes
Osteogenisis imperfecta
Re-bleed of old injuries producing prior subdural hematoma
Gluteric acidemia
Alagille syndrome
DTP vaccinations
Meningitis
Toxic causes
Bleeding disorders
Seizure disorder
Sagittal Sinus Thrombosis
DEFENSE EXPERT TESTIMONY
Shaking to Revive or Awaken
Caretaker admits shaking
No evidence of additional trauma
Expert called to support reversal of factual order of events - child found non-responsive
or in distress and child mildly shaken by panicked caretaker
Acceptance of caretaker’s explanation
See United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993) finding error in trial court’s
exclusion of expert witness testimony that shaking a child for resuscitative and other
purposes was once accepted medical practice.
“In the first verdict from a trial involving SBS in… county, D was found guilty of
misdemeanor assault by a judge who said the father had not shown the depravity needed
for a more serious conviction.”
“Although D kept the information from physicians and police, [the child’s] father finally
confessed to his actions last week on a witness stand… saying he shook his infant son in
a panic after the boy fell ill and stopped breathing.”
The Reporter Dispatch, NY Sept. 30, 1995
DEFENSE EXPERT TESTIMONY
Expand Time Frame for Injuries
Difficulty aging bruises, fractures & subdurals
Delayed onset of symptoms with some types of head trauma
Lucid interval
Slow bleed - chronic subdural; re-bleed
See K. Y. Willman et al., 21(10) Child Abuse & Neglect 929-940 (1997) discussed infra
DEFENSE EXPERT TESTIMONY
Support Claim of “I Didn’t Know”
Neglect because parent didn’t know any better, low IQ
People who shake infants are unaware of risks or don’t intend to harm
The child seemed normal afterwards
I did it before and nothing happened
People v. Holmes, 616 N.E.2d 1000 (Ill. App. 3d 1993)
“We conclude that a rational trier of fact could not have found the D guilty of first degree
murder. Here the evidence was insufficient to show that the D knew his actions could
cause death or great bodily harm.”
“The evidence showed the D had only a seventh grade education and the death was
caused by a one-time shaking. The D testified that he did not know shaking a child could
kill a child… the D and his wife both testified that he did not intend to harm Crystal… no
evidence was introduced which showed the D knew his actions could cause Crystal’s
death.”
People v. Holmes (Dissent)
The D repeatedly lied to the paramedics & police claiming the victim slipped out of his
arms and fell to the floor
The D changed his story during the trial
“After reviewing the extensive medical testimony… combined with the D’s wife’s
statement, it is clearly evident the D has never yet told the truth about his daughter’s
death.”
The D’s wife provided a statement to the police at the hospital: “He came in there and
snatched her out of my arms… I tried to take her from him… then he called me a fuck’n
bitch and slung the baby’s bottle at me. Then that’s when he kicked me in the gut.”
Q: Where was the baby at that time?
A: She was sitting on the floor crying.
Q: Did the D do anything to the baby at that time?
A: He just picked her up and shook her and told her she better stop crying.
Q: How hard did he shake her?
A: Pretty hard, made her feel it. She stopped crying. It scared her more than anything.
Q: What were his exact words to the baby?
A: Fuck’n shut up. Fuck’n shut up.
Q: Is this the only time you observed your husband shake your daughter?
A: No.
Q: What other time did he shake her?
A: Early this morning and last night too? [Earlier] he had her out of bed… I heard her
screaming and he was changing her diaper… and I asked him if he fed her yet. He said
‘No bitch’ so I went and fixed her bottle and that’s when he was shaking her. [Later] he
came in and yanked her out of my arms and said he wanted her. So I followed them…
and she started crying again, so he kind of like tossed her on the floor and told me to
leave her the fuck alone because I was the one that spoiled her… And that’s when he
began to shake her again and told her to fuck’n shut up.
Q: Has he ever struck, shook or thrown her before this date?
A: Yeah.
Q: Can you describe the way he grabbed and shook her?
A: He picked her up and grabbed her tight and started shaking the piss right out of her.
Q: Was the baby being held by the arms alone when he shook her?
A: He was squeezing so hard her elbows were going into her ribs. She was screaming.
People v. Holmes, (Dissent)
Doctors identified older rib fx’s and fx’s to the arms and legs which were consistent with
shearing type forces produced by shaking
The baby was markedly underweight
Doctors testified the child’s prior injuries indicated a pattern of abuse over a long period
of time.
People v. Ripley, 685 N.E.2d 362 (Ill. App. 3d 1997)
D claimed insufficient evidence showing he intentionally or knowingly injured baby
D is presumed to intend the probable consequences of his acts, and a great disparity in
size and strength between a defendant and the victim as well as nature of injuries may be
considered.
Holmes was wrongly decided.
Severity of injuries completely inconsistent with D’s claimed lack of mens rea
People v. Sargent, 70 Cal. Reptr.2d 203 (Cal. App. 4th 1997), review granted
D claimed insufficient evidence to convict for SBS induced injuries under statute alleging
he inflicted “unjustifiable physical pain upon a child under circumstances likely to
produce great bodily harm or death.”
D claimed there was no evidence produced to show that he knew that shaking the baby
was likely to cause death or great bodily harm
Trial court held this was not an element of the offense and denied motion for new trial
even though court commented it was prepared to believe D’s assertion that he did not
realize or anticipate his conduct would result in such severe injuries.
D initially provided several false explanations for how the child came to be injured but
ultimately admitted shaking baby twice that day while angry. D denied to police that he
intended to hurt child and claimed not to know that shaking could hurt child
At trial D repudiated his confession of shaking the child and claimed he had dropped the
child causing the injuries
Appellate court reverses finding statute requires proof that D knew or appreciated risks
involved in conduct. Evidence here suggested D per his own statements and public at
large was generally unaware of the dangers of shaking at the time of this offense. Court
also noted testimony of state’s Dr. suggesting SBS “was until recently unknown even to
physicians” and trial judge’s acceptance of D’s asserted lack of knowledge.
Record contains little reference to any opinion testimony by expert regarding forces
involved other than small reference by trial judge that Dr. alluded that the “shaking of an
infant can result in these injuries, the equivalent of falling off a three-story building.” No
discussion of D’s false statements as evidence of consciousness of guilt.
Fortunately this case was reversed by a more reasoned opinion of the California Supreme
Court. See People v. Sargent, 970 P.2d 409 (Cal. 1999).
Exclude Defense Expert Testimony on Defendant’s Lack of Knowledge
Federal Rule 704(b) prohibits expert testimony on D’s state of mind supporting a defense
Traditional laws and decisions precluding testimony on D’s mental state unless nonresponsibility defense
Case law or statutory elements for offense not requiring state to prove subjective
awareness of specific dangers or harm
Most abuse from loss of control - people don’t learn control from education on dangers of
abusive behavior
Don’t require public awareness for other forms of abuse or crimes - we don’t educate re
danger of shooting at people with guns or slamming or punching children
Substantial portion of abusers would fall under “ignorance defense” - e.g. mom’s
boyfriend or baby-sitter due to lack of education
Research on lack of public awareness is irrelevant
Statistics don’t speak to individual D
Research not based on public observation of actual shaking incident followed by polling
of public re whether observed behavior was abusive or dangerous
Medical evidence inconsistent with this premise - see e.g. American Academy of
Pediatrics statement infra
Although knowledge of dangers may increase the degree of culpability (e.g. elevating
negligence to recklessness or intent) due to the D’s willingness to assume the risk by
participating in the behavior, the contrary position does not follow that ignorance of the
risks or consequences mitigates the conduct or removes it from criminal behavior. In
SBS cases, the mechanism and force necessary to produce the injury establish abuse as a
matter of law based on the medical science
But see United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993) finding error in trial
court’s exclusion of expert witness testimony on this subject.
Smith, W.L. & Alexander, R.C. Physical Parameters of SBS
27 adults given models of three weights: 3 kg (newborn); 8 kg (10 month old); 13 kg (2
year-old) and asked to shake them as long and hard as possible
Median duration of shaking was: 30 secs. (3 kg), 18 secs. (8 kg), 15 secs. (13 kg)
Males & females did not differ in length of shaking for 3 kg but did for other weights
with males able to shake longer
Shaking rates were 3.4/sec. (3 kg), 2.3/sec. (8 kg), 2.3/sec. (13 kg)
Average distance traveled by subjects hands was 25 centimeters (10 inches)
Even at 13 kg. median duration of 15 secs. greatly exceeds the 2-3 sec. minimum
estimated time necessary for SBS
Women capable of causing similar forces
D’s may shake harder because angry
DEFENSE EXPERT TESTIMONY
To challenge the general science and existence of SBS
SBS is overdiagnosed in the medical field
SBS is the darling of the child abuse zealots
There is no agreement amongst doctors on the mechanism for trauma - whether there
must be impact to produce sufficient forces to cause the injuries - since we don’t know
for sure we can’t say in court
You can’t diagnose diffuse axonal injury without microscopic evidence of its existence
There is no specific set of diagnostic criteria for SBS
The absence in any given case of: (1) retinal hemorrhages; (2) retinal hemorrhages that
are bi-lateral, diffuse and in multiple layers; (3) evidence of impact; and (4) metaphyseal,
skull or rib fractures, precludes diagnosis of SBS
“There is no disagreement among professionals in the field that the violent shaking,
whether or not it is accompanied by an impact, is not a casual act but rather one that
would indicate to a rational observer that severe injury was being inflicted on the child.”
“While the author does not advocate mild shaking of babies or throwing babies up in the
air, the violence of the abusive shaking is several orders of magnitude greater than any of
these playful activities...”
Wilbur L. Smith, Abusive Head Injury, 7 APSAC Advisor 16 (1994).
Lazoritz, S., The “Shaken” Infant: Historical Aspects and Characteristics
51 cases of abusive traumatic brain injury
Boys victimized twice as often
18% admitted to shaking by discharge date
20% alleged accidental fall < 3 ft.
31% denied any trauma at all
26% of kids in E.R. within prior week for symptoms such as vomiting, possible seizures,
ear infections, irritability, turning blue and lethargy.
60% had retinal hemorrhages, 20% didn’t and 20% had no opthalmological exam
25% had old & new subdural hematomas
45% had a fracture of some kind
25% mortality
Fathers and mother’s boyfriend most common perpetrator
Cases crossed all socioeconomic boundaries
Starling, S.P., Holden, J.R. & Jenny, C., Abusive Head Trauma: The Relationship of
Perpetrators to Their Victims, 95 Pediatrics 259 (1995).
