For the Defense - Vol. 7, Issue 2 - 10

in the absence of a statement, the opinion would
rest on the pediatrician's professional experiences,
yet that opinion lacks any factual basis because the
pediatrician cannot opine to a reasonable degree of
medical certainty that those prior AHT cases actually
involved child abuse.73
Thus, defense counsel should
argue that the AHT diagnosis is inadmissible under
Rule 703 because the facts underlying the expert's
opinion are unreliable and not of the type that
medical doctors use to diagnose physical injuries.74
Argue that expert opinions on AHT should be
precluded under Pa.R.E. 403 because its probative
value is outweighed by its highly prejudicial nature.
Pa.R.E. 403 permits the trial court to exclude an
expert opinion " if its probative value is outweighed by
a danger of unfair prejudice. " 75
If an expert's opinion
on causation would " confuse, mislead, or prejudice
the jury, " 76
opinion if it is " based on mere possibilities " about
causation.77
then the trial court should exclude the
This is especially true where the opinion
goes to an issue of ultimate fact, like causation,78
and there is no other corroborating evidence as to
causation.79
As the Nieves Court explained: " AHT can be highly
prejudicial and far less probative given that this
diagnosis is akin to 'junk science' in that it is testimony
presented both inaccurately and misleadingly as
scientific or medical evidence when it has little to no
connection to scientific or medical testing. " 80
AHT
diagnoses simply lack probative value as to causation
because there is no factual basis for opining to a
reasonable degree of medical certainty that child
abuse caused the child's injuries.81
Notably, even the
U.S. Supreme Court has expressed some doubt about
the probative value of SBS/AHT diagnoses.82
The diagnoses " Shaken Baby Syndrome " and
" Abusive Head Trauma " are inherently prejudicial
because the terms " shaken baby " and " abusive "
imply that the injuries were intentional or, at least,
nonaccidental.83
This necessarily " evokes a sense of
horror that affects the sensibilities of any competent
juror, compromising their ability to follow the
instructions of court concerning the weighing of
evidence fairly and impartially. " 84
Expert opinions on
AHT also risk " influencing jurors through confident
and confirmatory responses cloaked in the language
of science or medicine, .
Jurors will also
. . responses provided by
witnesses qualified by the court as 'experts' who, in
the end testify without being able to identify the
testing mechanisms to support their conclusions as
reliable because there are none. " 85
most likely interpret " the word 'certainty' within the
phrase 'to a reasonable degree of medical certainty'
10 For The Defense l Vol. 7, Issue 2
If all else fails, defense counsel should argue in
good faith that Passarelli is unsound legal precedent
and request a Frye hearing. This will preserve for
direct appeal the issue of whether the methodology
used by child abuse pediatricians to diagnose AHT is
" generally accepted " within the medical community.
As Nieves convincingly shows, expert testimony
about AHT is based on the type of " junk science "
that the Frye test
is supposed to exclude from
evidence.89
scientific evidence, " 90
Indeed, although AHT diagnoses are " not
they should nonetheless be
subject to the Frye test because they are based on an
" unscientific methodolog[y] " 91
and inaccurately presented as scientific evidence.92
Under the Frye test, the proponent of " novel
scientific evidence " bears the burden of showing
" that the methodology an expert used is generally
accepted by the scientists in the relevant field as a
method for arriving at the conclusion the expert will
testify to at trial. " 93
The relevant scientific community
need not accept the expert's conclusion; however,
the proponent must show that " the thing from
which the deduction is made [has] be[en] sufficiently
established to have gained general acceptance in
the particular field in which it belongs. " 94
Although
the trial court " may not go further to attempt
to determine whether it agrees with the expert's
application of those methodologies or whether the
expert's conclusions have sufficient factual support, " 95
but are misleadingly
as suggesting a high degree of value and reliability
concerning AHT as a proven diagnosis for causation, "
even though it is not.86
The highly prejudicial nature of expert opinions
on AHT raises a substantial risk that the accused
will be wrongfully convicted: " Given the scientific
developments described, we may surmise that a
sizeable portion of the universe of defendants
convicted of SBS-based crimes is, in all likelihood,
factually innocent. Even more certainly, a far greater
number of defendants among this group were
wrongfully convicted. " 87
The Nieves Court took this
danger into account when it held AHT testimony
inadmissible under Frye, explaining that " the
admission of speculative evidence fails to ensure
safety from false convictions founded then more
on bias and prejudice than certainty of proof. " 88
Accordingly, defense counsel should use the rationale
of Nieves to argue that expert opinions on AHT are
highly prejudicial, and should be excluded because
such opinions are not probative of what caused the
child's injuries.
Request a Frye Hearing and Argue That Passarelli Be
Overruled.
For the Defense - Vol. 7, Issue 2

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