State v. Darryl Nieves; State v. Michael Cifelli
This text of State v. Darryl Nieves; State v. Michael Cifelli (State v. Darryl Nieves; State v. Michael Cifelli) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
State v. Darryl Nieves (A-26/27-23) (088683)
Argued October 21, 2024 -- Decided November 20, 2025
JUSTICE PIERRE-LOUIS, writing for the Court.
In this appeal, the Court considers whether expert testimony regarding Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) is sufficiently reliable to go before a jury in two separate cases -- State v. Nieves and State v. Cifelli.
In both matters, the young children exhibited symptoms that have come to be associated with SBS/AHT and referred to as the “triad of symptoms” -- subdural hematoma, retinal hemorrhages, and encephalopathy. In both cases, the same doctor determined that the children were victims of child abuse, specifically SBS/AHT. Because the children were in the care of their fathers when they began to exhibit the above-mentioned symptoms, both men were charged with criminal offenses.
The State sought to present the expert testimony of a doctor that the only explanation for the children’s symptoms, to a reasonable degree of medical certainty, was that the children were shaken by the caregiver. The defense in both cases moved to exclude the testimony, challenging the scientific basis and reliability of the theory that shaking alone, without some other impact to the head, can cause the symptoms associated with SBS/AHT.
After a hearing to explore the admissibility of the evidence in Nieves, reviewed in detail on pages 29-57 of the Court’s opinion, the trial court excluded SBS/AHT testimony from the trial. The trial court in Cifelli followed suit. The appeals were consolidated and the Appellate Division affirmed. The Court granted certification in Nieves and leave to appeal in Cifelli. 256 N.J. 451 (2024).
HELD: The Court agrees with the trial courts and Appellate Division that the State has not met its burden in establishing the reliability of SBS/AHT testimony here.
1. The Court reviews the history of SBS/AHT over the past six decades (pp. 9-26): • In 1968, neurosurgeon Dr. Ayub Ommaya conducted an experimental study focused specifically on whiplash injuries from car accidents. Although Dr. Ommaya’s study did not concern head trauma in infants from shaking, it 1 became a foundation for diagnoses of SBS/AHT, particularly its conclusion that brain injuries could occur by rotational displacement of the head on the neck alone, without significant direct head impact. • In 1971, neurosurgeon Dr. Arthur Norman Guthkelch presented the theory of SBS, partially relying on Dr. Ommaya’s 1968 study. Dr. Guthkelch hypothesized that an “infant having been shaken rather than struck by its parent” might sustain a subdural hematoma.
• In 1972 and 1974, pediatric radiologist Dr. John Caffey published papers on “whiplash-shaking” of infants, relying on historical cases and Dr. Ommaya’s study. In comparing the force of infant shaking with the force generated during a car accident whiplash event, Dr. Caffey stated -- without elaboration or citation -- that manual shaking, when repeated, “may be much more harmful to the brain” and “the veins in the eyes” than a car accident whiplash event” and that “[c]urrent evidence, though manifestly incomplete and largely circumstantial, warrants a nationwide educational campaign” on the potential risks of whiplash shaking of infants. In the years following Dr. Caffey’s 1974 study, the theory of whiplash infant shaking syndrome, later referred to as shaken baby syndrome, began to gain traction in the medical community.
• In 1987, Dr. Ann-Christine Duhaime, using infant models, conducted the first biomechanical study testing shaken baby syndrome and the effects of shaking without impact. Dr. Duhaime concluded that shaking alone does not produce shaken baby syndrome.
• In 2002, Dr. Ommaya, whose whiplash study was the basis for Dr. Guthkelch’s conclusions and Dr. Caffey’s whiplash shaken infant syndrome hypothesis, published a study criticizing other researchers’ reliance on his own study as the scientific foundation of SBS. A decade later, Dr. Guthkelch also questioned the science behind SBS.
• In 2018, while the SBS/AHT debate continued, a group of physicians and pediatric radiologists published a Consensus Statement on AHT, which the American Academy of Pediatrics later endorsed. The Consensus Statement cited to the studies by Dr. Caffey and noted Dr. Caffey’s citation to Dr. Ommaya and Dr. Guthkelch. It acknowledged Dr. Duhaime’s conclusion that shaking alone cannot generate the force needed to cause the injuries that result in SBS/AHT cases but noted that contrary evidence -- confessions by caregivers -- supports the argument that shaking alone can cause SBS/AHT. The Consensus Statement also noted that SBS/AHT is a medical diagnosis, not a legal finding of murder, and declared that “[t]here is no controversy concerning the medical validity of the existence of AHT.”
2 2. For expert testimony to be admissible under N.J.R.E. 702, its proponent must establish that (1) the subject matter of the testimony is beyond the ken of the average juror; (2) the field of inquiry is at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness has sufficient expertise to offer the testimony. During the relevant period, New Jersey courts relied on the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to assess the reliability prong. The Frye standard requires trial courts to determine whether the science underlying the proposed expert testimony has gained general acceptance in the particular field in which it belongs. In certain circumstances, there might be more than one relevant scientific community to consider. In Olenowski II, for example, the Court recognized that the relevant scientific communities in determining the reliability of Drug Recognition Expert testimony included both medicine and toxicology. State v. Olenowski (Olenowski II), 255 N.J. 529, 604 (2023). Further, courts may revisit previously accepted theories as the science develops. In State v. J.L.G., for example, the Court determined that certain expert testimony regarding Child Sexual Abuse Accommodation Syndrome no longer met the reliability prong and was therefore inadmissible in criminal trials because it was based on clinical practice and not supported by objectively tested scientific evidence. 234 N.J. 265, 272, 291 (2018). (pp. 78-83)
3. Few New Jersey court opinions have addressed the reliability of SBS/AHT, and none involve the reliability of SBS/AHT in the context of shaking without impact. However, many cases from around the country in the past 15 years have focused on the reliability of SBS/AHT, and the Court reviews such cases. (pp. 83-91)
4. Turning to the matters before it, the Court first determines the relevant scientific community or communities for purposes of SBS/AHT. As the State’s expert testified, the starting point in the evolution of SBS/AHT was Dr. Ommaya’s 1968 whiplash study, on which Drs. Guthkelch and Caffey later relied in conceptualizing SBS/AHT. It is therefore evident that the foundation of SBS/AHT lies in biomechanical science and engineering. A scientific community is either relevant or not for purposes of determining admissibility of scientific evidence at trial -- degrees of relevance are not weighed. As in Olenowski II, there can certainly be more than one relevant scientific community for purposes of Frye. Here, the relevant scientific communities for purposes of determining the reliability of SBS/AHT expert testimony are both the medical/pediatric community and the biomechanical engineering community. (pp. 92-94)
5.
Free access — add to your briefcase to read the full text and ask questions with AI
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
State v. Darryl Nieves (A-26/27-23) (088683)
Argued October 21, 2024 -- Decided November 20, 2025
JUSTICE PIERRE-LOUIS, writing for the Court.
In this appeal, the Court considers whether expert testimony regarding Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) is sufficiently reliable to go before a jury in two separate cases -- State v. Nieves and State v. Cifelli.
In both matters, the young children exhibited symptoms that have come to be associated with SBS/AHT and referred to as the “triad of symptoms” -- subdural hematoma, retinal hemorrhages, and encephalopathy. In both cases, the same doctor determined that the children were victims of child abuse, specifically SBS/AHT. Because the children were in the care of their fathers when they began to exhibit the above-mentioned symptoms, both men were charged with criminal offenses.
The State sought to present the expert testimony of a doctor that the only explanation for the children’s symptoms, to a reasonable degree of medical certainty, was that the children were shaken by the caregiver. The defense in both cases moved to exclude the testimony, challenging the scientific basis and reliability of the theory that shaking alone, without some other impact to the head, can cause the symptoms associated with SBS/AHT.
After a hearing to explore the admissibility of the evidence in Nieves, reviewed in detail on pages 29-57 of the Court’s opinion, the trial court excluded SBS/AHT testimony from the trial. The trial court in Cifelli followed suit. The appeals were consolidated and the Appellate Division affirmed. The Court granted certification in Nieves and leave to appeal in Cifelli. 256 N.J. 451 (2024).
HELD: The Court agrees with the trial courts and Appellate Division that the State has not met its burden in establishing the reliability of SBS/AHT testimony here.
1. The Court reviews the history of SBS/AHT over the past six decades (pp. 9-26): • In 1968, neurosurgeon Dr. Ayub Ommaya conducted an experimental study focused specifically on whiplash injuries from car accidents. Although Dr. Ommaya’s study did not concern head trauma in infants from shaking, it 1 became a foundation for diagnoses of SBS/AHT, particularly its conclusion that brain injuries could occur by rotational displacement of the head on the neck alone, without significant direct head impact. • In 1971, neurosurgeon Dr. Arthur Norman Guthkelch presented the theory of SBS, partially relying on Dr. Ommaya’s 1968 study. Dr. Guthkelch hypothesized that an “infant having been shaken rather than struck by its parent” might sustain a subdural hematoma.
• In 1972 and 1974, pediatric radiologist Dr. John Caffey published papers on “whiplash-shaking” of infants, relying on historical cases and Dr. Ommaya’s study. In comparing the force of infant shaking with the force generated during a car accident whiplash event, Dr. Caffey stated -- without elaboration or citation -- that manual shaking, when repeated, “may be much more harmful to the brain” and “the veins in the eyes” than a car accident whiplash event” and that “[c]urrent evidence, though manifestly incomplete and largely circumstantial, warrants a nationwide educational campaign” on the potential risks of whiplash shaking of infants. In the years following Dr. Caffey’s 1974 study, the theory of whiplash infant shaking syndrome, later referred to as shaken baby syndrome, began to gain traction in the medical community.
• In 1987, Dr. Ann-Christine Duhaime, using infant models, conducted the first biomechanical study testing shaken baby syndrome and the effects of shaking without impact. Dr. Duhaime concluded that shaking alone does not produce shaken baby syndrome.
• In 2002, Dr. Ommaya, whose whiplash study was the basis for Dr. Guthkelch’s conclusions and Dr. Caffey’s whiplash shaken infant syndrome hypothesis, published a study criticizing other researchers’ reliance on his own study as the scientific foundation of SBS. A decade later, Dr. Guthkelch also questioned the science behind SBS.
• In 2018, while the SBS/AHT debate continued, a group of physicians and pediatric radiologists published a Consensus Statement on AHT, which the American Academy of Pediatrics later endorsed. The Consensus Statement cited to the studies by Dr. Caffey and noted Dr. Caffey’s citation to Dr. Ommaya and Dr. Guthkelch. It acknowledged Dr. Duhaime’s conclusion that shaking alone cannot generate the force needed to cause the injuries that result in SBS/AHT cases but noted that contrary evidence -- confessions by caregivers -- supports the argument that shaking alone can cause SBS/AHT. The Consensus Statement also noted that SBS/AHT is a medical diagnosis, not a legal finding of murder, and declared that “[t]here is no controversy concerning the medical validity of the existence of AHT.”
2 2. For expert testimony to be admissible under N.J.R.E. 702, its proponent must establish that (1) the subject matter of the testimony is beyond the ken of the average juror; (2) the field of inquiry is at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness has sufficient expertise to offer the testimony. During the relevant period, New Jersey courts relied on the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to assess the reliability prong. The Frye standard requires trial courts to determine whether the science underlying the proposed expert testimony has gained general acceptance in the particular field in which it belongs. In certain circumstances, there might be more than one relevant scientific community to consider. In Olenowski II, for example, the Court recognized that the relevant scientific communities in determining the reliability of Drug Recognition Expert testimony included both medicine and toxicology. State v. Olenowski (Olenowski II), 255 N.J. 529, 604 (2023). Further, courts may revisit previously accepted theories as the science develops. In State v. J.L.G., for example, the Court determined that certain expert testimony regarding Child Sexual Abuse Accommodation Syndrome no longer met the reliability prong and was therefore inadmissible in criminal trials because it was based on clinical practice and not supported by objectively tested scientific evidence. 234 N.J. 265, 272, 291 (2018). (pp. 78-83)
3. Few New Jersey court opinions have addressed the reliability of SBS/AHT, and none involve the reliability of SBS/AHT in the context of shaking without impact. However, many cases from around the country in the past 15 years have focused on the reliability of SBS/AHT, and the Court reviews such cases. (pp. 83-91)
4. Turning to the matters before it, the Court first determines the relevant scientific community or communities for purposes of SBS/AHT. As the State’s expert testified, the starting point in the evolution of SBS/AHT was Dr. Ommaya’s 1968 whiplash study, on which Drs. Guthkelch and Caffey later relied in conceptualizing SBS/AHT. It is therefore evident that the foundation of SBS/AHT lies in biomechanical science and engineering. A scientific community is either relevant or not for purposes of determining admissibility of scientific evidence at trial -- degrees of relevance are not weighed. As in Olenowski II, there can certainly be more than one relevant scientific community for purposes of Frye. Here, the relevant scientific communities for purposes of determining the reliability of SBS/AHT expert testimony are both the medical/pediatric community and the biomechanical engineering community. (pp. 92-94)
5. The Court next considers whether, under the Frye standard of reliability, the State has met its burden of establishing that its expert’s testimony regarding SBS/AHT without impact is sufficiently reliable for admission at trial. Based on the testimony, evidence, and scientific studies and writings, the State has not met its burden of clearly establishing general acceptance in the relevant scientific communities 3 because it has not shown general acceptance within the biomechanical community regarding whether shaking without impact can produce the “triad” of symptoms associated with SBS/AHT. The record established in the Frye hearing regarding the challenges to the science behind SBS/AHT in these matters questions the scientific and biomechanical underpinnings of the diagnosis of SBS/AHT as the sole basis for a legal finding of child abuse. As the trial court found, the evidence presented at the Frye hearing -- including the testimony by the State’s single expert witness -- showed that there was no test supporting a finding that humans can produce the physical force necessary to cause the symptoms associated with SBS/AHT in a child. There is evidence of general acceptance by many in the medical community, but the State must also establish general acceptance in the biomechanical community, and it has failed to do so. (pp. 94-107)
6. The Court explains that if there is physical evidence of trauma to a child or other evidence of abuse, the State can present such evidence to a jury. And if new, reliable, scientific evidence is developed, the State can, in a future case, make a showing under the Daubert standard adopted in State v. Olenowski (Olenowski I), 253 N.J. 133, 139, 155 (2023), that expert testimony regarding SBS/AHT without impact is reliable. In such a case, scientific evidence and research, both old and new, could be presented and considered. (p. 108)
AFFIRMED.
JUSTICE WAINER APTER, dissenting, stresses that SBS/AHT has been explicitly affirmed by every major discipline involved in its diagnosis and treatment and expresses the view that the Court here substitutes its judgment for that of the relevant scientific community. Justice Wainer Apter writes that, in the few prior instances in which the Court determined that evidence did not satisfy the Frye standard, the evidence lacked the endorsement of even one major scientific association or society, whereas SBS/AHT is endorsed by all of them. Further, Justice Wainer Apter notes, every other state admits expert testimony diagnosing SBS/AHT, and every other court that has considered the question has held that such evidence is admissible. Justice Wainer Apter writes that the majority has allowed individual biomechanical engineers to veto the consensus perspective of every major medical society in the world -- in a case about the admissibility of a medical diagnosis. Justice Wainer Apter would leave it to the jury to weigh the experts’ competing testimony.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE WAINER APTER filed a dissent.
4 SUPREME COURT OF NEW JERSEY A-26/27 September Term 2023 088683
State of New Jersey,
Plaintiff-Appellant,
v.
Darryl Nieves,
Defendant-Respondent.
Michael Cifelli,
On certification to and appeal from the Superior Court, Appellate Division, whose opinion is reported at 476 N.J. Super. 609 (App. Div. 2023).
Argued Decided October 21, 2024 November 20, 2025
David M. Liston, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Yolanda Ciccone, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs).
1 Cody T. Mason, Deputy Public Defender II, argued the cause for respondent Darryl Nieves (Jennifer N. Sellitti, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs).
Philip Nettl argued the cause for respondent Michael Cifelli (Benedict Altman and Nettl, attorneys; Philip Nettl, on the briefs).
Elizabeth H. Wallace, Deputy Attorney General, argued the cause for amici curiae Attorney General of New Jersey and New Jersey Division of Child Protection and Permanency (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, Angela Cai, Deputy Solicitor General, Sookie Bae-Park, Assistant Attorney General, and Steven A. Yomtov, Deputy Attorney General, of counsel, and Elizabeth H. Wallace, Regina M. Oberholzer, Deputy Attorney General, and Christopher Ioannou, Deputy Attorney General, on the brief).
T. Gary Mitchell, Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey, Office of Parental Representation (Jennifer N. Sellitti, Public Defender, attorney; T. Gary Mitchell, of counsel and on the brief).
Kelly S. Crawford submitted a letter in lieu of a brief on behalf of amici curiae The Innocence Network and Center for Integrity in Forensic Sciences (Riker Danzig, attorneys).
Audra J. Soloway (Paul, Weiss, Rifkind, Wharton & Garrison) submitted a brief on behalf of amici curiae Dr. Jacob Andersson, Prof. Anders Eriksson, Dr. John Galaznik, Dr. Patrick Hamel, Dr. Ulf Högberg, Dr. Lawrence Hutchins, Dr. Charles J. Hyman, Prof. Niels Lynøe, Dr. Marvin Miller, Dr. David Ramsay, Dr. Cyrille Rossant, Dr. Robert K. Rothfeder, Dr. Irene Scheimberg, Dr. Joseph Scheller, Dr. Guillaume Sébire, Dr. Waney 2 Squier, Dr. Dale Vaslow, Dr. Knut Wester, and Dr. R.K. Wright (Paul, Weiss, Rifkind, Wharton & Garrison, and Innocence Project, Inc., attorneys; Audra J. Soloway, of counsel and on the brief, and David Cole (Paul, Weiss, Rifkind, Wharton & Garrison) of the Massachusetts bar, admitted pro hac vice, Carter E. Greenbaum (Paul, Weiss, Rifkind, Wharton & Garrison) of the New York and California bars, admitted pro hac vice, and Tania Brief (Innocence Project, Inc.) of the New York bar, admitted pro hac vice, on the brief).
Lawrence S. Lustberg submitted a brief on behalf of amici curiae Lindsay “Dutch” Johnson, Ph.D., Ken Monson, Ph.D., Kirk Thibault, Ph.D., D-IBFES, Keith Button, Ph.D., PE, and Johan Ivarsson, Ph.D. (Gibbons, attorneys; Lawrence S. Lustberg and Ruth O’Herron, on the brief).
CJ Griffin submitted a brief on behalf of amici curiae Dr. Jeff Kukucka, Ph.D., Keith A. Findley, Esq., Dr. Deborah Davis, Ph.D., and Dan Simon, Esq. (Pashman Stein Walder Hayden, attorneys; CJ Griffin, Claude Caroline Heffron, Christian Martinez, and Dominique Kilmartin, on the brief).
Mary Beth Hogan submitted a brief on behalf of amici curiae Family Justice Resource Center, upEND Movement, MJCF Coalition, and Mothers Outreach Network (Debevoise & Plimpton, attorneys; Mary Beth Hogan, on the brief).
Alexandra S. Jacobs (Montgomery McCracken Walker & Rhoads) submitted a brief on behalf of amici curiae American Academy of Pediatrics, New Jersey State Chapter of the American Academy of Pediatrics, American Association for Pediatric Ophthalmology and Strabismus, American Society of Pediatric Neurosurgeons, American Society of Pediatric Neuroradiology, American Professional Society on the Abuse of Children, Society for Pediatric Radiology, and 3 The Ray E. Helfer Society (Montgomery McCracken Walker & Rhoads, and Kienbaum Hardy Viviano Pelton & Forrest, attorneys; Alexandra S. Jacobs, of counsel and on the brief, and David Porter (Kienbaum Hardy Viviano Pelton & Forrest) of the Michigan bar, admitted pro hac vice, on the brief).
David M. Goodman submitted a brief on behalf of amici curiae Dr. Richard A. Leo, Dr. Hayley Cleary, Dr. Kyle Scherr, Dr. Lucy Guarnera, Dr. Saul Kassin, Dr. Lindsay Malloy, Dr. Christian Meissner, Dr. Allison Redlich, and Dr. Melissa Russano (Simpson Thacher & Bartlett, attorneys; David M. Goodman, and Matthew C. Penny of the New York bar, admitted pro hac vice, on the brief).
Richard P. Lomurro submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Lomurro Munson, attorneys; Richard P. Lomurro, and Christina Vassiliou Harvey, of counsel and on the brief, and Andrew B. Broome, on the brief).
JUSTICE PIERRE-LOUIS delivered the opinion of the Court.
Table of Contents
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. HISTORY OF SBS/AHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 III. FACTS & PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. State v. Nieves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Facts and Pre-Hearing Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 27 2. The Frye Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. Trial Court Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 B. State v. Cifelli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
4 C. Consolidated Appellate Division Decision . . . . . . . . . . . . . . . . . . . . . 64 D. Review and Amicus Participation Granted . . . . . . . . . . . . . . . . . . . . . 68 IV. PARTIES’ ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 A. State of New Jersey and Amici Supporting the State’s Position . . . . . 69 B. Nieves and Cifelli and Amici Supporting Their Position . . . . . . . . . . .72 V. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 B. Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 C. Case Law Addressing SBS/AHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 VI. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 A. The Relevant Scientific Communities . . . . . . . . . . . . . . . . . . . . . . . . 92 B. Application of the Frye Standard of Reliability . . . . . . . . . . . . . . . . . 94 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
I. INTRODUCTION
Many crimes grip the hearts and minds of the public due to their cruel
and heinous nature. The abuse of children, some of the most vulnerable
members of our society, is certainly such a crime. Child abuse is, without
question, reprehensible.
Regardless of the severity or viciousness of a crime, however, the
bedrock foundations and protections embedded within our system of criminal
justice must prevail. Under one of those core principles, only evidence that is
sufficiently reliable and has probative value not outweighed by the evidence’s
5 prejudicial effect may be presented to the jurors to inform their consideration
of the charges against the accused.
That requirement extends to expert testimony, which must be properly
admitted like all evidence. “[T]he Judiciary must ensure that proceedings are
fair to both the accused and the victim. Trial judges partly fulfill that
responsibility by serving as a gatekeeper.” State v. J.L.G., 234 N.J. 265, 307
(2018). Pursuant to N.J.R.E. 702, judges “must assess whether expert
testimony is sufficiently reliable before it can be presented to a jury.” Id. at
308. “Given an expert witness’s singular status in the courtroom,” State v.
J.R., 227 N.J. 393, 411 (2017) -- an expert witness is presented as having been
deemed, by the court, sufficiently knowledgeable to offer testimony beyond
the specifics of a particular case -- legislatures and courts have developed
particular inquiries to assess the admissibility of proposed expert testimony.
The standard to admit expert testimony that governed at time of the
proceedings in this case was the standard set forth in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923). 1 Under the Frye standard, such testimony must
1 In Olenowski I, this Court rejected the Frye standard and adopted “principles similar to the standard outlined in Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] to examine the admissibility of expert evidence in criminal and quasi-criminal cases.” State v. Olenowski (Olenowski I), 253 N.J. 133, 139, 155 (2023). Criminal matters that originated and were ruled upon before Olenowski I, such as this one, are nonetheless governed by the Frye standard
6 not only be reliable, but its proponent must establish that the information to
which the expert will testify is generally accepted in the relevant community to
which the expertise belongs.
In this appeal, we are asked to determine whether expert testimony
regarding Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) 2 is
sufficiently reliable to go before a jury in two separate cases. In both matters,
the young children exhibited symptoms that have come to be associated with
SBS/AHT and referred to as the “triad of symptoms” -- subdural hematoma,
retinal hemorrhages, and encephalopathy. In both cases, after the children
to assess the reliability prong. Id. at 154 (“Nothing in today’s decision disturbs prior rulings that were based on the Frye standard.”). 2 Although Shaken Baby Syndrome “is a term often used by physicians and the public to describe abusive head trauma inflicted on infants and young children,” the American Academy of Pediatrics (AAP), in 2009, changed the name from Shaken Baby Syndrome to Abusive Head Trauma because “advances in the understanding of the mechanisms and clinical spectrum of injury associated with abusive head trauma compel[led the AAP] to modify [its] terminology to keep pace with . . . understanding of pathological mechanisms” of injury. Cindy W. Christian, Robert Block, & Comm. on Child Abuse & Neglect, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409, 1409 (2009). According to the AAP, it adopted the term AHT “in recognition of the fact that inflicted head injury of children can involve a variety of biomechanical forces, including shaking.” Sandeep K. Narang et al., Abusive Head Trauma in Infants and Children, 145 Pediatrics Apr. 2020, at 1, 1. The AAP noted that it “continues to embrace the ‘shaken baby syndrome’ diagnosis as a valid subset of the AHT diagnosis.” Ibid. As such, throughout this opinion we use the combined term SBS/AHT. In discussing the history of SBS/AHT, we use the terminology in use at the time.
7 were examined by various medical specialists and a series of tests were run,
the same doctor determined that the children were victims of child abuse,
specifically SBS/AHT. Because the children were in the care of their fathers
when they began to exhibit the above-mentioned symptoms, both men were
charged with criminal offenses, including aggravated assault and child
endangerment.
The State sought to present the expert testimony of a doctor who opined,
based on her findings, that the only explanation for the children’s symptoms,
to a reasonable degree of medical certainty, was that the children were shaken
by the caregiver. That is, the anticipated testimony to the jury would be that,
based on the expert’s medical evaluation of the child, the child was abused.
The defense in both cases moved to exclude the doctor’s expert
testimony, challenging the scientific basis and reliability of the theory that
shaking alone, without some other impact to the head, can cause the symptoms
associated with SBS/AHT. Defendants argued that the scientific community
no longer accepts that theory. After a Frye hearing, the trial court in one
matter granted the defense motion and excluded SBS/AHT testimony from the
trial. The second trial court followed suit. The appeals were consolidated and
the Appellate Division affirmed.
8 For all the reasons that follow, we agree with the trial courts and
Appellate Division that the State has not met its burden in establishing the
reliability of SBS/AHT testimony in this case, and we affirm the Appellate
Division’s judgment.