151 children with abusive head trauma
23% mortality; 55% varying degrees of neurologic impairment at discharge
Male perps outnumbered women 2.2:1
Fathers (37%), boyfriends (20.5%), female babysitters (17.3%), mothers (12.6%)
36 of 37 confessed perpetrators were present at onset of symptoms
90 children (60%) had both subdural hematomas and retinal hemorrhages
15 (10%) had subdurals and associated injuries and 46 (30% had subdurals, retinal
hemorrhages & associated injuries
Note: This study should not be used to profile offenders or likely suspects – keep an
open mind on who could have caused the injuries
COMMON AND UNTRUE DEFENSES
“I didn’t know”; “I didn’t mean to” (lack of requisite mental state for offense)
I shook to save or resuscitate child
Accidental fall
SODDI (Paramedic, other caretaker, sibling)
Alternative medical condition or disease
Alibi
Poor investigation
Reasonable doubt
Intoxication
Diminished capacity and insanity
Battered Woman’s Syndrome defense to neglect or failure to protect charge for non
abusing mother
MEETING UNTRUE DEFENSES IN SBS CASES
Prompt investigation with MDT
Multiple investigators generally required to separate and interview caretakers
individually, interview potential child witnesses, secure multiple potential scenes, collect
evidence, etc.
Early involvement of prosecutor with search warrants, presence at autopsy, interviews of
witnesses and defendants
Coordination with hospital and Medical Examiner
Necessitates thorough understanding of child’s injuries - nature, timing, mechanism &
clinical course
Awareness of developmental capabilities of victim
Analysis of crime scene relative to statements
Videotaped demonstration by perpetrator of mechanism and force used during shaking
Establishment of motive evidence
Discover and investigate “other acts” evidence
Expert testimony
Lay testimony supporting expert’s
Focus on histories provided by suspect
Establish time frames & time line for caretakers relative to when victim well, onset of
clinical symptomology, and other methods for timing the injuries
Other caretakers called to testify they didn’t abuse child, including medical personnel
Testimony involving observations of prior inappropriate caretaking by suspect
Theme development
Develop a Theme for the Case
Must be consistent with facts of case, theory of case and charge(s) issued
Assists jury in interpretation and processing of facts
Should be apparent throughout different aspects of case
Often multiple themes can be carried through the case
Theme may be oriented to (a) perspective of victim, (b) perspective of offender, (c) facts
of case, (d) perspective of jury (e) the law
Perspective of victim
Unanswered cries
Violation of trust
Innocence lost
Evil is often viewed in the face of a loved one
It shouldn’t hurt to be a child
Throwaway child
Silent witness
Family in fear of abuser
Home should be a haven of safety and comfort, not a prison of pain and fear.
Perspective of offender
Control and manipulation
Violation of trust
Failure to protect
Mom chose boyfriend over child
Having a child does not make you a mother
Parents are supposed to cuddle and nurture, not shake and slam
When a man points a finger at someone else he should remember that three of his fingers
are pointing at himself.
Lies to save oneself vs. truth told to save the child
Facts of case
The marks on this child bear witness to the fact that she was an object of torture.
Arguments derived from possibilities are idle.
Acts indicate the intention.
We should not investigate facts by the light of arguments, but examine arguments by the
light of facts.
A hospital is filled with angels of mercy - but they can’t save a child they don’t see
False history provided for injury
The defendant’s statements are but the shifting sands of a guilty conscience.
A lie often contains the seeds of truth.
The killer couch or sofa
Bodyguard of lies
Truth has a ring of its own
A lie often contains the seeds of truth
Too many injuries, too many stories, too much indifference
Juror’s perspective
Who has not experienced a loss of control and regretted the consequences later.
Good parents do bad things.
To be given the affection of a child is a sacred privilege.
There are men of whom we can never believe evil without having seen it. Yet there are
few in whom we should be surprised to see it.
We want the facts to fit the preconceptions. When they don’t it’s easier to ignore the
facts than to change the preconceptions.
There are no logical reasons for senseless acts.
The law
He who helps the guilty shares the crime.
Society permits but one vehicle for the escape from a parent’s duty to protect and care for
their child - Adoption.
Doubt cannot override a certainty.
You don’t have to see the lion if you see his hair.
CHARGING
Offense Variables Physical Abuse:
Degree of harm; risk of harm
Force used (impact in SBS even against a soft object increases force)
Age of Victim
Relationship (legal responsibility, duty of care)
Number of injuries (only one blow or injury may be fatal but presence of multiple
injuries demonstrates higher culpability and intent)
Type and location of injuries (some injuries are pathognomonic for abuse, e.g.
metaphyseal fractures, loop shaped bruises)
Intent; mens rea
Use of dangerous weapon (furniture, wall)
Time period involved to produce child’s condition, injuries and opportunities for
intervention (Battered Child Syndrome; delay in seeking medical attention, evidence of
prior subdural)
Statutory Definitions
Intentionally
Knowingly
Recklessly
Purposefully or Willfully
Criminal Negligence
Failure To Act
Premeditation
Wanton Cruelty
Torture
Extreme Indifference
Maliciously
Depraved mind
Additional Resources on Statutory Schemes
Charles A. Phipps, Responding to Child Homicide: A Statutory Proposal, 89(2) Journal
of Criminal Law and Criminology, 1-79 (1999).
Statutory Definitions
Bodily Harm - Physical pain or injury, illness, or any impairment of physical condition.
Substantial Bodily Harm - Bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or impairment of the
function of any bodily member or organ, or which causes a fracture of any bodily
member.
Great Bodily Harm - Bodily injury which creates a high probability of death, or which
causes serious permanent disfigurement, or which causes a permanent or protracted loss
or impairment of the function of any bodily member or organ or other serious bodily
harm. Minn. Stat. Sec. 609.02(7)(7a)(8)
Statutory Definitions
“The highest level of culpability, and the mens rea term most often used as the basis for
criminal responsibility is ‘intent.’ Social harm is caused intentionally if: (1) it is the
defendant’s desire (i.e.... conscious objective) to cause the social harm; or (2) defendant
knows the social harm is virtually certain to occur.”
J. Dressler, Understanding Criminal Law
Statutory Definitions
“Intentionally”
A. A person acts intentionally with respect to a result of his conduct when it is his
conscious object to cause such a result.
A person acts intentionally with respect to attendant circumstances when he is aware of
the existence of such circumstances or believes that they exist. 17-A Maine Revised
Stats. sec. 35 (1995)
Statutory Definitions
“Intentionally”
Intentionally means the actor either has a purpose to do the thing or cause the result
specified, or is aware that his conduct is practically certain to cause that result. In
addition…the actor must have knowledge of those facts which are necessary to make his
or her conduct criminal and which are set forth after the word intentionally. Sec.
939.23(3) Wis. Stats.
“Intentionally” means that the actor either has a purpose to do the thing or cause the
result specified, or believes that the act performed by the actor, if successful, will cause
that result. Minn. Stat. Sec. 609.02(9)(3)
Statutory Definitions
A person commits… murder in the first degree if the person knowingly engages, under
circumstances manifesting extreme indifference to the value of human life, in a pattern or
practice of assault or torture (defined as inflicting serious physical injury by at least two
separate acts)… of a child under the age of 16, and one of the acts of assault or torture
results in the death of the child. Alaska Stats. 11.41.100 (1988)
Statutory Definitions
Whoever does… is guilty of murder in the first degree.. [if he] causes the death of a
minor... while committing child abuse, when the perpetrator has engaged in a past pattern
of child abuse upon the child and the death occurs under circumstances manifesting an
extreme indifference to human life. Minn. Stat. Sec. 609.185(5)
Statutory Definitions
“Knowingly in child abuse does not refer to the actor’s awareness that his action is
practically certain to cause the prosecuted result. Instead, knowingly refers to the actor’s
general awareness of the abusive nature of his conduct in relation to the child, or his
awareness of the circumstances in which he commits an act against the well being of the
child.” People v. District Court, 803 P.2d 193 (Colo. 1990).
Statutory Definitions
A person acts “recklessly” regarding a material element of a crime when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that, considering
the nature and purpose of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of care that a law abiding person
would observe. (Model Penal Code)
Statutory Definitions
Criminal Recklessness means that the actor creates an unreasonable and substantial risk
of death or great bodily harm to another human being and the actor is aware of that risk.
Sec. 939.24 (1) Wis. Stats.
In this section recklessly means conduct which creates a situation of unreasonable risk of
harm to and demonstrates a conscious disregard to the safety of a child. Sec. 948.03(1)
Wis. Stats.
Statutory Interpretation
Intent to engage in act vs. intent to produce result
“Knowing” - subjective vs. objective standard
Review applicable case law and jury instructions before charging
Be alert for subtle nuances in statutory construction
Be alert for potential to confuse jury if multiple charges issued with inconsistent mental
states
Considerations regarding potential for lesser included offenses to be given to jury based
on charged offense(s)
“Shaking must be of such force that an independent lay observer would recognize that it
is likely to be harmful to the child”
Dr. Robert Kirschner
“There is no disagreement among professionals in the field that the violent shaking,
whether or not it is accompanied by an impact, is not a casual act but rather one that
would indicate to a rational observer that severe injury was being inflicted on the child.”
Wilbur L. Smith, Abusive Head Injury, 7 APSAC Advisor 16 (1994).
“While caretakers may be unaware of the specific injuries they may cause by shaking, the
act of shaking/slamming is so violent that competent individuals observing the shaking
would recognize it as dangerous...”
American Academy of Pediatrics, Committee on Child Abuse and Neglect, Shaken Baby
Syndrome: Inflicted Cerebral Trauma, 92 Pediatrics 872 (1993)
Statutory Definitions
A person acts “negligently” regarding a material element of a crime when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that the actor’s failure to
perceive it, considering the nature and purpose of his conduct and the circumstances
known to him, involves a gross deviation from the standard of care that a reasonable
person would observe. (Model Penal Code)
Accomplice Liability
“…with knowledge of the unlawful purpose of the perpetrators and with intent to
commit, encourage, or facilitate the commission of an offense, aids, promotes, or
encourages commission of that offense.”
People v. Cooper, 811 P.2d 742, 746 (Cal. 1991)
Aidor and abettor liability requires state to prove conduct either verbal or overt, that as a
matter of objective fact aids another person in the commission of a crime.
State v. Rundle, 500 N.W.2d 916 (Wis. 1991)
See also People v. Wong, 588 N.Y.S.2d 98 (App. Div. 1992), reversed on other grounds,
619 N.E.2d 377 (N.Y. 1993), discussing sufficiency of evidence to sustain conviction of
both parents as joint actors for second degree manslaughter despite absence of direct
evidence of who caused child’s fatal shaking injuries, since evidence established child
had prior injuries, there was delay in seeking medical care, and both were present in the
apartment at time of death providing sufficient evidence to support jury finding that each
contributed to child’s death by either direct conduct or failure to protect. Case reversed
based on failure of prosecution to show non-shaking caretaker was aware that shaking
had occurred and failed to seek medical attention.
