PERTAINING TO SHAKEN BABY SYNDROME

[Alison J Stevens]

Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency

Deborah Tuerkheimer
DePaul University - College of Law




Alabama Law Review, Forthcoming


Abstract:



Increasingly in our criminal justice system, guilt is proven on the
basis of science – a phenomenon I call science-dependent prosecution.
This trend likely will continue, and even accelerate. Yet legal
scholars have not grappled with the larger implications of this shift.
Recent attacks on the validity of a number of forensic disciplines beg
the question: must law perpetually chase science?

Science is subject to a process of constant revision, upending accepted
“truths” in unpredictable ways. I argue that our justice system is
ill-equipped to deal with the provisional nature of scientific
knowledge. The problem I identify challenges fundamental tenets of
criminal law and procedure: the privileging of finality; the deference
afforded juries; the virtues of plea bargaining; the wisdom of
adversarial models of justice; and, at bottom, our commitment to the
presumption of innocence. Now is the time to reckon with the proper
place of science in determining guilt. This article begins this
conversation, using Shaken Baby Syndrome (SBS) as a case study.

Criminal law’s reliance on science should not be jettisoned. But our system must
be armed to deal with the inevitability of scientific change. I
conclude by offering suggestions for reform.

Keywords: Shaken Baby Syndrome, Forensic Science, Expert Testimony EXPERT WITNESES