For the Defense - Vol. 7, Issue 2 - 8

The State recognized the controversy surrounding
AHT testimony but " maintain[ed] that the diagnostic
methodology used by child abuse pediatricians for
AHT is also widely accepted within the medical
community. " 36
The child-abuse pediatrician who
diagnosed the defendant's child with AHT testified
on the State's behalf about the origins of AHT,
the diagnostic methodology for AHT, and the
controversy surrounding AHT.37
She explained
that child-abuse pediatricians perform a physical
examination for AHT, a comprehensive review of the
child's medical history, and an evaluation of other
possible medical issues that might have contributed
to the child's symptoms.38
She insisted that childabuse
pediatricians " rule out every other possible
cause before coming to a conclusion. " 39
In response, the defense presented the expert
opinions of a child neurologist, a diagnostic radiologist
certified in pediatric radiology, and a biomechanical
engineer.40
Taken together, their opinions persuaded
the trial court that an AHT diagnosis is not based on
" generally accepted scientific evidence " as required
under the Frye test.41
The trial court explained:
What is . . . clear from the literature
and testimony is that AHT has never been
medically
nor scientifically
validated
Precluding Evidence of AHT Diagnoses and Expert
Opinions
from
Criminal
Prosecutions
Pennsylvania Law
Like New Jersey, Pennsylvania follows the Frye test
But, unlike New Jersey,
when assessing the reliability of scientific evidence
for admission into evidence.46
Pennsylvania does not treat SBS/AHT diagnoses as
" scientific evidence " and, therefore, does not subject
them to the Frye test.47
The Pennsylvania Supreme
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. What
has been provided . . . is that AHT is more
conjecture than a diagnosis because it is an
option embraced once a diagnostician runs
out of diagnostic options. . . . Providing no
evidence that the defendant inflicted any
trauma upon the victim in this case, AHT
is a flawed diagnosis because it originates
from a theory based upon speculation and
extrapolation instead of being anchored in
facts developed through reliable testing.
There is no proof provided that AHT is, in
fact, a valid diagnosis explaining an inflicted
trauma which causes a pathology. Instead,
what the literature and testimony have
clearly shown is that 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, and
which is proffered in cases like this one as
proof beyond a reasonable doubt as to the
cause of the infant's injuries.42
8 For The Defense l Vol. 7, Issue 2
Court has explained that, " [t]o constitute scientific
knowledge, the evidence must be grounded in the
methods and procedures of science, based on more
than subjective belief or unsupported speculation,
and supported by appropriate scientific validation. " 48
As the Nieves opinion shows, AHT diagnoses are not
" scientific evidence " but, rather, are misleadingly and
inaccurately presented as scientific evidence.49
Thus,
Pennsylvania law's recognition of AHT diagnoses as
" not scientific evidence " is consistent with the Nieves
Court's characterization of them as being " akin to
junk science. " 50
However, rather than exclude AHT diagnoses as
inadmissible under Frye, Pennsylvania courts permit
qualified experts to opine on such diagnoses.51
Commonwealth v. Passarelli,52
Under
The trial court also criticized AHT testimony as " akin
to 'junk science' in that it is testimony presented
both inaccurately and misleadingly as scientific or
medical evidence when it has little to no connection
to scientific or medical testing. " 43
It determined that
admitting the AHT diagnosis into evidence would
compromise the integrity of the prosecution's case
and effectively turn the presumption of innocence on
its head by inviting the jury to convict the defendant
based on incompetent evidence.44
Thus, in addition
to holding the AHT diagnosis inadmissible under
Frye, the trial court excluded the diagnosis as highly
prejudicial and nonprobative of causation.45
In
the Superior Court
circumvented the defendant's argument that an SBS
diagnosis is not generally accepted within the medical
community by concluding that the Commonwealth
expert's " testimony was opinion testimony subject
to the standard rules governing expert witness
testimony and not 'scientific evidence' subject to a
Frye analysis. " 53
The Passarelli Court reasoned:
When a qualified medical expert witness
testifies that a particular child suffered
from " shaken-impact syndrome, " he or she
is giving an opinion as to the means used to
inflict the particular injuries, i.e., the types
of injuries, their size, number, location
and severity. A diagnosis of " shakenimpact
syndrome " simply indicates that
For the Defense - Vol. 7, Issue 2

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