Science

U.K. Bars Shaken Baby Syndrome Skeptic From Courtrooms

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Last year I wrote a column about a minority but growing chorus of forensic specialists who are questioning the way Shaken Baby Syndrome is diagnosed and used in the courtroom. New Scientist reports this week that one of those critics has been temporarily barred from testifying in U.K. courts.

The pathologist in question, Marta Cohen of Sheffield Children's Hospital, learned of the restrictions following a private hearing on 22 July before the General Medical Council, the body that investigates complaints against doctors in the UK.

"The decision is appalling," says John Plunkett of the Regina Medical Center in Hastings, Minnesota, who has shown that short falls can cause the trademark symptoms said to be exclusive to child abuse.

The fear of similar outcomes means that British-based pathologists who dispute SBS are unwilling to take on cases of alleged child abuse. "It means that no one will take any head injury cases," said one, who asked not to be named. "If you disagree with the prosecution, you risk being called before the GMC."

The verdict appears under Cohen's registration details on the GMC website, stating that: "She must not give evidence as an expert witness in cases where there is alleged non-accidental head injury to an infant or child." It also makes clear that the restrictions are temporary precautions while the complaints against her are further investigated by the GMC.

It is not clear who complained to the GMC, but the motivation appears to come from criticisms circulated to prosecution services by a judge, Justice Eleanor King, following cases last year in which Cohen gave evidence. King's criticisms included accusing Cohen of developing a "scientific prejudice", of being "disingenuous" in her citing of research and unwilling to defer to prosecution expert witnesses.

The GMC will not explore the validity of the competing scientific theories about SBS, and will simply investigate Cohen's "fitness to practice". The GMC's ruling comes at a time when evidence is mounting that innocent events such as the birth process itself, choking, short tumbles and breathing difficulties can cause the classic symptoms (BMJ, vol 2, p 430).

Given what we know about the history of forensic science and the tendency of specialists to overstate its certainty, the decision to bar an SBS critic from testifying is troubling. Even if the ban on Cohen is lifted, it sends a pretty clear message to SBS skeptics. Testify for the accused, and you're risking an investigation.

NEXT: Reason Writers on the Tube: Radley Balko Discusses Age of Consent Laws and Sex Offender Registries on John Stossel's Show

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  1. What is the legal requirement to be an expert witness in the US?

    This seems pretty thuggish. That is unless she’s claiming completely outrageous things that no normal person would accept. Even then I don’t think that should warrant a ban.

    1. like most things in the law, it varies state by state (which is why most people here who opine on the law are wrong, like when they didn’t understand that Assault and Battery is not a crime in many states… my state has no such thing as Battery, under the criminal code)…

      in my state, we adhere to the Frye standard. This most specifically references scientific evidence, but also helps define who is and isn’t an expert witness.

      i’ve testified in hawaii several times as an expert witness.

      in WA state, for example, to testify on horizontal gaze nystagmus, the witness is voire dire’d quite thoroughly, before the testimony will be admissible.

      but in brief, there is no simple national standard for who is and who isn’t an expert witness.

      since we live in a democratic republic, one has to get used to the idea that in many questions of law, such as this one, it varies greatly from state to state.

      fwiw, i am not surprised at all by this ban in the UK. the UK is a nation where they have no problem banning unpopular speech (see: hate speech laws, the racial relations act, etc.) and even making such speech criminal.

      1. I think you meant “federal” instead of “democratic”…

      2. “my state has no such thing as Battery, under the criminal code”

        What’s a punch in the nose called there?

        1. That would usually constitute Assault. “Battery” is typically defined as unwanted contact that doesn’t cause physical harm.

