Maggie Lee / JJIE
John E.B. Myers, a professor at the University of the Pacific’s McGeorge School of Law said the child welfare legal system “is full of faults, and you hear about it … but it works most of the time.”
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.”
E-Evidence
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.”
my kids having been kidnapped and hurt by cps in ga and i really mean kidnapped any law you can think has been broke every sick trick from cps probation judge lawyers my god the head of state naacp said to big and i may be in danger and there right please contact me
What’s interesting about SBS is this comment; “over whether infants can be fatally injured through shaking alone.”
Interesting because we know that people can die from gun and knife wounds, poisoning and other conditions, we have all seen with our own eyes and there is no debate about whether someone can die this way.
With SBS, nobody has ever witnessed a baby being shaken to the point where even one of the Triad of symptoms could be demonstrated. In fact, in hundreds of cases now where nannies have been caught on “Nannycams” shaking babies vigorously, not one of these infants has ever demonstrated a single symptom of SBS. A peer reviewed, published study on a human baby shaking himself proves scientifically that it is impossible to shake a baby to the point where even one symptom can be produced. http://www.youtube.com/watch?v=8xxR0MtCZj8
In many cases parents have been exonerated or freed on appeal. In one case a prosecutor made a plea bargain deal that if the father (and it usually the father who is accused), that if he continued to protest his innocence that he would get life in jail. If he pleaded guilty he would get off in a couple of months. He plead with the Alford Plea and is still trying to prove his innocence. In the UK, the term SBS is no longer used due to the number of wrongly convicted, the myth still lives on as AHT, Abusive Head Trauma and still relies on the Triad, the myth has been rebranded.
Babies die from Head Trauma, nobody disputes that. However, in SBS there is almost never a bruise or neck injury. How is it possible to pick up a baby, grasp firmly and shake without leaving thumbprints on the anterior chest???? Why is it that every baby who dies or is injured by SBS was recently vaccinated, most times having received a second or third dose? Why do so many SBS cases seem to be breastfed babies who also have Rickets or Vitamin D deficiency? If a baby has been battered then it is murder, not SBS.
The Experts against the SBS theory have become the target of corrupt prosecutors. Even experts who once believed the myth of SBS and now testify for the defense are being targeted. Incredible that the Florida prosecutor sought to prevent the Biomechanical Expert from testifying for the defense, he should be impeached for this. Everyone has a right to a fair trial. It appears now that he is trying to discredit the Expert further with a malicious prosecution. Prosecutors have a duty to represent justice and not just win cases.
Prosecutors love SBS, you don’t need a smoking gun, no witness or an admission of guilt, no physical evidence or even a bruise. All they need is a doctor to say that the Triad was present. Why is it that when babies who are in the care of a hospital die of the Triad of symptoms, exactly the same as SBS, are diagnosed with SIDS? Why is it that babies have died of vaccine injuries and nobody wants to investigate a causal link between the two?
The fact is that SBS is junk science. It is also a fact that Medicine has become a religion where anyone brave enough to ask questions is called a heretic or conspiracy theorist. If a baby can be shaken to death, then prove it by scientific means and not witch hunting techniques. The myth of SBS has been around since 1974 and one of the 2 doctors who came up with the theory no longer stands behind it and testifies for the defense. Despite his expertise, his clients often lose.
To wrongly accuse a grieving parent of murdering their own child is unconscionable, to accuse them based on this mythical science is a serious miscarriage of justice. The “Believers’ of SBS are killing innocent babies by clinging to the myth, if SBS was withdrawn tomorrow, scientists could get to the bottom of Sudden Infant Death Syndrome. SIDS is not a condition, it is term used when they don’t have a cause of death.
If there is ever going to be justice for children who have been injured or have died, it wont be based on junk science.