Volume 96, No 2, Spring 2024
By Julie Jonas [PDF]

“Jurors may not understand the science, but they can count [the experts].” 

To date, thirty innocent people have been falsely convicted in the United States of assault or homicide of children in their care. The prosecution mechanism for achieving these wrongful convictions was the use of experts to testify to “shaken baby syndrome” or “abusive head trauma” (SBS/AHT). While it is axiomatic that no one should ever shake or abuse a child, these twin diagnoses lack scientific support and are little more than unproven hypotheses. Despite this absence of scientific support, prosecution experts have told juries that children suffered from intentional abuse that could not have been accidental or caused by alternate nontraumatic medical causes, and juries have convicted innocent parents and caregivers based on those assertions. The defense, on the other hand, has often struggled to present even one competing expert. These convictions were later overturned when defendants were able to present qualified experts to refute these hypothetical and dubious theories. But before that ultimate victory, individual lives and families were destroyed by wrongful incarceration. 

To prevent these miscarriages of justice, more funding for experts needs to be allocated to poor and middleclass defendants, where the prosecution’s case rests largely on medical causation. In addition, defense attorneys need to better understand how to request funding for experts in these specialized cases. 

This Article reviews some of the innocencebased exoneration cases and their common themes, together with the scientific disputes about the theory of SBS/AHT. It also examines the critical need for defense experts, the constitutional right to experts, and the state laws that permit funding for experts for indigent defendants. It also provides suggestions for a better statutory scheme. Finally, the Article suggests that defense attorneys should request funding for experts to challenge the very legitimacy of expert testimony on SBS/AHT.