State v. Nieves, 476 N.J. Super. 609 (App. Div. 2023). This was a monumental opinion by Judge Gooden Brown in two consolidated cases. The issue was “the scientific reliability of expert testimony that shaking alone can cause the injuries associated with shaken baby syndrome (SBS), also known as abusive head trauma (AHT).” The State had sought to introduce such expert testimony in support of aggravated assault and child endangerment charges against defendants. The judges in both cases found the testimony unreliable and barred it. The Appellate Division granted the State leave to appeal, but affirmed the Law Division decisions.

Judge Gooden Brown observed that the standard for admissibility was the “general acceptance in the community” standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). That was because the rulings in this case pre-dated the Supreme Court’s decision in State v. Olenowski, 253 N.J. 133 (2023), which replaced Frye with “a Daubert[ v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)]- like” standard that made “general acceptance” just one element, but not “a necessary precondition to, admissibility. The standard of review was de novo, as “[w]hether expert scientific evidence is sufficiently reliable under the Frye test to be admissible” is a legal question, Judge Gooden Brown said.

The State relied on two New Jersey rulings from the 1990s that had deemed SBS/AHT testimony admissible. But Judge Gooden Brown observed that “given the age of [those cases], and the change in the scientific community’s view about SBS/AHT evidence, continued adherence to these cases is neither prudent nor pragmatic.” Cases from other jurisdictions, some approving and some rejecting admissibility, were similarly not helpful to the panel in reaching its result.

Judge Gooden Brown focused on the issue of general acceptance in the scientific community. Unlike in most cases, there were two different scientific communities as to which general acceptance had to be evaluated. Her discussion is worth quoting at length:

“SBS/AHT is a multidisciplinary diagnosis based on the theory that vigorously shaking an infant— with or without impact—creates such great rotational acceleration and deceleration forces that result in a constellation of symptoms that may not manifest externally. Whether SBS/AHT theory is generally 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.

Although the State has demonstrated general acceptance in the pediatric community, we agree with [one of the Law Division judges] that the State has not demonstrated general acceptance of the SBS/AHT hypothesis to justify its admission in a criminal trial. On the contrary, the evidence amply demonstrates that there is no general acceptance from the biomechanical community, and biomechanical testing has never proven the premise of SBS/AHT, despite the hypothesis being grounded in biomechanical principles…. [A]ll the experts at the hearing agreed that, at the very least, there was ‘controversy’ surrounding whether the biomechanical theory behind SBS/AHT actually supported the conclusion that shaking alone can cause the injuries associated with SBS/AHT.

Indeed, the State failed to submit any biomechanical study that was able to confirm the theories … that shaking alone can create acceleration and deceleration forces sufficient to cause intracranial trauma.

Although unanimity of view is not a prerequisite to satisfying the general acceptance and reliability standard, the dispute runs deeper than diversity in view and goes to the very foundation of the SBS/AHT hypothesis. One cannot conclude that SBS/AHT is ‘state of the art,’ when the very basis of the theory has never been proven. Without a biomechanical study supporting SBS/AHT, it remains a hypothesis without ‘uniform and reasonably reliable results’ from which to ascertain the truth. It also fails to show that ‘the interpretation of its results are non-experimental, demonstrable techniques,’ which can be accepted as reliable. It therefore does not satisfy the ‘extraordinarily high level of proof’ necessary to constitute general acceptance. Because biomechanical theory is the foundation of the SBS/AHT hypothesis, the lack of biomechanical support renders the theory scientifically unreliable, notwithstanding its support in the pediatric community” (citations and footnote omitted).

Accordingly, the Law Division judges correctly excluded the testimony. It would not be surprising if the State sought further review. As the case came to the Appellate Division on leave to appeal, the State would have to satisfy the challenging standard for leave to appeal to the Supreme Court.