Failure to provide accurate or complete history re how child sustained injuries may:
increase chances that child’s injuries are more aggravated due to delayed
treatment
increases risk of misdiagnosis and return to abusive environment (notice to D of risk of
harm in future)
suggests consciousness of guilt and thereby identity
may support higher level of mens rea
complicity in false account by non-assaulting caretaker may create accomplice liability
CHARGING
“It matters not that it may have been Janice rather than Roger who struck the child at
some climactic moment. The jury could find that the parents were mutually supportive in
their inhumane attitude toward the child and in abusing her physically and that they
shared the mindset intrinsic to the crime.”
Commonwealth v. Lazarovich, 547 N.E.2d 940 (Mass. Ct. App. 1989)
FAILURE TO ACT
Basis for legal liability by case law or statute
Acts of omission vs. preventing known abusive conduct
Necessitates legal duty to protect
Biological relationship; assumption of caretaking responsibility
Failure To Charge Non-Protective Parent
Public perception
Need for parent as witness
Potential that parent may exercise spousal privilege not to testify or be unavailable to
testify because of D’s exercise of privilege
Jury may punish for failure to prosecute - see People v. Steinberg, 79 NY2d 673 (1992)
Grants of immunity to secure testimony
Plea bargaining - Pick ’N Save justice
Admissible evidence to independently corroborate parent’s testimony
Develop case as much as possible without need for testimony from non-protective parent
CHARGING
Child Homicide Statutes
Felony Homicide Statutes
“Depraved Indifference” Statutes
DRAFT LEGISLATION IF NEEDED
See APRI-NCPCA/NCAAN State Statutes Series on Child Homicide and Child Abuse
and Neglect for a national compilation of statutes on these topics
CHARGING
Consider use of investigative grand jury or John Doe proceeding to develop case where
uncooperative witnesses and/or multiple potential perpetrators
Be careful of immunity issues - does law in jurisdiction necessitate transactional
immunity or only use immunity
Document extent of knowledge prior to immunity grant
CHARGING
Case Preparation and Analysis
Background checks for D and witnesses
Criminal records for D and witnesses
Secure information on prior bad acts
Review prior investigations (DHSS & police)
Try to gain understanding of dynamics of family
Obtain written statements from all witnesses
Consider further use of search warrants and investigative subpoenas
Obtain medical & treatment records
Consider appropriateness of videotaped professional interview of any child witnesses
Have photographs that were taken developed and carefully review
Review any physical evidence
Track down prior bad acts witnesses, determine availability and notify of possibility of
testifying
Secure attendance of material witnesses especially those from foreign jurisdictions if
non-cooperative
Insure crime lab analysis completed timely for discovery
Prepare exhibits and demonstrative aids
File and brief pre-trial motions
Potential Motives For Abuse
“Motive” in the context of physical abuse and child homicide is unique from motives
present in other types of crimes. Generally “motive” is not a purposeful mental state, but
instead a risk factor or stressor which may produce reactive and abusive behavior by the
child’s caretaker. “Motive” in this context is important because it tends to explain why
and how the abusive act occurs, although it does not excuse the conduct.
Potential Motives For Abuse
Offender deliberately sets out to torture or abuse child - the sadistic personality of the
offender or their general antisocial personality characteristics explain why they act out
violently toward children. This likely applies to a very small subset of SBS offenders
Triggering event producing anger/frustration (soiling, crying, behaviors of child, adult
expectations for child’s behavior)
Child’s medical or physical condition which is frustrating for caretaker
Childcare responsibilities interfering with caretaker’s work or recreation
Alcohol or drug usage by caretaker
Lack of experience with caretaking
Problems in domestic relationship (unexpected or unwanted birth, child care debates,
general discord, caretaking by only one parent, DV)
Loss of job or unemployment
Financial difficulties and poverty
Lack of sleep, exhaustion
Stress at home or work
Post partum depression
Dating And Timing Of Injuries
Hypothetical for Expert
Acute vs. Chronic
Clinical Course of Injury - Symptomology
Serious & Fatal Injuries vs. Less Traumatic.
CT’s and MRI’s (MRI can differentiate blood less than 6 hours old and more than 24
hours)(CT can be helpful in distinguishing relatively new - less than 3 days, from old greater than 7 days)
Blood samples from subdurals
Bone Surveys. See generally, O’Connor, J.F. and Cohen, J., Dating Fractures, in
Diagnostic Imaging of Child Abuse, P.K. Kleinaman, ed., St. Louis: Mosby, Inc. (2d ed.
1998).
Difficulties With Dating Bruises. See e.g. Schwartz, A.J. & Ricci, L.R. (1996). How
Accurately Can Bruises Be Aged in Abused Children? Literature Review and Synthesis.
97(2) Pediatrics 254-57.
Framing Through Lay Witness Observations of Child’s Health
Prior Medical Records Establishing Presence-Absence of Injury
Willman, K.Y. et al., (1997). Restricting the Time of Injury in Fatal Inflicted Head
Injuries. 21(10) Child Abuse & Neglect 929-940.
Can an infant or young child who experiences a fatal head injury (HI) look and act well
post injury?
The histories provided for children who experience inflicted injuries are often inaccurate
and there is often a delay of care preventing documentation of the child’s clinical state
immediately after injury. In contrast, accurate data can be obtained in accidental fatal HI
cases. Most accidental fatal head injuries are the result of motor vehicle accidents
(MVA) and these are usually witnessed and receive prompt emergency service response.
Data are recorded by objective witnesses and trained medical professionals from the time
of accident until the time of death. If lucid intervals commonly occur in inflicted fatal HI
cases, review of accidental fatal HI cases should also reveal the frequent occurrence of
such periods of well being post injury.
95 children under 16 suffering fatal accidental HI with immediate EMS response were
identified. (43 other cases were excluded from the results because they did not meet
these criteria). These children were in obvious serious medical condition from the time
of injury until death. Only one lucid interval case was identified involving an epidural
hemorrhage and no other intracranial hemorrhage or swelling. This child died from
complications involving a medical procedure.
There were no cases identified in which children died from head injuries involving
entities other than pure epidural hemorrhage where the child experienced a normal state
of consciousness post injury.
The results of this study suggest that a fatal HI that does not involve an epidural
hemorrhage must have occurred after the last known time that the child exhibited normal
behavior. For a baby, normal behavior may be demonstrated by the ability to feed, to
respond to surroundings, the ability to demonstrate age-appropriate volitional motor
activity, or the ability to be consoled.
The time of injury even in a fatal HI without an epidural hemorrhage can be restricted to
after the last confirmed period of such normal behavior.
Given the obvious serious medical condition of the vast majority of the study group
immediately after injury, one would expect any competent caretaker to call for medical
assistance within moments of any similar HI. A delay in presentation to a medical
facility after such an injury is likely a clue that nonaccidental trauma needs to be
investigated rather than an indication that the child was in no apparent need of medical
attention until some time after the injury.
The average age of the study group (8.5 years) was significantly older than the average
age of children suffering inflicted head injuries. The children with inflicted head injuries
are often victims of shaken baby syndrome and are usually less than two years old… The
most important effect of this age discrepancy is that the less myelinated infant brain with
larger subdural space may allow for a lucid period before an evolving subdural hematoma
would produce symptoms. Unfortunately only four children in this study (4.3% of the
study group) were less than two years of age at the time of the injury. Thus this study can
not reliably comment on the possibility of a different response to blunt HI in some
children in this younger age group. Even so, none of the four children less than two were
among the lucid interval cases identified in the study.
(The less developed infant brain, however, is also more vulnerable to severe injury,
thereby offsetting the likelihood of a normal response following inflicted HI resulting in
death. This point is not made by the study.)
Diffuse axonal injury is thought to be highly associated with persistent unconsciousness
from the moment of injury. The prevalence and significance of diffuse axonal injury
could not be examined by this study.
Brain swelling evident on a head CT scan can occur as early as one hour post injury. The
appearance of brain swelling on a head CT scan is not useful in restricting the time of
injury in fatal HI cases.
If a history purports a lucid interval in a fatal head injury case that does not involve an
epidural hematoma, that history is likely false and the injury is likely inflicted. The time
of most fatal head injury events can be restricted to the time period after the last
confirmed period of wellness for the child.
Background Investigation
VICTIM
Past medical history including prenatal care, birth records, pediatric records, physicians,
radiological surveys
Medical records for siblings
Pharmacology records
Prior caretakers
DHSS records
School and daycare records
Releases for records
Sources for Medical History of Child
Mother’s prenatal records; birthing classes
Birth records
Pediatric records
Insurance records
DHSS records
Pharmacology records
Free clinics and subsidized health care
Reasons For Obtaining Medical History of Child
Documents baseline for comparison to present condition
Establishes absence or presence of preexisting medical condition
May establish prior injuries to child (abusive, suspicious, unexplained)
Establishes continuum of care/lack of care
May establish prior warnings or education on proper caretaking (e.g., don’t shake the
child)
May establish prior concerns of parent (apnea, not eating, colic)
May establish potential stressors and motives (health condition requiring constant
attention, colic, sleeplessness)
Eliminates potential defenses
May show child taken to multiple treatment providers to conceal history or avoid
suspicion
Sources of Information for Developmental History of Child
D and spouse, non-offending parent, older siblings
Relatives
Neighbors and friends
Caretakers (baby-sitters, daycare providers)
Pediatrician
Church members
Videotapes and photographs of child
Want To Establish through Developmental History of Child
Relative size and vulnerability of child to adult
Preexisting medical conditions/limitations
General health of child including absence or presence of injuries
Ability to roll, stand, prop, sit, crawl, walk
Dexterity of child including ability to support head; ability to grab and manipulate objects
Measurements of child from fingertips to toes and arm span to establish ability to reach
objects
Background Investigation
SUSPECT
Past employment; residences
Military history and records. See Thomas F. Boley, Investigative Liason with the
Military, 11(2) APSAC Advisor 11-12 (1998) providing information on how to access
military records.
