How could a parent or caregiver be charged with abusing their child when they didn't do anything?
There are certain presumptions at work in the medical and law enforcement. Most of the medical community and almost all of the law enforcement and child protective community has bought into the shaken baby syndrome hypothesis that in the absence of any external signs of trauma, the very presence of a subdural hematoma (or hemorrhage) gives rise to a presumption that the cause of the subdural bleeding is abuse. Then (according to the hypothesis) the burden shifts to the parents to provide an “explanation” for the injury. If the parents (or caregivers) can provide no “explanation” then in their minds (and oftentimes in the mind of the court) the case for abuse has been proven. Any fractures discovered in the ribs or extremities only confirm the diagnosis of abuse.
I have not yet been charged with child abuse, but I feel like I may be charged soon. What should I do?
Typically a child abuse “expert” is interpreting the medical records. If so it is a virtual certainty that the medical diagnosis and legal conclusion will be that the child was abused by their parent or caretaker. The medical records and the interpretation of those records will convict the parent or caretaker. In order to defend your loved one you must get the medical records, and get all of the medical records, and then get a second opinion. See steps to being charged for more details on the process of being falsely accused. See getting the medical records for more information about gathering medical records.
Why would doctors not run more tests to rule out child abuse?
Keep in mind that there is a lot of political pressure in the medical community to tow the shaken baby syndrome line and doctors are oftentimes reluctant to disagree with the child abuse “expert,” at least publically. Don’t be surprised if you find that most doctors simply rubber stamp the opinion of the child abuse “expert” without really considering all of the potential alternative explanations for subdural hematoma’s or fractures. For more details see presumptions.
What happens if I'm falsely charged with child absue?
There are several different forums in which allegations of shaken baby syndrome are litigated: criminal court, family or dependency court, and child abuse registry reports. Each forum has a different burden of proof. The criminal burden of proof is beyond a reasonable doubt. Family court burden of proof can be "a preponderance of the evidence" or "clear and convincing evidence" depending on the jurisdiction. Ideally, not having criminal charges filed or getting criminal charges dropped without a trial is preferable to enduring the stress and anxiety of a criminal trial. The same is true in family or dependency court, it is preferable to avoid the dependency petition, or to get it withdrawn without having to endure a trial, if that is possible. Finally, though rare, false allegations of child abuse are litigated in child abuse registry expunction hearings. Normally an expunction hearing will not be held if there was a dependency or criminal trial. For more details see steps to being charged.
When should I hire an attorney?
The earlier you get a competent attorney involved, the better chance you have of avoiding criminal charges/ dependency petition altogether or getting the criminal charges/ dependency petition dismissed without a trial. Sometimes the most important experience an attorney possesses is his/her experience in avoiding the criminal or family court trial. In order to do that, an attorney must generally have prior experience specifically in shaken baby or child abuse cases. Keep in mind that the vast majority of attorneys have never defended any alleged shaken baby syndrome or child abuse cases, so it's very important to find an attorney that has. For more detail on Mark Freeman's experience see the cases that he has defended.
I am considering hiring another attorney, what should I ask them?
- How many cases of alleged shaken baby syndrome or child abuse have they litigated?
- How many cases did they avoid criminal charges altogether or get criminal charges dismissed after arrest?
- How many dependency petitions did they avoid altogether or get dismissed without a trial?