ATLANTA — An attorney and law professor, author and expert on child maltreatment, said some of the most important questions about evidence in child welfare cases now rolling through courts have to do with Shaken Baby Syndrome, authenticating electronic evidence like text messages, and how to prove or disprove child sexual assault.
“These are developments I think useful to practicing lawyers, either to argue in court or to put in a brief,” said John E.B. Myers, a professor at the University of the Pacific’s McGeorge School of Law in Sacramento, Calif. He was presenting his ideas, along with a reading list, to some 450 of his colleagues in Atlanta at the 36th National Child Welfare, Juvenile, and Family Law Conference, a project of the Colorado-based National Association of Counsel for Children.
The ability to provide the right evidence is “one of the most essential skills for any attorney,” said NACC Executive Director Kendall Marlowe. It’s especially difficult in child abuse cases, he said, where evidence can often be unclear or opinions differ.
Shaken Baby Syndrome
“There is a big debate right now about Shaken Baby Syndrome,” said Myers.
Shaken Baby Syndrome — caregivers shaking babies out of frustration — has been cited in courts for at least two decades as a form of abuse that can cause brain, eye, spinal and other damage.
There’s no question that head trauma is a form of abuse, but as Myers pointed out, U.S. Supreme Court Justice Ruth Bader Ginsburg wrote, (in a dissenting opinion in Cavazos v. Smith in 2011) that doubt has increased in the medical community “over whether infants can be fatally injured through shaking alone.”
Indeed, the Florida Court of Appeals in 2012 agreed with an aggravated child abuse defendant who said he should have been allowed to bring in a biomechanics expert to speak about child accidents and injuries.
But SBS is far from discredited, the Oklahoma Court of Criminal Appeals found in a first-degree murder case. In June 2013, in Day v. State, Judge Clancy Smith wrote “Expert testimony is not rendered unreliable by criticism.”
As more and more court evidence comes in the form of pixels and electrons sent between computers and phones, via Facebook, text and any other number of programs, attorneys have to figure out how to authenticate that communication.
Courts in Pennsylvania and Massachusetts have recently said the basic principles of authentication are the same, said Myers. Just as a signature does not prove who inked a handwritten letter, e-mail headers do not prove who sent a message.
Instead, “you put all the circumstances together to authenticate an e-mail or a text message,” said Myers.
For example, looking at a person’s computer hard drive, contents and appearance of a note, or figuring out who has a password on an account.
Or, if harassing texts, for example, stop while a defendant is in jail and restart when he or she is let out.
Proving Child Sexual Abuse
Finally, he outlined principles that are on the forefront on how to prove child sexual abuse — or rather, the question of if it’s provable at all.
“The most important case on that is not a brand new case,” said Myers, but “it’s a very important decision.”
In 2009, the Oregon Supreme Court said in State v. Southard that a physician diagnosis that a child has been sexually abused is inadmissible when there is no physical evidence.
That’s because there is so much debate on how to prove child sexual abuse, that a doctor’s testimony, though valuable, runs too high a risk of prejudicing a jury, as Myers explained Oregon’s ruling.
Reliable expert testimony must speak to complicated mathematical subjects, like the base rate of a certain symptom, and at what rate symptoms are found among abused and non-abused children, he said.
“I’m actually in favor” of allowing expert testimony diagnosing child sexual abuse, said Myers, “but only when it’s done by people who actually know what they’re talking about.”
This does not, he said, include many attorneys.
And any but the very best forensic interview is open to attack, Myers said. A defense attorney must pick apart every question to a child, if the interviewer asked coercive questions, did multiple interviews, taped the talk or used an anatomical doll.
Then there’s another scientific debate on how truthful children are at all, and how much they are influenced by what they overhear or are told. Some scientists say it’s unwarranted to think a child’s elaborateness or consistency of testimony is a marker of truth.
Yet Myers counseled against pessimism. Reading the literature, “you become convinced there is no point in trying to talk to kids; just give up, nothing works,” he said.
But he also said he thinks that focus on failure and falsehoods is itself a bias.
“The system is full of faults, and you hear about it … but it works most of the time,” he said.
“We sometimes are caught in the moment and forget how far we have come.”