Achieving Justice for the Silent Victim

Contributing Author: Allysa Gambarella, Director of Education & Engagement, National District Attorneys Association

Photo by Dragos Gontariu on Unsplash

Abusive Head Trauma (AHT) cases are heavily litigated in courtrooms across the country with defense experts creating unfounded controversy around the diagnosis of AHT. It is more important than ever that prosecutors understand how to effectively prepare and present AHT cases in court, to educate juries and achieve justice for some of the most vulnerable victims.

In September 2022, the National District Attorneys Association hosted a child abuse course dedicated specifically to AHT. Medical experts and prosecutors from around the country shared their knowledge and experience around diagnosis, investigation, and prosecution of AHT cases. The course focused on medical findings and diagnoses, relevant medical literature, pre-trial motion practice, litigation strategies, case presentation, and best practices in investigation.

Three key take-aways emerged from the training that all prosecutors should know when handling AHT cases:

1. AHT is a widely accepted diagnosis within the medical community. There have been “over 1,000 peer-reviewed clinical medical articles written by over 1,000 medical authors from more than 25 different countries.” The American Academy of Pediatrics (AAP) endorses AHT as a firmly established medical diagnosis, as do many other professional membership organizations. Research articles supporting the general acceptance of AHT include, without limitation:

• Understanding Abusive Head Trauma in Infants and Children, Answers from America’s Pediatricians. The AAP noted unequivocally that there “is no legitimate medical debate among the majority of practicing physicians as to the existence or validity of AHT/SBS.”
• Acceptance of Shaken Baby Syndrome and Abusive Head Trauma as Medical Diagnoses. In 2016, Sandeep Narang, M.D. J.D. et al, conducted a study sampling doctors who were frequently involved in the evaluation of injured children at 10 leading children’s hospitals. The overwhelming majority of doctors identified shaken baby syndrome (88%) and/or AHT (93%) as valid medical diagnoses.
• Consensus statement on abusive head trauma in infants and young children. In 2018, Dr. Arabinda Kumar Choudhary et al, issued a consensus statement, in part, to address the claims being made by defense experts. The consensus statement warns that, “the debate surrounding AHT is neither scientific nor medical, but legal.” “The denialists have tried to create a medical controversy where there is none.” The consensus statement cautions that the most common defense arguments “have never been empirically substantiated or are patently false.”
• Abusive Head Trauma in Infants and Children. A policy statement was issued by the AAP in 2020, urging pediatric practitioners to “remain vigilant for the signs and symptoms of AHT, conduct thorough medical evaluations, consult with pediatric medical subspecialists when necessary, and embrace the challenges and need for strong advocacy on the subject.” The policy statement categorized the debate around AHT as “a philosophical one, not a scientific one.”

Photo by Susan Wilkinson on Unsplash

2. A deliberate approach is necessary. The abuse of children mostly happens in secret, without witnesses to the abuse. Moreover, victims of AHT are commonly infants who cannot tell us what happened to them.

• It is important that prosecutors work with investigators to establish a timeline of events that will help identify a perpetrator and prove the case. AHT commonly presents with neurological symptoms (i.e.: vomiting, lethargy, decreased appetite, seizure-like activity, altered mental status) and the onset of neurological symptoms occurs immediately (to varying degrees) after the abusive incident. Therefore, gathering information from caretakers regarding the child’s health, behavior, and routine leading up to and after the onset of mild or severe neurological symptoms may assist in identifying a perpetrator.
• It is also important to speak with anyone who had contact with the child on the day(s) leading up to the abusive incident, including first responders and doctors. Consider obtaining appropriate warrants (or consent) to photograph and search the caretakers’ home and consider obtaining warrants for caretakers’ cell phones and/or social media. The 9–1–1 call should also be collected, as well as a complete set of medical records for the child.
• AHT cases are medically dense, and as such, an intentional approach to pre-trial litigation and trial is critical. There is no right way, but pre-trial motions to challenge (or limit) defense arguments and qualifications may be appropriate. Early case review permits a determination regarding which state witnesses will be needed for trial and whether additional experts will have to be retained. Finally, identification and evaluation around cognitive errors and biases is necessary throughout investigation, case review, and when thinking about jury selection and case presentation.

1. Keep heart. AHT cases are some of the most difficult cases to prosecute, and in the words of Tom Fallon, a retired prosecutor from Wisconsin, it is important to “keep heart” when handling them. You will not learn everything there is to know about AHT overnight, but with patience, dedication, and collaboration, you will surely get there.

There are medical experts and prosecutors around the country who have dedicated significant time and effort in facilitating information and knowledge sharing. Developing good working relationships with child abuse experts, medical professionals, multi-disciplinary teams, law enforcement officers, and other child abuse prosecutors will only help to strengthen your understanding and approach in AHT cases, and ultimately support you in achieving justice for these silent victims.

Formed in 1950, NDAA is the oldest and largest national organization representing state and local prosecutors in the country. With more than 5,500 members representing over two thirds of the state and local prosecutors’ offices, NDAA is recognized as the leading source of national expertise on the prosecution function and is a valuable resource for the media, academia, government, and community leaders. NDAA’s mission is to provide state and local prosecutors with the knowledge, skills, and support they need to ensure that justice is done and that public safety rights are protected.