Prior contacts with police; DHSS; court system
Criminal history including DV, animal abuse and traffic record
Divorce records and records from family court proceedings
Employment records
Prior domestic relationships; history of caretaking of children; paternity; divorce records
Past history of alcohol or drug abuse
Insurance records
Welfare records
Develops potential sources for introduction of “other acts” evidence and crossexamination of D and other witnesses
Background Investigation
CRIME SURROUNDINGS
Complete and certified copy of child’s medical records including lab reports, discharge
summaries, nurses notes, radiological reports including X-rays, CT’s and MRI’s, and
photos taken by hospital
D’s statements to doctors, nurses, EMT’s
Information supplied to D by medical personnel and others re how injuries caused
911 tapes including background noises
Separate interviews of caretakers who had immediate access to child
Statements from former spouses, relationships
Interviews of neighbors and friends
Developmentally sensitive interviews of any siblings as potential victim’s and witnesses
Statements from prior caretakers, relatives, teachers
Include all other siblings, children of D
Link D to prior abuse; establish opportunity to commit prior injuries to child or identity
as perpetrator if possible
THE SEARCH WARRANT IS YOUR BEST FRIEND
Going armed to the confrontation
Crime scene photos and diagrams
Instrumentality’s of the crime
Corroborating the victim - refuting the suspect
Trace evidence & evidence of motive
Garbage and curtillage searches
Background information and contacts
Crime Scene Investigation
Child frequently moved; multiple scenes
Expectation of privacy; 4th Amendment issues; no crime scene exception - Mincey v.
Arizona, 437 U.S. 385 (1978)
Delays in getting to and securing; alteration and D staging
Consent and search warrant; execute warrant
Examine, corroborate, refute, seize and preserve
Use death-scene investigative checklists for abuse cases as well as homicides. See death
scene checklist form provided by the State of Missouri
Search to include all potential scenes; multiple rooms and vehicles; exterior of dwelling
Search to include trash receptacles and laundry
Photodocumentation and videotaping; scaled diagrams
Measurements of height of furniture and examination of floor coverings; measurement of
highest items in home child could potentially fall from (usually refrigerator or stair
landing); seizure of relevant furniture items
Instrumentality's of offense (weapons, objects) especially with patterned injuries
Trace evidence (blood, hair, fibers)
Motive evidence (soiling, vomitus, illness, colic, messes or spills, monitors or devices for
special needs child)
Life insurance policies on children
Fingerprints especially for staged crime scene and on instrumentality's
Evidence of neglect, quality of caretaking
Baby bottles and baby food containers
Evidence of drug and alcohol usage
Medications child taking or deprived of
Child’s clothing, bedding and toys
Paraphernalia used and discarded by rescue personnel
Potential poisons and chemicals including salt, alcohol and insulin
Photos and videotapes of child showing developmental levels
Childcare books and magazines
Telephone records
Be vigilant for anything that looks out of place
PAY ATTENTION TO DETAILS
The smallest seeds hold the biggest truths
Physical evidence doesn’t lie - people do
Photodocumentation of Child Abuse
CT’s and MRI’s
Bone surveys; multiple over time
Photograph child ASAP and on multiple occasions over time
Body diagrams; location & configuration
Infrared and blacklight photography. See Michael West & Robert Barsley, Selected
Forensic and Physical Evidence Experts, 11(4) NDAA Bull. 8 (1992)
Color coded photographs; measured injuries; slides vs. 35mm
Bitemark evidence
Comparison photographs with patterned injuries and instrumentality
Bilateral and angled photographs of extremities for comparison of swelling
Injury reconstruction with dolls
Videotaped demonstrations by D of mechanism
Insure Adequacy of Autopsy
Radiological survey including MRI for suspected head trauma; “skeletal survey”
involving multiple projections rather than “babygram” which is much less discriminating.
See Kleinman, P.K., et al., Radiologic Contributions to the Investigation and Prosecution
of Cases of Fatal Infant Abuse, 320 New England Journal of Medicine 507-511 (1989);
Kirschner, R.H. and Wilson, H.L., Fatal Child Abuse: The Pathologist’s Perspective, in
Child Abuse: Medical Diagnosis and Management, (R. Reece ed. 1994).
Tissue samples from fractures and bruises
Preservation of retinas and optic sheath where hemorrhage or detachment present. (Optic
nerve sheath hemorrhages cannot be identified accurately in the living child)
Toxicological screening (preserve blood samples for additional testing)
Stomach contents (framing time of death)
Photodocumentation and injury diagrams
Coordinate with scene investigation
Insure history, background information, and results of crime scene investigation provided
to ME to assist with determination of cause and manner of death
Obtain hair and blood samples from victim for comparison with possible trace evidence
Examination of spinal column and cord, base of brain, and ribs
Microscopic and dissected examination of bruises to assist in aging injuries
Reexamination after 24 hours for additional bruises or other injuries
Eliminate other causes of death or injuries
INTERVIEWING THE SUSPECT
Take your time - delay arrest
Be non-confrontational early
Interview independently of other caretakers
Obtain general information on child and family
Determine history of prior caretaking of other children
Information on how other caretakers handled child and general description of quality of
caretaking relationship
Develop sources for records
Develop time line for days preceding injury or death including child’s feeding and
sleeping schedule, activities, demeanor, behavior, other caretakers, etc.
Know the facts and import of medical findings
Videotaped demonstration of how injuries occurred
Don’t suggest defenses or mechanisms during initial questioning
Seek elaboration and details. If suspect is not talking about child’s behavior, we should
be asking for specific details re child’s behavior immediately before and after traumatic
event (e.g. how child crying, eating and sucking, stretching and moving, playing, tracking
of eyes, showing any distress, etc.)
Potential use of polygraph if no admissions. Be careful of state of mind and mens rea
questions.
Explanation For Injury
95% of initial caretaker histories in abuse cases are false
Strong evidence of consciousness of guilt
Necessitates multiple interviews
Provides identity for abuser
Independent interviews of caretakers - generally no marital privilege re child abuse
Interview quickly to obtain initial explanations for injuries before opportunity to
collaborate and obtain diagnosis from medical personnel
Multiple potential sources for prior histories - interview everyone who saw child and
spoke with defendant
Essential component in medical diagnosis
Explanation For Injury
Single most important source of information
Source - Caregiver or hearsay; present during event; reason for absence of eyewitness
History may be based on actual events but sequence may be reversed or altered to
alleviate or shift responsibility
Inexperienced doctors may accept false histories because of reluctance to accuse and lack
of training in recognizing abuse injuries
Lack of concern expressed for child’s condition
Admitted delays in seeking medical treatment
Denial or admission of clinical symptoms
Critical condition prompting medical intervention
Admission regarding triggering event or stressor
Caretaker’s coping mechanisms for stressors and response if unsuccessful
Inadequate explanation for injury, trivial trauma to explain major injury
Explanation beyond developmental capabilities
Explanation of child’s post-trauma behavior inconsistent with condition
Blame shifting to sibling or spouse
Blame shifting to doctors, nurses, EMT’s
Changing history when confronted - document information provided to caretaker
prompting changes in explanation
Conflicting explanations by caregivers
Injury location - configuration inconsistent with claimed mechanism
Claim injuries self inflicted
Claim child bruises easily
Unrealistic expectations for child’s “good” or “acceptable behavior (child “wimp”
because cried all the time, child wouldn’t listen when I told it to do something)
Teach child lesson or had to discipline child
Timing of injuries inconsistent with history
Denial of knowledge of how injury caused
Other witnesses or knowledgeable persons may also provide false histories because of
their own participation, fear of retribution, fear of loss of other children, view loss of D as
detrimental to family, denial, acceptance of D’s account
False history or failure to provide critical information to medical personnel during
treatment
Common Suspicious Stories - The Dirty Dozen
1. Child fell from a low height such as a couch, bed, crib or chair
2. Child fell and struck head on floor or furniture, or hard object fell on child
3. Child unexpectedly found dead (age and/or circumstances not appropriate for SIDS)
4. Child choked while eating and was therefore shaken or struck on back
5. Child suddenly turned blue or stopped breathing, and was then shaken
6. Sudden seizure activity
7. Aggressive or inexperienced resuscitation efforts to a child who suddenly stopped
breathing
8. Alleged traumatic event one day or more before death
9. Caretaker tripped or slipped while carrying child
10. Injury inflicted by sibling
11. Child left in dangerous situation (e.g. bathtub) for just a few moments
12. Child fell down stairs
From: Dr. Robert Kirschner and Dr. Harry Wilson, Fatal Child Abuse: The Pathologist’s
Perspective, in Child Abuse: Medical Diagnosis and Management, Robert Reece, ed.
(1994)
Shaken Baby Syndrome – Medical and Physiological Dynamics
Child’s head and brain differ from an adult; child’s head represents 25% of total body
weight (adult 12%)
Brain softer and more vulnerable to shearing forces than adults. The infants brain has
less myelin and higher water content making it less rigid.
When rotation occurs, shearing forces are greatest at the junctures between tissues that
differ in their rigidity, typically between the gray and white matters of the brain which are
of different densities.
Neck muscles of child relatively weak, can’t protect against forced whiplash movements
Skull not fully ossified, vigorous whiplash can elongate head by molding it with forces of
acceleration-deceleration from shaking
Children are more vulnerable to edema because trauma results in increased blood flow to
the brain, whereas in adults there is less blood flow; the increased blood flow results in
more rapid edema which shuts off other brain functions
SBS Injuries Occur in Several Ways:
Grasping trunk or arms and violently shaking back and forth until chin strikes chest and
then backward till back of head strikes back
Grasping head, neck, ankles or legs and shaking or swinging in a circular motion
Straddling of older-heavier children as they lay on the floor
Shaking may be combined with impact to an object such as furniture, walls or floors, or
by throwing the child down onto a bed, piece of furniture or floor
Injuries Produced by SBS
Contusions to brain, tears to brain tissue, diffuse axonal injury, edema, ICP, atrophy,
death
Mental retardation, cerebral palsy, paralysis
Subdural and subarachnoid hemorrhage; 90% of kids who die from inflicted head trauma
have subdurals vs. 20% of kids who sustain massive accidental head trauma
Subdurals are a marker for injury to the brain, they are not what causes the child’s death;
death usually results from edema or from direct trauma to the brain which results in death
before edema can occur
Retinal hemorrhage (often bilateral, diffuse and involving multiple layers of retina),
retinal detachment and optic sheath injury. For an excellent summary of the literature on
these findings see Alex Levin’s chapter included in the medical references supra.
