New Jersey Becomes First State To Bar ‘Shaken Baby Syndrome’ Testimony at Trial

New Jersey on Thursday became the first state in the U.S. to bar expert testimony on “shaken baby syndrome” (SBS) from the courtroom when there is no other evidence of trauma.

In a 109-page opinion, a 6–1 majority of the New Jersey Supreme Court ruled that there was no longer a consensus among relevant experts regarding whether shaking alone, without any other impact, could produce the trio of symptoms classically associated with SBS, now called “abusive head trauma” (AHT).

The landmark ruling follows several decades of intense debate and dozens of overturned convictions based on the diagnosis. The theory that whiplash from shaking could cause serious or fatal brain injuries in infants gained prominence in the 1970s, but its use in criminal prosecutions came under serious scrutiny starting in the 2000s.

Innocence groups and forensic science reform advocates argued that doctors were failing to rule out other explanations, even though a growing body of research showed other conditions could mimic the symptoms once considered conclusive proof of AHT. Even the pediatric neurosurgeon who first popularized the theory in 1971 would later have grave doubts about how it was being used in courtrooms.

Innocence groups managed to overturn individual convictions over the years; according to the National Registry of Exonerations, at least 41 parents and caregivers in 18 states convicted based on AHT evidence have been exonerated since 1989. 

Until now, however, no state court system had openly undercut the theory and barred expert testimony on it from trial. It’s extremely difficult to get forensic science booted out of courtrooms once it’s been established, and the case was closely watched by both sides of the bitter debate over AHT.

Prosecutors and pediatric abuse specialists say that although the scientific understanding of AHT has changed over the decades, there’s no controversy over its validity as a diagnosis; it’s still endorsed by numerous pediatric and medical groups.

However, the New Jersey Supreme Court’s lengthy opinion surveyed the history of AHT and concluded that a child abuse pediatrician’s expert testimony in an alleged AHT abuse case was not admissible because “the State has not met its burden of establishing general acceptance in the relevant scientific communities” over whether research supports an SBS/AHT diagnosis when evidence of impact or other trauma is not present.

While the court wrote that there were limits to what researchers can know and ethically study regarding infant head trauma, those “limitations should not give way to assumptions in making an SBS/AHT diagnosis for which significant criminal liability follows when no other evidence of abuse is present.”

In the case at issue, Darryl Nieves was charged in 2017 with aggravated assault and endangering the welfare of a child after his 11-month-old son showed signs of neurological damage. The indictment alleged that Nieves had injured the toddler, who was born prematurely with severe medical problems, by violently shaking him. But in 2022, Nieves’ New Jersey trial court judge barred AHT testimony from Nieves’ trial, writing that it’s “an assumption packaged as a medical diagnosis, unsupported by any medical or scientific testing.” A New Jersey appeals court upheld the ruling, writing that “the very basis of the theory has never been proven.”

The New Jersey Supreme Court upheld both lower court decisions.

In a dissenting opinion, New Jersey Supreme Court Justice Rachel Wainer Apter wrote that AHT was widely accepted by every major discipline involved in its diagnosis and
treatment. “Judicial humility requires us to accept that we are judges, not scientists,” Apter wrote. “Nor are we experts in the scientific method.”

Prosecutor and innocence groups closely watched the case, and other state courts will also no doubt take careful note of it as post-conviction appeals of AHT cases continue to percolate through their systems.

In Texas, death row inmate Robert Roberson narrowly avoided the execution chamber in October after a state appeals court granted him new proceedings to challenge his conviction. Roberson would have become the first person in the country to be executed based on AHT testimony.