As ExpertPages has reported, courts in Michigan, New York, Ohio, and other states have recognized that unsound expert testimony has placed innocent defendants at risk of conviction for shaking babies. In response to growing awareness that innocent people have been imprisoned because experts assured juries that evidence of abuse was undeniable, the American Academy of Pediatrics revised its ethical guidelines for pediatricians who give expert testimony.
According to the Houston Chronicle, child abuse pediatricians, “now stationed at virtually every major children’s hospital in the country, work closely with child welfare agencies and law enforcement, providing expert reports and court testimony in thousands of cases a year.” When they acknowledge that they are basing their opinions on an interpretation of the evidence, not on personal knowledge that abuse occurred, expert pediatricians clearly play an important role in the criminal justice system.
Unfortunately, child abuse pediatricians who testify unethically that their opinions leave no room for doubt do not limit their improper certitude to shaken baby cases. A Houston Chronicle and NBC News investigation has focused attention on the continuing problem of prosecution experts who fail to acknowledge that the medical evidence supporting a variety of child abuse accusations is uncertain.
The investigation found that “some child abuse pediatricians have at times overstated their ability to determine when a child has been intentionally harmed.” By way of example, the media organizations examined a Texas case in which a child abuse pediatrician conducted a burn pattern analysis using a flawed methodology. The doctor’s claim that a child was intentionally scalded in a bathtub filled with hot water was based on speculation, not on science.
Accidental burns from hot water are common. Housing complexes and apartment buildings often set high water temperatures so that people on upper floors will have hot water. That makes it easy for people who live on lower floors to suffer accidental burns from dangerously hot water.
Some child abuse pediatricians contend that 10% of all child abuse cases involve intentionally inflicted burns. That statistic, unsupported by any peer-reviewed study, is based on the assumption that children who are burned accidentally will remove limbs from a tub before their burns become severe.
Some experts therefore consider a clear line between burned and unburned skin as a “classic forced immersion burn pattern” that proves child abuse. Yet no scientific study supports that opinion.
Other experts recognize that some children experience pain more slowly than others and thus do not leave a hot tub before they are burned. Some pediatric burn victims, for physiological or environmental reasons (such as a closed shower door), are physically unable to remove a limb from hot water before being burned. The simplistic claim that a “classic forced immersion burn pattern” proves that a parent abused a child is the kind of junk science that leads to wrongful convictions.
The Houston Chronicle describes one expert’s testimony that a child will experience “splash burns” — burns caused by hopping from foot to foot in hot water — unless the child is being held in the water. The doctor was unaware of a research paper that debunked the likelihood of splash burns when water temperature is less than 130°. Nor did the doctor acquaint himself with the actual water temperature produced by the defendant’s water heater, which the police determined was 129°.
Crossing the Line from Objectivity to Advocacy
As Dr. Shaku Teas, a forensic pathologist in Chicago, told the Houston Chronicle, some child abuse pediatricians begin with an assumption that injuries were caused by child abuse and then interpret the evidence to prove that assumption. The experts do not interview the parents or look for other evidence that may cast doubt on their opinions. As Dr. Teas says, starting with a conclusion and then working to prove the conclusion is “a recipe for bad forensic analysis.”
Expert witnesses are not advocates. The criminal justice system assures that children have multiple advocates, including police officers, social workers, prosecutors, and victim-witness specialists. An expert’s only advocacy should be for the truth.
The doctor who testified about splash burns was cross-examined about research demonstrating that the water temperature in the defendant’s home would not cause splash burns. The evidence also showed that there were burns on the bottoms of the child’s feet, an unlikely scenario if the child was held with his feet against the bottom of the tub. Rather than graciously conceding the possibility that the evidence was open to interpretation, the doctor doubled down, testifying that the new information did not change his opinion.
The doctor compounded his unfortunate testimony by insisting that he was absolutely certain that the burns could not have been accidental. The doctor wasn’t present when the child was burned. At best, the doctor was drawing inferences from burn patterns. No ethical expert should testify with absolute certainty that a conclusion must be correct, particularly when evidence exists that is inconsistent with that conclusion.
Experts who insist that their opinions cannot be questioned further the misperception that an expert is nothing but a hired gun. Experts are, in fact, a vital part of the truth-seeking process, but only when they maintain their objectivity. Experts who cross the line from objectivity to advocacy make it more difficult for honest experts to gain a jury’s respect.
Bad Science Ruins Lives
Nobody doubts the importance of protecting vulnerable children from harm. However, as parents become increasingly aware that child abuse pediatricians sometimes opine that accidental injuries resulted from abuse, parents may have an incentive to withhold medical treatment from their children rather than risking an unfounded arrest.
Responsible parents, of course, will take that risk to assure that their children receive the treatment they need. When those parents are arrested because ambiguous evidence suggests that they abused their children, the results can be devastating.
When experts assert that a child was the victim of abuse, their opinions can be responsible for “traumatic family separations and questionable criminal charges.” In their zeal to carry out that mission of child protection, too many physicians have erred on the side of concluding that child abuse occurred when the evidence is equivocal.
As researchers from Harvard Medical School wrote, basing a guilty verdict on “inadequate analysis” is “anathema to our system of justice, and the impact on the child and the family can prove devastating and lasting.”
The Harvard research underscores the need for criminal defense lawyers to acquaint themselves with state-of-the art science when confronted with a child abuse accusation and to retain experts who are capable of explaining to a jury why the facts lend themselves to interpretations that are consistent with innocence. The right to an acquittal when reasonable doubt exists can only be protected by meeting expert testimony with competing expert testimony that exposes flaws in the prosecution expert’s methodology, assumptions, or reasoning.