II. HISTORY OF SBS/AHT
Before detailing the facts and procedural history of the matters before
us, we provide the following background on the origins and evolution of
SBS/AHT over the past six decades.
In 1968, neurosurgeon Dr. Ayub Ommaya conducted an experimental
study focused specifically on whiplash injuries from car accidents. Although
Dr. Ommaya’s study did not concern head trauma in infants from shaking, it
became a foundation for diagnoses of SBS/AHT, particularly its conclusion
that brain injuries could occur “by rotational displacement of the head on the
neck alone, without significant direct head impact.” Ayub K. Ommaya et al.,
Whiplash Injury & Brain Damage: An Experimental Study, 204 J. Am. Med.
Ass’n. 285, 285 (1968).
In the study, Dr. Ommaya subjected monkeys to a whiplash event that
mimicked rear-end car collisions. Id. at 286. Specifically, anesthetized
monkeys were secured to a carriage on roller-skate type wheels, equipped with
a braking mechanism, that could move freely along a 20-foot-long track. Ibid.
9 In delivering controlled blows to the rear of the carriage, the sudden impact
produced “high accelerations of the carriage and forward-facing monkey so as
to mimic a rear-end collision.” Ibid. The carriage was accelerated to a speed
of 30 miles per hour. 3 The whiplash that resulted was recorded by “a high-
speed, 16-mm movie camera at 1,000 frames/sec.” and the “rotational velocity
and acceleration” of the monkeys’ heads were calculated. Ibid.
Even though the monkeys did not sustain significant direct head impact
during the whiplash event, Dr. Ommaya concluded that whiplash “without
direct impact to the head” can cause concussions and “produce consistent brain
damage in the monkey as evidenced by subarachnoid and subdural hemorrhage
[and] cerebral contusions.” Id. at 285. Dr. Ommaya’s study determined that
“it is a matter of crucial importance that we investigate and manage the clinical
problems of whiplash injuries” because whiplash injuries “may be of
significant importance in producing the effects of closed-head injuries under
conditions when the head is free to move.” Id. at 289.
3 Although the acceleration speed was not specifically noted in the 1968 study, Dr. Ommaya clarified in a later study, discussed more fully below, that the energy level of acceleration in the whiplash study “related to speeds at motor vehicle crashes at 30 mph.” A. K. Ommaya et al., Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 Brit. J. of Neurosurgery 220, 221 (2002).
10 In 1971, neurosurgeon Dr. Arthur Norman Guthkelch presented the
theory of SBS, partially relying on Dr. Ommaya’s 1968 study. See A.N.
Guthkelch, Infantile Subdural Haematoma and its Relationship to Whiplash
Injuries, 2 Brit. Med. J. 430, 430 (1971). Dr. Guthkelch hypothesized that an
“infant having been shaken rather than struck by its parent” might sustain a
subdural hematoma. Ibid.
Dr. Guthkelch studied “[t]wenty-three cases of proved or strongly
suspected parental assault on children all under the age of 3 years.” Ibid.
Subdural bleeding was present in 13, and in five cases no external marks of
injury to the head were present. Id. at 430-31. Dr. Guthkelch concluded that
“in considering any case of infantile subdural haematoma, even when there are
only trivial bruises or indeed no marks of injury at all,” one must inquire as to
whether “the baby’s head could have been shaken.” Id. at 431. Dr. Guthkelch
stated that the most common cause of subdural hemorrhages in infants is the
rupturing of one or more of the bridging veins which run from the cerebral
cortex (the outermost layer of gray matter in the brain) to the venous sinuses,
id. at 430, which drain deoxygenated blood from the brain. Dr. Guthkelch
posited that this rupture could occur as a result of both impact and non-impact
events involving the head. Ibid.
11 Dr. Guthkelch did not conduct any scientific studies in support of his
hypothesis, save for an experiment using a round-bottomed glass flask filled
with fluid and desiccated coconut, which he both shook and struck, in order to
observe the movement of the coconut in response to those actions. See id. at
431. Dr. Guthkelch analogized his observations to Dr. Ommaya’s
determinations regarding the movement of the brain in monkeys subjected to a
whiplash event. Ibid. Dr. Guthkelch further credited Dr. Ommaya’s study
with giving him the idea to construct the round-bottomed flask device that
informed his study and conclusions. Ibid.
In 1972, pediatric radiologist Dr. John Caffey published a paper in
which he studied 27 cases believed to involve the shaking of infants or
“whiplash-shaking,” as he termed the action. John Caffey, On the Theory and
Practice of Shaking Infants: Its Potential Residual Effects of Permanent Brain
Damage and Mental Retardation, 124 Am. J. Diseases Child. 161, 161, 164
(1972). Dr. Caffey, citing to four of his own previous papers, noted that
“[d]uring the last 25 years, substantial evidence, both manifest and
circumstantial, has gradually accumulated which suggests that the whiplash-
shaking and jerking of abused infants are common causes of” trauma to the
skeleton and brain. Id. at 161.
12 Dr. Caffey did not conduct any biomechanical experiments himself.
Instead, to arrive at his conclusions, he reviewed historical cases in which
“whiplash-shaking” was suspected. See id. at 163-64. One such case -- for
which he cited to an article in Newsweek -- involved a nurse who was
“reported to have killed three infants and maimed 12 others . . . largely by
shaking and jolting infantile brains and their blood vessels” via whiplash-
shaking and “pounding on the back during burping.” Id. at 163. Dr. Caffey
also cited Dr. Guthkelch’s 1971 study for examples of admitted shaking by a
caregiver where subdural hematoma, retinal hemorrhages, and a broken femur
were present. Ibid. Several of the cases Dr. Caffey studied involved shaking
with impact, including one child’s head banging against her crib during a
shaking incident and another child being “shaken and beaten to death with a
stick.” Ibid.
Dr. Caffey’s study also cited cases of infant bone fractures and included
numerous x-ray images of unexplained fractures of infant femurs, ankles, and
arms. Id. at 162-64. In one case, an infant’s unexplained swelling and trauma
to his legs was revealed to have resulted from his own brother when the
parents saw the eight-year-old brother seize his infant sibling by the legs,
“sh[ake] him violently, and sw[i]ng him, and fl[i]ng him onto a bed.” Id. at
164. The study does not explain whether the infant suffered cranial injuries or
13 subdural hematomas as a result and noted only the trauma to the infant’s
femurs. Id. at 163-64.
In his study, Dr. Caffey also noted that “[t]here are several apparently
innocent, accepted, habitual practices, other than intentional shaking and
jerking, which whiplash the head and brain, and which could lead to permanent
brain damage.” Id. at 165. Dr. Caffey listed a number of activities that can
result in subdural hematomas in infants, including “tossing the baby into the
air,” spinning an infant around, and flipping an infant so that the infant is
somersaulted forward while someone is holding the child’s wrists. Ibid. The
study also recommended that certain toys and equipment, such as baby
bouncers; infant jumpers; seesaws; play slides; “powered cradles and powered
rocking horses; trampolines; skateboards[;] and sled jumping,” should be more
carefully assessed for their dangerousness or banned entirely for infants and
young children. Ibid.
Dr. Caffey posited that whiplash-shaking possibly played a role in other
diagnoses including “cerebral palsies and idiopathic epilepsy” and concluded
that “[t]here is considerable manifest and much circumstantial evidence which
indicates that whiplash-shaking and jolting of infantile heads may be major,
unrecognized causes of mental retardation and permanent brain damage.” Id.
at 168-69. Dr. Caffey concluded his paper by suggesting that “[t]he wide
14 practice of habitual whiplash-shaking for trivial reasons warrants a massive
nationwide educational campaign to alert everyone responsible for the welfare
of infants on its potential and actual pathogenicity.” Id. at 169. Again, Dr.
Caffey did not conduct any biomechanical experiments of his own in support
of that study and relied on the review of cases from other studies, including
Dr. Guthkelch’s 1971 study.
In 1974, Dr. Caffey authored another study in which he coined the
phrase “whiplash shaken infant syndrome.” John Caffey, The Whiplash
Shaken Infant Syndrome: Manual Shaking by the Extremities with Whiplash-
Induced Intracranial and Intraocular Bleedings, Linked with Residual
Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396, 396
(1974). In that study, Dr. Caffey reviewed purported “[d]irect evidence of
trauma through admission by the parent-assailant,” but noted that although
such evidence, “based on admission by the assailant, is meager, it is valuable
because it is reliable.” Id. at 397. With that study, Dr. Caffey identified what
he believed were the “essential elements” of whiplash shaken infant syndrome,
including subdural and retinal hemorrhages, id. at 396, 402, two of the three
symptoms that would later be referred to as the “triad” of symptoms indicative
of shaken baby syndrome.
15 Dr. Caffey once again cited to Newsweek’s account of the infant nurse
as “[b]y far the most extensive anecdotal proof of pathogenic manual
[whiplash shaking]” based on the nurse’s confession to the “savage shakings of
dozens of infants.” Id. at 397. Dr. Caffey again referenced an eight-year-old
sibling who shook his infant brother. See id. at 398. Because no citation was
included for the case, it is unclear whether that is the same case he referred to
in his 1972 article. But in that 1974 paper, Dr. Caffey specifically stated that
subdural hematoma was not detected in that infant. See ibid.
The 1974 study also included incidents not solely related to shaking
without impact, including a case of a father who first attempted to strangle his
infant child and later shook the child to revive them after the infant passed out.
Ibid. In that case, Dr. Caffey concluded that “it is likely that the stresses of
strangling as well as those of manual [whiplash shaking] contributed to the
[infant’s] intraocular changes and possibly the subdural hematomas.” Ibid.
Dr. Caffey further discussed the correlation between retinal hemorrhages
and whiplash shaking. Id. at 400. He noted that one study found that, out of
1,238 newborns, 14% had retinal hemorrhages immediately after birth. Ibid.
According to Dr. Caffey, however, that percentage dropped significantly to
2.6% between the infant’s third and fifth day after birth, indicating that retinal
hemorrhages due to birth disappear rather quickly, as opposed to “retinal
16 hemorrhages in abused infants [that can] persist[] for ten years and in one case
for 19 years.” Ibid. Dr. Caffey concluded that “[t]he preponderance of the
evidence from several sources indicates that the idiopathic retinal hemorrhages
of the newborn infant are not due to trauma at the time of birth and the retinal
hemorrhages found in battered and shaken infants are probably caused by
postnatal manual shaking.” Ibid. (emphases added).
To support his whiplash shaken infant syndrome hypothesis, Dr. Caffey
cited Dr. Ommaya’s 1968 whiplash study. He noted that Dr. Ommaya’s study
found that concussions could occur “by rotational displacement alone of the
head on the neck.” Id. at 402. Dr. Caffey posited that “[r]otation of the head
is of course a consistent additional stress in the manual . . . shaking of infants.”
Ibid.
In comparing the force of infant shaking with the force generated during
a car accident whiplash event, Dr. Caffey stated -- without elaboration or
citation -- that “[i]t is obvious that although the single manual shake of an
infant may be less forceful and pathogenic than the single whiplash in an
automobile accident,” manual shaking, when repeated, nevertheless “may be
much more harmful to the brain” and “the veins in the eyes.” Ibid. He
concluded his paper by stating that “[c]urrent evidence, though manifestly
incomplete and largely circumstantial, warrants a nationwide educational
17 campaign” on the potential risks of whiplash shaking of infants. Id. at 403
(emphasis added). Once again, Dr. Caffey did not conduct any scientific
experiments in that study and relied on anecdotal reported cases and case
studies.
In the years following Dr. Caffey’s 1974 study, the theory of whiplash
infant shaking syndrome, later referred to as shaken baby syndrome, began to
gain traction in the medical community. 4 That acceptance was based almost
entirely on Dr. Guthkelch and Dr. Caffey’s case studies, both of which relied
on Dr. Ommaya’s scientific study as the sole source of experimental scientific
4 There was little research regarding SBS/AHT following Dr. Caffey’s 1974 study until Dr. Duhaime’s in 1987. See Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1, 12 (2009) (discussing the “new ‘evidence-based medicine’” standards that led to heightened scrutiny and a resurgence of SBS/AHT related literature “in the mid- to late-1990s”); Jack R. Shepard et al., Child Abuse and Exploitation: Investigative Techniques 26-29 (2d ed. 1992) (describing SBS/AHT); Julie Jonas, Unequal Funding Compounds Tragedy: Failures in Defending Against Shaken Baby Syndrome Charges, 96 Temp. L. Rev. 135, 148 (2024) (discussing the history of SBS/AHT’s acceptance and noting that its acceptance was “[b]ased only on the case studies by Dr. Guthkelch and Dr. Caffey” and Dr. Ommaya’s research); Christian, Block, & Comm. on Child Abuse & Neglect, 123 Pediatrics at 1409 (explaining the history of SBS/AHT’s acceptance); Wajd N. Al-Holou et al., Nonaccidental Head Injury in Children: Historical Vignette, 3 J. Neurosurgery Pediatrics 474, 480-81 (2009) (discussing Dr. Guthkelch’s and Dr. Caffey’s work as the foundation of SBS/AHT’s acceptance). But see Stephen Ludwig & Matt Warman, Shaken Baby Syndrome: A Review of 20 Cases, 13 Annals Emergency Med. 104, 104-07 (1984) (reviewing 20 incidents of SBS/AHT).
18 data behind the theory, notwithstanding the fact that Dr. Ommaya’s study had
nothing to do with the shaking of infants. See Sissoko v. State, 182 A.3d 874,
899 (Md. Ct. Spec. App. 2018) (discussing the history of SBS/AHT); see also
Commonwealth v. Martin, 290 S.W.3d 59, 62-63 (Ky. Ct. App. 2008)
(describing testimony that discussed the history of SBS/AHT).
In 1987, Dr. Ann-Christine Duhaime conducted the first biomechanical
study testing shaken baby syndrome and the effects of shaking without impact.
Ann-Christine Duhaime et al., The Shaken Baby Syndrome: A Clinical,
Pathological, & Biomechanical Study, 66 J. Neurosurgery 409, 409 (1987).
The study authors reviewed all cases of SBS at the Children’s Hospital of
Philadelphia (CHOP) from January 1978 to March 1985. Id. at 409-10. Out of
the 48 cases for which clinical data was available, only one involved shaking
without impact, and 15 cases -- the largest percentage -- were cases of
accidental blunt trauma, usually from a fall. Id. at 410. After reviewing the
cases, Dr. Duhaime determined that pathological examinations revealed that
“all of the children who died had evidence of blunt head trauma.” Id. at 411.
Those findings of impact, however, were visible only at the time of autopsy in
seven of the thirteen cases resulting in death because the trauma was not
apparent prior to the children’s deaths. Ibid.
19 Importantly, after conducting a biomechanical study using infant
models, Dr. Duhaime concluded that “shaking alone does not produce the
shaken baby syndrome.” Id. at 409. Dr. Duhaime used infant models and
implanted “an accelerometer to measure the results of shaking or impact
manipulations.” Id. at 411. Dr. Duhaime sought to determine what level of
force, both acceleration and deceleration, is generated by shaking alone and,
separately, by impact to the head. See id. at 413. The models were shaken
violently and repetitively. Ibid. The back of models’ heads were then struck
against a metal bar or a padded surface. Ibid. According to Dr. Duhaime, the
results showed that the acceleration and velocity levels for shaking fell well
below the threshold at which injuries, such as concussions and subdural
hematomas, occurred in previous studies using primates. Id. at 414. The
results further showed that the forces generated as a result of impact fell within
the acceleration and velocity ranges expected in cases in which concussions,
subdural hematomas, and diffuse axonal injury, a type of traumatic brain
injury, were present. 5 Ibid. In short, Dr. Duhaime’s study was not able to
5 Specifically, Dr. Duhaime determined that the average peak acceleration for the shaking episodes was 9.29 g, whereas the average peak acceleration for the impact events was 428.18 g, over 50 times more. Id. at 413. A “g” is the “force of gravity or acceleration on the body.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/g-force (last visited Oct 31, 2025). 20 generate, in the infant models, the forces necessary to result in the relevant
brain injuries by shaking alone. See id. at 413-14.
Based on her biomechanical experiment and review of SBS cases at
CHOP, Dr. Duhaime concluded that “shaken baby syndrome, at least in its
most severe acute form, is not usually caused by shaking alone.” Id. at 414.
Dr. Duhaime added that “[a]lthough shaking may, in fact, be a part of the
process, it is more likely that such infants suffer blunt impact. The most
common scenario may be a child who is shaken, then thrown into or against a
crib or other surface, striking the back of the head.” Ibid. (emphasis added).
In 1993, the American Academy of Pediatrics (AAP) released its first
statement on the theory of SBS. Citing in part to both Drs. Guthkelch and
Caffey, the AAP’s statement noted that “data regarding the nature and
frequency of head trauma consistently support a medical presumption of child
abuse when a child younger than 1 year of age has intracranial injury.” Am.
Acad. of Pediatrics, Comm. on Child Abuse & Neglect, Shaken Baby
Syndrome: Inflicted Cerebral Trauma, 92 Pediatrics 872, 872 (1993)
(emphasis added). The AAP’s statement mentioned Dr. Duhaime’s
experimental study, simply noting that “a challenge to the presumption that the
shaking alone is the sole source of the trauma” arose from Dr. Duhaime’s
study. Ibid. The AAP statement related to children believed to have been
21 shaken, with or without impact. Ibid. The statement advised medical
professionals on the clinical features of SBS and the role of specialized
disciplines in recognizing SBS. Id. at 873-74. The statement further
suggested that a diagnostic team of specialists be formed, with medical
professionals in pediatrics, radiology, neurology, neurosurgery, and
ophthalmology. Id. at 874. The AAP’s statement did not discuss the
Guthkelch and Caffey studies in depth and did not mention or cite to Dr.
Ommaya’s 1968 study.
In 2002, Dr. Ommaya, whose whiplash study was the basis for Dr.
Guthkelch’s conclusions and Dr. Caffey’s whiplash shaken infant syndrome
hypothesis, published a study criticizing other researchers’ reliance on his own
study as the scientific foundation of SBS. A.K. Ommaya et al., Biomechanics
and Neuropathology of Adult and Paediatric Head Injury, 16 Brit. J.
Neurosurgery 220 (2002).
Dr. Ommaya cautioned that “[i]t is improbable that the high speed and
severity of the single whiplash produced in our animal model could be
achieved by a single manual shake or even a short series of manual shaking of
an infant in one episode.” Id. at 221. Dr. Ommaya further noted that Dr.
Caffey, Dr. Guthkelch, and others referenced by analogy his 1968 study “not
realizing that the energy level of acceleration in [his] work related to speeds at
22 motor vehicle crashes at 30 mph.” Ibid. Dr. Ommaya acknowledged that “it is
possible that continued repetitive shaking over a period of time, or shaking
repeated at intervals can produce significant cerebral as well as cervical spinal
cord trauma in an infant.” Id. at 225 (emphasis added). Regarding the
biomechanics of retinal hemorrhages, Dr. Ommaya opined that “the levels of
force required for retinal bleeding by shaking to damage the eye directly is
biomechanically improbable,” given that small masses like the eye require
levels of force even higher than larger masses like the brain. Id. at 233.
Significantly, Dr. Ommaya critiqued the assumptions upon which
theories about mechanisms of pediatric retinal and brain injuries in literature
have been based. Id. at 227. Those assumptions included the following: short
falls cannot cause subdural hematomas; retinal hemorrhages result from
shaking; and the time interval between the onset of symptoms as a result of
SBS is always brief. Ibid. Dr. Ommaya stated that “[t]hese assumptions
individually and in concert are ambiguous or incorrect” even though those very
assumptions had been used as the bases for the differential diagnoses of SBS,
“usually without reference to available biomechanical analysis.” Ibid.
A decade after Dr. Ommaya signaled that SBS lacked an underlying
scientific foundation, Dr. Guthkelch, whose study relied on Dr. Ommaya’s
whiplash experiment and was in turn cited by Dr. Caffey, also questioned the
23 science behind SBS. A.N. Guthkelch, Problems of Infant Retino-Dural
Hemorrhage with Minimal External Injury, 12 Hous. J. Health L. & Pol’y 201,
201 (2012). In his article, Dr. Guthkelch noted that the controversy
surrounding SBS/AHT had risen to a level of emotion and divisiveness “that
has interfered with our commitment to pursue the truth.” Ibid.
According to Dr. Guthkelch, his 2012 article, which was not a study,
was “a call for civility in scientific discourse.” Ibid. Dr. Guthkelch identified
several problems with the SBS/AHT theory and concluded that given the
science, it does not follow that “one can infer shaking (or any other form of
abuse) from a finding of retino-dural hemorrhage in infancy.” Id. at 203. Dr.
Guthkelch pointed out that there “seem to have been instances in which both
medical science and the law have gone too far in hypothesizing and
criminalizing alleged acts of violence” when the only evidence was the
presence of the triad of symptoms or just one or two symptoms of the triad.
Id. at 203-04.
Dr. Guthkelch further stated that “SBS and AHT are hypotheses that
have been advanced to explain findings that are not yet fully understood.” Id.
at 207. In acknowledging that there is nothing wrong with advancing
hypotheses, Dr. Guthkelch noted that “[i]t is wrong, however, to fail to advise
parents and courts when these are simply hypotheses, not proven medical or
24 scientific facts, or to attack those who point out problems with these
hypotheses or who advance alternatives. Often, ‘getting it right’ simply means
saying, clearly and unequivocally, ‘we don’t know.’” Ibid.
In 2018, while the SBS/AHT debate continued, a group of physicians
and pediatric radiologists published a consensus statement on AHT (the
Consensus Statement) which the AAP later endorsed. The Consensus
Statement purports to “address[] significant misconceptions and
misrepresentations about the diagnosis of [AHT] in infants and young
children,” noting that, “[r]ecently, denialism of child abuse has become a
significant medical, legal and public health problem.” Arabinda Kumar
Choudhary et al., Consensus Statement on Abusive Head Trauma in Infants
and Young Children, 48 Pediatric Radiology 1048, 1050 (2018). The
Consensus Statement further noted that “the courtroom has become a forum for
speculative theories” regarding SBS/AHT, despite the fact, according to the
Consensus Statement, that “[SBS/]AHT is a scientifically non-controversial
medical diagnosis.” Id. at 1048-49. As a result of what the authors deemed
SBS/AHT “denialists” and the sensationalized critique of SBS/AHT in the
media, the Consensus Statement authors stated that they hoped the document
would reduce confusion and help courts “recognize unsubstantiated medical
expert testimony.” Id. at 1049, 1060.
25 The Consensus Statement cited to the studies by Dr. Caffey and noted
Dr. Caffey’s citation to Dr. Ommaya and Dr. Guthkelch. Id. at 1051. Among
other conclusions, the authors of the Consensus Statement discounted short-
distance falls as a possible cause of subdural hematomas and retinal
hemorrhages. Id. at 1052. They acknowledged Dr. Duhaime’s conclusion that
shaking alone cannot generate the force needed to cause the injuries that result
in SBS/AHT cases but noted that contrary evidence -- confessions by
caregivers -- supports the argument that shaking alone can cause SBS/AHT.
Id. at 1051. The Consensus Statement also noted that SBS/AHT is a medical
diagnosis, not a legal finding of murder, contrary to the arguments of defense
attorneys. Id. at 1059. The Consensus Statement declared quite definitively
that “[t]here is no controversy concerning the medical validity of the existence
of AHT.” Id. at 1048.
III. FACTS & PROCEDURAL HISTORY
We next turn to the facts and procedural history of the two cases that
gave rise to this appeal.
26 A. State v. Nieves 6
1. Facts and Pre-Hearing Proceedings
Respondent Darryl Nieves is the father of D.J., who was born
prematurely at 25 weeks due to complications his mother experienced during
her pregnancy. After his birth in March 2016, D.J. remained at Saint Peter’s
University Hospital through October 2016, aside from two hospital stays at
CHOP for cardiac surgery in May and July 2016. After being discharged, D.J.
resided with his mother and Nieves, who were his primary caregivers.
In February 2017, D.J. -- 11 months old at the time -- had three episodes
of seizure-like behavior over the course of two weeks. During the first
episode, Nieves was home alone with D.J. and was changing his diaper when
D.J. went limp and passed out. Nieves attempted to revive D.J. by blowing in
his mouth, and he called D.J.’s mother and 9-1-1. By the time paramedics
arrived, D.J. was alert. The parents took D.J. to the pediatrician to follow up
and he was diagnosed with acid reflux. A few days later, the second seizure
episode occurred. While Nieves was changing D.J.’s diaper, the child passed
out and went limp again. Nieves applied oxygen with a nasal cannula, a
device that delivers supplementary oxygen to someone in need of respiratory
6 The facts in this section are derived from D.J.’s medical records and testimony elicited at the Frye hearing. 27 assistance. The third episode began several days later. Nieves picked up D.J.
to change his diaper and D.J. went stiff and his jaw locked. Nieves brought
D.J. upstairs to his mother, and they called an ambulance. She took a video of
D.J. that showed him not responding to stimulation, with one arm stiff and the
other flexed, and eyes deviated to the left. The ambulance transported D.J. to
Saint Peter’s where he was admitted.
Those events triggered a child abuse investigation. Dr. Gladibel
Medina, a child abuse pediatrician and the medical director at the Dorothy B.
Hersh Regional Child Protection Center at Saint Peter’s, prepared a report after
reviewing D.J.’s medical history and interviewing Nieves and D.J.’s mother.
While at the hospital, medical staff discovered that D.J. had bilateral retinal
hemorrhages -- described as extensive, too numerous to count, involving
multiple layers of the retina and extending to the periphery -- and bilateral
subdural bleeding with both new and old blood present. Dr. Medina noted in
her report that D.J. “had a detailed review of his neonatal course and
comprehensive medical workup and follow-up by pediatricians and pediatric
subspecialists,” which included doctors with expertise in neurology, genetics,
hematology, neuroradiology, and pediatric ophthalmology, as well as a retinal
specialist.
28 That comprehensive medical evaluation did not reveal any pathology to
account for D.J.’s bilateral subdural bleeds, extensive bilateral retinal
hemorrhages, or neurological symptoms observed in early February 2017. Dr.