Not medical consensus on mechanism (ICP, pulling and shearing strain on eye and optic
nerve)
Bilateral pathognomonic for abuse but may appear in only one eye or not at all
CPR not cause (Perloff summary of seven peer reviewed research studies, three of which
were single case reports and remainder were prospective studies of consecutive patients
receiving CPR or retrospective studies of autopsy findings. Total of 288 children
reviewed, only four, 1%, had retinal hemorrhages possibly due to CPR and all were
distinguishable form the types of findings seen in SBS cases, e.g. the types of
hemorrhages were different or there was no associated brain injury)
Research reports indicate present in 25-75% of SBS cases depending in large measure on
quality of examination
Marker for severe whiplash forces to head
Retinal Hemorrhages occur in less than 5% of infants with accidental trauma and only in
association with a high-energy event and major intracranial injury. (Perloff summary of
six peer reviewed research studies involving 291 children injured by accidental means
found only three, 1%, with retinal hemorrhages, all were involved in MVA’s, two died
and the other had cerebral contusions)
Presence of retinal hemorrhage is strongly suggestive of shaking injury, their absence is
non-diagnostic, i.e. it does not exclude shaking as mechanism.
Blindness
Damage to upper cervical cord
Metaphyseal fractures to long bones - high correlation between subdurals and fx’s of long
bones
Fractures to skull, cervical column and ribs
Contusions and abrasions to trunk
Clinical symptomology
The combination of retinal hemorrhage, subdural hematoma and cerebral edema are
characteristic of SBS, and other potential causes for the co-occurrence of these three
symptoms are remote. However, not all of these symptoms need be present for a
diagnosis of SBS.
Shaken Baby Syndrome - Clinical Symptomology
Lethargy
Extreme irritability
Breathing difficulties
Gaze disturbances
Vomiting
Poor sucking or swallowing
Bulging or spongy forehead
Unequal size of pupils; bloodshot eyes
Seizures; rigidity of extremities
Coma
Shaken Baby Syndrome
Rapid development of neurological impairment with severe or fatal head injury;
decreased level of consciousness or unconsciousness
Identifies when injury occurred; drastic changes in child’s behavior should be readily
apparent; narrows class of perpetrators
Frequent presence of old subdurals, fractures
High incidence of death
Injuries may be produced by shaking alone without impact
Shaking combined with impact produces more rapid deceleration increasing the shearing
forces several fold
Shaking injuries require 10-30 G’s of force
Rotational components to shaking also increase shearing forces
Not trivial force; equivalent to 50-60 m.p.h..... auto accident or fall from several story
building; compare to G forces from roller coaster ride
Over 50% of fatal shaking involves impact
Presence of edema, diffuse axonal injury and/or retinal hemorrhages is a clear indication
of greater forces
Many forensic pathologists and pediatric specialists feel that SBS cases involving death
or more serious injuries require impact to generate sufficient forces to produce this
degree of injury. Other professionals suggest that shaking alone is sufficient. This debate
amongst professionals is ongoing but can cloud the issue in the more serious cases where
there is not physical evidence of blunt trauma to the head. However, impact against a
soft object can increase shearing forces and leave no signs of impact. For a discussion of
these issues see DiMaio and DiMaio (1989) Forensic Pathology, p. 323-325, Elsevier
Publishing; Duhaime, A.C. et al. (1987) The Shaken Baby Syndrome: A Clinical,
Pathological and Biomechanical Study. 66 J. Neurosurg. 409-415; and authorities cited
supra under Medical References and Resources.
“. . . [E]xcept for those (blunt head injuries) caused by motor vehicle accidents and falls
from extreme heights, they are almost always benign . . .”
A.C. Duhaime, et al., Head Injuries in Very Young Children: Mechanisms, Injury Types
and Ophthalmologic Findings in 100 Hospitalized Patients Younger Than 2 Years of
Age. 90(2) Pediatrics 179 (1992)
Chadwick, et al.(1991). DEATHS FROM FALLS IN CHILDREN: HOW FAR IS
FATAL? 31 Journal of Trauma 1353.
Case Fatality Rate By Fall Height - 7 fatalities from alleged falls of 1-4 feet, all
determined retrospectively to be abuse related.
Fatalities From Short Falls
Type of Fall
Standing Fall
2
Fall From Bed or Table
2
Fall Down Stairs
1
Fall From Arms of Adult
2
U.S. v. Gaskell, 985 F.2d 1056 (11th Cir. 1993)
Defense argued doctor’s demonstration of force necessary to produce victim’s SBS
injuries using a rubber mannequin was irrelevant and prejudicial
Defense objection that doll was not similar in size, weight and neck rigidity to victim;
more force needed in demonstration to produce head movement on doll than on victim;
doctor conceded this on cross
The conditions of the demonstration were not sufficiently similar to the alleged actions of
the D to allow a fair comparison
A greater degree of force was required to produce the head movement characteristic of
SBS in the doll
Doctor was unable to state the number of oscillations necessary to produce the victim’s
injuries
Prosecution failed to establish that either the degree of force or number of oscillations
bore any relationship to the D’s actions
By displaying greater force than level required to produce SBS in victim, and by
arbitrarily selecting number of oscillations, demonstration tended to implant a strong
impression of D’s conduct that was not supported by a factual basis
Generalized demonstrations of mechanisms for trauma which do not purport to
demonstrate length of time for shaking or force needed to produce may avoid Gaskell
ruling. See e.g. State v. Candela, 929 S.W.2d 852 (Mo. App. 1996).
Limiting testimony to verbal descriptions of the type of force necessary to produce the
injury, including expert testimony that force is “something that any responsible adult
would perceive as dangerous.” See State v. Ojeda, 810 P.2d 1148 (Idaho Ct. App. 1991).
Other case law has distinguished Gaskell. See e.g., State v. Powell, 487 S.E.2d 424 (Ga.
App. 1997); United States v. White, 1996 W.L. 399973 (A.F.C.M.R. 1996)(upholding
doctor’s demonstration with teddy bear of force and type of shaking); Roberts v. State,
1997 Ark. App. LEXIS 461 (Ark. Ct. App. 1997)(demonstration of force upheld where
defendant did not challenge that force applied was different and it was not used to prove
duration of shaking)
A videotaped demonstration by the defendant of the mechanism and force used during
the shaking would permit the expert to comment on the demonstration and offer an
opinion whether it is consistent with the type of injuries observed.
Impact changes force dynamics necessitating inquiry of the defendant regarding presence
of impact.
False histories provided by defendant’s compound difficulty in relying on the history as a
foundation for an in court demonstration.
SIDS - Definition
“The sudden death of an infant under one year of age which remains unexplained after a
thorough case investigation, including performance of a complete autopsy, examination
of the death scene, and a review of the clinical history”
American Academy of Pediatrics (1994). Distinguishing Sudden Infant Death Syndrome
From Child Abuse Fatalities.
SIDS
Death should be ruled SIDS when:
A complete autopsy is done and findings are compatible with SIDS
No gross or microscopic evidence of head trauma, cervical cord injury, retinal
hemorrhage or mechanical asphyxia
No evidence of trauma on skeletal survey
Other causes of death are ruled out
No evidence of current alcohol, drug or toxic exposure
American Academy of Pediatrics (1994). Distinguishing Sudden Infant Death Syndrome
From Child Abuse Fatalities.
Pre-Trial Motions
Excuses, Excuses, Excuses
My judge would never let me do that.
The law in my state just doesn’t support that argument.
I’d never be able to put in that kind of evidence in my case.
Judges need to be educated and legal motions, briefs, and memorandum as well as
learned treatise articles are an excellent source for education
Pre-trial motions are not just for the defense attorney - they are an effective and vastly
underutilized tool in the prosecutor’s arsenal
TYPES OF PRE-TRIAL MOTIONS
Motions to Obtain Non-Testimonial Evidence from Defendant
Modification of Jury Instructions
Admission of Hearsay Statements
Courtroom Modifications for Potential Child Witnesses
Motions specifying length and time for questioning
Motions to ask leading questions on direct
Motions to restrict use of leading questions on cross-examination
Motions to compel use of age appropriate language
Use of CCTV or videotaped deposition
Presence of support person in courtroom
Testify from lap of support person or with support person sitting next to child
Dispense with oath for child, or modification of oath taking procedure and
questions
Support with appropriate research findings and expert witness testimony
Extended Voir Dire - Use of Jury Questionnaire
Reciprocal Discovery
Identity of defense witnesses and experts
Reports and materials; articles relied on
CV and prior trials appeared in
Notice of defenses to be asserted at trial
Inspection of physical evidence and documents defense will rely on
Motions in Limine to Exclude or Limit Defense Expert’s Testimony
Junk science; Daubert & Frye
Testimony on defendant’s mental state or knowledge
Profiling evidence or “Battering Parent Syndrome” evidence
Motion to Voir Dire Expert Before Testimony
Motion for Offer of Proof Regarding Defense Expert’s Proposed Testimony
Motions in Limine Excluding Defenses
Prior Bad Acts of Defendant
Motions in Limine to Exclude or Limit Defense Character Evidence
Admission of Prior Injuries to Victim
Severance or Joinder Motions for Counts or Defendants
Jury View of Scene
Subpoena Duces Tecum for Records
Medical records
DHSS and school records
Records of vital statistics
Notice of Intent to Rely on Learned Treatises
Notice of Intent to Rely on Expert Testimony
Notice of Intent to Rely on Novel Expert Testimony or Demonstrative Evidence
Motion to Make Use of Physical or Demonstrative Evidence in Opening Statement
Before Receipt of Evidence
PRE-TRIAL MOTIONS - Other Acts of Physical Abuse
Battered Child Syndrome (all components not required for admission)
Estelle v. McGuire & Huddleston v. United States
Access & opportunity vs. absolute identity
DV evidence (intent, malice or knowledge; failure to report; failure to intervene)
Between 25-65% of children who die from maltreatment are previously known to CPS or
other agencies responsible for child welfare and protection - suggests high likelihood of
discovering prior acts evidence within the records of these agencies
Theories for Admission
Motive
Intent
Common Scheme or Plan
Knowledge
Identity
Absence of Mistake or Accident
Credibility
Doctrine of Chances
Res Gestae
Complete picture of Crime, Place Crime in Context
Strategies and Considerations
Law in jurisdiction
Judges past rulings and likelihood of favorable ruling
Appropriate charges to support admissibility or avoid 404(b) issue
Does joint trial affect
Standard of proof
Pre-trial motion and appeal from adverse ruling
“If it ain’t prejudicial, it ain’t relevant.”
Responding to a court’s ruling of “I don’t have to tell you why it’s not coming in.”
Not all 404(b) evidence is “bad.”
Defendant’s offer to stipulate to elements.
Argue multiple basis for admission.
Make record even if court doesn’t.
Give limiting instructions.
FRE 404(b) as a rule of exclusion or relevance
Categories are not exclusive or exhaustive
Doctrine of multiple admissibility - it may show character or propensity but…
Age of event, similarity of circumstances, and identity of agent are all relative.
Renew admissibility determination if circumstances justify at trial - need may become
more apparent or new basis for admission may occur based on evidence presented
Cross-examination of defendant and/or defense witnesses may justify
“No man can by multiplying his crimes diminish the volume of testimony against
himself. The state discovers it and the jury acts upon it.”
