The Eighth Circle of Fire

Junk science lurks in child abuse cases of every variety, whether they are alleged sexual molestation, or other physical and mental abuse cases. Parts I and II of this series covered the scientific flaws of a specific area of child abuse: so-called “shaken baby syndrome” (SBS) cases, and the scientific flaws in short falls cases. This article will cover some of the ways to characterize and challenge those flaws in a pretrial Daubert or Frye motion using the rules of evidence governing the admissibility of scientific evidence. (If you do not have a SBS case, you may still find the section on scientific evidence rules helpful because it applies not only to cases of alleged SBS, but to all scientific evidentiary issues in all civil or criminal cases.)

To the extent that the judge agrees to exclude testimony that is not based on reliable science, testimony that is not based on the correct application of reliable science to a case, or testimony proposed by an ‘expert’ who is not qualified to give it, a pretrial motion serves to: (1) possibly minimize the use of some of, if not all, unfairly prejudicial testimony before a jury; (2) educate the trial judge that there are issues of junk science that are more unfairly prejudicial than probative; (3) flush out a refinement of the State’s theories on causation and timing of injury; (4) create an opportunity to discuss a possible plea by educating the State about the weaknesses in its scientific case; and/or (5) build a record for appeal on the junk science issues.

As a matter of strategy, if you do not want to make a pretrial motion challenging the science, consider using the information in this article to help construct cross examination for the purposes of moving for a directed verdict and/or motion to set aside the verdict in cases where the State relies predominantly on medical testimony to
establish causation and timing.

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