Medina noted in her report that D.J. did not sustain any reported accidental
injuries in February 2017. Thus, based on D.J.’s history and symptoms when
he was admitted, Dr. Medina diagnosed D.J. with SBS/AHT, with or without
impact, “within a reasonable degree of medical certainty.”
In the wake of Dr. Medina’s diagnosis, on June 30, 2017, a Middlesex
County grand jury indicted Nieves, charging him with second-degree
aggravated assault and second-degree endangering the welfare of a child.
Judge Pedro J. Jimenez, Jr., presided over the matter.
2. The Frye Hearing
In July 2018, Nieves moved before the trial court for a Frye hearing to
challenge the scientific reliability of the SBS/AHT hypothesis and to preclude
Dr. Medina’s SBS/AHT testimony at trial. Nieves argued that SBS/AHT was
no longer accepted in the scientific community. The court initially granted
Nieves’s request for a Frye hearing. Thereafter, the State filed a motion for
reconsideration. Based in part on Judge Benjamin S. Bucca, Jr.’s denial of a
Frye hearing in State v. Cifelli, which we discuss later, the court granted the
State’s motion and reversed its prior order, effectively denying Nieves a Frye
29 hearing. The Appellate Division granted Nieves’s motion for leave to appeal
and remanded for a Frye hearing. Judge Jimenez conducted that hearing over
the course of five days.
The State presented one witness, Dr. Medina. Nieves presented three
expert witnesses: (1) Dr. Joseph Scheller, who testified as an expert in the
fields of pediatric neurology and neuroimaging; (2) Dr. Julie Mack, who
testified as an expert in the fields of radiology and pediatric radiology; and (3)
Dr. Chris Alan Van Ee, who testified as an expert in biomechanics.
Additionally, the parties introduced into evidence and discussed numerous
scientific studies and articles during the hearing.
a. Dr. Gladibel Medina
According to Dr. Medina, the evaluation of a child when SBS/AHT is
suspected involves consultation with specialists including geneticists,
hematologists, radiologists, and ophthalmologists to determine whether there is
a possible disease, medical issue, or pathology that might be contributing to
the child’s symptoms. Dr. Medina testified that such specialists work together
to provide child abuse pediatricians with a full history of the child’s health.
Dr. Medina testified that the SBS/AHT diagnosis is widely accepted within the
medical community and accepted by all the pediatric subspecialties involving
intracranial injury. On cross-examination, Dr. Medina agreed that there are no
30 specific diagnostic criteria to define SBS/AHT; there are only symptoms a
child may exhibit when doctors are looking to see whether to diagnose
SBS/AHT.
Dr. Medina testified about the history and origins of SBS/AHT. Dr.
Medina stated that “the field of abusive head trauma or the recognition of
inflicted head injury in medicine is about 160 years” old. Dr. Medina
discussed medical literature from the mid-19th century that identified injuries
in children believed to be “associated with maltreatment by care givers.” Dr.
Medina then noted that approximately 80 years later, Dr. Guthkelch identified
subdural hematomas in children with no external signs of trauma -- which was
strongly associated with physical abuse. She further testified that in the 1970s,
Dr. Caffey began using terminology that referred to inflicted trauma in infants
caused by shaking-type injury.
Dr. Medina also testified about the study Dr. Ommaya conducted in
1968. She explained that “what we know about shaking, and the established
thresholds for intracranial injury comes from that study” and that “everything
else in biomechanics is based on those injury thresholds” from that study. Dr.
Medina stated that the validity of SBS/AHT as a diagnosis has not changed in
the medical community but has been challenged in terms of the mechanism of
shaking as the cause of injury in the scientific community studying
31 biomechanics. She submitted that the controversy about SBS/AHT in
biomechanics is focused on whether shaking can cause the forces needed to
generate intracranial injury in infants.
Regarding other biomechanical studies inspired by Dr. Ommaya, Dr.
Medina acknowledged that Dr. Duhaime’s study found that shaking alone did
not generate enough rotational forces but shaking with impact did. Dr. Medina
agreed that, since Dr. Duhaime’s 1987 study, there is debate about whether
shaking alone can reach the force that would cause retinal hemorrhages and
subdural hematomas. Dr. Medina explained that the Duhaime study was
confirmed by Dr. Michael T. Prange, 7 who, in 2003, used a different wooden
mass body-type surrogate to conclude that the threshold for intracranial injury
by shaking must produce force like that involved in a short (or higher) distance
fall, and that one could not reach the minimum established threshold by
shaking alone.
Regarding biomechanics, when defense counsel asked, “when we talk
about biomechanics, your opinion is based on acceleration and deceleration of
a baby,” Dr. Medina answered affirmatively, and added “[o]f the baby’s head.”
When asked whether she could explain acceleration and deceleration forces
7 Michael T. Prange et al., Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants, 99 J. Neurosurgery 143 (2003).
32 beyond her answer that “[i]t’s just movement of the head in different planes
inside the intracranial cavity,” Dr. Medina stated that she could not.
Dr. Medina further testified about two 2016 studies -- one conducted by
Carole A. Jenny 8 and another conducted by C.Z. Cory 9 -- that used different
models and changed the pattern of the shaking. Dr. Medina testified that the
researchers varied the biomechanics of the dolls, which allowed for chin-to-
chest impact and impact between the very back of the skull and the back. Dr.
Medina noted that those studies, which as she testified included shaking with
some impact, “actually surpassed the injury thresholds produced by the
original Ommaya study.”
When asked about studies conducted by Dr. John W. Finnie, in which
anesthetized lambs were shaken, Dr. Medina agreed that all the lambs had
spinal injuries and two out of seven in the first study had retinal hemorrhages.
In Finnie’s 2010 and 2012 studies, the lambs were vigorously shaken 10 times
for 30 seconds over the course of 30 minutes without head impact to determine
what injuries would occur with shaking alone. J.W. Finnie et al.,
8 Carole A. Jenny et al., Biomechanical Response of the Infant Head to Shaking: An Experimental Investigation, 34 J. Neurotrauma 1579 (2017). 9 C.Z. Cory & M.D. Jones, Can Shaking Alone Cause Fatal Brain Injury? A Biomechanical Assessment of the Duhaime Shaken Baby Syndrome Model, 43 Med. Sci. L. 317 (2003).
33 Neuropathological Changes in a Lamb Model of Non-accidental Head Injury
(the Shaken Baby Syndrome), 19 J. Clinical Neurosci. 1159 (2012); John W.
Finnie et al., Diffuse Neuronal Perikaryal Amyloid Precursor Protein
Immunoreactivity in an Ovine Model of Non-accidental Head Injury (the
Shaken Baby Syndrome), 17 J. Clinical Neurosci. 237 (2010). The 2010 study
noted that a “small subdural haemorrhage was found in two shaken lambs” out
of the seven lambs tested, and “retinal haemorrhages were minimal and only
seen in two” lambs. Finnie et al., 17 J. Clinical Neurosci. at 239. In the 2012
Finnie study that used nine lambs of varying weights, the study noted that
three of the nine lambs, the lower-weight lambs, died before the six-hour mark
at which the researchers planned to kill and then study the lambs. Finnie et al.,
19 J. Clinical Neurosci. at 1160. Although the 2012 study mentions that
“retinal damage” was found in the shaken lambs, “retinal hemorrhages” were
not specifically noted as they were in the 2010 study, and in 2012 the authors
stated that “no [retinal] haemorrhage was found in the serial histological
sections of the retina.” Id. at 1159, 1162-64. Dr. Finnie’s 2012 study further
34 noted observed injury to the brainstem 10 and craniocervical junction. 11 Id. at
1159, 1161. Although the authors of Finnie’s 2012 study concluded that
shaking alone resulted in the death of the three lower-weight lambs and that
the lack of evidence of impact does not negate the occurrence of non-
accidental head injury if the head is impacted on a soft surface, the authors
nevertheless advised that a “diagnosis of [non-accidental head injury] should
be concluded with caution, unless there is other corroborating evidence of
abuse or a convincing admission by the perpetrator.” 12 Id. at 1164.
10 The brainstem is “[t]he part of the brain that is connected to the spinal cord. The brain stem is in the lowest part of the brain (just above the back of the neck) and is made up of the midbrain, pons, and medulla oblongata.” Nat’l Cancer Inst., Brain Stem, https://www.cancer.gov/publications/dictionaries/ cancer-terms/def/brain-stem (last visited Oct. 30, 2025). 11 “The craniocervical junction forms the bridge between the skull and the spine, a highly mobile group of joints that allows the mobility of the head in every direction. [It] plays a major role in protecting the inferior brainstem and spinal cord.” Juliette Raoul-Duval et al., Geometric Growth of the Normal Human Craniocervical Junction from 0 to 18 Years Old, 245 J. Anatomy 842 (2024) (parentheticals omitted). 12 Finnie’s lamb studies suffer from the same limitations of other studies in attempting to replicate an infant model. Finnie himself recently acknowledged the difficulties in the use of animal and mechanical models in noting that “[d]ue largely to irreconcilable anatomic species differences between animal brains and human infants, and a lack of resemblance of the shaking induced by mechanical devices to real-world human neurotrauma, no animal model has been able to reliably reproduce the full range of neuropathologic AHT changes.” John W. Finnie & Peter C. Blumbergs, Animal Models of Pediatric Abusive Head Trauma, 38 Child’s Nervous Sys. 2317 (2022). Finnie further
35 Dr. Medina also discussed benign enlargement of the subarachnoid space
(BESS). She described BESS as a medical diagnosis that puts infants at an
increased risk for subdural trauma, which she described as trauma to the
bridging veins that come from the brain to the dura (the sinus drainage). Dr.
Medina explained that BESS is associated with trauma to the bridging veins
with minimal movement involved, which causes subdural bleeding,
predisposes the infant to trauma, and is called benign because it does not cause
outward signs of trauma. Dr. Medina stated that to differentiate between
BESS and SBS/AHT, doctors must look at the whole clinical picture and
should never make a diagnosis of SBS/AHT based on one finding.
Dr. Medina noted that doctors rely on the “triad” of symptoms to flag
concern for SBS/AHT and to conduct further investigation. She stated that the
triad of symptoms presents as the following: (1) subdural hemorrhages
(bleeding in the brain); (2) severe retinal hemorrhages (bleeding in the
retina/eye); and (3) any neurological presentation known as encephalopathy,
which presents as unresponsiveness, apnea, seizures, or altered mental states.
stated that “it is unlikely that any animal model will be able to precisely replicate the complete range of brain and ocular lesions to support a diagnosis of AHT in human infants.” Id. at 2322.
36 She explained that there are different types of subdural hemorrhages
based on the cause of the hemorrhage. Most of the time, she stated, subdural
hemorrhages are caused by trauma; among young children, the most common
trauma is birth, and birth-related subdural hemorrhages usually resolve four to
six weeks after birth.
Dr. Medina testified that subdural hematomas can be associated with
retinal hemorrhages and stated that those observed in inflicted injury cases
have a distinct pattern that differs from hemorrhages caused by disease, illness,
or accidental trauma aside from motor vehicle roll-overs or other certain
medical conditions. She testified that when subdural hematomas coexist or are
identified in a child with severe retinal hemorrhages -- meaning hemorrhages
that are multilayered and too numerous to count -- it raises even more of a
concern for SBS/AHT.
According to Dr. Medina, if the symptoms of the triad remain
unexplained after a thorough review, then medical literature confirms the
symptoms “to be more specific for inflicted head injury.” Dr. Medina testified
that the SBS/AHT diagnosis thus requires an elimination of other possible
causes of the infant’s symptoms. Dr. Medina stated that the diagnosis is a
multidisciplinary process and noted that the diagnostic process and diagnosis
37 itself are well-established and widely accepted in the medical community, and
are reliable.
Regarding D.J., the child in Nieves, Dr. Medina testified that she
evaluated him on February 15, 2017, five days after he was admitted to Saint
Peter’s. Dr. Medina stated that after D.J. arrived at the hospital, doctors
evaluated him, looking for any other potential abnormalities. D.J. had an
ophthalmological examination that revealed severe multilayered retinal
hemorrhages in both eyes. Following that examination, the hospital contacted
the Division of Child Protection and Permanency (DCPP), and enlisted the
assistance of the Dorothy B. Hersh Child Protection Center in its evaluation of
D.J. Dr. Medina explained that a neuroradiologist diagnosed D.J. with
subdural bleeds and a pediatric ophthalmologist diagnosed him with severe
retinal hemorrhages, which the ophthalmologist documented was “consistent
with nonaccidental trauma.”
Dr. Medina confirmed that after obtaining the findings of the
subspecialists, she met with D.J.’s parents, who explained that between
February 3 and February 10, 2017, D.J. experienced three different episodes
while Nieves was the primary caregiver. Noting that D.J. had heart defects,
Dr. Medina described D.J.’s birth history as very complicated because he was
born extremely premature. She testified that D.J. had mild retinopathy, or
38 abnormally growing blood vessels, in the back of his eye when he was born,
but he was reevaluated at six months and was found to have healthy mature
retinas without any abnormalities. Regarding his altered mental state, Dr.
Medina noted that D.J. was a healthy baby and that there were no concerns in
terms of seizure-like activity until the events in February 2017. On cross-
examination, however, Dr. Medina conceded that when a baby is born at 25
weeks as D.J. was, there would be medical problems present at birth. She
further stated that although the cause is unknown, male premature babies are
especially prone to subdural hematomas at birth and that “there are problems
that can present months later.”
Dr. Medina found that D.J., then 11 months old, was developmentally
delayed, was at the developmental stage of a three or four-month-old infant,
and was starting to roll over but could not do much else. Though D.J. was able
to babble and smile, he did not have good head control and had decreased
muscle tone for his age, which, Dr. Medina explained, is not unusual when it
comes to children born as prematurely as D.J.
Dr. Medina stated that D.J.’s parents denied any history of accidental
trauma. Both parents mentioned that D.J.’s half-brother had been jumping in
the crib with him the month prior, a few days before the first incident, but the
parents reported that D.J. was smiling at the time and did not appear injured.
39 Dr. Medina stated that she diagnosed D.J. with “abusive head trauma
through shaking” within a reasonable degree of medical certainty. Dr. Medina
testified that she reached that diagnosis because D.J. presented to the hospital
with “altered mental status, subdural hemorrhages, and retinal hemorrhages in
the pattern that is severe and usually associated with very specific
circumstances,” but did not have evidence of hyperacute increase in
intracranial pressure, an aneurysm, or potential accidental trauma. Dr. Medina
testified that D.J.’s symptoms were not accounted for by a metabolic disorder
or accident; and every other possible explanation was ruled out by the treating
providers.
Regarding her report, in which she wrote that the tearing of the bridging
vein in D.J.’s brain caused his subdural hematomas, Dr. Medina conceded that
no studies show a relation between tearing of a bridging vein and subdural
hematomas. 13 Dr. Medina further testified that she made an assumption in
coming to that conclusion. Dr. Medina confirmed that her physical
13 The dissent appears to argue that Dr. Medina’s concession that she is unaware of any studies that show a relation between the tearing of the bridging vein and subdural hematomas is of no consequence and cites the Consensus Statement to support that argument. Post at ___ (slip op. at 11 n.3.) To the contrary, the fact that the State’s expert witness is unaware of purportedly well-documented information regarding a factor considered in the medical diagnosis she made in this case supports the unreliability of her testimony, particularly since Dr. Medina wrote in her report that D.J.’s subdural hematoma was caused by the tearing of the bridging vein. 40 examination of D.J. did not reveal any bruises on his arms, neck, or rib cage,
or any spinal injuries. Although Dr. Medina’s report stated a diagnosis of
“abusive head trauma, as it occurs with a shaking event with or without
impact,” during her testimony on cross-examination, Dr. Medina agreed that
“with impact” would mean “D.J. was shaken and hit against something,” and
Dr. Medina confirmed that there was no indication that D.J.’s head hit against
anything. 14
The trial court also asked Dr. Medina some clarifying questions.
[The court]: These diagnoses that you make to conclude [SBS/AHT], you used the word probabilities. Is that really all they’re pretty much based on? An elimination of factors, and what’s left is a probable result?
[Dr. Medina]: Elimination of things that can account for the findings.
....
[The court]: [W]e can agree that we’re talking about possibilities, or probabilities[?]
[Dr. Medina]: Yes.
[The court]: Not anything certain[], okay? And you reached these probabilities and possibilities by way of process of elimination[?]
14 Dr. Medina later testified in response to questions from the trial court that D.J. did not “have any external signs of impact.” 41 [Dr. Medina]: And what’s been documented in the literature.
In further response to the trial judge’s questions, Dr. Medina explained
that there was no way to specifically test for the exact cause of D.J.’s retinal
hemorrhages. However, she stated that the patterns of retinal hemorrhages he
presented are known to be associated with inflicted and traumatic injuries, and
that the cases involving confessions confirmed this. The court then asked,
“even the literature reaches all conclusions by way of process of elimination,
right? Based on testing done?” Dr. Medina answered, “[b]ased on what is
seen with accidents and not.” The court asked Dr. Medina whether “the best
[she] can do is say that there was some kind of inflicted trauma?,” to which she
responded “yes.”
b. Dr. Joseph Scheller
Dr. Joseph Scheller is a pediatric neurologist currently employed in
private practice who testified for the defense. Dr. Scheller noted that he has
been involved with studying and reviewing SBS/AHT for approximately 20
years and that he is aware of the modern debate about SBS/AHT.
Regarding biomechanics, Dr. Scheller noted that biomechanical studies
are ways to measure forces. He stated that the first biomechanical study of
shaking alone was conducted by Dr. Duhaime in 1987. He stated that Dr.
42 Duhaime’s experiment could not create forces inside the head that were
powerful enough to create a subdural hematoma. On cross-examination, Dr.
Scheller agreed that Dr. Duhaime’s ultimate conclusion was only that
SBS/AHT in its most severe acute form, meaning fatality, could not usually be
caused by shaking alone. Dr. Scheller further testified that there have not been
any subsequent biomechanical studies that have been able to produce the
amount of force needed to cause a baby to suffer a subdural hematoma with
shaking alone. Dr. Scheller acknowledged that he did not know what happens
when an adult shakes an infant six-months or younger but noted that he was
sure that violent shaking is “not a good thing.” Dr. Scheller further noted that
nobody knows for sure what happens because there have been no reports of
witnessed shaking where the result was subdural hematomas, retinal
hemorrhages, or neck injury. 15 He explained that for almost any other disease
15 In their briefing, both the State and the defense cite to a study involving witnessed shaking that was published after Dr. Scheller testified at the Frye hearing. See Kenneth W. Feldman et al., Abusive Head Trauma Follows Witnessed Infant Shaking, 31 Child Abuse Rev., 2022, at 1, 1. The State argues that the Feldman study supports the theory that shaking alone causes the symptoms associated with SBS/AHT. The defense argues that the study’s results do not support that proposition given the small percentage of children studied that experienced symptoms associated with SBS/AHT and the limitations of the study. In the Feldman study, researchers examined 23 cases of witnessed shaking without impact and described 10 in greater detail. Id. at 3. Of those 23 cases, five children experienced subdural hemorrhages, retinal hemorrhages, and neurological symptoms; another five experienced
43 or medical problem, there is quite good scientific data, but for SBS/AHT, the
scientific data is sorely lacking.
Regarding confessions, Dr. Scheller contrasted confessions, which he
characterized as unreliable due to coercion and inaccuracies, and medical
history, freely provided by a patient or caregiver to a doctor when asked why
they are seeing a doctor.
In terms of specific symptoms and their relationship to SBS/AHT, Dr.
Scheller explained that although subdural hematomas and retinal hemorrhages
can be symptoms of SBS/AHT, a child can be diagnosed with SBS/AHT
absent those symptoms. Further, he noted that the same was true of seizures,
bruising, broken ribs or bones, neck injuries, or other external signs of trauma.
Dr. Scheller then described the report he wrote regarding D.J. He stated
that he reviewed D.J.’s birth and nursery records, pediatric visits, his Saint
Peter’s hospitalization in 2017, and all of the radiology images -- X-rays,
neurological symptoms but no subdural or retinal hemorrhaging. Id. at 3-6. Of the five children that experienced the three symptoms associated with SBS/AHT, two had other signs of abuse, including multiple femur and tibia fractures as well as healing rib fractures. Id. at 6. The study noted that “[a]lthough shaking is rarely witnessed, these cases support that shaking alone can cause typical AHT injuries.” Id. at 1. The authors, however, identified limitations of the study in noting that “[w]itness statements might be inaccurate or modified by self-interest. Problems with witness observations, recollection and completeness of their statements could hamper some results.” Id. at 8. 44 ultrasound scans, CAT scans, and MRI scans. In his report, Dr. Scheller
constructed a timeline of what happened medically to D.J. and concluded that
there was no evidence at all that D.J. was a victim of abuse.
Dr. Scheller then testified about D.J.’s MRI images taken in February
2017. In certain images he pointed out what he described as a subdural
hygroma, which is fluid that collects in the space between the brain and the
skull that the body does not know how to get rid of. He testified that a
subdural hygroma is caused by a minor trauma. He noted that subdural
hygromas are a common finding in children born prematurely.
Dr. Scheller stated that he believed D.J.’s subdural hygroma was caused
by his prematurity. He reminded the trial court that D.J. was born extremely
prematurely and weighed only 600 grams (approximately 1.3 pounds) at birth.
He explained that sometimes there can be no symptoms associated with
hygromas and at other times there can be poor feeding and poor weight gain
because there is pressure from that fluid on the brain, which causes irritation
and can cause seizures and sometimes delays in development.
Dr. Scheller explained that a bridging vein is a big vein usually found
near the top of the brain that collects blood and brings it back to the larger
blood vessels that deliver it to the heart. He stated that if a bridging vein
ruptured, it would cause a large blood clot. Dr. Scheller testified that a blood
45 clot found in D.J.’s MRI was not large and was just a sliver of a blood clot.
Furthermore, he believed D.J. had a subdural hygroma and that he had a
seizure on or around February 10 that certainly could have been caused by the
large fluid collection that was irritating his brain. He explained that such a
fluid collection could cause neurological symptoms because it squeezes the
brain a little and the brain can become irritated.
Defense counsel asked Dr. Scheller about what conditions were known
to cause retinal hemorrhages, to which he replied that the number one
condition in the world that causes them is “being born normal.” He explained
that one-fifth to one-third of perfectly normal babies in the nursery have retinal
hemorrhages. He then testified regarding a study performed by Dr. Natalia
Callaway 16 on retinal and optic nerve hemorrhages in newborn infants in 2016.
He explained that in the study, researchers looked at more than 200 perfectly
normal newborns shortly after they were born to examine their eyes and
determine if they had retinal hemorrhages. He stated that researchers found
that 20 percent had retinal hemorrhages and that out of that 20 percent, about
70 percent had multilayer retinal hemorrhages. Dr. Scheller further expressed
on cross-examination that pediatric ophthalmologists are experts in describing,
16 Natalia F. Calloway et al., Retinal and Optic Nerve Hemorrhages in the Newborn Infant: One-Year Results of the Newborn Eye Screen Test Study, 123 Ophthalmology 1043 (2016). 46 detailing, and making sure that retinal hemorrhages do not affect the vision
and can perform surgery, if needed, to repair the eye, but they are not experts
in determining the cause of retinal hemorrhages.
Dr. Scheller testified that babies develop retinal hemorrhages at birth
because their heads are squeezed during the birthing process, creating
circulation problems in the brain, and because of the dramatic change from
fetal circulation to normal circulation. Dr. Scheller opined that he believed
D.J.’s retinal hemorrhages were caused by an accumulation of too much fluid
and too much pressure in between the brain and the inside of his skull. He
explained that children who are abused often have indicia such as fractured
bones, neck injury, bruises, or internal organ injuries, but D.J. did not. He
stated that he believed D.J. has another condition, hygroma, that mimics
SBS/AHT that Dr. Medina did not consider. Dr. Scheller noted that nowhere
in Dr. Medina’s report did she rule out chronic hygroma as a diagnosis. Dr.
Scheller also said that he did not rule out SBS/AHT in D.J.’s case, but he
noted that there are no specific criteria in the diagnosis of SBS/AHT, and that
there were very few findings consistent with an SBS/AHT diagnosis in D.J.’s
case. Dr. Scheller confirmed that in his medical opinion, to a reasonable
degree of scientific certainty, D.J. was not the victim of SBS/AHT.
47 On redirect, defense counsel asked Dr. Scheller one question: whether
there was “a study that shows a human can shake a baby causing the triad of
injuries,” to which Dr. Scheller responded that “[t]here is not.”
c. Dr. Julie Mack
Dr. Julie Mack, M.D., an assistant professor of radiology at the Penn
State College of Medicine at the Penn State Milton S. Hershey Medical Center
in Hershey, Pennsylvania, was qualified as an expert in the field of radiology
and pediatric radiology.
Dr. Mack testified about subdural collections around the brain and stated
that such collections can occur without trauma and without predisposing
conditions. Dr. Mack stated that the term subdural is used to refer to anything
that disrupts the connection between the arachnoid and the dura -- it can be
fluid, old blood, new blood, or a combination of blood plus fluid. She
explained that sometimes subdural hemorrhage is used as a catch-all phrase.
Next, Dr. Mack explained that BESS is an anatomic variation that is
poorly understood and occurs when there is more fluid than is typically seen
around the brain -- sometimes in the subarachnoid space, sometimes in the
subdural space. She stated that some infants who have BESS may have
seizures, or changes in the eyes such as a downward gaze and lethargy. Dr.
Mack further noted that it is unknown how many patients have BESS but do
48 not present with symptoms. Dr. Mack agreed with counsel that an infant could
present with BESS subdural collections with very little trauma. Dr. Mack
explained that it is not understood why some infants get BESS and others do
not, or why it is more common in males. She stated that BESS is sometimes
associated with a large head and is more common in premature infants.
Dr. Mack also described a network of blood vessels and cells in certain
areas of the brain, called the plexus, which can bleed without trauma. She
testified that it is not known why the dural plexus can bleed without trauma,
and that doctors do not even understand why those vessels are there.
