On November 20, 2025, the New Jersey Supreme Court decided the Middlesex County case of State v. Darryl Nieves. The principal issue concerned the scientific reliability of testimony regarding Shaken Baby Syndrome / Abusive Head Trauma.
Justice Pierre-Louis, my Rutgers Law classmate, wrote for the 6-1 majority in relevant part: In these companion cases, the young children exhibited symptoms that have come to be associated with SBS/AHT and referred to as the “triad of symptoms” — subdural hematoma, retinal hemorrhages, and encephalopathy. In both cases, the same doctor determined that the children were victims of child abuse, specifically SBS/AHT. Because the children were in the care of their fathers when they began to exhibit the above-mentioned symptoms, both men were charged with criminal offenses. The State sought to present the expert testimony of a doctor that the only explanation for the children’s symptoms, to a reasonable degree of medical certainty, was that the children were shaken by the caregiver. The defense in both cases moved to exclude the testimony, challenging the scientific basis and reliability of the theory that shaking alone, without some other impact to the head, can cause the symptoms associated with SBS/AHT.
After a hearing to explore the admissibility of the evidence in Nieves, the trial court excluded SBS/AHT testimony from the trial. The trial court in Cifelli followed suit. The appeals were consolidated and the Appellate Division affirmed. The New Jersey Supreme Court granted certification in Nieves and leave to appeal in Cifelli. The Court agrees with the trial courts and Appellate Division that the State has not met its burden in establishing the reliability of SBS/AHT testimony here.
The Court reviews the history of SBS/AHT over the past six decades. In 1968, neurosurgeon Dr. Ayub Ommaya conducted an experimental study focused specifically on whiplash injuries from car accidents. Although Dr. Ommaya’s study did not concern head trauma in infants from shaking, it became a foundation for diagnoses of SBS/AHT, particularly its conclusion that brain injuries could occur by rotational displacement of the head on the neck alone, without significant direct head impact.
In 1971, neurosurgeon Dr. Arthur Norman Guthkelch presented the theory of SBS, partially relying on Dr. Ommaya’s 1968 study. Dr. Guthkelch hypothesized that an “infant having been shaken rather than struck by its parent” might sustain a subdural hematoma.
In 1972 and 1974, pediatric radiologist Dr. John Caffey published papers on “whiplash-shaking” of infants, relying on historical cases and Dr. Ommaya’s study. In comparing the force of infant shaking with the force generated during a car accident whiplash event, Dr. Caffey stated — without elaboration or citation — that manual shaking, when repeated, “may be much more harmful to the brain” and “the veins in the eyes” than a car accident whiplash event” and that “current evidence, though manifestly incomplete and largely circumstantial, warrants a nationwide educational campaign” on the potential risks of whiplash shaking of infants. In the years following Dr. Caffey’s 1974 study, the theory of whiplash infant shaking syndrome, later referred to as shaken baby syndrome, began to gain traction in the medical community.
In 1987, Dr. Ann-Christine Duhaime, using infant models, conducted the first biomechanical study testing shaken baby syndrome and the effects of shaking without impact. Dr. Duhaime concluded that shaking alone does not produce shaken baby syndrome.
In 2002, Dr. Ommaya, whose whiplash study was the basis for Dr. Guthkelch’s conclusions and Dr. Caffey’s whiplash shaken infant syndrome hypothesis, published a study criticizing other researchers’ reliance on his own study as the scientific foundation of SBS. A decade later, Dr. Guthkelch also questioned the science behind SBS.
In 2018, while the SBS/AHT debate continued, a group of physicians and pediatric radiologists published a Consensus Statement on AHT, which the American Academy of Pediatrics later endorsed. The Consensus Statement cited to the studies by Dr. Caffey and noted Dr. Caffey’s citation to Dr. Ommaya and Dr. Guthkelch. It acknowledged Dr. Duhaime’s conclusion that shaking alone cannot generate the force needed to cause the injuries that result in SBS/AHT cases but noted that contrary evidence — confessions by caregivers — supports the argument that shaking alone can cause SBS/AHT. The Consensus Statement also noted that SBS/AHT is a medical diagnosis, not a legal finding of murder, and declared that “there is no controversy concerning the medical validity of the existence of AHT.”