          1. as mentioned, there is no such crime in WA state (and many others) as battery or assault and battery. there is simply assault. there may be a civil tort for battery, otoh. civil law is not my thang.

            this is where many get into trouble making such assumptions. for example, in another thread it was mentioned that somebody got charged with assault (but not battery) and several people opined as to why she wasn’t charged with battery bla bla bla when they never even considered that it is very possible that jurisdiction DOES NOT HAVE a battery charge. mine doesn’t

            also, battery is NOT generally defined (in the states that have a battery charge) as unwanted contact that doesn’t cause physical harm, as mentioned above. it may cause physical harm or not. that’s simply not true, under the model penal code, or the statutes of most states that have a battery statute.

            the model penal code and common law define battery thusly:

            1.an unlawful application of force
            2.to the person of another
            3.resulting in either bodily injury or an offensive touching

            the model penal code, and some states fwiw, also include certain reckless actions, as battery, thus not requiring in certain cases the normal mens rea which is willful.

            and of course, the intent follows the fist. if i intend to strike person A, he ducks, and my punch strikes person B, i have battered person B, even though there was no intent, since the intent “follows the bullet/fist” so to speak.

            regardless, people who make assumptions aobut a person who was charged with assault but not battery, who don’t know that jurisdictions penal code are simply talking smack.

            1. Whee, lawyers make every conversation better. We should all have them all the time.

              1. i HOPE you are not implying that i am a lawyer.

                i most definitely am not

                1. Amazing. A cop with (some) standards. Are there any more of you? Do you have a support group?

          2. Strike that. Reverse it.

            Where a distinction is made, ‘assault’ is threatened violence, ‘battery’ is physical violence.

            1. generally speaking, correct. to be more specific – threatend or ATTEMPTED violence.

              if i try to punch you, but miss, in many states that would be assault. if i punch you and hit you, that would be assault and battery.

              i once worked in a jurisdiction where a touching that was offensive (like a shove) but didn’t cause injury , was called “harassment” but if it DID, it was assault.

        2. it’s called “assault IV”

          unless it caused more serious injuries, or was done with a weapon, or etc. etc. at which case it could be a higher grade of assault (Assault IV is a gross misdemeanor).

          but, i have made well over a hundred arrests for assault, ranging up to an including murder (note that assault is often a lesser included offense of murder, but i digress)

          there is NO SUCH CHARGE AS BATTERY in many states.

    2. I don’t think there is any. You’d get questioned by both attorneys to determine your capability/skills/knowledge.

      I am, however, an uneducated buffoon, so take the above with some salt.

      1. I asked because there are a few evil bastards lawyers who post. I know a few PhDs and some ABDs that make good money as expert witnesses, especially in the insurance department. (mostly econ or forensic econ people) I was looking for the hurdles or barriers one would have to overcome in court to have a witness be considered an expert from a defense point of view. States seem to be generally willing to say anyone they agree with is an expert and toss them up on the stand as such. (i.e. the forensic articles mentioned here)

        There are legal definitions used in common law outside your state. Battery is just that. Just because your state’s codified law doesn’t call it battery does not mean it does not meet the commonly used legal definition. You could call it raspberry jam swirls with sprinkles and cuppycakes and if it describes harmful or offensive contact it can rightfully be described as battery without equivocation. (especially since it is both in tort and criminal law)

    3. “What is the legal requirement to be an expert witness in the US?”

      (1) The topic of testimony must lie beyond the education, knowledge, and experience of the average juror;

      (2) the testimony must be helpful to fact-finders;

      (3) sufficient evidence must be produced that the witness has specific training and experience that qualifies him as “expert” in the topic;

      and

      (4) any testimony (scientific, forensic, etc.) must be shown to be reliable.

      1. well put. fwiw, one thing that distinguishes what expert witnesses can do vs. conventional witnesses (vs. what they have to do to get certified as one) is that expert witnesses can give their OPINION

        the finder of law (the judge) makes a determination as to whether an expert can get accecpted as such, but given that, the finder of fact (usually a jury, unless it’s a bench trial) still has the right and duty to determine amongst themselves how much weight to give an expert’s testimony. iow, just because an expert says X does not mean a jury has to beleive X is true beyond a reasonable doubt.

      2. That’s what I was lookin’ fer. Thanks.

  2. What is the legal requirement to be an expert witness in the US?

    They’re not codified. Rule of thumb: You’re an expert if the judge thinks you won’t blow the prosecution.

    1. I didn’t think they were codified. I should have been clearer. I was looking for the doctrine or general theory used if any.