Dr. Mack testified that confirmatory tests are critically important
because doctors cannot perform experiments, and that there is no confirmatory
test for SBS/AHT. She stated that the lack of a confirmatory test affects the
accuracy of the scientific literature, and that the literature on SBS/AHT is
flawed because of a built-in confirmatory bias. She discounted data in the
literature interpreted to show a 96 percent accuracy rate of retinal hemorrhages
in diagnosed SBS/AHT cases.
Regarding D.J., Dr. Mack testified that there were no signs of trauma in
D.J.’s scans: no soft tissue swelling, no skull fracture, and no abnormality
within the brain itself. She described the importance of D.J.’s medical history
as showing the subarachnoid space slowly expanding over time. She further
49 explained her opinion that D.J. had benign external hydrocephalus (BEH) --
subdural fluid collections in the context of enlarged subarachnoid spaces --
which are typically diagnosed only after children present with symptoms that
often include seizures, lethargy or sleepiness, or not eating well.
In discussing D.J.’s retinal hemorrhages, Dr. Mack testified that retinal
hemorrhages have been associated with BEH, sometimes being severe. Dr.
Mack stated that if a pediatrician showed her scans like D.J.’s and claimed that
retinal hemorrhages meant abuse, she would caution that the other relevant
data -- no brain injury, enlarging subarachnoid space over time, and fluid
collection -- cannot be ignored. She explained that assigning a label of abuse
in a case like this one would be a circular argument that ignores the data on the
imaging and sequence of films.
With regard to D.J.’s imaging, Dr. Mack explained that she would have
called the emergency room to say that he had subdural hemorrhages and asked
about any history to understand why. She further stated that it was appropriate
that D.J.’s initial evaluation phase was reported as a potential abuse case. She
agreed on cross-examination that shaking is dangerous and said that it could
particularly cause injuries to the neck. Regarding D.J.’s February 13, 2017
image, Dr. Mack explained that she could not tell whether what occurred there
was accidental or inflicted. She testified that there has not been good evidence
50 that shaking can cause bridging vein rupture, although there has been literature
that presumes that it does.
On cross-examination, Dr. Mack agreed that she had never conducted a
child abuse evaluation and that radiologists do not treat patients. In discussing
BESS, the State contended that the scans prior to February 13, 2017, were
normal. Dr. Mack disagreed, stating that the subarachnoid space slowly
enlarged over time, so she would not call the scans normal, but they could
reasonably be characterized as what can be seen among infants, and that the
scans reflected BESS, a finding that was left untreated.
Dr. Mack testified that the premise that shaking alone could cause the
injuries described in Dr. Medina’s report was a heated controversy and that she
did not think a finding of SBS/AHT could be made based on D.J.’s images.
d. Dr. Chris Alan Van Ee
Dr. Chris Alan Van Ee, an engineer who focuses on impact
biomechanics and mechanical engineering, defined biomechanics as the
application of mechanical principles to biological structures. He explained
that impact biomechanics looks at the human body from a mechanical
perspective to try to understand what forces or accelerations give rise to injury.
51 He testified that the forensic aspect involves looking at whether an injury
could be identified as trauma and what acts could have produced it.
In discussing angular acceleration, Dr. Van Ee stated that angular
acceleration -- which is how quickly the spin of something changes, here, the
spin of the head -- could give rise to things like subdural hematoma or
intracranial hemorrhage, i.e., hemorrhage inside of the skull around the brain.
Dr. Van Ee explained that, for example, if a merry-go-round stopped abruptly,
how quickly the stop occurred would be angular acceleration. He testified that
the faster the stop occurs, the greater the angular acceleration, and the slower
the stop occurs, the slower the angular acceleration.
Dr. Van Ee testified about how SBS/AHT relates to biomechanics. He
stated that SBS/AHT is a hypothesis whereby if someone holds a child by the
torso and shakes the child, the child’s head would go back and forth, creating
“angular accelerations of the head that are sufficient to rip bridging veins and
cause injury to a child.” Dr. Van Ee explained that if a biomechanics analysis
were conducted, it would determine what those angular accelerations are and
whether those angular accelerations are consistent or inconsistent with what
we know causes injury in a car crash or in a fall. When asked whether
biomechanics provides a way to test the hypothesis of shaking, he answered
that science can be used to test it, but there is no perfect test.
52 Dr. Van Ee explained the distinction between a whiplash event and a
shaking event, stating that Dr. Ommaya’s 1968 study used a sled that
“accelerate[d] th[e] chair with the primate in it at speeds representative of a
30-mile-per-hour crash” -- which was a whiplash event. He explained that in
some whiplash events, for example if someone sitting at a red light was rear-
ended by a vehicle traveling at five miles per hour, he could look at the head
acceleration and compare it to a shaking event. He continued that in a low-
speed incident like that, the accelerations could be five to 10 g, which does not
compare to a 30-mile-per-hour crash. Dr. Van Ee noted that subdural
hematomas in a five to 10 g whiplash event are typically not present, although
he noted that there is always an exception to the rule, specifically if someone
is particularly vulnerable. He provided the example of riding a roller coaster
and explained that some people have developed subdural hematomas due to
roller coasters, but that it was very rare that someone would suffer a traumatic
injury from those types of exposures.
Dr. Van Ee testified that the hypothesis that shaking alone can result in
damage to the bridging vein without simultaneously injuring the neck or torso
cannot be scientifically supported. He stated that because the neck is very
weak and vulnerable to injury, the first place to look for injury after a shaking
motion, from a biomechanics standpoint, is the neck. He further noted that the
53 idea that a subdural hemorrhage could be caused by ripping a bridging vein
without injuring the neck is unsupported by the data because the angular
accelerations that are created in shaking are less than what is seen in even a
one-foot fall.
Dr. Van Ee testified that if a baby fell over and hit their head on the
carpet, such a fall would not be associated with a subdural hemorrhage or a
massive traumatic brain injury, and that the angular accelerations of such a fall
that have been measured and published are greater than what is seen in
shaking. He explained that the data that exists in biomechanics shows that if
someone shakes a child, the neck should be where injuries would start, and the
levels of angular acceleration are well below the levels associated with head
injury. Thus, he testified that it is not known whether the triad of symptoms
and injuries can be produced by shaking alone, but neck injuries can be.
Addressing the Prange study published in the Journal of Neurosurgery,
Dr. Van Ee stated that the authors developed a crash-test device that
represented the weight and relative size of a six-week-old infant. He stated
that researchers shook the test device, slammed it onto a piece of foam that
represented a crib mattress, dropped it on the floor or the crib mattress from
varying heights (one foot, three feet, and five feet), and slammed it against a
wooden bench and also against a wooden bench with carpet on it. Dr. Van Ee
54 testified that the authors were trying to understand the head acceleration in
each setting.
Dr. Van Ee explained the findings of the study, noting that the one-foot
fall onto the floor gave rise to greater angular acceleration than acceleration
resulting from shaking. He explained that the authors of the Prange study
wrote that there was no data to indicate that shaking alone can give rise to the
injuries associated with SBS/AHT. Defense counsel asked how those findings
would change if an infant was larger, and Dr. Van Ee replied that the heavier
the child is, the harder the child is to shake, so less overall head acceleration,
angular velocity, and angular acceleration would be created.
Dr. Van Ee testified that the evidence is weak that shaking alone can
actually cause the injuries associated with SBS/AHT. However, he explained
that studies have shown that impact can cause those injuries. He stated that
there are studies where children have died as a result of abuse and the
autopsies reveal signs of impact that include subtle skull fracture or bleeding,
bleeding of the scalp, swelling of the scalp, or other injuries.
Dr. Van Ee stated that he has not seen a biomechanical study that
definitively concluded that shaking can cause the injuries associated with
SBS/AHT. He stated that there has been no study conducted with dummies or
animals that proved that subdural hematomas and retinal hemorrhages can be
55 caused by shaking alone. However, he acknowledged that there are confession
articles in which people have confessed to shaking a child and the child had
the injuries associated with SBS/AHT.
On cross-examination, Dr. Van Ee conceded that he is not a medical
doctor, does not have any medical degrees, has not diagnosed or treated
patients, has not been taught what a forensic examination for child abuse
entails, has never been trained in diagnosing SBS/AHT, has never conducted
an examination for abuse or been consulted when an examination for abuse
occurred, and has never examined an infant before.
Dr. Van Ee explained that as of now “there is not a mechanistic
explanation that allows one to go from shaking to those injuries” that makes
sense. In discussing Dr. Duhaime’s study, Dr. Van Ee noted that
approximately 15 children had died, and some had been thought to have been
killed by shaking alone, but examiners who performed autopsies found
evidence of impact in each child who died, so it was clear that the deaths did
not result from shaking alone. Moreover, he testified that in the Duhaime
study, football players shook a device that represented a one-month-old, and
the accelerations measured were very low and below the level of what
researchers thought would cause injury. Dr. Van Ee further explained that if
someone violently shakes an infant, that action is going to cause serious injury
56 and maybe even death, but the question at issue is would the shaking result in
the triad of symptoms at issue here and nothing else.
3. Trial Court Opinion
Following the hearing, on January 7, 2022, the trial judge issued a 75-
page written decision and accompanying order granting Nieves’s motion and
barring Dr. Medina’s expert testimony regarding SBS/AHT at trial.
The trial court concluded that SBS/AHT evidence was not reliable. The
court explained that the diagnosis of SBS/AHT and the triad of symptoms
associated with it are subject matters outside of the knowledge of the average
juror, which “necessarily requires expert testimony to explain how an AHT
diagnosis could be concluded without actual evidence of child abuse.” The
trial court ruled that it was clear from the literature and testimony that
SBS/AHT “has never been medically [or] scientifically validated as a
diagnosis because it has never been developed through scientific/medical
techniques or procedures which, in turn, would make it a diagnosis that is
scientifically or medically reliable.”
The trial court further explained that the evidence presented, especially
through the testimony of Dr. Medina, showed that SBS/AHT “is more
conjecture than a diagnosis because it is an option embraced once a
diagnostician runs out of diagnostic options.” The court underscored that there
57 was no test cited by Dr. Medina or referenced in the literature that could
support a finding that humans can produce the physical force necessary to
cause the symptoms associated with SBS/AHT in an infant. It further noted
that the State did not provide any evidence that Nieves inflicted any trauma
upon D.J. and determined that SBS/AHT was a flawed diagnosis because it
originates from a theory based upon speculation and extrapolation instead of
being anchored in facts developed through reliable testing.
The trial court stated that the literature and testimony showed that
SBS/AHT is an “assumption packaged as a medical diagnosis, unsupported by
any medical or scientific testing, based upon scaled down versions of testing
done on monkeys, wooden dolls, or other anthropomorphic surrogates.” The
court noted that this assumption has been proffered in cases like this one as
proof beyond a reasonable doubt as to the cause of an infant’s injuries.
However, it found that there was no support to permit that type of proffer to
stand because there has been no study that has ever validated the hypothesis
that shaking a child can cause the triad of symptoms associated with
SBS/AHT. The trial court stated that when used in a criminal courtroom to
prove causation, SBS/AHT “can be highly prejudicial and far less probative
. . . when no one has ever tested the capacity of an individual to shake a baby
in an effort to cause the triad of symptoms defining” SBS/AHT.
58 The trial court observed that human babies are very different from the
monkeys, wooden dolls, or other anthropomorphic surrogates utilized in the
studies referenced and reviewed concerning the effects of force and impact.
The court held that because of that, and as noted in Dr. Medina’s testimony,
we do not know, and will likely never know, what minimum force is necessary
to cause subdural hematomas or the other triad of symptoms because the
studies all reached diverse conclusions and, moreover, relied on models that
cannot be deemed reliable mirrors of the infant brain.
The court explained that defendant’s right to a fair trial includes the
right to have only evidence that is sufficiently established as reliable under
State v. Harvey, 151 N.J. 117 (1997), and Frye presented to a jury. The court
noted that, on the strength of its name alone, SBS/AHT “evokes a sense of
horror that affects the sensibilities of any competent juror, compromising their
ability to follow the instructions of the court concerning the weighing of
evidence fairly and impartially,” but that there is no scientific technique or
procedure to confirm SBS/AHT as a reliable diagnosis.
The trial court concluded that accordingly, SBS/AHT “cannot become
part of a case unless coupled with physical evidence that an accused subjected
an infant-victim to some impact of physical trauma that would support holding
the accused criminally liable.” Without such accompanying physical evidence,
59 the court determined, SBS/AHT “remains exactly what it is . . . a final option
lacking a reliable diagnostic criteria masking as a diagnosis” and “a hypothesis
based upon extrapolation of data, coupled with a ‘process of elimination’
engaged in by diagnosticians in an effort to reach a ‘conclusive diagnosis’
which, in the end, cannot be treated medically.” The court explained the
danger of experts influencing jurors who hear the phrase “medical certainty”
coming from an expert as suggesting a high degree of value and reliability
concerning SBS/AHT as a proven diagnosis for causation.
Therefore, the court concluded that testimony concerning SBS/AHT
could not be permitted in this case because it is not reliable evidence and was
far more prejudicial than it was probative. The court explained that permitting
such testimony in this case would be “the perfect recipe for a conviction not
borne of a fair and unbiased decision-making process but, instead, one which
would compromise the integrity of this prosecution and our criminal justice
system.” The court determined that the State failed to provide evidence that
Nieves inflicted force upon D.J. resulting in injuries symptomatic of an
SBS/AHT diagnosis and failed to prove that the science behind SBS/AHT is
sufficiently reliable to be used to implicate Nieves in abusive conduct and hold
him criminally liable for causing D.J.’s injuries. Thus, the court granted
Nieves’s motion to bar the admissibility of testimony concerning SBS/AHT.
60 Based on its decision barring SBS/AHT testimony, the trial court granted
Nieves’s motion to dismiss the indictment on January 28, 2022. The court
held that “the State has insufficient evidence to prove causation in this case
given the suppression of the testimony concerning [SBS/AHT].”
B. State v. Cifelli
Respondent Michael Cifelli is the father of J.C., who was born
prematurely in November 2016. In late December 2016, when J.C. was 10
weeks old, Cifelli was caring for J.C. when he began to vomit excessively and
exhibit fatigue and fever symptoms. Cifelli brought J.C. to the pediatrician
and then ultimately to the hospital for treatment. J.C. was diagnosed with a
viral illness and discharged the same day. The parents were told to follow up
with the pediatrician and that J.C. might have a gastrointestinal illness. 17
In early January 2017, while Cifelli was again caring for J.C., J.C.
experienced seizure-like symptoms. J.C. was subsequently admitted to the
hospital. While in the hospital, J.C. appeared again to be suffering from
seizure-like symptoms, unaware of his surroundings, and not easily consolable.
At the hospital, doctors determined that J.C. had fluid and blood around his
17 J.C.’s medical records are not in the record on appeal. The facts in this section are derived largely from Dr. Medina’s testimony at a hearing regarding the DCPP proceedings in this matter, as well as the grand jury testimony. 61 brain and retinal hemorrhages in his left eye. Those findings triggered a child
abuse investigation against Cifelli.
During J.C.’s hospitalization, his symptoms included the following:
fluid around the brain that required surgery to drain; old and new brain bleeds;
intraretinal and submacular retinal hemorrhages, meaning blood in multiple
layers of his eyes; an apparent macular hole in his right eye, which was later
diagnosed as “foveal vitreoretinal traction” -- marked by the gel-like
substance, between the lens of the eye and the retina, pulling away from the
retina; and a sudden increase in head circumference. J.C. underwent testing at
the hospital. Dr. Medina reviewed his medical records and test results. Dr.
Medina diagnosed J.C. with SBS/AHT with or without impact because she
found “that there was no other medical diagnosis that could explain his
symptoms.”
On November 1, 2017, a Middlesex County grand jury indicted Cifelli
on charges of aggravated assault and endangering the welfare of a child.
Shortly thereafter, DCPP filed a Title 9 complaint against Cifelli, alleging that
he caused J.C. to be an abused or neglected child. DCPP also filed an order to
show cause seeking care and supervision of J.C. The complaint was dismissed
62 in August 2017, and Cifelli moved to dismiss the indictment. 18 The trial court
denied the motion.
On December 31, 2018, Cifelli moved for a Frye hearing to determine
the admissibility of Dr. Medina’s testimony regarding SBS/AHT, arguing that
a diagnosis of SBS/AHT is scientifically unreliable. Judge Bucca denied
Cifelli’s motion, finding that SBS/AHT was generally accepted by the
scientific community and was therefore reliable.
After the Appellate Division granted Nieves’s motion for leave to appeal
and remanded the matter for a Frye hearing, Cifelli moved for reconsideration
of the denial in his case. Judge Bucca did not issue a written order, but the
parties agreed to hold the matter in abeyance pending the outcome of the Frye
hearing in the Nieves matter.
After the Frye hearing and Judge Jimenez’s ruling barring expert
SBS/AHT testimony in Nieves, Cifelli moved to dismiss his indictment,
claiming the parties agreed to be bound by the Frye ruling in Nieves. The
State opposed Cifelli’s motion, arguing that while it agreed to await the
outcome of the Frye ruling, it never agreed to be bound by the ruling.
18 Subsequently, on October 20, 2021, a second indictment was returned against Cifelli and J.C.’s mother, charging them with additional acts of child endangerment against both J.C. and his sibling. That indictment is not the subject of this appeal.
63 Judge Bucca determined that both sides had agreed to be bound by the
ruling in Nieves. Pursuant to that agreement, Judge Bucca adopted Judge
Jimenez’s Frye ruling in Nieves and barred Dr. Medina’s testimony regarding
SBS/AHT in Cifelli’s case. Judge Bucca, however, did not dismiss the
indictment against Cifelli.
C. Consolidated Appellate Division Decision
The State moved for leave to appeal in both Nieves and Cifelli, arguing
that it had established SBS/AHT’s acceptance in the medical community and
that trial judges therefore should not have barred its proposed expert
testimony. State v. Nieves, 476 N.J. Super. 609, 617 (App. Div. 2023). The
State also appealed the trial court’s order barring testimony in Cifelli, arguing
that it did not agree to be bound by the Nieves decision and that the Nieves
decision was incorrect. Ibid. The Appellate Division granted leave to appeal
in both matters, consolidated the appeals, and affirmed both trial court
decisions. Id. at 617-18.
The Appellate Division held that “[t]he evidence supports the finding
that there is a real dispute in the larger medical and scientific community about
the validity of shaking only SBS/AHT theory, despite its seeming acceptance
in the pediatric medical community.” Ibid. The appellate court determined
that the experts who testified at the Frye hearing all agreed that “there was
64 controversy surrounding the theory that the biomechanical principles
underlying SBS/AHT actually supported the conclusion that shaking only can
cause the injuries associated with SBS/AHT.” Id. at 618. Further, the court
held that “[w]here the underlying theory integrates multiple scientific
disciplines, as here, the proponent must establish cross-disciplinary validation
to establish reliability,” which the State failed to do. Ibid.
The Appellate Division noted that there is a dearth of recent New Jersey
cases challenging the admissibility of SBS/AHT testimony. Id. at 649. The
court addressed several out-of-state SBS/AHT cases cited by the State, id. at
649-50, as well as the cases Nieves advanced, id. at 650-51. It noted that none
of the cases cited by Nieves and only a limited number of the State’s cases
expressly determined the admissibility of SBS/AHT evidence under Frye, and
that others determined its admissibility under a different standard, or did not
actually decide the question of the admissibility of SBS/AHT as a theory. Id.
at 649-51. The court explained that although some of the cases cited by the
State confirmed the reliability of SBS/AHT based on a prior court’s acceptance
of SBS/AHT, a reliance on such cases would be “a type of circularity that is
inappropriate given Nieves’s position that the medical and scientific
community’s view about SBS/AHT has evolved over time, warranting a new
review of the issue.” Id. at 651.
65 The court determined that SBS/AHT is a multidisciplinary diagnosis,
and the question of whether it is accepted within the medical and scientific
community “requires evaluation of two considerations: (1) whether the theory
is generally accepted by the biomechanical community and supported by
biomechanical testing; and (2) whether the theory is generally accepted by the
pediatric medical community and supported by the clinical data connecting the
constellation of symptoms with SBS/AHT.” Id. at 652.
The court held that the State “demonstrated general acceptance in the
pediatric community,” but it agreed with the trial court that “the State [did] not
demonstrate[] general acceptance of the SBS/AHT hypothesis to justify its
admission in a criminal trial.” Ibid. To the contrary, the court found the
evidence showed that there was “no general acceptance from the
biomechanical community, and [that] biomechanical testing has never proven
the premise of SBS/AHT, despite the hypothesis being grounded in
biomechanical principles.” Id. at 652-53. Accordingly, the court affirmed the
trial court’s decision precluding SBS/AHT testimony at trial. Id. at 654.
The court next addressed the State’s challenge to the trial court’s
dismissal of Nieves’s indictment. Ibid. The court determined that “without
SBS/AHT testimony, there was insufficient evidence to support the indictment
against Nieves” because the State would not be able to prove the element of
66 causation under either the aggravated assault or endangering the welfare of a
child charges. Id. at 655. The court explained that “[a]lthough the State could
present testimony that D.J. was in Nieves’s care when D.J. had his episodes of
limpness” and “was found to have retinal hemorrhages and subdural
hematomas, the State would not be able to explain how Nieves harmed D.J.,
leaving the question for the jury to determine.” Ibid. The court noted that “a
jury may draw a reasonable inference from the facts presented” but reasoned
that permitting the State to rely on jury inference here would impermissibly
“shift or lighten the burden of proof, or become a bootstrap to reduce the
State’s burden of establishing the essential elements of the offense charged
beyond a reasonable doubt.” Ibid. (quoting State v. Brown, 80 N.J. 587, 592
(1979)). The court explained that speculation cannot be disguised as a rational
inference and that “[r]equiring the jury to infer that Nieves harmed D.J. would
require the jury to make such a leap.” Ibid.
As to the Cifelli appeal, the court explained that because its decision
resolved the admissibility of SBS/AHT testimony under Frye, and must be
given conclusive weight, the decision of the trial judge in Cifelli to defer to the
trial court’s Frye ruling in Nieves was moot. Id. at 657.
67 D. Review and Amicus Participation Granted
This Court granted the State’s petition for certification in Nieves and
motion for leave to appeal in Cifelli. 256 N.J. 451 (2024).
Additionally, we granted the applications of the following individuals
and entities to participate as amici curiae: the Attorney General of New Jersey
and DCPP (jointly); the Public Defender of New Jersey, Office of Parental
Representation; the Innocence Network and Center for Integrity in Forensic
Sciences (jointly); a group of Medical Doctors writing in support of
respondents; 19 a group of biomechanical engineers; 20 a group of scholars
whose work addresses cognitive bias; 21 the Family Justice Resource Center,
upEND Movement, MJCF Coalition, and Mothers Outreach Network
(collectively); the American Academy of Pediatrics, collectively with seven
19 Dr. Jacob Andersson, Prof. Anders Eriksson, Dr. John Galaznik, Dr. Patrick Hamel, Dr. Ulf Högberg, Dr. Lawrence Hutchins, Dr. Charles J. Hyman, Prof. Niels Lynøe, Dr. Marvin Miller, Dr. David Ramsay, Dr. Cyrille Rossant, Dr. Robert K. Rothfeder, Dr. Irene Scheimberg, Dr. Joseph Scheller, Dr. Guillaume Sébire, Dr. Waney Squier, Dr. Dale Vaslow, Dr. Knut Wester, and Dr. R.K. Wright. 20 Lindsay “Dutch” Johnson, Ph.D.; Ken Monson, Ph.D.; Kirk Thibault, Ph.D., D-IBFES; Keith Button, Ph.D., PE; and Johan Ivarsson, Ph.D. 21 Dr. Jeff Kukucka, Ph.D.; Keith A. Findley, Esq.; Dr. Deborah Davis, Ph.D.; and Dan Simon, Esq.
68 additional medical societies; 22 a group of law and psychology professors who
have studied false confessions; 23 and the Association of Criminal Defense
Lawyers of New Jersey (ACDL).
IV. PARTIES’ ARGUMENTS
A. State of New Jersey and Amici Supporting the State’s Position
The State argues that Dr. Medina’s diagnosis of D.J. was sufficiently
reliable to be the subject of expert testimony under N.J.R.E. 702 and should
have been admitted.
The State submits that it established SBS/AHT’s general acceptance in
the medical community, which is the relevant scientific community under
Frye. Accordingly, it contends that controversy in the field of biomechanics
does not justify the exclusion of a medical expert’s testimony on SBS/AHT.
The State submits that the Appellate Division erred in requiring general
acceptance within both the pediatric medical community and the
22 New Jersey State Chapter of the American Academy of Pediatrics; American Association for Pediatric Ophthalmology and Strabismus; American Society of Pediatric Neurosurgeons; American Society of Pediatric Neuroradiology; American Professional Society on the Abuse of Children; Society for Pediatric Radiology; and The Ray E. Helfer Society. 23 Dr. Richard A. Leo, Ph.D., J.D.; Dr. Hayley Cleary, M.P.P., Ph.D.; Dr. Kyle Scherr, Ph.D.; Dr. Lucy Guarnera, Ph.D.; Dr. Saul Kassin, Ph.D.; Dr. Lindsay Malloy, Ph.D.; Dr. Christian Meissner, Ph.D.; Dr. Allison Redlich, Ph.D.; and Dr. Melissa Russano, Ph.D. 69 biomechanical community because biomechanics is not of equal importance to
pediatric medicine regarding the diagnosis of SBS/AHT and because Dr.
Medina’s diagnosis took relevant biomechanical research into account. The
State submits that “the lack of general consensus on [SBS/]AHT in the
biomechanical community is a result of biomechanical engineers’ inability to
replicate in a laboratory a phenomenon that clinicians have repeatedly
observed in the real world.” The State asserts that “[t]he fact that there exists
some disagreement among biomechanical engineers generally regarding
shaking alone as a mechanism of [SBS/AHT] should not render a diagnosis of
[SBS/AHT] unreliable in a particular case” because “absolute scientific
certainty is not the standard for the admissibility of expert testimony.” The
State further submits that biomechanical studies have failed to disprove that
shaking alone can cause the intracranial injuries associated with SBS/AHT.