Herde v. State, 236 Wis. 408 (1941)
State v. Ostlund, 416 N.W.2d 755 (Minn. Ct. App. 1987)
D dropped children into crib and left them crying
D grabbed children by one arm and picked them up
D distant toward baby - not cuddling, kissing, hugging or touching
D threw ball into baby’s face commenting “I don’t want a sissy for a baby.”
Non-injurious spanking and shaking of V
Inappropriate feeding conduct with V
Evidence of several previous inappropriate caretaking incidents offered to show “callous
attitude” toward children. Admission upheld as relevant to rebut defense of accident and
to show context of relationship between defendant and victim and place charged incident
in its proper context for jury.
Baine v. State, 604 So.2d 258 (Miss. 1992)
“Evidence of a defendant’s other crimes is admissible where it is integrally related in
time, place, and fact to that for which he stands trial, thereby permitting the State to tell a
rational and coherent story of what happened to the victim.”
Commonwealth v. Lazarovich, 547 N.E.2d 940 (Mass. Ct. App. 1989)
“It matters not that it may have been Janice rather than Roger who struck the child at
some climactic moment. The jury could find that the parents were mutually supportive in
their inhumane attitude toward the child and in abusing her physically and that they
shared the mindset intrinsic to the crime.”
People v. Evers, 12 Cal. Rptr. 2d 637 (Cal. App. 4th 1992)
Defendant’s prior act of shaking another child was admissible to prove defendant’s
knowledge that shaking could harm child.
Kempe, et. al. (1962). The Battered Child Syndrome. 181 JAMA 17
“The Battered Child Syndrome may occur at any age, but in general the affected children
are younger than 3 years. In some instances the clinical manifestations are limited to
those resulting from a single episode of trauma, but more often the child’s general health
is below par, and he shows evidence of neglect including poor skin hygiene, multiple soft
tissue injuries, and malnutrition.”
“A marked discrepancy between clinical findings and historical data as supplied by the
parents is a major diagnostic feature of the Battered Child Syndrome… Subdural
hematoma, with or without fracture of the skull...is an extremely frequent finding even in
the absence of fractures of the long bones... The characteristic distribution of these
multiple fractures and the observation that the lesions are in different stages of healing
are of additional value in making the diagnosis.”
Not all of the listed features need be present to make a diagnosis, and the injuries do not
need to be in different stages of healing or result from multiple incidents. See Schleret v.
State, 311 N.W.2d 843 (Minn. 1981).
Estelle v. McGuire, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)
Evidence of Battered Child Syndrome Admissible to Prove:
Intent
Absence of Mistake or Accident
Identity
Even if the defendant does not raise “accident” as a defense, evidence of Battered Child
Syndrome is admissible to prove intent... “The prosecution’s burden to prove every
element of the crime is not relieved by a defendant’s tactical decision not to contest an
essential element of the offense.”
Battered child syndrome “exists when a child has sustained repeated and/or serious
injuries by non-accidental means...Evidence demonstrating BCS helps to prove that the
child died at the hands of another and not by falling off a couch, for example; it also
tends to establish that the ‘other,’ whoever it may be, inflicted the injuries intentionally.
“When offered to show that certain injuries are a product of child abuse, rather than
accident, evidence of prior injuries is relevant even though it does not purport to prove
the identity of the person who might have inflicted the injuries.”
“The proof of battered child syndrome itself narrowed the group of possible perpetrators
to the (defendant) and his wife...Only someone regularly ‘caring’ for the child has the
continuing opportunity to inflict these types of injuries; an isolated contact with a vicious
stranger would not result in this pattern of successive injuries stretching through several
months.”
See also, Annotation, Admissibility of Expert Medical Testimony on Battered Child
Syndrome, 98 A.L.R.3d 306.
United States v. Powers, 59 F.3d 1460 (4th Cir. 1995)
Evidence of defendant’s prior violence against his family was admissible to explain the
victim’s submission to the acts of sexual abuse, and her delay in reporting the abuse.
“The general relevance of this evidence to the sexual abuse is clear to us. Evidence of the
beatings to both Brandi and her family provides a cogent explanation for Brandi’s failure
to report the sexual abuse... evidence of the beatings makes it more probable that Brandi
failed to report the sexual abuse not because it never took place, but because of her fear
of retribution.”
United States v. Tsinnijinnie, 91 F.3d 1282 (9th Cir. 1996)
Evidence of defendant’s physical abuse of child sexual assault victim admissible to
explain why victim failed to tell mother about sexual abuse.
Proactive Work In DV Cases
Develop protocol for domestic violence cases to examine, question and count children
Statistically likely to discover abuse
Ask how the children are treated
Appreciate that children are frequent stressors for DV incidents
Not likely that abuse will ever be reported
May save a life
May stop cycle of violence
May establish important “other acts” evidence admissible at trial
JURY SELECTION
Jury Selection is Really Jury De-Selection
Questions should be designed to have jurors expose personal bias against your case to
allow elimination of jurors unfavorable to the state, not to create responses that appear so
supportive they are likely to prompt the defense’s use of its peremptories.
Exercise caution in using challenges for cause - its better to use a peremptory than risk
alienating other potential juror.
Avoid confrontations with jurors. Encourage them to acknowledge their potential biases,
and thank them for their candor in doing so. Sympathize with their dilemma in
answering difficult questions. Don’t cross-examine them.
Use of supplemental juror questionnaires increases amount of information provided and
accuracy of responses.
Format of questions during voir dire should be to encourage jurors to do the talking,
rather than asking long questions which can be responded to with a yes or no. This is
more difficult to accomplish with generalized questions directed toward the entire panel,
as compared with individual voir dire. To accomplish this try to avoid long introductory
remarks prior to the question; use short simple questions (20 words or less); use silence to
encourage disclosure.
Try to get every juror talking and responding to at least two questions. The most
dangerous juror is the one you know nothing about.
Request individual voir dire outside presence of other jurors on particularly sensitive
topics, or where the answer may taint the remaining members of the panel.
Listen to responses and follow up sensitively and appropriately with additional questions.
Extensive materials on jury selection, sample voir dire questions and supplemental juror
questionnaires are available from the National Center.
JURY SELECTION
If Court Permits - Educate on the Law
Burden of Proof
Presumption of Innocence
Reasonable Doubt
Evidence
Credibility
JURY SELECTION
Anticipate Defenses - Deal With Weaknesses
Incomplete Investigation
No Eyewitness - Circumstantial Case
Conflicting Medical Testimony
Multiple Caretakers
Blame Shifting to Other Caretaker Implicating Accused
Non-Protective Parent as Witness
Immunized or Plea Bargained for Testimony
Juror Selection - Topic Questions
(These sample questions are closed ended questions designed for use with an entire jury
panel rather than individual jurors. They suggest topic areas for questioning rather than
a specific phraseology for the question. Ideally questions should be phrased in a more
open ended fashion designed to encourage jurors to volunteer information. For example
asking questions such as “How would you feel if…?” or “Tell me what you think
about…?” This format may not be permitted by the court, or may be permitted only after
a juror volunteers a response to a general question posed to the entire panel. These
questions are only a small sample of the types of questions you will need to ask. A more
expansive voir dire is available from the author)
How many of you have infants at home? Recently have had infants at home? How
do you hold the child when you pick them up? Why do you do support the head in that
way? What do you understand the risks are to the baby if you don’t adequately support the
baby’s head and neck? Can you think of a circumstance in which it would be appropriate
for the child’s head to be caused to move backward and forward unrestrained or
unsupported?
How many of you have ever had occasion to take a child to the emergency room
because they were injured? Were you asked by the doctors or nurses to tell them how the
child got the injury? Did you give the doctors or nurses truthful information? Did you ever
think about telling the doctors the child was injured in a different way? Why?
You may hear conflicting medical opinions in this case about the nature and cause
for the child’s injuries. How many of you feel that if there are conflicting medical
opinions by the expert witnesses, that you would automatically conclude there must be
reasonable doubt in the case? In other words, if the expert’s can’t agree, how can we be
expected to?
How many of you feel you should accept the opinions of a medical expert because
they are an “expert” and have more knowledge about the subject than yourself?
Do any of you feel you would not be able to evaluate and judge the testimony and
opinions of an expert, and decide whether the opinion makes sense or seems logical?
In this case, the child’s mother was aware of the abuse to the child, and did not
intervene to prevent it. If the State calls the mother to testify about what happened, how
many of you would have some opinions about the mother as a person? How many of you
think these feelings might influence how you were likely to view her testimony? How
many of you feel you would be inclined not to accept her testimony knowing those facts?
If you learned the mother was not herself prosecuted, or was testifying under a grant of
immunity, how would you feel?
Does anyone feel the burden of proof, presumption of innocence, or amount of
evidence necessary to find the defendant guilty should be higher because this case
involves charges of child abuse (or a child homicide)?
Would anyone be hesitant or reluctant to convict the defendant based solely on
circumstantial evidence, without an eyewitness to the abuse?
Can anyone think of a circumstance in which it would be okay for an adult to
shake a child?
How many of you are familiar with the term Shaken Baby Syndrome, or Battered
Child Syndrome? Can you describe what those terms mean, or your understanding of
those terms?
How many of you feel that if there is a question in your mind about a fact(s) in the
case, this means there is a reasonable doubt about the defendant’s guilt?
If questions were raised during the trial suggesting that the police failed to
conduct a complete investigation, would anyone feel that they could not convict the
defendant because the state did not do everything in their power to prove him guilty?
How many of you believe that simply because a witness takes an oath to tell the
truth in court, they will testify truthfully? Do all of you understand that in criminal trials,
there may be two or three different versions of the facts, and that it is your job as jurors to
decide what the truth is?
Does anyone find it difficult to accept the proposition that some parents
deliberately abuse their children?
Incorporate your Theme into Jury Selection Questions- Accident
How many of you have had a child fall off a piece of furniture around the house or fall
off of an item such as a play-set or tree outside the house? Was your child injured?
Has anyone known a child that fell off a table, a chair, a couch or a bed and got injured?
How serious was the injury? How many of you have watched toddlers run and fall and
bump their head? Any of them have a serious head injury requiring medical attention?
Almost all of the time you just pick them up, kiss them, give them a cookie and send
them on their way, right? We don’t have to take them to the emergency room, right?
Incorporate Theme - Failure to Protect
How many of you would risk your own safety to protect the life or safety of your child?
How about the child of someone else? How many of you think a person can commit a
crime by doing nothing? What about a parent who stands by and allows their child to be
injured?
