Shaken Baby Syndrome: Overcoming Untrue Defenses

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Shaken Baby Syndrome:

Overcoming Untrue Defenses

by O'Keefe1

http://www.ndaa.org/apri/NCPCA/Update/apri_update_vol_10_no_11_1998.html

The recent Shaken Baby Case in Middlesex County, Massachusetts has

demonstrated only too clearly what child abuse prosecutors have known for

years: it is difficult for people to believe that caretakers harm children,

particularly when the child victim bears no external signs of trauma. This

phenomenon is particularly true in cases involving Shaken Baby Syndrome.

Shaken Baby Syndrome2

Shaken Baby Syndrome (SBS) is a term used to describe a constellation of

injuries and the mechanism of abuse that causes these injuries. The

hallmarks of SBS are subdural and/or subarachnoid hematomas, retinal

hemorrhages and little or no sign of external injury. These injuries may be

accompanied by fractures of the long bones, ribs or skull.

Because abusive shaking is rarely witnessed, the exact mechanism in a

particular case is difficult to establish. Thus, the mechanism of abuse

must be gathered from comparisons to comparable accidental injuries and

descriptions that have been provided by perpetrators. The child is

generally held by the chest, arms or shoulders and violently shaken, with

the head whipping back and forth. During the shaking the child's head

experiences acceleration/deceleration forces, which cause the brain to

rotate relative to the more stationary skull. This type of motion causes

subdural hematomas (bleeding in the brain caused by the tearing of the tiny

bridging veins that cover the brain), diffuse axonal injury (tearing of the

white matter of the brain), and cerebral edema (brain swelling). In

addition to these injuries, another common characteristic of SBS is retinal

hemorrhages (bleeding in the back of the inner surface of the eyes). During

the shaking the child's head may be thrown or slammed onto a hard or soft

surface. Some victims bear evidence of impact trauma, indicating that they

may have been slammed as well as shaken. Evidence of Shaken-Impact Syndrome

can be seen when the child has a skull fracture, scalp and/or subgaleal

(under the scalp) hemorrhages. The lack of injury to the skull or scalp,

however, does not rule out the possibility that the child's head was

slammed into an object. If the skull impacts against a soft surface, the

absence of visible injury is explained by disbursement of the contact force

(rapid deceleration of the head as it strikes the object) over the wide

surface of the skull.3 However, shaking alone is sufficient to cause severe

injury and death in an infant. Despite the devastating intracranial

injuries that are found in SBS cases, there is often little or no external

sign of trauma.

Generally the victims of SBS are under two years of age, but the syndrome

has been diagnosed in children as old as five. Infants are particularly

vulnerable to SBS because of their relatively large heads and weak neck

muscles, the softness of their skulls, and the high water content of their

brains.

Untrue Accidental Injury Defenses In Shaken Baby Cases4

A common defense offered by perpetrators is that the child suffered from

some accidental injury.5 When confronting an accidental injury defense

particular attention should be paid to the perpetrator's account of how the

injury occurred. It is also vital that the prosecutor be knowledgeable on

the pertinent medical literature concerning the type of accidental injury

that is alleged. In addition, the prosecutor should be aware of the

developmental abilities of children. Many perpetrators allege the child

engaged in activity that would be impossible for a child that age. In the

face of complex medical testimony, prosecutors should encourage the trier

of fact to rely on their own experience with children to sift through the

accidental trauma defenses offered by perpetrators. Remind juries that

children they have known were not killed or seriously injured by a short

fall or a bump on the head. The key in SBS cases is to emphasize to the

jury that for a child to suffer severe injuries, there must be severe and

violent force inflicted on the child.

Shake to Revive

A common accidental injury defense offered by perpetrators is that the baby

was in some sort of distress, choking or not breathing, and the perpetrator

mildly shook the baby in a vain effort to revive the baby. This is probably

partially true, except the sequence of events is reversed. A more likely

scenario is that the perpetrator in an attempt to quiet a crying baby,

violently shook the baby and then the baby stopped breathing. To convince

the jury that the injuries seen in a SBS case are not the result of a

desperate attempt to help a baby in distress, it must be made clear that

" 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 to the infant. " 6 The severity of the

injury caused by violent shaking must be emphasized to discredit these

false histories.

