New Jersey Supreme Court Rejects ‘Shaken Baby Syndrome’

Last month, in a 6 to 1 decision, New Jersey’s highest court banned testimony on Shaken Baby Syndrome (SBS) from the state’s courtrooms, the first decision of its kind in the United States, ruling that SBS was not “generally accepted” by experts.   

The decision in State v. Nieves could help unravel wrongful convictions in New Jersey and throughout the country. 

“By upholding the exclusion of this testimony, the Court reinforces a core principle of our justice system: criminal convictions must rest on reliable, well-supported scientific evidence,” the New Jersey Office of the Public Defender, which represented Darryl Nieves, said in a statement. “The Constitution demands more than speculation dressed in scientific language.” 

SBS, also known as Abusive Head Trauma (AHT), posits that a so-called triad of symptoms—bleeding around the brain; brain swelling; and bleeding in the eyes—can only be caused by shaking or severe physical trauma like a car crash or fall from a high-story building. 

Although a British neurosurgeon first proposed the theory in the 1970s, prosecutions were rare until the 1990s. Since then, prosecutors have relied on the theory to charge thousands of parents and caregivers with crimes like murder and child abuse. At trial, they put up experts that were hard to challenge. Child abuse pediatricians testified that the mere presence of these symptoms is enough to conclude that the last person with the child—often the caregiver who had sought help—had violently shaken the child. 

But SBS has crumbled under the weight of scientific scrutiny. No reliable studies have shown that a human can shake a child forcefully enough to cause the symptoms associated with the triad without producing other injuries. Biomechanical research has also undermined a key tenet of SBS, which is that a child can be shaken without suffering any injuries to the neck when, in fact, shaking causes injuries to the neck first. 

Exonerations have revealed a number of explanations for children who have been diagnosed as victims of SBS, all of which have nothing to do with abuse, such as a stroke, sickle cell disease, accidental falls, and infections. 

The evolving science, brought into courtrooms by defense lawyers on behalf of their clients, has led judges to finally look at SBS cases more critically. Of the 38 people in the United States exonerated in SBS cases, nearly a third were exonerated in the last five years and more than half occurred in the last ten years, according to the National Registry of Exonerations. 

While judges have begun to question SBS evidence, the New Jersey Supreme Court’s decision represents a watershed moment that could transform how SBS cases are handled nationwide.  

In New Jersey, convictions based on SBS without impact—cases where the prosecution alleged that the injuries were caused by shaking alone—are eligible to be reviewed by the courts, according to Danica Rue, who was lead counsel for Nieves and is now the director of Investigations and Police Accountability at the Office of the Public Defender. 

However, the onus is on the accused to challenge their conviction, although Rue encouraged prosecutors to seek reversals or reviews of convictions they secured based on SBS testimony.

It is unknown how many people in New Jersey were convicted or lost custody of their children based on a diagnosis of SBS, said Rue.

“It’s been around for a long time, and so it’s kind of daunting to consider how many people have been falsely convicted or accused of this,” she said.

The New Jersey Department of Children and Family (DCF), the state’s child protective services agency, told The Appeal in an email that they are “currently identifying cases for which this decision might be relevant.” When asked if they had an estimate of how many cases may be impacted, DCF said they had no further information to share. 

In addition to examining past cases, Rue says it’s important that those who often initiate and pursue SBS cases—DCF case workers, prosecutors, medical staff, and child abuse pediatricians—read the Court’s decision and “unlearn this debunked science.” 

“It’s really hard to change people’s minds about things that they’ve been taught are fact,” she said. “However, we just know that the science isn’t there.”

While it’s unknown how many cases may be impacted on the family or criminal court side, the ruling may have extraordinary implications for one New Jersey woman, Michelle Heale. In 2015, prosecutors argued that based on the so-called triad, Heale had shaken to death Mason Hess, a child in her care. She was convicted and sentenced to 15 years in prison. She has always maintained her innocence. The Appeal published an in-depth investigation into Heale’s case in 2020. 

Heale’s application for post-conviction relief is pending in Monmouth County Superior Court, according to Rue.

The Appeal reached out to the Monmouth County Prosecutor’s office to ask how the Court’s decision will impact their handling of Heale’s case. A spokesperson for the office told The Appeal by email that the office had no comment.

The decision may have far-reaching consequences outside of New Jersey as well. 

Earlier this month, lawyers for Danyel Smith filed a motion, citing the New Jersey Supreme Court’s ruling. In 2003, Smith was convicted in Gwinnett County, Georgia of shaking his two-month old son to death. At trial, Smith told the jury that his son had stopped breathing during a car ride, and he had tried to save him. 

For years, Smith has been fighting his conviction. In 2022, prosecutors offered Smith a plea to time-served that would have guaranteed his immediate release. Smith turned it down, his lawyers say, because he refuses to plead guilty to a crime he did not commit. 

Dr. Saadi Ghatan, the director of Mount Sinai Health System’s pediatric neurosurgery program, is working on Smith’s case pro bono. He wrote in his affidavit that the baby’s death “was not the result of parental abuse or mistreatment, nor was his death caused intentionally by anyone.” 

Smith’s attorney, Mark Loudon-Brown, told The Appeal that he hopes the Supreme Court’s ruling will encourage other courts to have the “courage” to reexamine the reliability of SBS evidence. 

“Law looks backward and science looks forward,” said Loudon-Brown, a senior attorney at the Southern Center for Human Rights. “Our law lags behind our science, and so it’s imperative that the courts do a better job at keeping up with that science, and so seeing a Supreme Court do that sets a great example.”

After the decision came down, lawyers for Robert Roberson also took action. 

In 2003, a Texas jury convicted Roberson of shaking to death his two-year-old daughter, Nikki Curtis, and he was sentenced to death. If he is executed, he will be the first person in the history of the United States to be put to death in an SBS case. 

In early 2002, Roberson rushed his daughter to the hospital after finding her unconscious. Despite the fact that Curtis had received medical attention for various symptoms, including vomiting, high fevers, and difficulty breathing, in the days before her collapse, a child abuse pediatrician concluded that Curtis had been shaken.

Roberson’s legal team has consulted with numerous experts who have reviewed Curtis’s medical and autopsy records, and have concluded that she died from a severe case of viral and bacterial pneumonia which developed into sepsis. 

Just four days after the New Jersey Supreme Court’s ruling, Roberson’s lawyer submitted the opinion to the Texas Court of Criminal Appeals and the Third District Court for Anderson County, urging them to “consider the new persuasive authority,” which is “highly relevant to issues in this case.”

Rue, of the public defender’s office, says she hopes courts from across the country will follow New Jersey’s lead.

“The New Jersey Supreme Court saw the lack of science that was involved in this theory and made the right decision,” she said. “I certainly hope that this does have an effect across the country, for courts to have similar courage.”