      1. first of all, the thing about blowing the prosecution being the metric is typical uninformed hogwash. many, if not most trials, that use expert testimony will often have defense experts AND prosecution experts and they may disagree sharply andor completely on stuff. generally speaking, defense attorneys tend to hire and put forward defense expert witnesses that help their client.

        regardless, like i said, in my state, we use the frye test amongst others. fwiw, i have testified as an expert witness in one state.

        GENERALLY speaking, to qualify as an expert, you have to have specialized knowledge and training such that you would be generally recognized amongst your peers as an expert. a MD might not be an expert , for example, on trauma caused by GSW’s, but an ER doctor in a busy urban ER might be, depending on his training and experience.

        things that are considered are: degrees (if any), published works, and peer reviewed works, general consideration by peers within the field and the field must be one that is scientifically accepted in general, etc. etc.

        there is also a metric assload of case law in most jurisdictions helping to clarify the issue.

        1. fwiw, i have testified as an expert witness in one state.

          I hope to god it wasn’t about tasers.

  3. Dunno ’bout the UK, but here in Michigan we’ve had “experts” testify on the accuracy of facilitated communication that helped convict innocent parents of child molestation.

    It seems to me if a scientific issue is not settled both defense and prosecution should be able to call witnesses on the matter. The presumption of child abuse with the symptoms associated with shaken baby syndrome is one of those scientific issues.

  4. Dunno ’bout the UK, but here in Michigan we’ve had “experts” testify on the accuracy of facilitated communication that helped convict innocent parents of child molestation.

    And the defense was unable to impeach those expert witnesses?

    1. On appeal. Lives were already ruined by then though.

      1. On appeal. Lives were already ruined by then though.

        Why was the defense unable to impeach those experts at the trial phase?

  5. One thing I don’t understand is why people are so eager to take children away from their parents.

    There are so many perfectly normal parents who have been dragging before CPS and threatened with having their kids taken for totally stupid shit.

    Like: OMG! You had a party at your house where there was NUDITY! And maybe even drug use! Seize the kids!

    1. Re: Hazel Made,

      One thing I don’t understand is why people are so eager to take children away from their parents.

      That’s how they get to everybody: through our kids.

      http://www.youtube.com/watch?v=SPeFECAEqHk

    2. Sounds like a good party.

  6. I prefer my babies stirred, not shaken.

    1. if they are irish babies, i prefer them sauteed

      1. A jolly good idea, mate! When shall we begin?

        1. i’ve got the pan and the scullery wenches if you’ve got the babies and the alcohol

      2. That seems like a modest proposal to me!

        Where do I sign up?

  7. `Oh, don’t bother me,’ said the Duchess; `I never could abide figures!’ And with that she began nursing her child again, singing a sort of lullaby to it as she did so, and giving it a violent shake at the end of every line:

    `Speak roughly to your little boy,
    And beat him when he sneezes:
    He only does it to annoy,
    Because he knows it teases.’

    CHORUS. (In which the cook and the baby joined):–
    `Wow! wow! wow!’

    While the Duchess sang the second verse of the song, she kept tossing the baby violently up and down, and the poor little thing howled so, that Alice could hardly hear the words:–

    `I speak severely to my boy,
    I beat him when he sneezes;
    For he can thoroughly enjoy
    The pepper when he pleases!’

    CHORUS.
    `Wow! wow! wow!’

    `Here! you may nurse it a bit, if you like!’ the Duchess said to Alice, flinging the baby at her as she spoke. `I must go and get ready to play croquet with the Queen,’ and she hurried out of the room.

  8. and unwilling to defer to prosecution expert witnesses.

    That sentence fragment tells you pretty much all you need to know.

  9. Q: What is an “expert”?

    A: Someone from out of town, carrying a briefcase.

    1. I was told an “ex” is a has been and a “spert” is a drip under pressure.

  10. A few issues with this post:

    The New Scientist misleadingly quotes the judge’s opinion. It wasn’t so much that Cohen refused to defer to a prosecution witness as to defer to an expert witness in the field in question, neuropathology, as she is NOT in that field…the documents describe her as a pediatric histopathologist, which I had to look up on Wikipedia:

    Histopathology (compound of three Greek words: ????? histos “tissue”, ????? pathos “diseases-suffering”, and -????? -logia) refers to the microscopic examination of tissue in order to study the manifestations of disease. Specifically, in clinical medicine, histopathology refers to the examination of a biopsy or surgical specimen by a pathologist, after the specimen has been processed and histological sections have been placed onto glass slides. In contrast, cytopathology examines free cells or tissue fragments.