Moreover, the State argues that it established SBS/AHT’s general
acceptance in the medical community through the expert testimony of Dr.
Medina, by offering authoritative scientific writings that establish the general
acceptance of the SBS/AHT diagnosis and its underlying methodology in the
medical community, and by offering numerous judicial opinions that have
accepted SBS/AHT as a reliable scientific premise.
70 Additionally, the State asserts that Dr. Medina did not opine that shaking
alone was the mechanism that caused D.J.’s injuries, but rather that D.J.
suffered from SBS/AHT “that occurs with a shaking event with or without
impact.” In the alternative, the State argues that the Court should remand
these matters to a Special Adjudicator to conduct a comprehensive evidentiary
hearing on the reliability of the SBS/AHT diagnosis under the standard
announced in Olenowski I.
Several amici support the State’s position. The New Jersey Attorney
General and DCPP argue that SBS/AHT is a generally accepted medical
diagnosis long recognized by a host of national and international medical
organizations. They maintain that the Appellate Division’s decision means the
State may lose the ability to prosecute certain cases of child endangerment and
the decision would also hamper DCPP’s ability to fulfill its Title 9
responsibilities. Amici echo the State’s argument that SBS/AHT satisfies the
general-acceptance standard based on the presented expert testimony,
scientific writings, and judicial opinions. They contend that biomechanics
does not cut in either direction or resolve the dispute in anyone’s favor because
it has not disproven the theory of SBS/AHT. They further argue that the
Appellate Division’s reliance on State v. Pickett, 466 N.J. Super. 270 (App.
Div. 2021), to support a finding of the need to consider more than one
71 scientific community is misplaced because it did not establish a bright-line
rule.
The American Academy of Pediatrics and its joint participants
(collectively, AAP) argue that the relevant scientific community for the
diagnosis of abusive head trauma is the interdisciplinary specialties involved
in the actual clinical evaluation, diagnosis, and treatment of patients. The
AAP contends that SBS/AHT is a clinical medical diagnosis made by a
clinician based on the signs, symptoms, and history of the patient. The AAP
argues that because biomechanical engineers are not consulted as part of the
diagnostic process, biomechanical engineering is not its own relevant scientific
community regarding the clinical diagnosis of SBS/AHT. Moreover, the AAP
argues that the medical community does not recognize a genuine debate of the
validity of SBS/AHT.
B. Nieves and Cifelli and Amici Supporting Their Position
Respondent Nieves urges this Court to affirm the exclusion of expert
testimony about SBS/AHT without impact injuries because the State failed to
prove that the diagnosis is accepted within the relevant scientific communities
of biomechanics and medicine. He argues that the State was required to prove
the reliability of SBS/AHT (or SBS/AHT with no impact, and as
distinguishable from AHT generally), which it failed to do. He contends that
72 SBS/AHT covers a wide range of injuries and symptoms and does not employ
a specific diagnostic criterion; instead, doctors engage in a process of
elimination to determine whether there are other explanations for the
symptoms. Nieves submits that because SBS/AHT is a differential diagnosis
that integrates multiple scientific disciplines, a finding of reliability must
consider all fields used to render such a diagnosis. Nieves contends that
because it was the biomechanical understanding of angular acceleration that
led to the development of the SBS/AHT theory and the theory remains rooted
in biomechanical principles, the relevant scientific community for purposes of
a reliability analysis must include biomechanics.
Nieves argues that the State failed to prove that SBS/AHT is generally
accepted as reliable in the field of biomechanics. He asserts that the State
conceded and the record shows that SBS/AHT has never been validated in the
field of biomechanics because no study has shown that humans can shake a
child with enough force to cause the triad of symptoms associated with the
SBS/AHT diagnosis. Additionally, he submits that research has shown that
violent shaking would damage a child’s neck before causing the triad of
symptoms, which undermines the reliability of the SBS/AHT diagnosis.
Moreover, he contends that the State failed to prove that SBS/AHT is
generally accepted as reliable in the field of medicine because it did not prove
73 that there is a generally accepted and reliable medical basis to believe that
shaking can cause the triad without causing any other injuries. Instead, he
asserts, the “general acceptance” the State proffered in the medical community
relies on unsupported theories and unreliable confession studies. He also
contends that the State failed to prove that SBS/AHT is generally accepted as
reliable based on judicial authority.
Finally, Nieves argues that remand is unnecessary because appointing a
Special Adjudicator will not affect whether the reliability of SBS/AHT is
litigated in other cases, and an adequate record already exists because there
was a Frye hearing below.
Respondent Cifelli generally relies on the arguments made by Nieves
and contends that the judgments below should be affirmed. Cifelli also argues
that the State has not established any error in the trial court’s ruling and should
be barred by principles of judicial and equitable estoppel from challenging its
own prior position on appeal. He maintains that the trial court found that the
State agreed to be bound by the Nieves court’s Frye decision and that, to
protect the integrity of the judicial process, the State should be barred under
principles of estoppel from advocating a contrary position.
Several amici argue in support of respondents. The Office of the Public
Defender argues that SBS/AHT is a medicolegal diagnosis for a child’s
74 pathology rooted in the kind of speculation and conjecture that this Court has
long held to have no place in New Jersey’s child welfare jurisprudence as the
cause of harm or injury to a child.
The ACDL argues that admitting SBS/AHT diagnoses in criminal court
would lower New Jersey’s high standards for the reliability of evidence. The
ACDL contends that the biomechanical scientific community’s rejection of
SBS/AHT as a diagnosis undermines the reliability of the testimony at issue
here.
The biomechanical engineers argue that experts in biomechanics are
members of the relevant scientific community for determining the reliability of
SBS/AHT because the diagnosis is rooted in biomechanical principles
regarding the effects of rotational forces on the contents of the skull. They
explain that biomechanical expertise is necessary to answer the question of
whether it is even physically possible for a human adult to shake an infant in a
manner that can produce forces sufficient to cause the triad of symptoms. The
biomechanical engineers contend that the current state of biomechanical
research does not support the validity of an SBS/AHT-by-shaking diagnosis
because such research does not support the theory that shaking can cause the
triad of symptoms associated with an SBS/AHT diagnosis. The biomechanical
engineers maintain that, in light of those biomechanical findings and other
75 research, courts and medical professionals are increasingly skeptical of
SBS/AHT diagnoses.
The medical doctors supporting respondents argue that there is no
scientific basis for an SBS/AHT diagnosis. They contend that there are no
scientific or biomechanical studies that validate the hypothesis that abusive
shaking can cause the triad of symptoms; that every component of the triad has
numerous non-abusive causes; and that SBS/AHT is not a medical diagnosis.
They contend that the SBS/AHT hypothesis was adopted based on the
misapplication of animal studies and circular reasoning. They submit that the
shift to evidence-based medicine exposed the dearth of reliable literature
supporting the SBS/AHT hypothesis. The medical doctors argue that the
SBS/AHT hypothesis is not generally accepted in the relevant scientific
community, which includes biomechanical scientists.
The cognitive bias scholars argue that there are high error rates in
subjective medical determinations like SBS/AHT which are exacerbated by
cognitive bias. They maintain that context bias especially impacts SBS/AHT
determinations, as experimental studies clearly establish.
Family Justice Resource Center, upEND Movement, MJCF Coalition,
and Mothers Outreach Network argue that children and parents experience
serious long-term harm to their mental and physical health as a result of forced
76 separation -- which repeatedly occurs on the basis of unreliable scientific
evidence.
The Innocence Network and Center for Integrity in Forensic Sciences
(jointly, Innocence Network) argue that the trial and appellate courts properly
excluded the testimony regarding SBS/AHT by following the current scientific
understanding rather than outdated legal precedent. The Innocence Network
maintains that the current scientific consensus does not support diagnoses of
SBS/AHT based only on the triad of symptoms associated with shaking. The
Innocence Network argues that courts across the country are thus increasingly
recognizing that the SBS/AHT diagnosis is not supported by science. It
contends that recognition of the new scientific understanding of SBS/AHT has
led to numerous reversals and exonerations. The Innocence Network
maintains that forensic evidence is uniquely powerful in its ability to influence
and potentially mislead jurors and factfinders, and that the risk of admitting
flawed forensic evidence is not hypothetical, but the leading cause of wrongful
conviction.
The professors who study false confessions argue that the SBS/AHT
“confession studies” the State relies on fail to account for the well-documented
phenomenon of false confessions and improperly assume that the purported
confessions were true without independent corroboration.
77 V. LEGAL STANDARDS
A. Standard of Review
“Generally, appellate courts review a trial court’s determination of the
admissibility of evidence for an abuse of discretion.” Harvey, 151 N.J. at
166. However, “[w]hen reviewing a decision on the admission of scientific
evidence, an appellate court should scrutinize the record and independently
review the relevant authorities, including judicial opinions and scientific
literature.” Id. at 167. Additionally, “[w]hether expert testimony is
sufficiently reliable to be admissible under N.J.R.E. 702 is a legal question we
review de novo.” State v. J.L.G., 234 N.J. 265, 301 (2018).
B. Expert Testimony
N.J.R.E. 702 governs the admission of expert testimony. The rule
provides that “[i]f scientific . . . knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.” N.J.R.E. 702. The proponent
of expert testimony must establish that “(1) the subject matter of the testimony
[is] ‘beyond the ken of the average juror’; (2) the field of inquiry ‘[is] at a state
of the art such that an expert’s testimony could be sufficiently reliable’; and
78 (3) ‘the witness [has] sufficient expertise to offer the’ testimony.” J.L.G., 234
N.J. at 280 (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).
During the relevant period, New Jersey courts relied on the Frye
standard to assess the reliability prong. Ibid. The Frye standard requires trial
courts “to determine whether the science underlying the proposed expert
testimony has ‘gained general acceptance in the particular field in which it
belongs.’” Ibid. (quoting Frye, 293 F. at 1014). Notwithstanding the Frye
test’s emphasis on general acceptance in the relevant field(s), the science
underlying the expertise “must have a ‘sufficient scientific basis to produce
uniform and reasonably reliable results [that] will contribute materially to the
ascertainment of the truth.’” State v. Chun, 194 N.J. 54, 91 (2008) (quoting
State v. Hurd, 86 N.J. 525, 536 (1981)).
Reliability of the expert testimony is of paramount import, and “[i]n
evaluating the admissibility of scientific evidence introduced by the State in
criminal cases, it is important to recognize that a high degree of reliability is
necessary where the freedom, or even the life, of an individual is at stake.”
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6.1 on
N.J.R.E. 702 (2025). “‘Proof of general acceptance within a scientific
community can be elusive,’ and ‘[s]atisfying the test involves more than
simply counting how many scientists accept the reliability of the proffered
79 [technique].’” State v. Cassidy, 235 N.J. 482, 492 (2018) (alterations in
original) (quoting Harvey, 151 N.J. at 171). Further, because labeling
evidence as “scientific” or “expert” creates a “clear” “danger of prejudice” --
i.e., the possibility that juries will “accord excessive weight to unreliable
expert testimony” simply because of its label, State v. Cavallo, 88 N.J. 508,
518 (1982) -- “[g]eneral acceptance ‘entails the strict application of the
scientific method, which requires an extraordinarily high level of proof based
on prolonged, controlled, consistent, and validated experience.’” Cassidy, 235
N.J. at 492 (quoting Harvey, 151 N.J. at 171).
The proponent of the expert evidence has the burden to “clearly
establish” general acceptance, Cassidy, 235 N.J. at 492; Chun, 194 N.J. at 92,
in one or more of three ways: “expert testimony, authoritative scientific and
legal writings, and judicial opinions,” J.L.G., 234 N.J. at 281; see also
Cassidy, 235 N.J. at 492. Courts, in turn, act as gatekeepers for ensuring the
reliability of expert testimony. J.L.G., 234 N.J. at 307-08; see also State v.
Sowell, 213 N.J. 89, 99-100 (2013).
A key step in a court’s gatekeeping function under Frye is to identify the
relevant scientific community. See Pickett, 466 N.J. Super. at 302.
Importantly, in certain circumstances, “there might be more than one scientific
community to consider.” Ibid. And, when there is more than one relevant
80 scientific community to consider, the proponent of the expert evidence must
clearly establish general acceptance in all of the relevant scientific
communities involved. See ibid. Specifically, “cross-disciplinary validation”
may be required “to determine reliability” when validation by a single
scientific community is “too narrow” because there is another scientific
community or communities “to which [the evidence also] belongs.” Id. at 323.
Indeed, in this Court’s opinion in Olenowski II, we recognized that the
relevant scientific communities for determining the reliability of Drug
Recognition Expert (DRE) testimony included both medicine and toxicology.
State v. Olenowski (Olenowski II), 255 N.J. 529, 604 (2023).
This Court has on many occasions determined the admissibility of expert
testimony under Frye. Recently, in J.L.G., we revisited a previously accepted
theory as the science developed and determined that it no longer met the
reliability prong and was therefore inadmissible in criminal trials because it
was based on clinical practice and not supported by objectively tested
scientific evidence. 234 N.J. at 272, 291. There, the defendant challenged the
scientific reliability of expert testimony regarding Child Sexual Abuse
Accommodation Syndrome (CSAAS). Id. at 272. CSAAS is a diagnostic tool
comprised of five categories of behavior commonly demonstrated by child sex
81 abuse victims: “secrecy; helplessness; entrapment and accommodation;
delayed, conflicted, unconvincing disclosure; and retraction.” Id. at 271.
Although we had previously found CSAAS expert testimony reliable in
1993, and it had been presented in child sexual abuse trials throughout the
country for over twenty years, we determined that “[b]ased on what is known
today, it is no longer possible to conclude that CSAAS has a sufficiently
reliable basis in science to be the subject of expert testimony.” Id. at 272. We
found significant disagreement among the scientific community on the issue of
false recantation because recantation rates varied among studies, and although
researchers agreed that recantation happens in a minority of cases, they
disagreed on the rate. Id. at 295-97. Additionally, we found denial was a
heavily debated topic and that the studies that found higher rates of denial
were of questionable validity. Id. at 297-99.
In applying the Frye standard, we held that “expert testimony about
CSAAS in general, and its component behaviors other than delayed disclosure,
may no longer be admitted at criminal trials.” Id. at 272. In so holding, we
acknowledged that “CSAAS stems from observations made in clinical practice
-- not systematic scientific study,” and that while “[c]linical wisdom is
valuable, . . . it must be examined with care and objectively tested.” Id. at 291
(emphases added). We determined that there was not general acceptance in the
82 scientific community about either retraction or false denial. Id. at 302.
Additionally, we explained that “[t]o satisfy the reliability prong . . . it is not
enough to state that certain behaviors can be observed in some victims some of
the time -- or that those behaviors are not inconsistent with abuse” because
“[t]hat is not the type of ‘state of the art’ evidence the case law requires.” Id.
at 303 (quoting Kelly, 97 N.J. at 208).
C. Case Law Addressing SBS/AHT
As the Appellate Division noted, few New Jersey court opinions have
addressed the reliability of SBS/AHT, and none involve the reliability of
SBS/AHT in the context of shaking without impact. Two prior New Jersey
cases ruled on the admissibility of SBS/AHT in cases involving shaking with
impact: State v. Compton, 304 N.J. Super. 477 (App. Div. 1997), and State v.
Galloway, 133 N.J. 631 (1993).
In Compton, a defendant’s four-and-one-half-month-old son died in his
care, and the defendant was charged with murder. 304 N.J. Super. at 479, 481.
While in custody, the defendant told his wife that he had thrown the infant in
the air, and the infant went through his hands and fell. Id. at 482. The
defendant then shook the infant to try to revive him. Ibid. On appeal, the
defendant challenged, among other things, the general acceptance and
reliability of the SBS/AHT diagnosis. Id. at 483. The Appellate Division
83 analyzed the testimony of the State’s expert, the medical research and
literature, and case law from other jurisdictions. Id. at 485-87. The court
determined that SBS/AHT evidence was admissible because the State’s expert
testified that the theory was generally accepted, the condition had been
adequately analyzed and recognized in medical research and literature, and
other jurisdictions had recognized the theory. Ibid. Moreover, the Appellate
Division noted that this Court, in Galloway, “recognized the condition
implicitly, by acknowledging expert testimony describing [SBS/AHT] in
connection with a particular case at bar, or treating it as an accepted medical
condition without further comment.” Id. at 486.
In Galloway, the defendant was convicted of the murder of his
girlfriend’s three-month-old son based on SBS/AHT evidence. 133 N.J. at
637. The defendant stated that he had picked up the baby, who was crying, but
fell while carrying him, causing the infant to cry more. Id. at 638. The
defendant admitted that he then shook the baby hard several times to stop the
crying. Ibid. The defendant challenged his conviction based on, among other
things, the trial court’s jury instruction regarding diminished capacity. Id. at
637. In describing the facts of the case, the opinion noted that the defendant’s
shaking of the infant “caused the child’s head to bob back and forth rapidly,
causing hemorrhaging of the blood vessels of the child’s brain, commonly
84 known as the ‘shaken baby syndrome.’” Id. at 638. We reversed and
remanded based on the jury instruction and its interpretation of the child
endangerment statute. Id. at 649, 662. We did not analyze SBS/AHT or
mention it again in the opinion. See generally id. (including no analysis or
other mention of SBS/AHT).
Although New Jersey case law on SBS/AHT is sparse, many cases from
around the country in the past 15 years have focused on the reliability of
SBS/AHT. See Ex parte Roark, 707 S.W.3d 157, 185, 187-88 (Tex. Crim.
App. 2024) (granting the defendant’s application for a writ of habeas corpus,
vacating his conviction, and remanding for a new trial because scientific
knowledge regarding the State’s SBS/AHT theory of injury had evolved since
the time of trial, and the defendant likely would not have been convicted if
such newly evolved scientific evidence had been presented at trial); Smith v.
State, 882 S.E.2d 300, 302, 308-10, 312 (Ga. 2022) (vacating the trial court’s
order denying the defendant’s extraordinary motion for new trial and
remanding for an evidentiary hearing to determine whether the defendant’s
proposed expert testimony regarding developments in the understanding of the
triad of symptoms and the diagnosis of SBS/AHT constituted newly
discovered evidence); Allison v. State, 448 P.3d 266, 267-68, 271-74 (Alaska
Ct. App. 2019) (reversing the defendant’s conviction because the trial court
85 erred in barring the defendant’s genetic medical testimony as a defense against
SBS/AHT allegations); Commonwealth v. Millien, 50 N.E.3d 808, 809-10
(Mass. 2016) (holding that the defendant was denied the right to effective
assistance of counsel because his attorney did not retain a medical expert when
the prosecution’s case rested almost entirely on medical expert testimony, and
noting that “[t]here is a heated debate in the medical community as to whether
a violent shaking of a baby alone can generate enough force to cause the triad
of symptoms of traumatic brain injury, and as to whether these symptoms can
sometimes be caused by a short accidental fall”); People v. Bailey, 41
N.Y.S.3d 625, 626-27 (App. Div. 2016) (affirming the trial court’s decision to
vacate the defendant’s conviction and grant a new trial because advancements
in science and medicine constituted newly discovered evidence calling into
question the validity of the SBS/AHT diagnosis); Del Prete v. Thompson, 10
F. Supp. 3d 907, 954, 957, 958 n.10 (N.D. Ill. 2014) (finding that the
defendant had carried her burden in petitioning for habeas relief, establishing
that no reasonable jury would find her guilty beyond a reasonable doubt
through new SBS/AHT testimony regarding the science of biomechanics and
the fact “that the evidence basis for the proposition that shaking alone can
cause injuries of the type at issue here is arguably non-scientific,” and noting
that “more recent developments in this area . . . arguably suggest[] that a claim
86 of shaken baby syndrome is more an article of faith than a proposition of
science”); State v. Edmunds, 746 N.W.2d 590, 596-98 (Wis. Ct. App. 2008)
(reversing the denial of the defendant’s motion for a new trial on the basis that
“newly discovered evidence in this case shows that there has been a shift in
mainstream medical opinion since the time of [the defendant’s] trial as to the
causes of the types of trauma” that the deceased infant exhibited); Cavazos v.
Smith, 565 U.S. 1, 9, 13 (2011) (Ginsburg, J., dissenting) (dissenting from the
United States Supreme Court’s summary reversal and remand of the Ninth
Circuit’s grant of a habeas petition, despite the Court finding that the jury’s
verdict was supported by the record, in part because “[d]oubt has increased in
the medical community ‘over whether infants can be fatally injured through
shaking alone’” (quoting Edmunds, 746 N.W.2d at 596)).
The Michigan Supreme Court recently addressed the reliability of
SBS/AHT testimony in People v. Ackley, 870 N.W.2d 858, 859-60 (Mich.
2015). In that case, the court determined whether a defendant was denied
effective assistance of counsel when his trial counsel failed to secure an expert
witness to defend against SBS/AHT accusations. Ibid. The defendant was
convicted of first-degree murder and first-degree child abuse after a three-
year-old in his care died. Id. at 860. At trial, defense counsel reached out to
only one expert, a doctor, who “advised counsel . . . that he was ‘not the best
87 person’ for the defense.” Ibid. The doctor stated that, for the purpose of
assisting the defense, he was on the wrong side of the “religion”-like divide
between doctors when it came to diagnosing SBS/AHT and injuries that result
from short falls, meaning he could not assist the defense. Id. at 860-61.
However, counsel did not contact or retain another expert and continued to
rely on that doctor in preparing for trial. Id. at 861. The court granted a new
trial, and the appellate court reversed that determination on appeal. Id. at 862.
The Michigan Supreme Court reversed the appellate court’s ruling. Id.
at 867. It determined that counsel’s efforts did not satisfy his duty to make
reasonable investigations, “especially in light of the prominent controversy
within the medical community regarding the reliability of SBS/AHT
diagnoses.” Id. at 864. It explained that counsel’s failure to secure an expert
to assist in the defense undermined the court’s confidence in the outcome of
the case because “in a SBS/AHT case . . . where there is ‘no victim who can
provide an account, no eyewitness, no corroborative physical evidence and no
apparent motive to kill,’ the expert ‘is the case.’” Id. at 867 (quoting Deborah
Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the
Criminal Courts, 87 Wash. U. L. Rev. 1, 27 (2009)). Thus, the Michigan
Supreme Court found that the failure of the defense counsel to even attempt to
88 find a supportive expert was ineffective assistance that likely impacted the
case. Ibid.
More recently, the Michigan Supreme Court substantively explored the
admissibility of expert testimony and the controversy surrounding the
diagnosis of SBS/AHT in People v. Lemons, 22 N.W.3d. 42 (Mich. 2024). In
that case, the defendant was convicted of first-degree felony murder in 2005
for the death of an infant following an allegation of SBS/AHT. Id. at 48.
Subsequently, the defendant filed a motion for relief from judgment, “arguing
that new evidence undermined the prosecution’s theory that the child’s cause
of death was” SBS/AHT. Ibid. The trial court held evidentiary hearings and
determined that the defendant’s proposed biomechanical engineering expert
testimony was inadmissible under Michigan’s Daubert-like expert witness
testimony rule. Ibid.
The Michigan Supreme Court disagreed and stated that “the SBS[/AHT]
hypothesis is inherently ‘grounded in biomechanical principles.’” Id. at 55
(quoting Nieves, 476 N.J. Super. at 653). It held that the testimony by the
defendant’s biomechanical expert (Dr. Van Ee, who participated in the Frye
hearing in this matter) satisfied the rule and was thus admissible because he
“was a qualified expert in the field of biomechanical engineering”; “[h]is
testimony regarding the biomechanical mechanism of SBS[/AHT] would assist
89 the trier of fact in ascertaining a fact at issue”; the field of “[b]iomechanical
engineering is a legitimate field of scientific study”; his “testimony was ‘based
on sufficient facts or data’ and was ‘the product of reliable principles and
methods’”; and he was able to apply those principles and methods reliably to
the facts of the case. Id. at 56, 57 (quoting Mich. R. Evid. 702).
Importantly, the Michigan Supreme Court acknowledged that “a segment
of the medical community takes significant issue with biomechanical research
on SBS[/AHT],” but it determined that, “just as a biomechanical engineer may
not testify about medical causation outside of their expertise, the medical
community is not the judge of the validity of biomechanical research, nor is it
the sole relevant expert community with respect to SBS[/AHT].” Id. at 59. It
found “the position that biomechanics -- the study of forces acting on and
generated within the human body -- is divorceable from a diagnosis of
[SBS/AHT] to be untenable.” Ibid.
There is, of course, also case law finding SBS/AHT evidence reliable
and therefore admissible at trial. See Clark v. State, 315 So. 3d 987, 993, 995,
996-97 (Miss. 2021) (holding that SBS/AHT expert testimony was reliable and
properly admitted); Nielsen v. State, 430 P.3d 740, 751 (Wyo. 2018) (noting
that the differential diagnosis used to diagnose SBS/AHT is a sufficiently
reliable methodology, and that the SBS/AHT experts in the case “properly
90 explained their diagnoses . . . and how they arrived at their conclusions.”);
Wolfe v. State, 509 S.W.3d 325, 327, 335, 341 (Tex. Crim. App. 2017)
(affirming defendant’s conviction and holding that SBS/AHT testimony was
properly admitted at trial because it was sufficiently reliable); People v.
Flores-Estrada, 51 N.Y.S.3d 863, 864-65 (Sup. Ct. 2017) (denying defendant’s
motions to preclude expert SBS/AHT testimony and for a Frye hearing
regarding SBS/AHT); People v. Thomas, 998 N.Y.S.2d 590, 592 (Cnty. Ct.
2014) (same); Futrell v. Commonwealth, 471 S.W.3d 258, 265, 281-86 (Ky.
2015) (reversing defendants’ convictions because the trial court abused its
discretion by refusing to remove, for cause, two unqualified jurors, but holding
that the trial court did not abuse its discretion in admitting SBS/AHT expert
testimony); Johnson v. State, 933 So. 2d 568, 570 (Fla. Dist. Ct. App. 2006)
(affirming defendant’s conviction and holding that the medical expert’s
SBS/AHT opinion was admissible, and that a Frye hearing was unnecessary).
