Given the significant questions regarding the scientific and biomechanical underpinnings of SBS/AHT, practitioners should seek to exclude or, alternatively, limit testimony where the diagnosis of SBS/AHT is the sole basis for a legal finding of child abuse. First, Michigan courts have already raised concerns regarding the reliability of SBS/AHT as a diagnosis.¹³ The Nieves opinion referenced our Supreme Court’s decisions in Ackley and Lemons and builds on these decisions by taking the next step of excluding the evidence altogether when the diagnosis is based upon shaking alone.¹⁴

Second, although the decision was an application of the Frye standard and Michigan is a Daubert¹⁵ jurisdiction, Nieves still provides strong persuasive authority for practitioners seeking to challenge the admissibility of expert testimony regarding SBS/AHT under MRE 702.¹⁶ The opinion details the failure of early literature involving SBS/AHT to include biomechanical analysis, the lack of consensus among biomechanical engineers generally regarding shaking alone as a mechanism of AHT, and the fact that “no biomechanical study has shown that shaking alone results in the symptoms associated with SBS/AHT.”¹⁷

In addition, the opinion highlights the prosecution’s reliance on “confession studies” to support their claim that SBS/AHT based on shaking alone is a reliable diagnosis. As the Nieves Court explained, “confessions are not scientific.”¹⁸ An individual’s confession to a particular action does not equal the controlled setting of a scientific study where results can be replicated and their accuracy can be confirmed. These studies do not account for false or partial confessions which further undermines their reliability.¹⁹

Furthermore, although MRE 702 incorporates Daubert’s standards of reliability, “[i]t has not altered the court's fundamental duty of ensuring that all expert opinion testimony—regardless of whether the testimony is based on ‘novel’ science—is reliable.”²⁰ Our Supreme Court, in Gilbert, also made it clear that “the court's gatekeeper role is the same under Davis–Frye and Daubert” and that “both tests require courts to exclude junk science.”²¹ The difference between the Frye standard the New Jersey Supreme Court applied in Nieves and Michigan’s Daubert framework is that “Daubert simply allows courts to consider more than just ‘general acceptance’ in determining whether expert testimony must be excluded.²²

Already, litigants in other jurisdictions are submitting arguments and supplemental pleadings relying on Nieves to request relief for their clients. Attorneys in Michigan should do the same.²³