The trial court wrongly held that expert testimony on shaken baby syndrome (SBS) was inadmissible under the rules of evidence and, as a result, the defendant is entitled to a new trial, the Michigan Supreme Court has decided.

In 2006, the defendant-mother in People v Lemons (Docket No. 163939), was convicted of first-degree felony murder under MCL 750.316 for abusively shaking her infant daughter to death. The Wayne County Circuit Court sentenced the defendant to a mandatory term of life in prison without the possibility of parole.

In 2017, the defendant filed a successive motion for relief from judgment, asserting that newly discovered evidence undermined the prosecution’s theory of the cause of the infant’s death (SBS). The trial court ruled the proposed expert testimony was inadmissible under Michigan Rule of Evidence (MRE) 702 and denied her requested relief. The Court of Appeals ultimately affirmed that decision in an unpublished opinion (Docket No. 348277), finding “there was no reasonable probability of a different outcome on retrial even if the improperly excluded evidence was admitted.” The defendant appealed.

The Michigan Supreme Court, instead of granting leave to appeal, held that the trial court abused its discretion by deeming the defendant’s proposed expert testimony inadmissible under MRE 702. Accordingly, the justices reversed the trial court’s ruling and remanded the case for a new trial.

In a 57-page opinion written by Justice Megan K. Cavanagh, the high court emphasized that if the expert testimony were presented at a new trial, a different result “would be probable.” The justices also said the defendant overcame the “procedural threshold” of MCR 6.502(G) and established “good cause” and “actual prejudice” as required by MCR 6.508(D)(3) by satisfying the four factors necessary for a new trial based on newly discovered evidence in People v Cress, 468 Mich 678 (2003).

Chief Justice Elizabeth T. Clement, Justice Richard H. Bernstein, Justice Elizabeth M. Welch and Justice Kyra H. Bolden joined Justice Cavanagh’s opinion.

Justice Brian K. Zahra dissented, joined by Justice David F. Viviano.

Biomechanical Evidence Admissible

In its analysis, the Supreme Court explained that expert testimony must satisfy the prerequisites of MRE 702 to be admissible. Here, both the trial court and the Court of Appeals found that biomechanical engineering testimony presented at trial was inadmissible as it relates to SBS.

“We disagree,” the high court said. “[T]he SBS hypothesis is inherently ‘grounded in biomechanical principles.’”

Many of the experts called at the evidentiary hearing – both for the defense and the prosecution – “discussed biomechanical principles to either confirm or dispel their theories about SBS and whether shaking caused [the infant’s] injuries,” the justices explained. “Many candidly admitted that they were not experts in biomechanics. Therefore, on rebuttal, defendant called biomechanical engineer, Dr. Chris Van Ee, to testify. The gist of his testimony was that, in his expert opinion, there are ‘good reasons,’ grounded in biomechanical science, to conclude that shaking is insufficient to produce the accelerations necessary to produce injuries typically associated with SBS without also causing significant injuries to the neck. The trial court ruled that Dr. Van Ee’s testimony was inadmissible. According to the trial court, there was ‘too great an analytical gap between the data and the opinion proffered.’”

The Supreme Court also observed that, when the Court of Appeals affirmed the trial court’s decision to disallow the expert testimony, the appellate panel noted that General Electric Co v Joiner, 522 US 136 (1997), was “particularly persuasive.”

“We disagree,” the high court wrote. “The trial court stepped beyond its role as gatekeeper of relevant and reliable information … and instead acted as the final arbiter of the correctness of Dr. Van Ee’s conclusions. Dr. Van Ee’s testimony satisfied the requirements of MRE 702. He was a qualified expert in the field of biomechanical engineering. His testimony regarding the biomechanical mechanism of SBS would assist the trier of fact in ascertaining a fact at issue – whether [the infant] died from injuries caused by abusive shaking. Biomechanical engineering is a legitimate field of scientific study and Dr. Van Ee’s testimony was ‘based on sufficient facts or data’ and was ‘the product of reliable principles and methods.’ … The question, therefore, is whether Dr. Van Ee was able to take those principles and methods and reliably apply them to the facts of this case.”

Further, Joiner does not support the lower courts’ conclusions in this case, the Supreme Court observed. “There is an appreciable difference between the expert testimony that was excluded in Joiner, given its tenuous connection to the facts of that case, and the testimony at issue here. … Here, Dr. Van Ee’s testimony was not ‘far removed’ or missing a connecting link between data, methodology, and conclusion. Rather, it was based on studies specifically designed to test the effects of abusive shaking on infants, utilized various models to test the hypotheses, and specifically concluded that shaking without serious injury to the neck could not produce symptoms associated with SBS.”

The MRE 702 inquiry is “necessarily flexible,” the justices pointed out. “In the realm of the biomechanical evidence underlying SBS, there can never be a perfectly replicated model of a shaken infant for obvious ethical reasons. In other words, there will always be at least some gap between the data and the conclusions reached. This cannot and does not prohibit a qualified expert from testifying, on the basis of reliable principles and methodologies, about what can be extrapolated from various imperfect modeling about how an infant’s body reacts to shaking. This is not the sort of ipse dixit or ‘subjective belief or unsupported speculation’ that the MRE 702 inquiry aims to keep from the jury.”