OPENING STATEMENTS & CLOSING ARGUMENTS
80% of jurors formulate opinions regarding guilt by the conclusion of the opening
statement - you need to make a powerful first impression
Tell a story - it’s not Dragnet - effective advocacy is not “just the facts”
Paint word pictures with powerful and descriptive language. “Sally was 4 months
old when she died. She had blue eyes and blond hair and was just starting to smile. She
was 18 inches long and weighed a mere 12 pounds. Those of us who have cared for
infants know that when we pick them up we must support their heads because they do
not have the neck strength to do this themselves. The defendant stood almost six feet tall
and weighed almost 200 pounds. When he picked up Sally that night he didn’t cuddle
her against his chest in a gesture of love to stop her crying. Instead he wrapped his hands
around her tiny chest and in a rage shook her violently for at least several seconds. He
shook her until her crying stopped, and so did her life. So violent was his shaking that
her head whiplashed back and forth, repeatedly causing the back of her head to hit her
back and her chin hit her chest. This in turn caused her brain to repeatedly slam against
her skull, bruising the fragile tissues of her young brain. Delicate blood vessels that fed
and nurtured her brain were stretched and torn causing blood to pool inside her skull.
Then when the defendant was tired and could shake her no longer, he threw Sally down
on the bed causing even more damage to her brain, until it began to swell uncontrollably
and ultimately kill her.”
Use visual aids, exhibits and physical evidence if this is permitted by your judge.
Charts with charged offenses, statutory elements, excerpts from jury instructions,
chronology of facts.
Deal with weaknesses in your opening - anticipate the defenses and address them
Simplify the medical evidence in advance of the experts and after they have
testified during your closing. Use common terms not medical ones, e.g. bruise vs.
contusion, brain selling vs. cerebral edema.
Incorporate the theme(s) throughout. There are frequently multiple themes which can be
used simultaneously
Don’t follow a script and don’t be constrained by chronology. For example, you
can start the opening somewhere in the middle of the story, e.g when the 911 call comes
in, or as the doctors valiantly struggle to save the child’s life, or with one of the
defendant’s many different explanations for the injury. Then go back to the beginning
and tell the story chronologically. With prior acts evidence it may be more compelling to
save disclosure of that evidence till the end of the opening. For example, “But this is not
the first time that Sally was injured. You will also learn that she had evidence of old
injuries as well which help us know that these injuries were not caused accidentally as the
defendant claimed to doctors and the police.”
Weave the law into the story. “The defendant is charged with intentionally
causing great bodily harm to his daughter. As you sit here it may be hard to imagine that
anyone could purposefully hurt this innocent baby. But the law provides that a person
intentionally causes harm if they are aware that their conduct is practically certain to
cause that result. You will hear doctors tell you that this child was violently shaken and
the amount of violence needed to produce these injuries is the equivalent of a 50-60
m.p.h. head on collision in an automobile. You will also hear statements made by the
defendant that he didn’t mean to cause his daughter any harm. But the doctors will tell
you that the type of shaking we’re talking about is something so violent that a rational
person observing this act would know that severe injury was being inflicted on this child.
That is the definition of an intentional act under our law.”
Start with an attention grabber - “Doctor Jones has examined hundreds of abused
infants and he will come here and tell you that Sally’s injuries were amongst the worst
he’d ever seen.” “Katie was only 4 months old and weighed a mere 15 pounds but in her
short lifetime she had more than 25 fractures.”
Relate the case facts to a powerful analogy. “As Jesus was being condemned to
die his trusted disciple Peter denied him three times. Sally’s father was also entrusted
with her care and safety. But as doctors fought to save little Sally’s life, as they
repeatedly asked her father what happened so they could provide proper and expedient
medical care, he too denied the truth.”
Relate the burden of proof instruction to the evidence. “Reasonable doubt is
defined by our law as a reasonable hypothesis consistent with the defendant’s innocence.
Is it a reasonable hypothesis consistent with the defendant’s innocence that he tells us
now on the stand that he shook his baby because she was not breathing? Can we believe
this version is reasonable when the defendant repeatedly denied shaking the baby to
doctors and the police? Isn’t it more reasonable to believe Doctor Jone’s testimony that
the baby stopped breathing because he was shaken?” “Reasonable doubt is not a doubt
based on mere guesswork or speculation. Yet that is repeatedly what you heard from the
defense experts who suggested that the child’s injuries were possibly caused by this or
that. They never indicated that more probably than not the injuries were caused by…”
Remember the principle of verisimilitude. “The quality or appearing to be true or
real; likelihood. Something that has the appearance of being true or real.” (Or as I like to
say - the way things really happen). “So what the defendant’s expert is asking us to
accept is that this child’s fatal injuries are consistent with a fall from a height of less than
four feet. He asks us to accept this possibility despite the fact that more than twenty
medical studies have examined the injuries to children from falls of this height and all
have reached the conclusion that children do not sustain fatal injuries from short falls.
Perhaps we can accept the speculation offered by the opinions of this doctor, but I submit
to you that we can do so only if we live in a different gravitational field. To do otherwise
requires you to suspend your common sense to the same degree as he suspends his belief
in the principles of physics and the conclusions of medicine.”
LAY WITNESSES
All caretakers and people having contact with the child during the relevant time periods
may need to be called to testify they did not injure the child.
Caretakers called to indicate the child’s healthy condition prior to the onset on
symptomology, and establish time frame for abuse.
All witnesses testifying to the defendant’s different histories of the event including
dispatch operators for 911 tapes, nurses and EMT’s who may document statements in
their reports, etc.
Witnesses testifying to the child’s developmental capabilities, and to refute
characterizations of their child’s behaviors offered by the defendant (e.g. child accident
prone).
Foundation witnesses to support expert medical testimony.
Child’s pediatrician.
Neighbors who have heard or witnessed events involving the family or child.
Witnesses to prior caretaking by defendant with child, or other children.
Other acts witnesses including incidents of DV.
EXPERT WITNESSES PRINCIPLES
Presume ignorance of jurors
Go to original source materials
Analyze research
Is precedent relating to expert witness testimony dicta or reasoned opinion
Applications from other disciplines
Generic vs. specific
Opinions on ultimate issue permitted where they involve medical science
Opinions on reliability of history for injury are part of diagnosis
Support with lay testimony
DO YOUR HOMEWORK
Make discovery demands by motion or pursuant to statute
Know the science
File learned treatises
Consult with other experts besides those who you will call as witnesses
Investigate the expert
Obtain transcripts of prior testimony
Obtain expert’s own writings
Call defense expert and attempt to speak with them
Make certain your expert’s CV is completely accurate and there are no skeletons that will
destroy their credibility. Presume that the defense will do their homework too.
Review with your experts the anticipated defenses and the anticipated defense expert
opinions
“Better understanding of the facts behind physicians’ judgments has the paradoxical
effect of both increasing and decreasing one’s confidence in those judgments. On the one
hand, one appreciates the fact that the physician’s opinion is based on both an
understanding of the mechanisms
by which injuries occur and an awareness of the
probabilities of various causes drawn from research. On the other hand, one’s confidence
may be decreased when one recognizes the margin of error within which physicians’
operate, making it impossible to always be able to state with certainty that abuse
occurred. We believe, however, that knowledgeable evaluation is always superior to
naive trust or impulsive skepticism. Attorneys will never know as much as the
physicians upon whom they rely for expert advice. Nevertheless, the attorney who has
some understanding of both the strengths and weaknesses of the expert’s opinion is in a
much better position to effectively translate that opinion into testimony that paints a
compelling picture for the trier of fact.” ... “Without understanding the research that
underlies expert medical judgment, an attorney can neither make full use of the
physician’s expertise, nor adequately cross-examine an opposing expert.” Thomas D.
Lyon, Elizabeth E. Gilles, and Larry Cory, Medical Evidence of Physical Abuse in
Infants and Young Children, 28 Pac. L. J. 93, 94-95 (1996).
EXPERT TESTIMONY - Pre-Trial Preparation
Consult with multiple experts with knowledge of relevant aspects of child’s condition
Each may supply parts of diagnostic picture
Not all physicians are specialists in all areas
Consider issues of potentially conflicting medical opinions, weaker opinions reducing
import of stronger opinions if multiple experts called
Have experts talk to one another to see if they can resolve differences of opinion or limit
differences to small or unimportant areas
Determine limitations or qualifications to opinions - alternative explanations for injuries
or diagnosis, likely defense explanations, possibilities not eliminated or tests not
performed
Consult with defense experts if possible but in all instances make an attempt to speak
with them
Review case law on permissible areas of expert testimony. See generally, Expert
Witnesses in Physical Abuse and Neglect Cases, (Holmgren, NCPCA Outline); Myers,
J.E.B. (1997). Evidence in Child Abuse and Neglect Cases, 3d Ed., Wiley & Sons.
AREAS OF EXPERT TESTIMONY TO DEVELOP:
Experts experience with children, child abuse, SBS
Materials reviewed (medical literature, pre-natal records, etc.)
Consultations with other experts, child-abuse-team reviews of child’s condition.
FRE 703 allows the expert to testify regarding consultations with other doctors in support
of his opinion, thereby buttressing the strength of the expert’s testimony. This represents
an opportunity to demonstrate that the expert has done his homework, considered
alternative hypothesis, is relying not only on his own judgments but those of others as
well, etc. This is an especially useful practice where the expert may not have the
experience, qualifications or diagnostic tools available to doctors who specialize in child
abuse and pediatric cases. This is especially true in rural jurisdictions and jurisdictions
without access to major teaching hospitals and children’s hospitals. However, the expert
cannot testify that the other consulted-with-experts share his opinion unless those experts
are also called to testify under case law in many jurisdictions. Otherwise this rule would
permit the expert to circumvent the rules against hearsay and deprive the other side of the
opportunity to challenge the opinions via cross-examination.
Incorporate relevant research. The expert can testify that they have reviewed the
medical literature and research in formulating their opinions and diagnosis. They can
also identify learned treatises for use in supporting their own opinions, as well as laying
foundation for the cross-examination of defense experts. This tactic has similar
advantages to the points made above.
Incorporate medical definitions, e.g. Battered Child Syndrome, SBS, etc. An
effective technique is to ask the doctor if they are familiar with the term, have them
define the term, then ask whether there are medical findings in the present case which
coincide with the diagnosis encompassed by the term.
Remember that the ultimate diagnosis of child abuse is frequently premised by
medical personnel on the fact that the history provided is inconsistent with the injuries.
This is one of the rare instances in which an expert can effectively offer a comment that
another witness is lying, or has lied.
If the defendant has provided a demonstration of the mechanisms and force used
during the shaking incident (either to law enforcement or during the trial) the expert
should comment on the consistency of this demonstration with the degree of injuries.