VI. ANALYSIS
With those legal principles in mind, as well as the history of SBS/AHT
and the numerous studies and articles presented by both parties, we turn to
whether SBS/AHT expert testimony should be admitted in cases governed by
91 the Frye standard in which defendants are charged with child abuse offenses as
a result of shaking without impact.
A. The Relevant Scientific Communities
We must first determine the relevant scientific community or
communities for purposes of SBS/AHT.
As Dr. Medina testified, the starting point in the evolution of SBS/AHT
was Dr. Ommaya’s 1968 whiplash study, which tested the acceleration and
deceleration of monkeys’ brains during a simulated rear-end car accident at 30
miles per hour. Drs. Guthkelch and Caffey later relied on Dr. Ommaya’s study
in conceptualizing SBS/AHT. Dr. Caffey’s conclusion that SBS/AHT, which
he called infant whiplash syndrome, could result from shaking a child was
based in part on Dr. Guthkelch’s paper, which, in turn, was based on Dr.
Ommaya’s study.
It is therefore evident that the foundation of SBS/AHT lies in
biomechanical science and engineering. The State and its supportive amici,
including the AAP, note that the biomechanical engineering community
informs the SBS/AHT inquiry but protest that biomechanical engineers are not
of significant relevance or are not a scientific community unto themselves.
Indeed, the State notes that “[SBS/]AHT is a clinical diagnosis that is informed
by research in biomechanics” but at the same time argues that the
92 biomechanical community is “not of coequal importance” in the debate
regarding the reliability of SBS/AHT expert testimony. What’s more, the State
proffered no biomechanical expert testimony on its behalf.
It seems particularly odd, knowing that the origins of SBS/AHT lie
entirely in biomechanics, to relegate biomechanics to second-class status. It
cannot be that the scientific community upon which the very foundation of the
State’s SBS/AHT testimony is based is not as relevant to the theory’s
acceptance as the medical community that now diagnoses SBS/AHT -- a
diagnosis that quite possibly would not have existed if not for a biomechanical
study and the field of biomechanics in the first place.
Moreover, a scientific community is either relevant or not for purposes
of determining admissibility of scientific evidence at trial -- degrees of
relevance are not weighed, and for good reason. Were this Court to agree that
the biomechanical engineering community is a relevant community -- but not
that relevant -- the question would then arise regarding how much relevance
our courts are to afford to this relevant community. Would testimony from an
expert in an only “somewhat relevant” community be presented to a jury, with
the jury instructed to afford only 20 or 30 percent weight to that testimony?
That is not a workable procedure. As the Michigan Supreme Court noted in
93 Lemons, it is simply untenable to divorce the diagnosis of SBS/AHT from its
origin, the study of biomechanics.
There can certainly be more than one relevant scientific community for
purposes of Frye. Again, in Olenowski II, we recognized that the relevant
scientific communities in determining the reliability of DRE testimony were
both the medical and toxicology communities. 253 N.J. at 604. Here, we find
that the relevant scientific communities for purposes of determining the
reliability of SBS/AHT expert testimony are both the medical/pediatric
community and the biomechanical engineering community.
B. Application of the Frye Standard of Reliability
We now turn to whether, under the Frye standard of reliability, the State
has met its burden of establishing that Dr. Medina’s expert testimony
regarding SBS/AHT without impact is sufficiently reliable for admission at
trial. The State, as the proponent of the expert evidence, has the burden to
“clearly establish” general acceptance in the relevant scientific communities
through expert testimony, authoritative scientific and legal writings, and
judicial opinions. See J.L.G., 234 N.J. at 281; Cassidy, 235 N.J. at 492. Based
on the testimony, evidence, and scientific studies and writings, this Court finds
that the State has not met that burden. We find that the State has not shown
general acceptance within the biomechanical community regarding whether
94 shaking without impact can produce the “triad” of symptoms associated with
SBS/AHT: subdural hematomas, multilayered retinal hemorrhages, and
encephalopathy.
We address the State’s argument that the Appellate Division
misunderstood Dr. Medina’s diagnosis and improperly focused its opinion on
shaking without impact. Specifically, the State argues that Dr. Medina
diagnosed D.J. with SBS/AHT “as it occurs with a shaking event with or
without impact.” Although, the State is correct that Dr. Medina noted that
diagnosis in her records, she testified on cross-examination that there was no
indication that D.J.’s head hit against anything and that D.J. did not “have any
external signs of impact.” Therefore, it is evident from Dr. Medina’s own
testimony that she did not observe any signs of any impact, so Nieves’s case is
properly assessed as one involving shaking without signs of impact, as Dr.
Medina herself testified. Although doctors may use the phrase “shaking with
or without impact” as a catchall, those events are, as the studies and science
make clear, very different and should be treated as such.
Regarding the scientific foundation of SBS/AHT, Dr. Ommaya’s 1968
whiplash study concluded, as explained above, that brain injuries could result
from “rotational displacement of the head on the neck alone, without
significant direct head impact.” Ommaya, 204 J. Am. Med. Assoc. at 285. As
95 Dr. Medina herself testified, Dr. Ommaya’s study was later referenced as the
scientific and biomechanical basis for what eventually became known as
SBS/AHT. But Dr. Ommaya’s study had nothing to do with infants or the
understanding of what happens in the shaking of infants. His study focused on
recreating whiplash events in monkeys at speeds of 30 miles per hour that
mimicked rear-end car collisions. Drs. Guthkelch and Caffey used Dr.
Ommaya’s whiplash study to support their hypothesis that young children with
brain injuries were subject to abusive shaking.
Over three decades after he published his whiplash study, Dr. Ommaya
published a follow-up article questioning and challenging the scientific basis
of SBS/AHT and specifically noting that Drs. Guthkelch and Caffey failed to
factor into their theories the level of speed employed during his whiplash
study. More pointedly, Dr. Ommaya stated that the assumptions upon which
pediatric brain and retinal literature had been based in the past few decades --
assumptions based on his own study -- were “ambiguous or incorrect” and
were used in the differential diagnosis of SBS/AHT “usually without reference
to available biomechanical analysis.” Ommaya et al., 16 Brit. J. Neurosurgery
at 227.
Thus, Dr. Ommaya, whose 1968 study was the foundation of SBS/AHT
theory and diagnosis in the first instance, publicly disclaimed the validity of
96 SBS/AHT’s foundation. Further, he specifically noted that much of the
literature and study of SBS/AHT was made without reference to available
biomechanical analysis, a field of study that is imperative to understanding the
manner in which acceleration and deceleration forces occur within the body.
Indeed, even Dr. Caffey’s 1974 study, which is universally referenced
regarding the beginnings of SBS/AHT theory, concluded that the evidence at
the time was “manifestly incomplete and largely circumstantial.” Caffey, 54
Pediatrics at 403. And then Dr. Guthkelch, over 40 years after he published a
study advancing the theory of SBS/AHT, also questioned the scientific
foundation of that diagnosis. Guthkelch, 12 Hous. J. Health L. & Pol’y at 202-
04. Dr. Guthkelch further called for “civility in scientific discourse” because
he believed the controversy regarding SBS/AHT had risen to a level of
divisiveness that interfered with the commitment to pursuing the truth. Id. at
201.
Indeed, this debate regarding the scientific validity of SBS/AHT without
impact has been extraordinarily contentious. For example, the AAP and many
other medical organizations around the world adopted the Consensus
Statement, which employed the terms “denialists” and “denialism” to describe
those who have questioned the scientific basis for SBS/AHT, and noted that
“denialism of child abuse has become a significant medical, legal and public
97 health problem.” Choudhary et al., 48 Pediatric Radiology at 1050, 1059. The
charged language used in the discourse surrounding SBS/AHT on both sides is
disconcerting, given that the goal is, and should be, a search for truth and
understanding.
The record established in the Frye hearing regarding the challenges to
the science behind SBS/AHT in the matters before us does not deny the
existence of child abuse, but rather questions the scientific and biomechanical
underpinnings of the diagnosis of SBS/AHT as the sole basis for a legal
finding of child abuse. Indeed, even the experts who testified for the defense
at the Frye hearing acknowledged that shaking a young child could result in
injury. Dr. Scheller specifically said that shaking a baby six months or
younger would not be “a good thing” but questioned exactly what happens
when a child is shaken and whether the science supports the triad of symptoms
as resulting from shaking alone. Dr. Mack testified that she believed it was
appropriate for D.J.’s initial evaluation at the hospital to be reported as a
potential abuse case and agreed that shaking is dangerous, but she explained
that child abuse cannot simply be assumed when the science supports many
potential causes for the symptoms associated with SBS/AHT. Such questions
regarding the scientific reliability of an SBS/AHT diagnosis, in search of truth
98 and understanding in the ever-evolving realm of science, are appropriate
scientific inquiries.
As the trial court found, the evidence presented at the hearing, including
Dr. Medina’s testimony, showed that there was no test supporting a finding
that humans can produce the physical force necessary to cause the symptoms
associated with SBS/AHT in a child. The trial court further found SBS/AHT
to be a theory not anchored in facts developed through reliable, scientific
testing to confirm the diagnosis. This Court acknowledges that humans cannot
be used as test subjects in potentially dangerous experiments regarding
SBS/AHT, so there may never be a perfect scientific test. It is true that there
are limitations to researching and understanding SBS/AHT and the forces
necessary to result in the injuries associated with the diagnosis. But 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.
The Consensus Statement noted that “[b]ecause medicine and science are
dynamic, it is important to continually evaluate new hypotheses and,
consequently, reevaluate previously confirmed scientific understanding, thus
avoiding a rush to judgment.” Choudhary et al., 48 Pediatric Radiology at
1055. Yet the Consensus Statement itself does not appear open to the
99 reevaluation of the very science upon which SBS/AHT rests. The Consensus
Statement briefly mentioned Dr. Ommaya’s study in noting the earlier studies
that Dr. Caffey used to “show the effects of rotational
acceleration/deceleration of whiplash.” Id. at 1051. But the Consensus
Statement says nothing further regarding Dr. Ommaya and the foundational
elements of his work used by Dr. Caffey to craft SBS/AHT theory. Again, Dr.
Ommaya’s later study criticized the misuse of his own work as the scientific
basis for SBS/AHT, noting that the assumptions upon which SBS/AHT retinal
and brain injuries have been based “are ambiguous or incorrect” and made
“usually without reference to available biomechanical analysis.”
One cannot overlook that the biomechanical community is the scientific
field from which SBS/AHT originated. A biomechanical study -- Dr.
Ommaya’s in 1968 -- was deemed by the medical community sufficient to
form the basis for SBS/AHT theory, and biomechanics as a science in general
is important in areas involving experiments of crash-test dummies to aid in
making vehicles and vehicle parts safer. Dr. Medina even testified that “what
we know about shaking, and the established thresholds for intracranial injury
comes from that study” and that “everything else in biomechanics is based on
th[e] thresholds” from Dr. Ommaya’s study. Thus, SBS/AHT’s underlying
100 basis in biomechanics plays a significant role in determining the reliability of
SBS/AHT testimony.
Proof of general acceptance within a scientific community, here both the
medical and biomechanical communities, “involves more than simply counting
how many scientists accept the reliability of the proffered [technique],”
Cassidy, 235 N.J. at 492, and certainly more than blindly accepting one
community’s claim that there is no issue regarding general acceptance to begin
with. The State noted in its supplemental brief that “there exists some
disagreement among biomechanical engineers generally regarding shaking
alone as a mechanism of AHT.” That concession alone, the lack of consensus
in one of the relevant scientific communities, is itself strong evidence that
there is no general acceptance in the biomechanical community of the
SBS/AHT without impact diagnosis.
Contrary to the dissent’s assertion that the trial court, the Appellate
Division, and this Court have merely relied on the individual views of six
biomechanical engineers who either testified below or submitted briefing to
this Court, as noted, the State itself has acknowledged the lack of scientific
consensus among biomechanical engineers regarding shaking alone. Dr.
Medina also testified that there is controversy in biomechanics focused on
whether shaking can cause the forces needed to generate intracranial injury on
101 infants. The dissent does not discuss Dr. Ommaya’s 2002 study questioning
the use of his own work as the scientific basis for SBS/AHT. This
notwithstanding the fact that the State’s own expert testified that “what we
know about shaking, and the established thresholds for intracranial injury
comes from that study” and that Dr. Caffey based his own findings regarding
SBS/AHT theory on Dr. Ommaya’s 1968 study.
Based on the State’s proffered evidence -- Dr. Medina’s testimony and
the various studies and articles submitted to the trial court -- the State has not
established that there is general acceptance in the biomechanical community
broadly -- beyond the six biomechanical engineers directly involved in this
case. Indeed, studies suggest there is not consensus. See, e.g., L.A.H. Schiks
et al., Inflicted Head-Injury by Shaking-Trauma in Infants: The Importance of
Spatiotemporal Variations of the Head’s Rotation Center, 13 Sci. Rep., 2023,
at 1, 1 (noting that “there is no consensus yet about whether shaking alone can
result in loading and deforming an infant’s anatomical structures beyond their
failure thresholds and cause the . . . injuries” associated with SBS/AHT, and
that “the validity of current infant shaking injury risk assessments and the
injury thresholds on which these assessments are based . . . should be re-
evaluated”); Mark A. Davison et al., A Biomechanical Assessment of Shaken
Baby Syndrome: What About the Spine? 163 World Neurosurgery 2022, at e1,
102 e6 (showing that when shaking occurs, a child’s “neck w[ould] sustain injury
prior to the development of closed head injury”); John Lloyd et al.,
Biomechanical Evaluation of Head Kinematics During Infant Shaking Versus
Pediatric Activities of Daily Living, 2 J. Forensic Biomechanics, 2011, at 1, 6
(explaining that this biomechanical “study . . . like others before it,
demonstrates that an adult’s shaking of an infant surrogate does not even
approach the angular accelerations generally accepted as a minimum threshold
for infant [development of subdural hematoma] and [diffuse axonal injury]”);
Ommaya et al., 16 Brit. J. of Neurosurgery at 221, 233 (highlighting that the
“experimental basis of” the theory of SBS/AHT was the Ommaya 1968 study
but that those who analogized to the study in developing the theory did not
realize “that the energy level of acceleration in [the study] related to speeds at
motor vehicle crashes at 30 mph” and explaining that biomechanical
calculations predict that “the levels of force required for retinal bleeding by
shaking to damage the eye directly is biomechanically improbable”). 24
24 The dissent states that the American Institute for Medical and Biological Engineering (AIMBE) has participated in court as amicus but “conspicuously submitted no amicus brief in this case, or any other case regarding SBS/AHT.” Post at ___ (slip op. at 38). It appears that AIMBE has participated in only one court case as amicus, the case cited by the dissent, which did not involve scientific theory, but involved diversity in higher education and the potential effect on the medical profession if race conscious admissions were banned. See Brief for Amici Curiae Association of American Medical Colleges et al. in
103 Nieves’s experts’ testimony at the Frye hearing emphasized that lack of
general acceptance of SBS/AHT. Each defense expert stated that no
biomechanical study has shown that shaking alone results in the symptoms
associated with SBS/AHT. Dr. Van Ee testified that the scientific data does
not support the proposition that someone could create enough force through
shaking alone to cause a subdural hematoma, but somehow not cause injury to
the infant’s neck, which is very weak. Here, it bears noting that no such injury
to the neck was ever identified.
The experts further testified that they believed something other than
SBS/AHT could have caused D.J.’s symptoms. Dr. Scheller testified that
subdural hygroma is a common finding in children born prematurely and could
be the cause of D.J.’s subdural hematoma given that he was born exceptionally
Support of Respondents at 3, 33, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) (Nos. 20-1199 & 21-707). AIMBE was not the lead amicus on the brief. Ibid. The dissent also notes that AIMBE has issued no consensus statement regarding “the biomechanical community’s supposed rejection of SBS/AHT.” Post at ___ (slip op. at 38). AIMBE’s website, however, states the following regarding consensus statements: “[AIMBE’s] Council [of Societies] meets each winter at the AIMBE Annual Event, and major initiatives undertaken at recent events have included the formulation of committees to address national workforce initiatives, implementing national innovation agendas, developing consensus statements regarding federal research funding levels, and assessing the future of bioengineering through analyzing its economic impact.” About AIMBE, AIMBE, https://aimbe.org/about-aimbe/ (emphasis added) (last visited Nov. 3, 2025). As articulated by the organization itself, AIMBE’s initiatives regarding consensus statements are focused on federal research funding levels. 104 prematurely at 25 weeks. Dr. Mack testified that the cause of D.J.’s symptoms
could be the result of BESS or BEH, two conditions that result in the
symptoms associated with SBS/AHT. She also testified that some of D.J.’s
symptoms could be attributed to the fact that he was born very prematurely.
Dr. Van Ee testified about the Prange study, which showed that short falls, at
heights as low as one foot, demonstrated angular acceleration levels greater
than those recorded from shaking alone, and concluded that there is no data
that shaking alone can give rise to the symptoms associated with SBS/AHT.
The State and amici in support point to and argue that confession studies
are strong evidence that shaking alone results in SBS/AHT. But there are
several flaws with relying on confessions to establish a diagnosis within a
reasonable degree of medical or scientific certainty. First, confessions are not
scientific. A defendant’s confession to a particular action does not equal the
controlled setting of a scientific study conducted in a manner that can replicate
and confirm the accuracy of results. Second, as defendants and several amici
in support point out, the confession studies do not, and in some instances likely
cannot, account for false confessions.
Third, partial confessions, in which the accused may give only a half
truthful account of what transpired, are untrustworthy in the context of
SBS/AHT studies that rely on the confessor’s true and accurate account of the
105 alleged crime to collect scientific data. See Suzanne P. Starling et al.,
Analysis of Perpetrator Admissions to Inflicted Traumatic Brain Injury in
Children, 158 Archives Pediatric & Adolescent Med. 454, 457 (2004)
(conceding -- within a study concluding that confession data suggested that
shaking without impact can result in traumatic brain injury symptoms -- that
“[m]any of these admissions may contain only partial descriptions of the
events, including details that may meet the minimum requirement for the legal
prosecution but lack detailed descriptions necessary for biomechanical
evaluation. There seems to be no correlation between the mechanism of injury
admitted by perpetrators and the initial symptoms on presentation”).
Indeed, a caregiver suspect presented with the prospect of admitting to
shaking and striking an infant’s head or admitting to just shaking the child may
partially confess to shaking alone as opposed to shaking in conjunction with
blows to the head, thus potentially never providing a full account of the events
that took place. See Eyal Peer et al., “I Cheated, but Only a Little”: Partial
Confessions to Unethical Behavior, 106 J. Personality & Soc. Psych. 202, 212
(2014) (“[W]hen one confesses to the full offence, one has to face up to the
full consequences of admitting a major unethical act. Partial confessions thus
balance the need to appear credible with the negative consequences of
confessing to the full extent.”). For those reasons, it is difficult to view
106 medical studies based on confessions as the gold standard in determining
whether the science supports an SBS/AHT diagnosis when impact is not
present.
For all the foregoing reasons, we hold that the State has failed to carry
its burden that Dr. Medina’s expert testimony regarding SBS/AHT without
impact is reliable and therefore cannot be admitted at trial. 25 The State has not
met its burden of establishing general acceptance in the relevant scientific
communities because the research, studies, and testimony presented at the
hearing reflect a lack of general acceptance in the biomechanical community
regarding SBS/AHT without impact. There is evidence of general acceptance
by many in the medical community, but the State must also establish general
acceptance in the biomechanical community, and it has failed to do so.
25 The dissent claims that limiting our holding to shaking without impact fails because “shaking with impact against a soft surface, like shaking alone, may leave no external signs of trauma.” Post at ___ (slip op. at 22-23). The distinction between shaking alone and shaking with impact, however, is important and often identified. In fact, the Consensus Statement, on which the dissent significantly relies, makes that very distinction itself. See Choudhary et al., 48 Pediatric Radiology at 1050 (“confessional evidence is quite striking that shaking alone can cause AHT”; “AHT can be caused by shaking alone, shaking with impact, or blunt impact alone” (emphases added)). All the witnesses at the hearing were questioned and testified at length regarding “shaking alone” and whether that could cause the symptoms associated with SBS/AHT. The distinction between shaking alone and shaking with impact is plainly the nucleus of the current debate regarding SBS/AHT. 107 Surely, if there is physical evidence of trauma to a child or other
evidence of abuse, the State can present such evidence to a jury. And if new,
reliable, scientific evidence is developed, the State can, of course, in a future
case, make a showing under the Daubert standard this Court adopted in
Olenowski I, that expert testimony regarding SBS/AHT without impact is
reliable. In such a case, scientific evidence and research, both old and new,
could be presented and considered. Science is constantly evolving, so the door
is not forever closed on making such a showing of reliability.
VII. CONCLUSION
As noted, there is no dispute that child abuse is a serious and
unacceptably cruel act against the most vulnerable and innocent in our society.
There is no dispute that when a young child presents at a hospital or other
medical facility with symptoms including subdural hematomas, retinal
hemorrhages, and encephalopathy, such symptoms present a worrisome and
urgent situation. No one disputes that medical professionals, including
pediatricians, radiologists, neurologists, neurosurgeons, ophthalmologists, and
more perform admirable work every single day to care for severely ill children
who present with the symptoms associated with SBS/AHT.
The question before this Court, however, is whether the State has met its
burden of proving that an expert -- Dr. Medina -- should be allowed to take the
108 witness stand and testify, not only about the injuries observed on a child
through medical examinations and tests, but also that the only explanation for
those injuries is child abuse. We hold that the State has not met that burden,
and that Dr. Medina’s testimony is therefore unreliable and inadmissible at
trial. We affirm the Appellate Division’s judgment.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE WAINER APTER filed a dissent.
109 State of New Jersey,
JUSTICE WAINER APTER, dissenting.
This Court has previously warned that a “court should not substitute its
judgment for that of the relevant scientific community.” Landrigan v. Celotex
Corp., 127 N.J. 404, 414 (1992). We have cautioned that “[g]reat difficulties
can arise when judges, assuming the role of scientist, attempt to assess the
validity of a complex scientific methodology.” Rubanick v. Witco Chem.
Corp., 125 N.J. 421, 451 (1991). Because I believe the majority fails to heed
that wise counsel, I respectfully dissent. I.
A.
As the majority explains, the Frye standard requires trial courts to
determine whether the science that underlies “the proposed expert testimony
has ‘gained general acceptance in the particular field in which it belongs.’”
State v. J.L.G., 234 N.J. 265, 280 (2018) (quoting Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923)). The proponent of the evidence can establish
general acceptance through expert testimony, scientific and legal writings, or
judicial opinions. State v. Cassidy, 235 N.J. 482, 492 (2018).
We have long recognized that general acceptance “need not be
predicated upon a unanimous belief or universal agreement in the total or
absolute infallibility of the techniques, methodology or procedures that
underlie the scientific evidence.” Romano v. Kimmelman, 96 N.J. 66, 80
(1984). “Although we look for wide support within the relevant scientific
community, complete agreement is not required for evidence to be admitted.”
J.L.G., 234 N.J. at 281. This is so because “[t]here will always be some
detractors to any scientific theory.” Windmere, Inc. v. Int’l Ins. Co., 105 N.J.
373, 379 (1987); see also State v. Johnson, 905 P.2d 1002, 1010 (Ariz. Ct.
App. 1995) (“If the [general acceptance] requirements were met only if there
were no debate on a subject, even Copernicus’s theory of a sun-centered solar
2 system could not be mentioned in a court of law. The flat earth society would
carry the day.” (alteration in original) (quoting People v. Soto, 35 Cal. Rptr.
2d 846, 856 (Ct. App. 1994))), aff’d, 922 P.2d 294 (Ariz. 1996).
Judicial humility requires us to accept that we are judges, not scientists.
Nor are we experts in the scientific method. Courts around the country have
recognized that the benefit of the Frye standard is that judges defer to
scientists when assessing the scientific merit of any particular scientific theory.
See, e.g., Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1045 (Pa. 2003) (under the
Frye standard, “the decisions of individual judges, whose backgrounds in
science may vary widely, will be . . . guided by the consensus that exists in the
scientific community on such matters”); Goeb v. Tharaldson, 615 N.W.2d 800,
813 (Minn. 2000) (“[A]dmissibility can be based on scientific merit only if
judges defer to practicing scientists’ assessments of scientific merit.”
(quotation omitted)); State v. Copeland, 922 P.2d 1304, 1312 (Wash. 1996)
(“The Frye standard recognizes that ‘judges do not have the expertise required
to decide whether a challenged scientific theory is correct,’ and therefore
courts ‘defer this judgment to scientists.’” (quoting State v. Cauthron, 846
P.2d 502, 505 (Wash. 1993))); United States v. Addison, 498 F.2d 741, 743-44
(D.C. Cir. 1974) (“The requirement of general acceptance in the scientific
3 community assures that those most qualified to assess the general validity of a
scientific method will have the determinative voice.”).
B.
In this case, recognizing that we are not scientists requires
acknowledging that what the majority calls Shaken Baby Syndrome/Abusive
Head Trauma (SBS/AHT), and what scientists simply call Abusive Head
Trauma (AHT), 1 is generally accepted by those who are. Indeed, there is more
evidence of general acceptance of SBS/AHT as a medical diagnosis than in
most Frye cases, because SBS/AHT has been explicitly affirmed by every
major discipline involved in its diagnosis and treatment. See Arabinda Kumar
Choudhary et al., Consensus Statement on Abusive Head Trauma in Infants
and Young Children, 48 Pediatric Radiology 1048, 1050 (2018) (Consensus
Statement).
The majority references this Consensus Statement, but states that it was
published by “a group of physicians and pediatric radiologists,” ante at ___
1 I discuss below, see infra § II.A., why the majority is incorrect in characterizing this case as about “SBS/AHT without impact” or “shaking without impact.” See, e.g., ante at ___ (slip op. at 92, 97, 101). And, as described in section II.A., the medical diagnosis is Abusive Head Trauma, not “Shaken Baby Syndrome/Abusive Head Trauma.” I nonetheless use the majority’s “SBS/AHT” acronym to make clear that I am referring to the same medical diagnosis as the majority. 4 (slip op. at 25), implying that it was supported only by several individual
doctors. It was not.