SODDI Defense- Some Other Dude Did It7

To date the intracranial injuries associated with SBS, experts rely on the

history provided by the caretakers, the child's presenting symptoms and the

images created by CT and MR scans. Many medical experts agree that a child

with a fatal head injury will rapidly become symptomatic (altered

consciousness, convulsions, difficulty breathing) soon after the incident.

Thus, in the case of fatal head injury, the trauma most likely occurred

after the last confirmed period of normal consciousness of the child.

Investigators should ask caretakers when the child last made eye contact,

grasped, smiled, played or ate normally. In an effort to remove suspicion

from themselves and to confuse the jurors, a perpetrator may allege that

the victim was injured by another child that was present in the home. The

force that is required to shake a baby to death almost certainly requires

the strength of an adult.8 Therefore, it is not plausible to explain

massive intracranial injury as being inflicted on the child by another

young child who lives in the home.

Short Falls9

A brief overview of the type of injuries children receive from falls

demonstrates how these defenses can be challenged in court. Studies show

the injuries children suffer in accidental falls are different from the

injuries caused by SBS. Short distance falls rarely, if ever cause skull

fractures and when they do the fractures are small (less than 1mm) and

linear (consisting of an unbranched fracture line) and are not associated

with brain trauma. In addition, the skull fractures found in children that

have been shaken and then slammed or thrown down, are complex (consisting

of multiple fracture lines, egg-shell), diastic (widening) and are

accompanied by severe intracranial trauma. The injuries seen in SBS are

comparable to the injuries seen in motor vehicle accidents10 or in falls

from several stories.11

Despite general unwillingness to believe that adults hurt children, a

prepared prosecutor can demonstrate to a jury that overwhelming medical

literature indicates the SBS injuries are not caused by the ordinary

scrapes and tumbles of childhood, but caused by severe, violent child

abuse. For more information on Shaken Baby Syndrome and assistance in

prosecuting SBS cases, please contact the American Prosecutors Research

Institute's National Center for Prosecution of Child Abuse.

1 Staff Attorney, APRI's National Center for Prosecution of Child Abuse.

2 For a description of the syndrome see generally K. Kleinman,

Diagnostic Imaging in Infant Abuse, 155 Am. J. Radiology 703, 703-04

(1990); F. Merten & Dennis R.S. Osborne, Craniocerebral Trauma in the

Child Abuse Syndrome, Pediatric ls 882 (1983); American Academy of

Pediatrics, Shaken Baby Syndrome: Inflicted Cerebral Trauma, 92 Pediatrics

872 (1993).

3 See, Angelo P. Giardino, W. Christian, Eileen R. Giardino, A

Practical Guide to the Evaluation of Child Physical Abuse and Neglect 157

(1997).

4 For a defense oriented discussion of Shaken Baby defenses see generally

Jody Tabner Thayer, The Latest Evidence for Shaken Baby Syndrome, 12

Criminal Justice 15-22 (Summer 1997).

5 For a discussion of accidental versus inflicted injury in children, see

generally Baron D. Schmitt, The Child With Nonaccidental Trauma, in The

Battered Child 128 (C. Henry Kempe & Ray E. Helfer eds., 3d ed. 1980); M.

Elaine Billmire, A. Myers, Serious Head Injury in Infants:

Accident or Abuse?, 75 Pediatrics 340 (1985).

6 Wilbur L. , Abusive Head Injury, The APSAC Advisor, v.7, n.4 18 (1994).

7 For information on dating head injuries see generally Carolyn J. Levitt,

Wilbur L. , Randell C. , Abusive Head Trauma, in Child Abuse:

Medical Diagnosis and Management 1, 17-18 ( M. Reece ed., 1994);

Angelo P. Giardino, W. Christian, Eileen R. Giardino, A Practical

Guide to the Evaluation of Child Physical Abuse and Neglect 163-65 (1997);

Marcus B. Nashelsky and Jay D. Dix, The Time Interval Between Infant

Shaking and Onset of Symptoms, 16 Am. J. of Forensic Medicine and Pathology

154 (1995); Krista Y. Willman, et al., Restricting the Time of Injury in

Fatal Inflicted Head Injuries, 21 Child Abuse and Neglect 929 (1997).