This procedure avoids the problems associated with the expert themselves demonstrating
the amount of force as discussed in the Gaskell case.
Use demonstrative aides
EXPERT TESTIMONY
The prosecutor must cover both sides of the medical picture in child homicide cases both clinical practice and pathology or the defense will point out the weakness with
focusing on only one side.
You’ll hear an argument that the pathologist “thinks” or “assumes” that falls from 18
inches don’t cause death to children, but he can’t say this with any authority in the
absence of working with the population of children who suffer such falls with non-fatal
injuries.
Conversely if you call only the pediatric expert, the defense will object that such a person
cannot express opinions about such matters as “cause and manner of death.”
Rob Parrish
EXPERT TESTIMONY
The expert must explain the absence of certain medical findings commonly associated
with SBS, e.g. no retinal hemorrhages or retinal hemorrhages in only one eye as opposed
to bilateral; the absence of a subdural hematoma or cerebral edema, etc.
The expert must explain how the child may have lethal internal injury while showing no
signs of external trauma.
See e.g. Adelson (1974). The Pathology of Homicide. Charles C. Thomas Publishing
Co., p. 381; “Sufficiently important to justify repetition is the generalization that absence
of external traumata does not preclude the presence of grave internal injuries. The most
common form of ‘concealed’ fatal trauma, whether it involves the head, neck, chest or
abdomen, is that caused by blunt force… the pathologist must be aware of the frequently
encountered combination of minor or absent external injuries associated with internal
traumata of sufficient gravity to be fatal.”
EXPERT TESTIMONY
Much still unknown about science of SBS
How much force-shakes are necessary
Shaking vs. shaken-impact
How long shaking incident lasts
Time interval between trauma and onset of symptoms
How many incidents go undetected
Conservative approach to testimony till science established more definitively
Tactics For Experts
Support with appropriate research
Talk to the jury not above them
Provide analogies for technical concepts
Use demonstrative aids whenever possible
Keep it simple - Don’t overkill
Be professional inside and outside court
Be calm, courteous & confident
Make eye contact with jury & attorneys
Know your audience and relate to them
Don’t answer questions unless you understand them
Don’t let attorney’s confine you to yes-no answers
Clarify misstatements implied in the question
Control your environment
Ask to review quotes from sources
TELL THE TRUTH
DEMONSTRATIVE EVIDENCE REASONS TO USE - LEGAL THEORIES
Explain, clarify or illustrate testimony
Corroborate witness’ testimony
Establish motive
Support element of offense
Demonstrate malice, intent, premeditation or aggravating circumstance
Negate opponent’s argument such as consent, accident or mistake
Demonstrate how event occurred
Establish cause or mechanism of injury
Establish timing of injury
Avoid potential arguments regarding prejudice to D from admission of autopsy
photographs by providing alternative means for presenting similar types of evidence
through medical illustrations or diagrams
See DerOhannesian, P. (1995). Sexual Assault Trials, Sec. 14.7 at 689, Michie Co.
DEMONSTRATIVE EVIDENCE TYPES
Photographs and videotapes of child to humanize, show development and vulnerability
Photographs of injuries including slides
Medical illustrations and diagrams
In-court drawings
Anatomic models and drawings
Flipcharts
Charts including time lines and chronology of D’s statements
Videotapes of scene
Drawing of scene, floorplans
Actual furniture from scene
Prints of X-rays, CT and MRI’s
Photocopies of key documents
Blow-ups of pre-hospital or hospital care records
Audiotapes of 911 calls
Transcripts of conversations (e.g. 911 call, defendant’s taped statement)
Overhead projection of exhibits
Demonstration or reconstruction of act
Computer assisted multimedia presentations
Individual copies of some of these types of items may be appropriate for the jurors
PLEA NEGOTIATIONS
To obtain favorable plea agreements, you have to be willing to try cases. In order to be
taken seriously, you have to be able to try cases successfully and win a good amount of
the time. If a plea bargain is perceived as your only way of handling cases, you will give
up too much and the defense will frequently call your bluff. If you are not ready and able
to try the case, chances are you will and will lose.
PLEA NEGOTIATIONS
Bargaining Strategies
Communicate confidence - don’t waive a white flag
In D’s presence when possible
“I want to try this case”
“I want jury to hear these facts”
“No one will buy that garbage”
“The jury will love this child”
Communicate sense of outrage at D’s conduct to him
Communicate recognition of weaknesses in D’s case, or lack of a case
Don’t hesitate to take a no plea bargaining position with certain offenses or D’s
Let D know he is not “entitled” to a bargain
PLEA NEGOTIATIONS
Factors
Same as for charging
D’s acceptance of responsibility
Protective issues - effect on other children
Past practices of judge - Educate - Advocate - Don’t concede
Defense attorney (skills, integrity)
Sentencing criteria and offense scoring
Whether D will be repeater for future (felony conviction, 3 strikes)
Prior history of abuse - assaultive conduct
Voluntary entry into treatment before plea
Demeanor toward court and child (perjury, not force child to testify)
SENTENCING
Prosecutor’s Paradox - The worse the case is for the victim, the better the case is for the
prosecution.
SENTENCING
Purposes and Principles
Ultimate objective of filing charge - ensure it’s not anticlimactic, and preparation, work
product and advocacy are as thorough as other aspects of case.
Theme should be protection of children and retribution for serious crimes committed
against our most vulnerable citizens.
Recommend some form of incarceration in all abuse cases to reflect seriousness of
offense and for deterrence. In cases involving serious injury and homicide lengthy
incarceration should be the recommendation
Strong recommendations for repeat offenders
No real treatment, not a panacea; severe limitations
Rehabilitation really not an appropriate focus for the court at sentencing in this type of
case
High recidivism involving child abuse and family violence; covariance of different forms
of violent and abusive behavior that put victim and other family members at risk in future
Recidivism of shaking based upon research findings showing high incidence of prior
abusive injuries
Scrutinize any admissions made by offender for their accuracy and completeness research shows offenders tend to undermine severity of their conduct and force used even
when they admit shaking
Use to educate court regarding myths and realities of child abuse for case at hand and
future. Dynamic effects on V and family. Severity and breadth of abuse in community.
Cycle of violence.
Provide court with any relevant research support
Use sentencing memoranda
Videotape “A Day in the Life” of survivors to show devastating consequences to victim.
It will make a profound impression on the court for this case and others that follow
Avoid unrealistic recommendations which undermine entirety of sentencing argument
Don’t bind court’s hands by lenient recommendations the court may feel obligated to
follow
Use statistical information on morbidity and mortality
SENTENCING - Statistics
1250; 2000-5000 Child Homicides
10-20% of PA involve inflicted head trauma
Abusive head trauma leading cause of morbidity and mortality involving CA
12% children diagnosed with abusive head trauma die
Most survivors suffer lifetime disabilities
18,000 seriously/permanently disabled
141,700 serious injury
Bonnier, Nassogne & Evard, 37 Dev. Med. Child Neurol. 943-956 (1995) Outcome and
Prognosis of Whiplash Shaken Infant Syndrome: Late Consequences After A SymptomFree Interval
13 children with WSIS followed for 4-14 years after injury (1 died in acute period)
7 without sign-free interval remained severely and permanently abnormal
Other 6 initially appeared to have full recovery based on normal follow-up examination
2 months post shaking
All but one became disabled after delay ranging from 6 months to 5 years
No favorable prognosis possible before 6
Mental retardation in 5 of 6 cases, all 5 required special education
Severe behavioral disorders in 3 of 6
Pervasive developmental disorder in 2
Other findings included psychomotor retardation, impairment of cranial growth, delayed
hemiparesis
Short term studies also had poor outcomes
Authors conclude that long term prognosis & outcome in WSIS is severe in most cases
SENTENCING
Purposes and Principles
Ensure V participation. Presence, allocution and impact statements
Be aware of potential for conflicts with victims family members who may not want harsh
dispositions; address this issue with the family before the sentencing hearing if possible
Know the facts and present them. Correct misstatements. Don’t assume familiarity
Treat remarks in same fashion as you would your closing arguments. Paint a picture.
Humanize tragedy
Anticipate defenses and respond to them
SENTENCING
Defense Arguments and Responses
Injuries not that serious. Child recovered fully.
Not a result of D’s conscious act but instead God’s grace. D had no control over severity
of injuries and not thinking about them during abusive act. If injuries worse, D would
have been convicted of more serious crime. Morbidity statistics.
Incarceration will cost D his job - family its support.
Work release option. This true for all crimes and this crime should not be handled
differently. D brought it on himself. This is one of the reasons this crime is serious. D
violated responsibility already, now wants to use as shield.
D otherwise “model citizen”.
No excuse for D’s behavior, he had all the breaks. True “model citizens” don’t break the
law. Doesn’t make impact on V any less significant because D law-abiding on other
occasions.
D victim of prior abuse.
Research shows many abusers falsely claim this fact to garner sympathy and mitigate
responsibility. If D really was abused he’s in better position than others to appreciate
consequences and impact of conduct. Risk factor and increased treatment issue.
This was the way the D was raised. D didn’t know any better.
D has first hand knowledge of the abusive nature of this conduct. D should not want to
perpetuate same results on his child. If court accepts justification it will foster further
continuation of the cycle of violence. D may already have conditioned V into being next
generation abuser.
D didn’t know child would be injured; didn’t intend harm to child.
D is still lying about his conduct. Severity of injuries, and amount of violence involved
refute these claims. Medical specialists are in agreement that any reasonable person
would recognize danger inherent in conduct. D lied about how injuries caused initially
and did not seek immediate medical attention and this contributed to severity of child’s
injuries. Size disparity between D and victim refutes claim that violent shaking is not
highly likely to cause severe harm and D’s claimed lack of awareness of this risk. Impact
reflects second mechanism for trauma and demonstrates intent and D’s lack of care for
child’s welfare. Every person implicitly knows you have to handle children gently.
SENTENCING
Additional Arguments
Every shaking incident is a life threatening event
Not likely to know true outcomes for survivors at time of sentencing - potential life long
consequences may not develop or be known until much later
Emphasize special vulnerability of the baby
Act is the equivalent of an adult being shaken by a 2,000 pound gorilla
Defendant in a rage at a helpless infant when he shook child
Emphasize presence of evidence of prior injuries - this was not a one time incident
Emphasize offender’s callousness in failing to seek out immediate medical attention; lies
to doctors treating child and trying to save child’s life; failure to seek medical treatment
previously despite awareness of child’s negative response to earlier shaking episodes and
repeated behavior despite this awareness
Defendant’s false testimony at trial which jury rejected by their verdict