The statement was endorsed by the national and international
professional societies of every major discipline involved in the diagnosis and
treatment of SBS/AHT. That includes the American Academy of Pediatrics
(AAP), the American Society of Pediatric Neuroradiology, the American
Association for Pediatric Ophthalmology and Strabismus, the Executive
Committee of the American College of Radiology, the American Professional
Society on the Abuse of Children, the European Society of Neuroradiology,
the Swedish Paediatric Society, the Norwegian Pediatric Association, the
Japanese Pediatric Society, the Society for Pediatric Radiology, the European
Society of Paediatric Radiology, the Sociedad Latino Americana de Radiología
Pediátrica, the Société Francophone d’Imagerie Pédiatrique et Prénatale, the
Asian and Oceanic Society for Paediatric Radiology, and the Australian and
New Zealand Society for Paediatric Radiology. Consensus Statement at 1050;
Arabinda Kumar Choudhary et al., Consensus Statement on Abusive Head
Trauma: Additional Endorsements, 49 Pediatric Radiology 421, 421 (2019).
And it was not only endorsed by the boards of those societies. It was
“vetted through a process that offer[ed] all members” of each society the
opportunity to “contribute” to the statement itself. Consensus Statement at
5 1058. Specifically, the statement was drafted by a group of doctors. Ibid. It
was then “sent to the governing body” of each medical society that ultimately
signed on. Ibid. The governing bodies then “circulate[d] the document to the
society membership for comment and if necessary further revisions.” Ibid.
Only after this “comprehensive creation and review process,” which allowed
individual members of each medical society to request changes, was the
document published. Ibid.
While membership lists of each society are not included in the record,
the American Academy of Pediatrics alone has 67,000 individual members.
See AAP, https://www.aap.org (last visited Nov. 18, 2025). The Consensus
Statement thus represents the views of tens of thousands, if not hundreds of
thousands, of clinicians.
Those clinicians explain that abusive head trauma “is the leading cause
of fatal head injuries in children younger than 2 years and is responsible for
53% of serious or fatal traumatic brain injury cases.” Consensus Statement at
1049. They state that “the medical literature and overwhelming clinical
experience and judgment demonstrate that AHT can be caused by shaking
alone, shaking with impact, or blunt impact alone.” Id. at 1051. They
therefore use the term “[a]busive head trauma (AHT)” as the “most appropriate
6 and inclusive diagnostic term for infants and young children who suffer from
inflicted intracranial and associated spinal injury.” Id. at 1059.
The statement affirms that “AHT is a scientifically non-controversial
medical diagnosis broadly recognized and managed throughout the world.” Id.
at 1049. “When diagnosed,” it means only “that accidental and disease
processes cannot plausibly explain the etiology of the infant [or] child’s
injuries.” Ibid.
It notes that in cases involving AHT, “defense attorneys and their
retained medical witnesses have increasingly challenged longstanding medical
consensus that infant shaking can cause brain trauma . . . tr[ying] to create a
medical controversy where there is none.” Id. at 1058-59. However, the
resulting debate “surrounding AHT is neither scientific nor medical but legal.”
Id. at 1059 (quotation marks omitted). The statement explains that this
“manufacture[d] . . . controversy” has turned into a “significant medical, legal
and public health” concern because it has led to dissemination of the
“inaccurate and dangerous message[] . . . that shaking an infant cannot cause
serious injury.” Id. at 1050, 1059. That risks “encouraging dangerous or even
life-threatening caregiver behavior.” Id. at 1050.
The doctors thus reiterate that a “diagnosis of AHT is made like any
other medical diagnosis, by considering all the information acquired via
7 clinical history, physical examination, and laboratory and imaging data.” Id. at
1052. Infants suffering from AHT might present with many different
neurologic signs and symptoms. Id. at 1052. Although the injuries most
commonly associated with AHT include “[subdural hematoma], complex
retinal hemorrhage and/or retinoschisis, rib, metaphyseal or other fractures and
soft-tissue injury,” AHT is not diagnosed based only on those findings. Id. at
1059. Rather, it is a “complex and multifaceted diagnostic process” in which
each infant must be “further evaluated for other diseases that might present
with similar findings.” Id. at 1050, 1059. The ultimate “question to be
answered is, ‘Is there a medical cause to explain the findings or did this child
suffer from inflicted injury?’” Id. at 1059.
According to the Consensus Statement, “[e]fforts to create doubt about
AHT” insist that it is a “near-mechanical determination based on the ‘triad’ [of
symptoms] -- the findings of subdural hemorrhage, retinal hemorrhage and
encephalopathy.” Id. at 1050. However, “[t]he term ‘triad’ is a legal”
construct “that falsely mischaracterizes a complex AHT diagnosis process.”
Id. at 1060. In reality, “AHT is a medical diagnosis . . . made only after
careful consideration of all historical, clinical and laboratory findings as well
8 as radiologic investigations by . . . a multidisciplinary team.” Id. at 1049-50. 2
The Consensus Statement concludes that although “[i]t is increasingly popular
for defense lawyers to argue that AHT is a medical diagnosis of murder,” a
medical expert who diagnoses a child with AHT “plays just one role -- to help
the judge or jury answer the medical question of whether an infant’s injuries
were most likely caused by abuse or they could be plausibly explained by a
recognized disease or by . . . myriad hypothetical alternative[s].” Id. at 1059.
Beyond the societies that signed on to the Consensus Statement,
AHT/SBS has also been endorsed by the World Health Organization, the
American Association of Neurological Surgeons, the American Academy of
2 This is confirmed by the facts of this case. D.J. was diagnosed with AHT on April 26, 2017 -- more than two months after being admitted to the hospital -- only after doctors in the neurology, genetics, hematology, and pediatric ophthalmology departments could identify no other explanation for his injuries. D.J. was originally evaluated by doctors in neurology, genetics, hematology, neuroradiology, and pediatric ophthalmology, and by a retinal specialist. He was diagnosed by a neuroradiologist with bilateral subdural bleeding. An ophthalmologist and retinal specialist diagnosed severe retinal hemorrhages in both eyes, “described as extensive, too numerous to count, involving multiple layers of the retina and extending to the periphery” and “consistent with nonaccidental trauma.” Ante at ___ (slip op. at 28, 38). D.J. then underwent a comprehensive metabolic evaluation by a geneticist to look for a metabolic condition that could cause his symptoms. After being discharged from the hospital, D.J. had follow-ups with hematology, genetics, and a retinal specialist. No metabolic or bleeding disorder was identified, and a team of doctors ruled out hyperacute increase in intracranial pressure and aneurysm. Potential accidental trauma was ruled out because D.J.’s parents denied that any occurred. 9 Ophthalmology, the Centers for Disease Control and Prevention, the Royal
College of Ophthalmologists and the Royal College of Paediatrics and Child
Health, and the French Society of Physical Medicine and Rehabilitation. See
Abusive Head Trauma, Am. Acad. of Pediatrics (Nov. 18, 2025), https://www.
aap.org/en/patient-care/child-abuse-and-neglect/abusive-head-trauma.
Similarly, in an amicus brief submitted in this case, the New Jersey State
Chapter of the AAP, the American Association for Pediatric Ophthalmology
and Strabismus, the American Society of Pediatric Neurosurgeons, the
American Society of Pediatric Neuroradiology, the American Professional
Society on the Abuse of Children, the Society for Pediatric Radiology, and the
Ray E. Helfer Society -- “representing over 70,000 clinicians, treating
physicians, pediatric neurologists, ophthalmologists, radiologists, and child
abuse prevention experts” -- reiterate that “[t]he relevant scientific community
overwhelmingly accepts the AHT diagnosis and science as valid.” They
describe how “a specific pattern of retinal hemorrhages -- those that are too
numerous to count, in multiple layers of the retina, and extending to the retinal
periphery -- are highly specific for AHT.” And they explain that “[v]enous
injury -- specifically, disruption of bridging veins where they meet the superior
sagittal sinus complex (the main vein between the cerebral hemispheres) -- is
considered the source of subdural hematomas and is strongly associated with
10 AHT.” 3 They conclude that “[t]he AHT diagnosis is the result of decades of
evidence-based studies repeatedly corroborated by researchers from across
disciplines.”
C.
This case is therefore completely unlike the few prior instances in which
we have determined that evidence did not satisfy the Frye standard. In those
cases, the scientific evidence lacked the endorsement of even one major
scientific association or society. Here, SBS/AHT is endorsed by all of them.
In 1982, we prohibited a defendant from offering expert testimony from
a psychiatrist “who would testify that [he] d[id] not have the psychological
traits of a rapist.” State v. Cavallo, 88 N.J. 508, 512 (1982). We noted that
the defendant had cited nothing to suggest “that the scientific community
3 The majority highlights that when defense counsel asked Dr. Medina “there is no study that shows the tearing of the bridging vein; right?” Dr. Medina responded “no.” But that does not amount to Dr. Medica “conced[ing] that no studies show a relation between tearing of a bridging vein and subdural hematomas.” See ante at ___ (slip op. at 40). Instead, defense counsel’s follow-up questions and Dr. Medina’s answers make clear that she was explaining that she was unaware of any biomechanical study in which researchers intentionally tore a child’s bridging vein. Although, as discussed below, see infra at ___ (slip op. at 33-34), there are obvious moral and ethical reasons why such a study is not possible, the association between subdural hemorrhages and damage to bridging veins is well-documented in the medical literature, and Dr. Medina did not state otherwise. See, e.g., Consensus Statement at 1054 (“Venous injury is strongly associated with AHT. It is common at the junction of the bridging vein and superior sagittal sinus complex and is considered the source of [subdural hematoma].”). 11 generally accepts the existence of identifiable character traits common to
rapists.” Id. at 522, 529.
We next questioned the reliability of voiceprint analysis, in which a
human purported to use a machine developed at Michigan State University to
“determin[e] the identity of a human voice.” Windmere, 105 N.J. at 375, 377,
380. We noted that all experts who testified to the machine’s reliability were
“affiliated with the development of the device,” and one even admitted “that
the device lacked scientific consensus.” Id. at 380, 382. We also emphasized
that “[m]embers of the Speech Communications Section of the Acoustical
Society of America voted 42-0 against the reliability of the procedure.” Id. at
384.
In State v. Harvey, we rejected the State’s claim that a professor was
able to estimate a person’s height “from the size of his or her shoes.” 121 N.J.
407, 426 (1990). We found that the State had not proven general acceptance
of the theory because “[i]t did not provide evidence that anyone in the
scientific community other than [the professor] himself vouches for his
methods.” Id. at 428. We also noted that we had found no other cases “in
which an expert’s testimony involved the scientific comparison of sneaker
prints with stature.” Ibid.
12 In State v. Moore, we barred “hypnotically refreshed testimony,”
holding that “[t]he theory that hypnosis is a reliable means of improving recall
is not generally accepted in the scientific community.” 188 N.J. 182, 210
(2006). We highlighted that 26 other states had agreed that “hypnotically
refreshed testimony is not generally accepted science.” Ibid.
In 2018, we held that “Child Sexual Abuse Accommodation Syndrome”
was not generally accepted. J.L.G., 234 N.J. at 271, 308. We explained that
the professed psychological syndrome had been hypothesized by a clinical
psychiatrist in 1983, and in the 35 years since, had never been recognized by
the American Psychiatric Association or the American Psychological
Association. Id. at 271-72, 281. It was also never included in “the Diagnostic
and Statistical Manual of Mental Disorders (DSM-5), the mental health field’s
authoritative list of mental disorders.” Id. at 272.
Finally, in State v. Cassidy, we held there was no general acceptance of
an Alcotest machine calibrated without a National Institute of Standards and
Technology (NIST)-traceable digital thermometer. 235 N.J. at 486-87, 497.
In upholding the Special Adjudicator’s conclusion, we noted that he “found it
‘extremely important and persuasive’ that . . . protocol treats the failure to
achieve an in-range temperature reading using the NIST-traceable
thermometer” as requiring that the calibration be “abort[ed].” Id. at 495. We
13 also adopted the Special Adjudicator’s finding that other states did not
“reveal[] general acceptance of the reliability of Alcotest results without the
use of a NIST-traceable thermometer.” Id. at 496.
D.
The majority states that “[t]here is, of course, . . . case law finding
SBS/AHT evidence reliable and therefore admissible at trial.” Ante at ___
(slip op. at 90). That is quite the understatement. Every other state admits
expert testimony diagnosing SBS/AHT. And every other court that has
considered the question has held that such evidence is admissible.
The cases cited by the majority, see ante at ___ (slip op. at 90-91), do
not scratch the surface. Some additional cases include State v. Stewart, 923
N.W.2d 668, 676 (Minn. Ct. App. 2019) (holding that “[t]he record amply
establishes that the theory of abusive head trauma is reliable”); Sissoko v.
State, 182 A.3d 874, 898, 906 (Md. Ct. Spec. App. 2018) (rejecting the
“appellant’s argument that the controversy over the diagnosis of abusive head
trauma makes it no longer a generally accepted diagnosis in the absence of
external [evidence of injury]” because “[t]hat controversy exists largely in the
legal community, not in the medical communities relevant to our inquiry,” and
concluding “that the diagnosis of abusive head trauma remains generally
accepted in the relevant medical/scientific communities”); State v. West, 551
14 S.W.3d 506, 516-17 (Mo. Ct. App. 2018) (holding that there was no error in
the trial court “failing to sua sponte prevent or strike testimony regarding
‘shaken baby syndrome’ and ‘abusive head trauma or injury’” because “[t]he
proper way to challenge an expert’s method of reaching conclusions is through
cross-examination” (quotation omitted)); In re Morris, 355 P.3d 355, 360
(Wash. Ct. App. 2015) (holding that expert “testimony satisfied the Frye
standard” because “[a]busive head trauma as a diagnosis, and shaking as a
cause of such injuries, are generally accepted theories in the relevant scientific
community”); State v. McClary, 541 A.2d 96, 102 (Conn. 1988) (addressing
“whether ‘shaken baby syndrome’ . . . is a ‘generally accepted’ diagnosis in
the medical field” under Frye and “conclud[ing] that it is”).
No case has ever concluded that evidence of SBS/AHT is unreliable.
And no case has ever found its reliability sufficiently questioned to preclude
its admission at a civil or criminal trial. Instead, the cases the majority cites
generally remanded for new trials to allow the jury to hear from experts that
both supported and opposed the diagnosis of SBS/AHT. See People v.
Lemons, 22 N.W.3d 42, 60-62 (Mich. 2024) (reversing conviction and
remanding for a new trial where trial court precluded Dr. Chris Alan Van Ee,
the defense expert in this case, from testifying, because “divergences” in
expert opinion about SBS/AHT “are a matter of weight, not admissibility,” and
15 observing that “[o]n retrial,” the prosecution could “call the various experts . .
. to testify about the validity of the SBS diagnosis and their beliefs that [the
child’s] injuries were consistent” with it); Ex parte Roark, 707 S.W.3d 157,
185, 187-88 (Tex. Crim. App. 2024) (vacating conviction and remanding for a
new trial because “scientific knowledge has evolved regarding SBS and its
application,” and the jury should “hear experts on both sides arguing their
position”); Smith v. State, 882 S.E.2d 300, 311-12 (Ga. 2022) (determining
that a disagreement between the defense and prosecution about SBS/AHT
“presents a factual dispute,” and remanding for an evidentiary hearing);
Allison v. State, 448 P.3d 266, 273-74 (Alaska Ct. App. 2019) (reversing
conviction and remanding for a new trial because the trial court erroneously
excluded “all mention” of a pre-existing condition that supported the defense
theory that SBS/AHT was not the cause of death, and “[e]vidence that there
were other possible medical explanations . . . was something that the jury
should have heard”); Commonwealth. v. Millien, 50 N.E.3d 808, 809-10, 826
(Mass. 2016) (finding defense counsel ineffective for not hiring an expert to
question the State’s evidence of SBS/AHT because “there is a vigorous debate
on this subject, . . . arguments are being made on both sides with support in the
scientific and medical literature, . . . [and] the jury heard only one side of this
debate”); Commonwealth v. Epps, 53 N.E.3d 1247, 1250, 1268 (Mass. 2016)
16 (vacating conviction and remanding for a new trial because defense counsel
called no expert to challenge SBS/AHT testimony); People v. Bailey, 999
N.Y.S.2d 713, 726-27 (N.Y. Cnty. Ct. 2014) (vacating conviction and ordering
a new trial because developments in SBS/AHT research constituted “newly
discovered evidence”), aff’d, 41 N.Y.S.3d 625 (N.Y. App. Div. 2016); People
v. Ackley, 870 N.W.2d 858, 860, 867 (Mich. 2015) (vacating and remanding
for a new trial when defense counsel “called no expert in support of its theory
that the child’s injuries resulted from an accidental fall” rather than SBS/AHT,
despite receiving court funding for same); Del Prete v. Thompson, 10 F. Supp.
3d 907, 909, 952, 958 (N.D. Ill. 2014) (holding defendant’s ineffective
assistance of counsel claim was not procedurally barred when his trial counsel
did not challenge the admissibility of the State’s SBS/AHT expert testimony);
Cavazos v. Smith, 565 U.S. 1, 3-6, 8-9 (2011) (summarily reversing the Ninth
Circuit’s grant of habeas relief because the jury’s guilty verdict was
“supported by the record,” including SBS/AHT evidence); State v. Edmunds,
746 N.W.2d 590, 591, 599 (Wis. Ct. App. 2008) (reversing the denial of a
motion for a new trial and remanding so that “a jury [c]ould be faced with
competing credible medical opinions” on the reliability of SBS/AHT
evidence).
17 As these citations reflect, some cases have acknowledged a debate
around SBS/AHT and either allowed evidence critical of it to be admitted at
trial or remanded for a new trial in which experts both for and against could
testify. Until today, no court has ever held that evidence in support of
SBS/AHT cannot be admitted at trial.
II.
This more than suffices to show that SBS/AHT is generally accepted in
every major discipline involved in its diagnosis and treatment: pediatrics,
child abuse pediatrics, neurology, neuroradiology, neurosurgery, radiology,
ophthalmology, and emergency medicine. See, e.g., Sissoko, 182 A.3d at 904
(“[T]he opinion that abusive head trauma is a legitimate and reliably-made
diagnosis is shared by the overwhelming majority of physicians within the
relevant medical fields.”).
Yet the majority holds otherwise, concluding that “expert testimony
regarding SBS/AHT without impact” is not reliable and “therefore cannot be
admitted at trial” because there is a “lack of general acceptance in the
biomechanical community.” Ante at ___ (slip op. at 107). There are serious
flaws with the majority’s reasoning and conclusion. I address each in turn.
18 A.
To start, the majority repeatedly states that this case is about whether
expert testimony regarding the medical diagnosis of “SBS/AHT without
impact is sufficiently reliable for admission at trial.” Ante at ___ (slip op. at
94) (emphasis added); ante at ___ (slip op. at 101) (“[T]here is no general
acceptance in the biomechanical community of the SBS/AHT without impact
diagnosis.” (emphasis added)).
But there is no such thing. There is simply no medical diagnosis of
“SBS/AHT without impact” or SBS/AHT based on “shaking alone.” That is
why Dr. Gladibel Medina diagnosed D.J. with “abusive head trauma, as it
occurs with a shaking event with or without impact.” See ante at ___ (slip op.
at 41).
When an infant is shaken and then slammed into a soft surface, such as a
crib mattress or bed, there may be no external sign of impact, such as a cut or
bruise. But that does not mean the infant was only shaken, rather than shaken
and slammed into a soft surface. Dr. Medina testified to this very clearly:
[Prosecutor]: And your diagnosis in this case is that there was abusive head trauma with shaking with or without impact, correct?
[Prosecutor]: And when we’re talking about impact, what kind of impact are we talking about? 19 [Dr. Medina]: Oh. It would have to be an impact into a soft surface, because he doesn’t have any external signs of trauma.
[Prosecutor]: Okay. And can you have shaking alone with no external signs of trauma?
[Prosecutor]: And can you have shaking with impact with no external signs of trauma?
[Dr. Medina]: Oh, yes.
Often, when there is no external sign of impact, there is no way to know
whether the infant was only shaken, or shaken and slammed into a soft surface,
unless the incident was witnessed or videotaped. See, e.g., C.Z. Cory & M.D.
Jones, Can Shaking Cause Fatal Brain Injury? A Biomechanical Assessment
of the Duhaime Shaken Baby Syndrome Model, 43 Med., Sci. & L. 317, 319
(2003) (“children with intracranial injuries but without detectable signs of
external head trauma may have suffered an impact with a padded surface, such
as a cushion or crib mattress” that would not be detectable unless the incident
had been videotaped); see also John W. Finnie et al., Neuropathological
Changes in a Lamb Model of Non-accidental Head Injury (the Shaken Baby
Syndrome), 19 J. Clinical Neurosci. 1159, 1164 (2012) (“The absence of any
external evidence of head trauma also does not necessarily negate a diagnosis
of [non-accidental head injury] for, if the head is impacted against a soft 20 surface, substantial brain damage may still be sustained from rapid angular
deceleration of the head.”).
The majority emphasizes that in Dr. Ann-Christine Duhaime’s
retrospective analysis of all SBS/AHT cases at the Children’s Hospital of
Philadelphia over a seven-year period, “only one involved shaking without
impact” and all 13 infants who died “had evidence of blunt head trauma.”
Ante at ___ (slip op. at 19) (quoting Ann-Christine Duhaime et al., The Shaken
Baby Syndrome: A Clinical, Pathological, & Biomechanical Study, 66 J.
Neurosurgery 409, 411 (1987)). But it does not appreciate the import of the
fact that in seven of those 13 cases, “no evidence of external trauma was noted
on the initial physical examination” and “impact findings were noted only at
autopsy, and had not been apparent prior to death.” Duhaime, 66 J.
Neurosurgery at 411, 414 (emphasis added). In other words, even for the 13
infants who were so seriously injured that they died from SBS/AHT, for seven
of them, there was no evidence of “impact” while they were alive.
That hurts rather than helps the majority’s conclusion, because as even
defense expert Dr. Van Ee agreed, evidence of impact that can only be seen on
autopsy will “never [be] seen” when a child survives shaking, because
“obviously, you’re not going to do an autopsy on a living child.”
21 The majority repeatedly conflates “shaking without external signs of
impact” with “shaking without impact” even on a soft surface, concluding, for
example, that because Dr. Medina “testified on cross-examination . . . that D.J.
did not ‘have any external signs of impact,’” “Nieves’s case is properly
assessed as one involving shaking without . . . impact.” Ante at ___ (slip op.
at 95).
This impacts the majority’s entire analysis. Although “events” of
“shaking with or without impact” may be “very different” as a factual matter,
ante at ___ (slip op. at 95), unless the event is witnessed or videotaped, doctors
often cannot know which occurred. See, e.g., Sissoko, 182 A.3d at 876, 906
(stating that “[t]he State’s theory of prosecution was that the appellant killed
his son by violently shaking him, slamming him against a soft surface, or
both” and that “[n]one of the State’s experts were able to testify conclusively
whether shaking alone, impact on a soft surface alone, or a combination of
both mechanisms caused the injuries,” because the incident was not witnessed
or videotaped); Consensus Statement at 1052-53 (“The absence of external
trauma to the head and neck is common” even in cases of shaking with impact
on a soft surface because “sometimes soft-tissue injuries including scalp
hematomas are only evident at autopsy.”).
22 Because shaking with impact against a soft surface, like shaking alone,
may leave no external signs of trauma, the majority’s effort to limit its holding
to “expert testimony regarding SBS/AHT without impact,” see, e.g., ante at
___ (slip op. at 107), fails.
The majority presents a history of the “origins and evolution of
SBS/AHT” that begins with Dr. Ayub K. Ommaya’s 1968 experiment, ante at
___ (slip op. at 9-26) (citing Ayub K. Ommaya et al., Whiplash Injury & Brain
Damage: An Experimental Study, 204 J. Am. Med. Ass’n 285, 285 (1968)), to
prove that the “foundation of SBS/AHT lies in biomechanical science and
engineering,” ante at ___ (slip op. at 92). But no expert testified to that
history. And I have found it in no publication.
Instead, Dr. Medina testified that AHT has been recognized in the
medical community for 160 years, beginning when a French pathologist
identified “injuries in children that were believed to be associated with
maltreatment by caregivers.” Her account is supported by the medical
literature, which discussed AHT long before Dr. Ommaya’s study or the
advent of the modern field of biomechanical engineering.
In 1860, Dr. Auguste Ambroise Tardieu wrote about cases of
“infanticide, including cases without external signs of injury, but where [there
23 had been] hemorrhage in the brain and collections of blood over the brain.”
Sandeep Narang, A Daubert Analysis of Abusive Head Trauma/Shaken Baby
Syndrome, 11 Hous. J. Health L. & Pol’y 505, 523-24 (2011) (citing Auguste
Ambroise Tardieu, Étude médico-légale sur les sévices et mauvais traitements
exercés sur des enfants, 13 Annales d’hygiène publique et de médecine légale
361-98 (1860)). In the late 1800s, doctors theorized that those subdural
hemorrhages were caused by infection. Id. at 524. But in 1914, British
neurosurgeon Dr. Wilfred Trotter wrote that they were actually caused by
trauma “coming from veins torn in their course between the brain and a dural
sinus.” Id. at 525.
In 1946, Dr. John Caffey wrote about a “correlation in infants between
long bone fractures, which often are associated with abuse, and subdural
hematomas.” Id. at 505 n.1, 526 (citing John Caffey, Multiple Fractures in the
Long Bones of Infants Suffering from Chronic Subdural Hematoma, 56 Am. J.
Roentgenology 163-73 (1946)); Sissoko, 182 A.3d at 898. In “several of the
cases,” retinal hemorrhages were also involved. Sissoko, 182 A.3d at 898. “In
the two decades following Caffey’s historic article, multiple articles . . .
confirmed the association of [subdural hemorrhages] with inflicted trauma” in
infants. Narang, 11 Hous. J. Health L. & Pol’y at 526-27.
24 Then, in 1962, “eminent pediatrician” Dr. C. Henry Kempe’s “landmark
article, The Battered-Child Syndrome,” explained that child abuse should be
considered for any child presenting with subdural hematoma. Id. at 527
(quoting C. Henry Kempe et al., The Battered-Child Syndrome, 181 J. Am.
