National District Attorneys Association



September 2008

Update Express
This publication was prepared under Grant No. 2003-CI-FX-K008 from the Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. This information is offered for educational purposes only and is not legal advice. Points of view or opinions expressed in this document are those of the authors and do not necessarily represent the official position of the United States Department of Justice, the National District Attorneys Association or the American Prosecutors Research Institute.

Update Express is provided by the National Center for Prosecution of Child Abuse to help child abuse professionals keep abreast of new legislation, case law, and relevant news.

Kentucky Court of Appeals Rules Expert Testimony Supporting the Existence of Shaken Baby Syndrome is Admissible Under a Daubert Analysis.

By Dermot Garrett

On June 13, 2008, the Kentucky Court of Appeals reversed a lower court's decision excluding the state expert's testimony regarding Shaken Baby Syndrome (SBS). Commonwealth v. Martin, and Commonwealth v. Christopher A. Davis, 2008 Ky. App. LEXIS 186 (Ky. Ct. App. 2008). The appellate court ruled that testimony regarding SBS is universally allowed in trials, and that the jury should have been able to consider the differing opinions of the prosecution and defense experts.

The appellate court invalidated the trial court's distinction between "medical" and "scientific" opinions in their Daubert analysis. The trial judge had weighed the evidence presented by the state and defense experts, and criticized the state's expert for relying too heavily upon clinical studies.

Dr. Spivack testified for the state in the pre-trial hearing and Dr. Uscinski testified for the defense. The trial court found that the diagnosis of SBS was accepted by the medical community approximately thirty years ago, prior to recent studies that adhered to a more scientific methodology and cast doubt upon the diagnostic criteria. The trial court erroneously concluded that a medical diagnosis of SBS based upon a subdural hematoma and bilateral ocular bleeding, but absent other signs of injury such as bruises or fractures, lacked a sufficient scientific foundation to qualify as a legal opinion. The state argued that even if an impact was required, the impact could occur from a soft surface, such as a mattress or pillow, without a resulting bruise or fracture. On April 17, 2006, the trial court entered an opinion and order in both cases, ruling that Dr. Spivack's testimony about shaken baby syndrome did not meet the Daubert test for scientific reliability. The court drew a distinction between the scientific and clinical trials, and concluded that there were insufficient studies using the scientific method to support Dr. Spivack's opinion.

The Kentucky Court of Appeals held that the trial judge had impermissibly usurped the office of the jury by weighing the credibility of the experts. Under a Daubert analysis, the court is charged only with excluding unreliable or pseudoscientific testimony, while the jury determines the weight and credibility of admitted testimony. Although no Kentucky court had previously taken judicial notice of SBS, the state met its burden of production by showing that SBS is supported by numerous studies, and that SBS testimony is accepted nationwide in both the legal and medical communities. The judge had based the exclusion in part by deciding that the scientific studies were more reliable than the clinical studies. The appellate court held that clinical studies are not inherently unreliable and are appropriate given the impossibility of employing the scientific method with infants in SBS studies. Furthermore, cross-examination is the appropriate means of attacking weaknesses in expert testimony, with the jury deciding the relative merit of the testimony. The appellate court's decision aligns Kentucky with virtually every other state in the nation in admitting SBS expert testimony.