    The actual passage of the judge’s decision the New Scientist paraphrases is found at the Family Law Week link in that paragraph:

    The court was asked to make findings about the approach of Dr Squier and Dr Cohen in three particular areas, those being the use of research material, their willingness to defer to experts in another field and the confining of their opinion to their own expertise and the importance of factual accuracy.

    The court was critical of both experts in each of those three areas. The criticisms included the conclusion that both, for different reasons, had been “disingenuous” in their citing of research material, “significantly out of their respective areas of expertise” and misleading in the factual errors made.

    1. Also, “scientific prejudice” is apparently a technical term referring to a dogmatic belief in a dubious, but superficially scientific, hypothesis.

    2. I’m reading the decision in which the judge summarizes the criticism of Cohen (this section is several paragraphs long), and while I’m no medical researcher, they’re a lot more substantive and compelling than “she disagreed with the prosecution”.

      I wonder if Mr Balko’s dealings with the Stephen Haynes and Michael Wests of the world have made him forget that defendants with a weak case also have reason to employ questionable expert witnesses, just like prosecutors with weak cases do. It is precisely when a news story confirms your bias (eg, that the state is always and everywhere screwing over anyone who questions it) that you have to be all the more diligent about researching it, and not accept a rough paraphrase in the New Scientist of a rough paraphrase in the Family Law Week just because it will bolster your preexisting beliefs.

      1. I wonder if Mr Balko’s dealings with the Stephen Haynes and Michael Wests of the world have made him forget that defendants with a weak case also have reason to employ questionable expert witnesses, just like prosecutors with weak cases do.

        That is why prosecutors and defense attorneys conduct cross-examinations.

        1. You can’t seriously expect jurors to evaluate the credentials of supposed experts in fields the jurors know nothing about.

          1. Yet we expect judges to do so?

          2. You can’t seriously expect jurors to evaluate the credentials of supposed experts in fields the jurors know nothing about.

            Who else will do it?

  11. And Obama wonders why more kids aren’t studying science. Why put in all the work of learning science if your credibility depends on your willingness to kiss up to the government?

    1. When the Revolution comes, it will be Why kiss up to the government if your credibility depends on science?

      I long for the day.

  12. The fear of similar outcomes means that British-based pathologists who dispute SBS are unwilling to take on cases of alleged child abuse. “It means that no one will take any head injury cases,” said one, who asked not to be named. “If you disagree with the prosecution, you risk being called before the GMC.”

    Dissent amongst the ranks shan’t be tolerated.

    1. this actually says a lot to those who think science (At least as practiced) is simply based on reason, and religion based on faith

      the reality is that the INSTITITIONS and THE GATEKEEPERS of Science ™ (said in the voice of the guy from that Thomas Dolby song whose name escapes me) jealously guard their gates, and the idea that it’s just a bunch of dispassionate non-political non-ideological reason based stuff going on is laughable.

  13. SBS can be misdiagnosed because of downright ignorance of CPS workers, all medical field employees, and the courts when the bruising is really caused by a connective tissue disorder known as Ehlers-Danlos Syndrome, a condition I suffer from. Due to a mutation of the collagen gene the connective tissue is deficient in collagen causing weakness. Blood vessel walls can be weak and tend to spontaneously seep blood due to the thinness of the tissue because of the collagen deficiency, causing bruising. I suffer from it. I know of only three commercially practicing connective tissue disorder geneticists in the U.S. That’s not a very big pool of true expert witnesses to call upon. I also have personal knowledge of an ignorant CPS worker wrongfully taking twins away from parents in D.C. It was disheartening.

  14. Rule of thumb: You’re an expert if the judge thinks you won’t blow the prosecution.

    Since the good doctor’s license is being threatened for not being deferential to the prosecution, I think the standard is:

    the judge thinks you won’t will blow the prosecution prosecutor.

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