State of New Jersey v. Darryl Nieves/ State of New Jersey v. Michael Cifelli, Docket Nos. A-2069-21 & A-2936-21, 9/13/2023 (available on Westlaw as 2023 WL 5947996)
This is a guest post by Attorney Kathleen Pakes, Director of the Assigned Counsel Division
In a must-read opinion, the New Jersey appellate court lays out the shortcomings with the SBS/AHT dogma, upholding the trial court’s decision to not admit what it viewed as “junk science.”
Kudos to the New Jersey Public Defender for an excellent and successful Frye challenge!
New Jersey applied the Frye test to determine the admissibility of expert testimony. As the United States Supreme Court has described that standard, an “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community.” These consolidated appeals therefore boil down to a dispute over which scientific communities are the relevant scientific communities in which the State must prove general acceptance of a scientific theory.
These are “shaken baby” cases. The state argues the relevant community is clinical medical doctors–because in the presence of medical findings (subdural bleeding, retinal hemorrhages, and brain dysfunction), and no explanation for those findings, a multidisciplinary team of hospital clinicians is responsible for diagnosing a person with shaking an infant. The defense argues that while it is true clinicians apply the shaking theory (aka acceleration-deceleration), that theory stems from bio-mechanical studies, and is not generally accepted by bio-mechanical/medical engineers, i.e., the relevant scientific community.
At the Frye hearing, the State presented the testimony of a child abuse pediatrician. (p.10). The defense called a radiologist, pediatric neurologist, and a bio-mechanical/medical engineer. (Id.). In essence, the State argued that shaken baby syndrome/abusive head trauma (SBS/AHT) is generally accepted in the medical community as a valid diagnosis, as is the diagnostic methodology used by the child abuse pediatricians. The State was dismissive of bio-mechanical/medical engineering criticisms with the shaking theory, essentially arguing clinical doctors believe the shaking theory and they “diagnose” abuse. Therefore, in the State’s view, it is irrelevant that the shaking theory is not generally accepted by biomedical/mechanical engineers, AKA, experts who recognize the lack of scientific data supporting the shaking theory employed by child abuse and other clinicians.
The trial court granted the defense motion to bar testimony concerning SBS/AHT. (p.44). The court found SBS/AHT to be “more conjecture than a diagnosis because it is an option embraced once a diagnostician runs out of diagnostic options[.]” (p.45). The “diagnosis” of SBS/AHT has never been sufficiently validated by scientific or medical testing and, therefore, is properly labeled “junk science.” (Id.). In the judge’s view, “[SBS/]AHT is a flawed diagnosis because it originates from a theory based upon speculation and extrapolation instead of being anchored in facts developed through reliable testing.” (p.46). In fact, based on the expert testimony presented, “there was no test ‘that could support a finding that humans can produce the requisite physical force necessary to produce the symptoms in an infant associated with [SBS/]AHT.'” (p.44). The trial court noted the danger of presenting such clinical “diagnosis of abuse” to a jury, finding that mere presentation of the “theory” of SBS/AHT “was prejudicial because it ‘evoke[d] a sense of horror that affect[ed] the sensibilities of any competent juror,’ undermining the jurors’ ability to fairly weigh the evidence.” (p.46).
The State appealed, arguing the trial court was wrong to focus on the (lack of) scientific/bio-mechanical foundation and validation of the shaking theory. The state argued the relevant scientific community is the clinical medical community that diagnoses SBS/AHT. The appellate court noted that to this point, the child abuse pediatrician adamantly testified that SBS/AHT was not a bio-mechanical finding, but a “clinical diagnosis.” (p.13). To bolster her testimony, the State provided clinical studies accepting the SBS/AHT theory as a “valid” diagnosis, including a “consensus statement” approved by numerous pediatric and radiological organizations, and confession studies in which some persons purportedly confessed (whatever that means) to some type of “shaking” of infants in whom medical findings that could be associated with abuse had been discovered. (p.34).
The appellate court was not persuaded, noting that despite its seeming acceptance in the pediatric medical community, there was “a real dispute in the larger medical and scientific community about the validity of the shaking only SBS/AHT theory[.]” (p.4).
The appellate court instructed that where the issue of general acceptance involves more than one (relevant) community, the State bears the burden of proving cross-disciplinary validation:
“where, as here, the underlying theory ‘integrates multiple scientific disciplines’ … ‘there might be more than one scientific community to consider’ and the proponent must establish ‘cross-disciplinary validation to determine reliability.’
The appellate court found the SBS/AHT theory did not meet the standard for reliability in a criminal trial because there was no general acceptance in the bio-mechanical community:
“One cannot conclude that SBS/AHT is state of the art … when the very basis of the theory has never been proven. Without a bio-mechanical study supporting SBS/AHT, it remains a hypothesis without uniform and reasonably reliable results”[.].. It also fails to show that the “interpretation of its results are non-experimental, demonstrable techniques, which can be accepted as reliable.
Because bio-mechanical theory is the foundation of the SBS/AHT hypothesis, the lack of bio-mechanical support renders the theory scientifically unreliable, notwithstanding its support in the pediatric community.”
Wisconsin, unlike New Jersey, applies the (ostensibly more stringent) Daubert standard for admitting expert testimony. In a Daubert jurisdiction, the State must prove “testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case” To that end, this case is helpful to Wisconsin practitioners as it demonstrates the unreliability of a process that “rules in” an unvalidated, scientifically unsupported theory (shaking) that does not have general acceptance in the relevant scientific community of bio-mechanical engineers.
For those practitioners encountering an SBS/AHT case, this lengthy (and well-reasoned) opinion is a must-read. In addition, litigators handling an SBS/AHT case are encouraged to contact the author of this guest post directly should they require additional reading, such as the trial court’s lengthy takedown of the SBS/AHT “theory” or the various briefs and pleadings in this matter.