According to the Supreme Court, there is nothing “inherently problematic” about presenting expert testimony in biomechanics. “We fail to understand why there is no ‘analytical gap’ between expert opinion testimony and biofidelic and computer models in cases involving car crashes or product liability, but when those same models are relied on by experts in cases involving SBS, there is an insurmountable analytical gap between the models and the experts’ testimony.”

Therefore, “[w]e find the position that biomechanics – the study of forces acting on and generated within the human body – is divorceable from a diagnosis of shaken baby syndrome to be untenable,” the Supreme Court held. “Although we do not state a bright-line rule permitting biomechanical evidence in all SBS cases, in this case, ‘[a]lthough clearly not universally accepted,’ Dr. Van Ee’s ‘opinion is certainly objective, rational, and based on sound and trustworthy scientific literature.’ … It also ‘fit’ the facts in dispute in this case and would assist the trier of fact in determining whether the prosecution could prove beyond a reasonable doubt that [the infant’s] cause of death was SBS.”

Therefore, “[w]e … reverse the Court of Appeals and hold that the trial court abused its discretion by misapplying MRE 702 and ordering that biomechanical evidence was inadmissible in this case,” the Supreme Court concluded.

Defendant Entitled To Relief

Next, the Supreme Court turned to whether the defendant was indeed entitled to relief under MCR 6.502(G), MCR 6.508(D) and Cress. In Cress, the high court emphasized that, for a new trial to be granted based on newly discovered evidence, a defendant must show:

• the evidence itself, not merely its materiality, was newly discovered.

• the newly discovered evidence was not cumulative.

• the party could not, using reasonable diligence, have discovered and produced the evidence at trial.

• the new evidence makes a different result probable on retrial.

Meanwhile, under MCR 6.502(G)(2)(b), a successive motion for relief from judgment may be filed if it is based on “a claim of new evidence that was not discovered before the first such motion was filed,” the high court explained. Here, the trial court ruled that “changed testimony” presented by an expert (Dr. Cassin) constituted new evidence for purposes of MCR 6.502(G) and the prosecution did not dispute this. “Accordingly, defendant has overcome the procedural bar in MCR 6.502(G).”

In addition, the defendant must demonstrate “good cause for failure to raise such grounds on appeal or in the prior motion,” as well as “actual prejudice from the alleged irregularities that support the claim for relief,” the justices observed, citing MCR 6.508(D)(3)(a) and MCR 6.508(D)(3)(b). “In this case, that means that ‘but for the alleged error, the defendant would have had a reasonably likely chance of acquittal[.]’” 

At a retrial, the defendant could call Dr. Cassin to testify about his changed opinion regarding the infant’s cause of death, “as well as several expert witnesses who would testify that SBS is a questionable diagnosis, that [the] injuries were not consistent with abusive shaking, and who would provide the jury with a potential alternate cause of death,” the Supreme Court said. “In rejecting defendant’s claim for relief under Cress, the Court of Appeals relied heavily on her confession. But if a fact-finder believes the defense experts’ testimony that SBS cannot occur without an accompanying catastrophic neck injury, then the jury might conclude that defendant’s confession – obtained only after she was told that [the infant] died from shaking – was false. As we have recognized elsewhere, suspects presented with seemingly incontrovertible physical evidence of their guilt may confess falsely to ameliorate their current conditions. … And while, as the Court of Appeals noted, defendant’s actions prior to [the infant’s] death could easily be construed as indicating consciousness of guilt, … in light of the new evidence, a jury might also view defendant’s actions as those of a frantic and panicked parent. These are questions properly left to the jury.”

Accordingly, “we conclude that defendant has presented enough evidence to demonstrate that a different result on retrial is ‘probable,’” the Supreme Court held. “That is, not that the chance of acquittal is a mere possibility, but instead, there is a reasonably probable likelihood that a jury would have a reasonable doubt as to defendant’s guilt. Therefore, she is entitled to a new trial.”

Dissent: ‘Miscarriage Of Justice’

In his dissenting opinion, Justice Zahra, joined by Justice Viviano, noted that the majority found the defendant “has met the heavy burden” of demonstrating that newly discovered evidence makes acquittal on retrial likely.

“In so doing, the Court also concludes that the trial court abused its discretion both in denying the successive motion for relief from judgment and in excluding defendant’s new evidence as scientifically unreliable,” he wrote. “The conclusions of this Court are not justified. There simply is no basis in fact or law to overturn defendant’s murder conviction, which is supported by an extensive body of medical and record evidence.”

The trial court’s refusal to vacate the defendant’s conviction “based on the extraordinarily weak evidence … does not even approach an abuse of the trial court’s wide discretion,” Justice Zahra said. “To the contrary, the diligence, attention to detail, and thoughtful consideration the trial court gave to this matter should be lauded as an exemplary display of how a trial court should function. … Given the significant burden placed on defendant to obtain appellate reversal of her convictions, this Court’s decision is no less than a miscarriage of justice.”