8 Carolyn J. Levitt, et al., Abusive Head Trauma, in Child Abuse: Medical

Diagnosis and Management 1, 4 ( M. Reece ed., 1994),

9 For a discussion of the injuries associated with short falls in children

see generally A. Monteleone, Armand E. Brodeur, Child Maltreatment A

Clinical Guide and Reference 8-9 (1994); L. Chadwick, Falls and

Childhood Deaths: Sorting Real Falls from Inflicted Injuries, The APSAC

Advisor, v.7, n.4 24 (1994); D. Reiber, Fatal Falls in Childhood

How Far Must Children Fall to Sustain Fatal Head Injury? Report of Cases

and Review of Literature, 14 Am. J. of Forensic Med. and Pathology 201

(1993); A.C. Duhaime, et al., Head Injury in Very Young Children:

Mechanisms, Injury Types, and Ophthalmologic Findings in 100 Hospitalized

Patients Younger than 2 Years of Age, 90 Pediatrics 179, 182-84 (1992).

10 M. Elaine Billmire & A. Myers, Serious Head Injury in Infants:

Accident or Abuse?, 75 Pediatrics 342 (1985).

11 Wilbur L. , Abusive Head Injury, The APSAC Advisor, v.7, n.4 18

(1994) and A. Monteleone, Armand E. Brodeur, Child Maltreatment A

Clinical Guide and Reference 12 (1994).

Doctors Attact Au Pair Defense " Experts "

The Massachusetts Society for the Prevention of Cruelty to Children issued

the following statement calling into question the au pair defense experts:

" As physicians who specialize in the diagnosis and treatment of victims of

child abuse, we feel compelled to speak out regarding the scientific

evidence as portrayed in the trial of Louise Woodward for the murder of

eight month old Eappen. Both in the United States and in England,

media publicity surrounding the case has led to considerable sentiment that

she was convicted despite allegedly irrefutable scientific evidence

presented by the defense that the infant's injuries had occurred days to

weeks earlier. Many in the media and the public have failed to credit the

jury in this case with having had the intelligence to understand that the

prosecution put forward well established medical evidence that

overwhelmingly supported a violent shaking/impact episode on the day in

question, when was in the sole custody of Ms. Woodward. The

hypothesis put forward by the defense that minor trauma caused a 're-bleed'

of an earlier head injury can best be characterized as inaccurate, contrary

to vast clinical experience and unsupported by any published literature.

The 're-bleed' theory in infants is a courtroom 'diagnosis', not a medical

diagnosis, and the jury properly rejected it.

Infants simply do not suffer massive head injury, show no significant

symptoms for days, then suddenly collapse and die. Whatever injuries

Eappen may or may not have suffered at some earlier date, when he

presented to the hospital in extremis he was suffering from proximately

inflicted head injuries that were incompatible with any period of normal

behavior subsequent to the injury. Such an injury would and did produce

rapidly progressive, if not immediate, loss of consciousness.

The shaken baby syndrome (with or without evidence of impact) is now a well

characterized clinical and pathological entity with diagnostic features in

severe cases virtually unique to this type of injury - swelling of the

brain (cerebral edema) secondary to severe brain injury, bleeding within

the head (subdural hemorrhage), and bleeding in the interior linings of the

eyes (retinal hemorrhages). Let those who would challenge the specificity

of these diagnostic features first do so in the peer-reviewed literature,

before speculating on other causes in court. Indeed, the courtroom is not

the forum for scientific speculation, but rather the place where only,

according to the U.S. Supreme Court in Daubert vs. Merrill Dow, peer

reviewed, generally accepted, and appropriately tested scientific evidence

should be presented.

We endorse a panel of medical experts to offer a scientifically based

analysis of the medical testimony offered in this case and others so that

some guidelines can be established for the courts on future admissibility

of scientifically supportable medical testimony. "

For a complete copy of the letter and the names of the doctors that signed

it, please contact APRI'S National Center for Prosecution of Child Abuse.

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Sheri Nakken, R.N., MA, Classical Homeopath

Vaccination Information & Choice Network, Nevada City CA & Wales UK

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