Med. Ass’n 17, 17 (1962)).
The majority’s history includes none of this, all of which occurred
before Dr. Ommaya’s 1968 monkey experiment -- instead asserting that the
experiment was the “starting point” of SBS/AHT. Ante at ___ (slip op. at 92).
The majority then discusses Dr. Ommaya’s study at length, referencing him 53
times. But only the majority, not any publication or the doctors who diagnose
SBS/AHT, calls Dr. Ommaya’s study “the foundation of SBS/AHT theory and
diagnosis in the first instance.” Ante at ___ (slip op. at 96).
Dr. Medina did not testify that Dr. Ommaya’s study was the “starting
point” of SBS/AHT. Instead, she discussed it in relation to biomechanical
“controversy” over whether “shaking, which has been established to cause
injury in primates . . . can cause the forces needed to generate intracranial
injury in infants.” And while the majority thrice quotes Dr. Medina’s
testimony that “what we know about shaking, and the established thresholds
for intracranial injury comes from that study” and that “everything else in
biomechanics is based on those injury thresholds,” ante at ___ (slip op. at 31,
25 100, 102), Dr. Medina made clear that the injury thresholds in Dr. Ommaya’s
study were for primates -- specifically monkeys -- not human infants. She also
testified that “scaling down” injury thresholds “from primates to adult human
brains” and from “human brains to infant brains,” “ha[s] not been validated”
because “infant brains are significantly different than adult brains.” Her
testimony is fully supported by the medical literature, discussed further below,
see infra at ___ (slip op. at 29-30).
The majority also emphasizes Dr. Duhaime’s 1987 biomechanical study
using what it calls “infant models,” and her conclusion that “shaking alone
does not produce the shaken baby syndrome,” ante at ___ (slip op. at 20)
(quoting Duhaime, 66 J. Neurosurgery at 409).
But the majority does not acknowledge that the “infant models” in Dr.
Duhaime’s study were “Just Born dolls” whose empty plastic heads were filled
with cotton and water until they weighed approximately as much as an infant’s
head. Duhaime, 66 J. Neurosurgery at 411-12. It does not mention that one of
Dr. Duhaime’s models had a “hinge neck” that allowed only “anteroposterior
angulation of the head” during shaking. Id. at 412. This means that, when
shaken, the doll’s head could only tilt backward and forward along a straight
line; it could not tilt from side to side or turn in any direction. As later
researchers pointed out, these models were “very simplistic and w[ere] not
26 designed to resemble a human infant in terms of mechanical response
(biofidelity).” Cory, 43 Med., Sci. & L. at 331.
And the majority does not disclose that when Dr. Duhaime collaborated
with Dr. Michael T. Prange to conduct a follow-up study, this time with the La
Baby doll, they admitted that a significant limitation of both the original and
follow-up studies was “the inability of the [doll’s] neck to mimic the
properties of a real infant’s neck” because, “[a]t present, no detailed
quantitative information is available to validate the biomechanical properties
of the human infant neck.” Michael T. Prange, Brittany Coats, Ann-Christine
Duhaime & Susan S. Margulies, Anthropomorphic Simulations of Falls,
Shakes, and Inflicted Impacts in Infants, 99 J. Neurosurgery 143, 144, 147
(2003). To put it plainly: researchers did not know how to make a doll with a
neck that resembled a human infant’s. Id. at 144.
The researchers also acknowledged that “the cervical spine consists of a
series of vertebrae, allowing for rotation of the neck in different locations and
directions; the hinge used to model the neck motion in the dummy [in both the
original and follow up experiments] has a fixed point of rotation, only
allowing anteroposterior flexion and extension.” Id. at 148. In other words,
again, while in real life violent shaking can cause an infant’s head to move in
27 many ways, in these experiments, the doll’s head could only move forward and
back in a straight line. Ibid. 4
It is therefore unsurprising that when later researchers attempted to
reconstruct Dr. Duhaime’s original experiment, they discovered not only that it
had substantial flaws, but also that making small changes to the doll led to
drastically different results. Dr. C.Z. Cory, for example, discovered that
changing the doll’s “centre of gravity, neck type and chest and back padding”
from cotton to cotton and wool led to higher angular accelerations than Dr.
Duhaime had found and surpassed the injury thresholds that Dr. Duhaime had
used for concussions. Cory, 43 Med., Sci. & L. at 329. Dr. Cory concluded
that “changes in the biomechanical properties of the model influence the
results for angular head accelerations. Neglecting these factors produces a
model with an unknown resemblance to an infant, therefore, any simulation
results obtained with such a model will be meaningless and conclusions drawn
unreliable.” Id. at 331 (emphasis added). Dr. Cory thus determined: “[I]t
4 The majority repeatedly references Dr. Van Ee’s testimony, based on the Prange study, that angular accelerations of a baby falling over and hitting its head on carpet, even from “heights as low as one foot,” were greater than angular accelerations from shaking, and there is therefore “no data that shaking alone can give rise to the symptoms associated with SBS/AHT.” See, e.g., ante at ___ (slip op. at 54-55, 105). However, the majority ignores this obvious defect with the shaking performed in the Prange study. 28 cannot be categorically stated, from the [Duhaime] study, that ‘pure shaking’
cannot cause fatal head injuries in an infant.” Id. at 332.
In 2017, Dr. Carole A. Jenny conducted experiments with “a customized
12-segment, instrumented infant [anthropomorphic test device] that represents
a 5th percentile Japanese newborn.” Carole A. Jenny et al., Biomechanical
Response of the Infant Head to Shaking: An Experimental Investigation, 34 J.
Neurotrauma 1, 1-2 (2017). Whereas the Prange torso was made of wood,
with no arms or legs, Dr. Jenny’s doll had “a segmented flexible torso/spine,”
along with a head, neck, arms, and legs. Id. at 5. And whereas the dolls used
by Drs. Duhaime and Prange had hinged necks that “constrained head-neck
motions to the sagittal plane (anterior-posterior directions),” Jenny’s “neck
was free to move in three planes . . . the sagittal, coronal, and transverse
planes.” Id. at 5-6. In other words, while the hinged-neck doll heads used by
Drs. Prange and Duhaime could only tilt forward and back, the doll head in Dr.
Jenny’s study could tilt forward and back, tilt side to side, and turn right to
left. It is thus unsurprising that Dr. Jenny’s “maximum angular head
acceleration was . . . 13,260 rad/sec,” a “10-fold increase over Duhaime’s
findings.” Id. at 4 (emphasis added).
The majority likewise does not acknowledge what all of these
biomechanical studies do: because we, thankfully, do not intentionally shake
29 infants for research, scientists do not know what level of acceleration or
velocity is required to injure an infant’s brain or neck. In 2003, Dr. Prange
explicitly stated that “the results of the dummy tests cannot be used to predict
whether . . . rotations are sufficient to cause injury” because injury “thresholds
are currently unavailable for the pediatric population.” Prange, 99 J.
Neurosurgery at 148. Dr. Cory agreed, noting that while Dr. Duhaime and her
colleagues attempted to “scale” injury thresholds from “subhuman primates,”
and other studies attempted to scale from human adults, there were significant
“doubts about the validity” of both. Cory, 43 Med., Sci. & L. at 327, 329.
Even in 2017, Dr. Jenny emphasized that there were still “no validated infant
brain injury thresholds.” Jenny, 34 J. Neurotrauma at 8. She also stated that
attempting to scale injury thresholds “from adult cadaver and primate studies
to infants based on brain mass” was dangerous because “[o]ther factors, such
as brain material properties and geometry, must also be considered when
attempting to assess brain injury risk.” Ibid.
In short, there are no accepted thresholds for infant brain or neck injury.
The majority’s assertion that there is “no test supporting a finding that humans
can produce the physical force necessary to cause the symptoms associated
30 with SBS/AHT in a child,” see, e.g., ante at ___ (slip op. at 99), disregards that
it is unknown what amount of force that would be. 5
The majority also discounts the importance of Dr. John W. Finnie’s 2012
experiment in which nine anesthetized lambs were “vigorously shaken . . .
similar to head motions believed to occur” in SBS/AHT. Finnie, 19 J. Clinical
Neurosci. at 1159. The researchers’ plan was to kill the lambs six hours post-
shaking and then study their brains, cervical spinal cords, and eyes. Id. at
1160. However, three of the smaller lambs “died unexpectedly at two, three
and five hours after the last episode of shaking.” Ibid. Those lambs had
diffuse axonal injury in their brains, including in the brainstem and at the
craniocervical junction (where the head meets the upper spine). Id. at 1163.
They also suffered “multifocal damage” to the retina. Id. at 1162, 1164. 6
5 This similarly negates Dr. Joseph Scheller’s testimony that there have been no biomechanical studies “that have been able to produce the amount of force needed to cause a baby to suffer a subdural hematoma with shaking alone,” ante at ___ (slip op. at 43), and Dr. Van Ee’s testimony that biomechanics “does not support the proposition that someone could create enough force through shaking alone to cause a subdural hematoma, but somehow not cause injury to the infant’s neck,” ante at ___ (slip op. at 104). 6 Dr. Finnie’s 2012 study thus contradicts Dr. Van Ee’s testimony that no animal studies have ever “proved that subdural hematomas and retinal hemorrhages can be caused by shaking alone,” ante at ___ (slip op. at 55-56), and testimony of the defense experts “that no biomechanical study has shown that shaking alone results in the symptoms associated with SBS/AHT,” ante at ___ (slip op. at 104). 31 The study observed: “While this is an animal model . . . the lamb
nevertheless resembles a human infant in important respects . . . namely
having a relatively large gyrencephalic brain and weak neck muscles
supporting the head.” Ibid. The authors therefore concluded: “[O]ur finding
that shaking alone resulted in death . . . is evidence that a head impact is not
always needed” to cause death in cases of AHT. Id. at 1164.
The majority does not explain why it accords more weight to Drs.
Duhaime and Prange’s studies of hinged-neck plastic dolls than to Dr. Finnie’s
finding that shaking alone caused death in animals that share relevant
anatomical traits with human infants.
The majority rejects scientific support for SBS/AHT only by imposing
requirements that apply to no other diagnoses.
First, the majority diminishes studies in which defendants confessed to
shaking because “[a] defendant’s confession to a particular action does not
equal the controlled setting of a scientific study conducted in a manner that can
replicate and confirm the accuracy of results.” Ante at ___ (slip op. at 105);
see also ante at ___ (slip op. at 106-07) (“[I]t is difficult to view medical
studies based on confessions as the gold standard in determining whether the
32 science supports an SBS/AHT diagnosis when impact is not present.”). 7 And
the majority repeatedly emphasizes that there are no randomized controlled
trials of SBS/AHT. Ante at ___ (slip op. at 58) (quoting the trial court’s
statement that “no one has ever tested the capacity of an individual to shake a
baby in an effort to cause the triad of symptoms”); ante at ___ (slip op. at 12-
14, 18 (criticizing Dr. Caffey for not “conduct[ing] any biomechanical
experiments himself”); ante at ___ (slip op. at 12) (criticizing Dr. Arthur
Norman Guthkelch for same).
For moral and ethical reasons, it is not possible to conduct randomized
controlled trials of what happens when an adult intentionally shakes a live
infant. See, e.g., Lemons, 22 N.W.3d at 57 (“[T]here can never be a perfectly
replicated model of a shaken infant for obvious ethical reasons.”); Wolfe v.
State, 509 S.W.3d 325, 339 (Tex. Crim. App. 2017) (“[T]here is no way to
engage in controlled trials to directly test the degree of force required to cause
7 The majority also recounts Dr. Scheller’s testimony that “there have been no reports of witnessed shaking where the result was subdural hematomas, retinal hemorrhages, or neck injury,” ante at ___ (slip op. at 43), and no “study that shows a human can shake a baby causing the triad of injuries,” ante at ___ (slip op. at 48). That is directly contradicted by a study in the record that documented children who developed subdural and retinal hemorrhages after witnessed shaking. See Kenneth W. Feldman et al., Abusive Head Trauma Follows Witnessed Infant Shaking, 31 Child Abuse Rev. e2739, at 1 (2022) (concluding that the study “provide[s] support for isolated shaking as a cause of AHT”). 33 these injuries in an infant . . . .”). Indeed, even the five amici biomechanical
engineers note that “the response of living human tissue most often cannot be
studied ethically in possibly injurious situations.”
In any event, “[a]lmost all well-established, undisputed medical
diagnoses have no randomized controlled trials (RCTs) supporting or
validating their diagnostic criteria.” Narang, 11 Hous. J. Health L. & Pol’y at
532. For example, although migraine headaches are a valid medical diagnosis,
and there is substantial medical literature on their evaluation, diagnosis, and
treatment, “there is not one RCT evaluating the diagnostic criteria for migraine
headaches, or their validity.” Ibid. The same is true for the common cold, ear
infections, and all psychiatric disorders. Id. at 533. “In short, the requirement
that an RCT is necessary in order to validate diagnostic criteria of a particular
medical diagnosis is not only inaccurate but also inconsistent with the vast
majority of clinical medicine.” Ibid.
Second, the majority highlights the trial court’s conclusion that
SBS/AHT “is more conjecture than a diagnosis because it is an option
embraced once a diagnostician runs out of diagnostic options,” and is “a final
option lacking a reliable diagnostic criteria masking as a diagnosis.” Ante at
___ (slip op. at 57, 60). And it underscores Dr. Julie Mack’s testimony that
there is “no confirmatory test” for SBS/AHT. Ante at ___ (slip op. at 49).
34 This means that SBS/AHT is a differential diagnosis, which we have
previously defined as “a patient-specific process of elimination that medical
practitioners use to identify the ‘most likely’ cause of a set of signs and
symptoms from a list of possible causes.” Creanga v. Jardal, 185 N.J. 345, 355
(2005) (quoting Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir.
2005)).
At the first step of a differential diagnosis, the expert “‘rule[s] in’ all
plausible causes for the patient’s condition by compiling ‘a comprehensive list
of hypotheses that might explain the set of salient clinical findings under
consideration.’” Id. at 356 (quoting Clausen v. M/V New Carissa, 339 F.3d
1049, 1057-58 (9th Cir. 2003)). At the second step, the expert “rule[s] out
those causes that did not produce the patient’s condition by engaging ‘in a
process of elimination, eliminating hypotheses on the basis of a continuing
examination of the evidence so as to reach a conclusion as to the most likely
cause of the findings in that particular case.’” Ibid. (quoting Clausen, 339
F.3d at 1058); see also Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262
(4th Cir. 1999) (“A reliable differential diagnosis typically . . . is performed
after physical examinations, the taking of medical histories, and the review of
clinical tests, including laboratory tests, and generally is accomplished by
determining the possible causes for the patient’s symptoms and then
35 eliminating each of these potential causes until reaching one that cannot be
ruled out or determining which of those that cannot be excluded is the most
likely.” (internal quotation omitted)).
We have acknowledged “the widespread acceptance of differential
diagnosis in the medical community, the recognition of the technique in state
and federal courts, and its compatibility with our rules of evidence and prior
case law.” Creanga, 185 N.J. at 357. We have therefore held differential
diagnoses admissible in our courts. Ibid.
And, of course, many well-established medical diagnoses are differential
diagnoses, lacking a specific “confirmatory test.” See, e.g., R.A. Murden, The
Diagnosis of Alzheimer’s Disease, in 282 Advances in Experimental Medicine
and Biology 59, 59 (T. Zandi & R.J. Ham eds., 1990) (“The diagnosis of
Alzheimer’s Disease has traditionally been a diagnosis of exclusion.”); E.
Capelli et al., Chronic Fatigue Syndrome/Myalgic Encephalomyelitis: An
Update, 23 Int’l J. Immunopathology & Pharmacology 981, 981 (2010) (“A
diagnosis of [Chronic Fatigue Syndrome] is a diagnosis of exclusion . . . .”).
Why that is generally accepted across medicine, but unreliable when it comes
to SBS/AHT, the majority does not explain.
36 D.
The majority ultimately concludes that “[t]he State has not met its
burden of establishing general acceptance in the relevant scientific
communities” because, although “[t]here is evidence of general acceptance by
many in the medical community, . . . the State must also establish general
acceptance in the biomechanical community, and it has failed to do so.” Ante
at ___ (slip op. at 107).
But the majority’s conclusion about the “biomechanical community” is
based not on any consensus statement by a society of biomechanical engineers.
It is based on the testimony of one biomechanical engineer (Dr. Van Ee), 8 an
amicus brief submitted by five additional biomechanical engineers (Lindsay
“Dutch” Johnson, Ph.D.; Ken Monson, Ph.D.; Kirk Thibault, Ph.D., D-IBFES;
Keith Button, Ph.D., PE; and Johan Ivarsson, Ph.D.), and the majority’s views
of studies published in biomechanical journals or conducted by individual
biomechanists.
Associations of biomechanical engineers do exist. For example, the
American Institute for Medical and Biological Engineering (AIMBE)
comprises 2,000 members of “outstanding” merit and reaches a broader
8 Dr. Van Ee stated that he has testified for the defense in SBS/AHT cases at least 70 to 80 times. 37 community of 50,000 people. About AIMBE, AIMBE, https://aimbe.org/
about-aimbe/ (last visited Nov. 18, 2025). It has put out no consensus
statement around the biomechanical community’s supposed rejection of
AIMBE has also participated in court as amicus curiae. See Brief for
Amici Curiae Association of American Medical Colleges et al. in Support of
Respondents at 3, 33, Students for Fair Admissions, Inc. v. President &
Fellows of Harvard Coll., 600 U.S. 181 (2023) (Nos. 20-1199 & 21-707)
(arguing that “[d]iversity in the education of the Nation’s . . . healthcare
professionals is a medical imperative” and that “[b]anning race-conscious
admissions . . . will imperil the health and lives of Americans”). Yet it has
conspicuously submitted no amicus brief in this case, or any other case
regarding SBS/AHT.
Relying on the individual views of six biomechanical engineers and
specific biomechanical studies poses real risks of selection bias and false
equivalence. As the Consensus Statement highlights, attempting to measure
general acceptance based on the testimony or statements of individuals leaves
courts susceptible to “fringe, speculative, or professionally irresponsible
opinions.” Consensus Statement at 1058. On the other hand, consensus
statements that are “vetted by the membership” of endorsing societies and
38 organizations provide courts with true information about what is generally
accepted in a particular field. Ibid. And some disagreement, which is present
in every scientific field, does not justify the conclusion that there is no general
acceptance in a particular community. See, e.g., State v. Johnson, 42 N.J. 146,
171 (1964) (“Practically every new scientific discovery has its detractors and
unbelievers, but neither unanimity of opinion nor universal infallibility is
required.”).
More fundamentally, I disagree with the majority using a requirement of
“cross-disciplinary validation,” ante at ___ (slip op. at 81) (quoting State v.
Pickett, 466 N.J. Super. 270, 323 (App. Div. 2021)), to allow individual
biomechanical engineers to override nearly all pediatricians, pediatric
neurologists, neurosurgeons, neuroradiologists, ophthalmologists, radiologists,
and child abuse pediatricians involved in the diagnosis and treatment of
SBS/AHT. 9
9 As the majority discusses, the defense also presented testimony from Dr. Scheller, a pediatric neurologist in private practice, who stated that he has testified for the defense in AHT cases more than 200 times. In several cases, including very recently, his testimony was deemed inadmissible because it was not “scientifically valid and reliable.” See, e.g., LeFebvre v. State, 313 A.3d 1156, 1161, 1169 (R.I. 2024). Defendants also presented testimony from Dr. Mack, who serves as the Chief of the Division of Breast Imaging at the Penn State Milton S. Hershey Medical Center and stated that she has testified for defendants in AHT cases 32 to 35 times. And defendants were supported by an amicus brief from a total of 19 individual medical doctors, one of whom is Dr. Scheller. See ante at ___ (slip op. at 68 n.19, 76). 39 This approach finds no footing in our law. In Pickett, the question was
whether the “defendant [was] entitled to trade secrets of a private company for
the sole purpose of challenging at a Frye hearing the reliability of the science
underlying novel DNA analysis software.” 466 N.J. Super. at 276-77 (footnote
omitted). The Appellate Division held that “if the State chooses to utilize an
expert who relies on novel probabilistic genotyping software to render DNA
testimony, then defendant is entitled to access, under an appropriate protective
order, to the software’s source code” to “independently test whether the
evidentiary software operates as intended.” Id. at 277, 279. Although several
amici argued that the software “integrates multiple scientific disciplines,
therefore requiring cross-disciplinary validation to determine reliability,” id. at
323, the court did not hold that disagreement from individual computer
scientists would bar the State from introducing the testimony. It simply
remanded to the trial court to allow the defendant to access the source code
and then continue a Frye hearing to determine reliability. Id. at 324.
In this case, as the majority correctly notes, D.J. was evaluated by
“doctors with expertise in neurology, genetics, hematology, neuroradiology,
and pediatric ophthalmology, as well as a retinal specialist.” Ante at ___ (slip
op. at 28). Of those many specialties involved in the diagnosis and treatment
of SBS/AHT, each has its own area of expertise. They belong to discrete
40 professional bodies, many of which contributed to the Consensus Statement
and to the amicus brief of the medical societies submitted in this case.
Yet the majority lumps pediatrics, child abuse pediatrics, neurology,
neuroradiology, neurosurgery, radiology, ophthalmology, hematology,
genetics, and emergency medicine into a catch-all “medical/pediatric
community” and allows the “biomechanical engineering community” to
overrule them. Ante at ___ (slip op. at 94). That is some extraordinary math.
The majority places individual biomechanical engineers on equal footing with
the consensus perspective of every major medical society in the world and
grants the former a veto over the latter. What’s more, it does so in a case
about the admissibility of a medical diagnosis.
As the majority concedes, Dr. Van Ee testified that “he is not a medical
doctor, does not have any medical degrees, has not diagnosed or treated
patients, has not been taught what a forensic examination for child abuse
entails, has never been trained in diagnosing SBS/AHT, has never . . .
consulted [on] an examination for abuse . . . and has never examined an
infant.” Ante at ___ (slip op. at 56). That is because biomechanical engineers
do not diagnose or treat children -- pediatricians, neurologists, radiologists,
ophthalmologists, and many other medical professionals, whose professional
societies unanimously support SBS/AHT as a valid medical diagnosis, do.
41 This is not to say that biomechanical engineers can never be relevant to
SBS/AHT; rather, that the voices of some biomechanical engineers cannot
justify barring evidence that is “wide[ly] support[ed] within the relevant
scientific communit[ies]” that actually diagnose children. J.L.G., 234 N.J. at
281.
III.
Finally, I note the sweep of the majority’s decision. Acknowledging a
debate and granting a new trial to allow experts to dispute the merits of a
particular medical diagnosis is entirely different from prohibiting a trial from
taking place at all. The majority has chosen the latter, holding that “expert
testimony regarding SBS/AHT without impact . . . cannot be admitted at trial.”
Ante at ___ (slip op. at 107).
Under the majority’s rule, unless “new, reliable, scientific evidence is
developed . . . that expert testimony regarding SBS/AHT without impact is
reliable,” ante at ___ (slip op. at 108), no person in New Jersey can be charged
with child abuse for shaking or slamming an infant unless external evidence of
impact is present. Similarly, the Division of Child Protection and Permanency
(DCPP) will no longer be able to bring Title 9 proceedings in such cases. The
Attorney General and DCPP warn that this will be “a significant setback to
public safety” and will “hamper DCPP’s ability to fulfill its responsibilities . . .
42 to ‘immediately take such action as shall be necessary to insure the safety of
the child’ upon receiving a report of [child] abuse.” (quoting N.J.S.A. 9:6-
8.11).
In my view, a better approach would be to allow a full exchange between
experts on the merits of an SBS/AHT diagnosis in any particular case. The
majority notes that each defense expert “testified that they believed something
other than SBS/AHT could have caused D.J.’s symptoms.” Ante at ___ (slip
op. at 104). It observes that Dr. Scheller “stated that he believed D.J. has
another condition, hygroma, that mimics SBS/AHT,” and “Dr. Mack testified
that the cause of D.J.’s symptoms could be the result of [benign enlargement
of the subarachnoid space] or [benign external hydrocephalus].” Ante at ___
(slip op. at 47, 105). 10 They can present those theories at trial. But so should
Dr. Medina be able to present her diagnosis and testify as to competing
explanations. The outcome of that exchange properly belongs to the jury, not
this Court. See, e.g., Lemons, 22 N.W.3d at 62 (disagreements between
10 The majority underscores Dr. Scheller’s testimony that the number one cause of retinal hemorrhages is “being born normal,” ante at ___ (slip op. at 46), and Dr. Medina’s testimony that “male premature babies are especially prone to subdural hematomas at birth,” ante at ___ (slip op. at 39). But it does not mention that “[s]mall birth-related subdural hematomas . . . resolve in the overwhelming majority of infants within the first 4-6 . . . weeks,” with “all resolved by 3 months,” Consensus Statement at 1057, or that “birth-related retinal hemorrhages” are not multi-layered and the “vast majority . . . resolve by two to four weeks,” Narang, 11 Hous. J. Health L. & Pol’y at 550. 43 “proponents of the SBS diagnosis as well as experts . . . who disagree with or
are skeptical of the SBS diagnosis” “are a matter of weight, not
admissibility”).
This case should inspire judicial modesty. It should call to mind Chief
Justice Rehnquist’s warning that judges resist the temptation to believe
themselves “amateur scientists.” Daubert v. Merrell Dow Pharms. Inc., 509
U.S. 579, 601 (1993) (Rehnquist, C. J., concurring in part and dissenting in
part). Yet the majority “step[s] beyond its role as gatekeeper of relevant and
reliable information, and instead act[s] as the final arbiter of the correctness of
Dr. Van Ee’s” and other experts’ conclusions. Lemons, 22 N.W.3d at 56
(citations omitted). For these reasons, I respectfully dissent.
Related
Cite This Page — Counsel Stack
State v. Darryl Nieves; State v. Michael Cifelli, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-darryl-nieves-state-v-michael-cifelli-nj-2025.