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Disputed Diagnosis

Shaken Baby Syndrome is one of the leading current areas of contention in the war over junk science in the courtroom. The Washington Post is publishing a series about the controversey including individual cases and experts. At the heart of the controversy is whether the diagnosis is in fact based upon hard scientific studies (and the scientific method) or conjecture. More so than even the revolution in arson science over the past several decades, these disputes arise in the most serious felony cases - the deaths of children.

This is not new. Early last year, a decision by a federal judge in Chicago in the case of Jennifer Del Prete received wide media attention. In that detailed ruling, the Court described the diagnosis as arguably “more an article of faith than a proposition of science."

Despite this growing tide, people are still charged in these cases in Texas and across the country. As a member of various criminal defense organizations I see emails and posts of lawyers seeking experts in these cases.

Unfortunately, whether for the currently accused of the previously convicted, the key to defending an allegation or overturning a conviction based upon any, not just debatable or flimsy science, is access to competent experts and the money to pay them.

Another problem is that doctors who consult or tesify for either side in a court case, like other professionals, can have their opinions and diagnoses colored by their training and experience. If their training and experience has been clouded by or is dependent upon incorrect educational materials, then their opinion and testimony is flawed. It doesn't matter whether they believe what they are saying is correct.

Any witness, expert or lay person, can testify to something they truly believe and simply be wrong. If anything, DNA exonerations of people accused by sincere eye witnesses have proven that proposition.

One remarkable aspect in this Washington Post series is that some experts who previously testified for the government to support a claim of Shaken Baby Syndrome are willing to go on the record and say that upon further study of the matter - in part based on new studies and evidence not previously available - they got it wrong.

As Mark Twain said, "It isn't what we don't know that gets us into trouble, its what we know that just ain't so."

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