For the Defense - Vol. 7, Issue 2 - 9

a child found with the type of injuries
described above has not suffered those
injuries by accidental means. Thus, such
expert testimony shows that the child was
intentionally, rather than accidentally,
injured.54
Citing a 1987 Superior Court decision concerning
the reliability and admissibility of testimony about
" battered-child syndrome, " the Court concluded
that the trier of fact is responsible for weighing the
credibility of an SBS/AHT diagnosis.55
The paradox for defense counsel in child-abuse
prosecutions involving AHT diagnoses is obvious:
The diagnosis is unreliable unscientific evidence
that, as Nieves makes clear, should be inadmissible
under Frye.56
Yet, because AHT testimony is not
scientific, Pennsylvania courts refuse to subject AHT
diagnoses to the Frye test, instead allowing the
factfinder to assess the credibility and controversy of
AHT in deciding the accused's fate.57
The issue is how
to overcome this paradox and prevent a jury from
hearing highly prejudicial, unreliable unscientific
testimony about AHT. The remainder of this Article
examines possible ways to preclude AHT diagnoses
and expert opinions about such diagnoses from
criminal prosecutions under Pennsylvania law.
Argue that expert opinions on AHT diagnosis should
be precluded because they are not 'reasonably
certain,' nor are they based on any reliable method.
Under Passarelli, testimony about AHT is " opinion
testimony subject to the standard rules governing
expert witness testimony. " 58
This includes the
" requirement that an expert's opinion must be
expressed with reasonable certainty, " 59
especially
when the expert opinion is offered to prove
causation.60
explained in McMahon v. Young:
The opinion of a medical expert is evidence.
If the fact finder chooses to believe it, he
can find as fact what the expert gave as an
opinion. . . . Here, the only evidence offered
was that it was 'probably' caused, and
that is not enough. Perhaps in the world
of medicine nothing is absolutely certain.
Nevertheless, doctors must make decisions
in their own profession every day based on
their own expert opinions. Physicians must
understand that it is the intent of our law
that if the plaintiff's medical expert cannot
form an opinion with sufficient certainty
The requirement is necessary in order
to " avoid speculation under the rubric of 'expert
opinion.' " 61
As the Pennsylvania Supreme Court
so as to make a medical judgment, there is
nothing on the record with which a jury can
make a decision with sufficient certainty so
as to make a legal judgment.62
To satisfy the requisite standard of certainty, the
expert's testimony, considered in its entirety, must be
" based on a reasonable degree of medical certainty
rather than upon mere speculation. " 63
As the Nieves case shows, child-abuse pediatricians
cannot base their expert opinions about AHT on a
reasonable degree of medical certainty because
they " do not know nor will [they] likely ever
know what is the minimum force necessary to
cause subdural hematomas or any of the other
triad symptoms making up AHT. " 64
The lack of an
adequate diagnostic methodology for AHT renders
the AHT opinions speculative because the mere fact
that there is no other plausible explanation for the
injuries is insufficient to justify the inference that
the defendant caused them.65
Thus, defense counsel
should use Nieves as a framework to construct
arguments challenging the speculative nature of
AHT opinions.
Argue that the expert opinion on AHT should be
precluded under Pa.R.E. 703 because the facts or data
underlying the expert's opinion are not reasonably
reliable.
Pa.R.E. 703 mandates " that the facts or data
upon which an expert bases an opinion be 'of
a type reasonably relied upon by experts in the
particular field...' " 66
inadmissible as " incompetent if it lacks an adequate
basis in fact. " 67
An expert opinion is, therefore,
As noted above, child-abuse
pediatricians base their AHT diagnoses on a physical
examination of the child, a review of the child's
medical history, and an evaluation of other possible
medical issues that might have contributed to the
child's symptoms.68
The pediatrician makes an AHT
diagnosis only after ruling out all other possibilities;
however, this diagnosis is not based on facts
probative of child abuse but, rather, the absence of
facts probative of any possible cause.69
The absence
of facts probative of causation simply cannot furnish
a reliable basis for inferring that the accused shook
the child.
Moreover, pediatricians often base AHT diagnoses
on the accused's confession statement to shaking the
child.70
As a result, in cases where the perpetrator has
given a statement, when a pediatrician opines that
the child " has not suffered those injuries by accidental
means, " 71
evidence but rather on the statement.72
that opinion is based not on medical
Similarly,
Vol. 7, Issue 2 l For The Defense 9
For the Defense - Vol. 7, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 2
