SCIENCE-DEPENDENT PROSECUTION AND THE PROBLEM OF EPISTEMIC CONTINGENCY: A STUDY OF SHAKEN BABY SYNDROM

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SCIENCE-DEPENDENT PROSECUTION AND THE PROBLEM OF EPISTEMIC CONTINGENCY: A STUDY OF SHAKEN BABY SYNDROM

"The path of scientific change is unforeseeable and may be marked by 
abrupt shifts in course. When these shifts occur, our criminal justice system is ill-equipped to respond expeditiously; it thus lags behind scientific 
frontiers. In an age where science-dependent prosecutions are proliferating, this failure is of particular concern. Because it is fully constructed by 
and dependent on medical expertise, Shaken Baby Syndrome (SBS) raises 
in stark form the problems that arise when science outpaces law—most 
troublingly, the prospect that we are imprisoning people who have committed no crime. The trajectory of SBS in the criminal courts reveals fundamental limitations of our system’s ability to absorb forensic advances in a 
manner consistent with the administration of justice. The law may ultimately align itself with the latest scientific thinking, but it is doing so slowly, arbitrarily, and in a wholly unreasoned (and unstudied) fashion. In the 
interim, we are witnessing patterned injustice.  
This Article constructs a conceptual framework that describes and critiques how criminal justice evolves in the wake of scientific change. It thus 
begins the process of reforming institutions, laws, and practices to better 
account for the tentative  nature of scientific orthodoxy. By priming the 
system to deal more effectively with epistemic contingency, we affirm our 
commitment to protecting the innocent."