Un-Convicting the Innocent: The Case for Shaken Baby Syndrome Review Panels

This Note proposes that states should develop error-correction bodies to identify past errors that have resulted in wrongful convictions of people accused of shaking a child. These institutions, which I call SBS Review Panels, would be similar to the error-correction bodies and commissions that have recently been established throughout the world to deal with various sorts of wrongful convictions. An SBS-specific commission should be developed because of the high level of scientific expertise that is required to fully understand this diagnosis and the problems associated with using the triad of medical findings as evidence of the defendant’s conduct. Part I will define SBS and detail the medical and social perceptions of the diagnosis from the 1970’s until the present. In describing in greater depth the recent changes in the medical consensus behind SBS, Part II illustrates why our legal system should not permit convictions based exclusively on disputed medical evidence. Part III analyzes the current state of the law, with several case studies to illustrate the problems with the use of this potentially faulty diagnosis. This Part further details the challenges that face defendants seeking relief from SBS convictions. To address these problems, Part IV proposes the creation of error-correcting bodies to discover errors that have resulted in wrongful convictions or miscarriages of justice for those accused of shaking a child. This Part evaluates examples of post-conviction review boards, and concludes by proposing a Shaken Baby Syndrome Review Panel, and a model statute for its enactment.