“Confessions by caregivers” carry a high potential for being unreliable. Falso confessions are common, especially when inexperienced suspects are subjected to prolonged interrogations. Psychological interrogation techniques should only be used when there is strong corroborating evidence of guilt. Often, they are used in interrogations without regard for the strength of the corroborating evidence.
For expert testimony to be admissible under N.J.R.E. 702, its proponent must establish that (1) the subject matter of the testimony is beyond the ken of the average juror; (2) the field of inquiry is at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness has sufficient expertise to offer the testimony. During the relevant period, New Jersey courts relied on the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to assess the reliability prong. The Frye standard requires trial courts to determine whether the science underlying the proposed expert testimony has gained general acceptance in the field in which it belongs. In certain circumstances, there might be more than one relevant scientific community to consider. In Olenowski II, for example, the Court recognized that the relevant scientific communities in determining the reliability of Drug Recognition Expert testimony included both medicine and toxicology. State v. Olenowski (Olenowski II), 255 N.J. 529, 604 (2023). Further, courts may revisit previously accepted theories as the science develops. In State v. J.L.G., for example, the Court determined that certain expert testimony regarding Child Sexual Abuse Accommodation Syndrome no longer met the reliability prong and was therefore inadmissible in criminal trials because it was based on clinical practice and not supported by objectively tested scientific evidence.
Few New Jersey court opinions have addressed the reliability of SBS/AHT, and none involve the reliability of SBS/AHT in the context of shaking without impact. However, many cases from around the country in the past 15 years have focused on the reliability of SBS/AHT, and the Court reviews such cases. Turning to the matters before it, the Court first determines the relevant scientific community or communities for purposes of SBS/AHT. As the State’s expert testified, the starting point in the evolution of SBS/AHT was Dr. Ommaya’s 1968 whiplash study, on which Drs. Guthkelch and Caffey later relied in conceptualizing SBS/AHT. It is therefore evident that the foundation of SBS/AHT lies in biomechanical science and engineering. A scientific community is either relevant or not for purposes of determining admissibility of scientific evidence at trial — degrees of relevance are not weighed. As in Olenowski II, there can certainly be more than one relevant scientific community for purposes of Frye. Here, the relevant scientific communities for purposes of determining the reliability of SBS/AHT expert testimony are both the medical/pediatric community and the biomechanical engineering community.
The Court next considers whether, under the Frye standard of reliability, the State has met its burden of establishing that its expert’s testimony regarding SBS/AHT without impact is sufficiently reliable for admission at trial. Based on the testimony, evidence, and scientific studies and writings, the State has not met its burden of clearly establishing general acceptance in the relevant scientific communities because it has not shown general acceptance within the biomechanical community regarding whether shaking without impact can produce the “triad” of symptoms associated with SBS/AHT. The record established in the Frye hearing regarding the challenges to the science behind SBS/AHT in these matters questions the scientific and biomechanical underpinnings of the diagnosis of SBS/AHT as the sole basis for a legal finding of child abuse. As the trial court found, the evidence presented at the Frye hearing — including the testimony by the State’s single expert witness — showed that there was no test supporting a finding that humans can produce the physical force necessary to cause the symptoms associated with SBS/AHT in a child. There is evidence of general acceptance by many in the medical community, but the State must also establish general acceptance in the biomechanical community, and it has failed to do so.
The Court explains that if there is physical evidence of trauma to a child or other evidence of abuse, the State can present such evidence to a jury. And if new, reliable, scientific evidence is developed, the State can, in a future case, make a showing under the Daubert standard adopted in State v. Olenowski (Olenowski I), 253 N.J. 133, 139, 155 (2023), that expert testimony regarding SBS/AHT without impact is reliable. In such a case, scientific evidence and research, both old and new, could be presented and considered.
Justice Wainer Apter, dissenting, stresses that SBS/AHT has been explicitly affirmed by every major discipline involved in its diagnosis and treatment and expresses the view that the Court here substitutes its judgment for that of the relevant scientific community. In the few prior instances in which the Court determined that evidence did not satisfy the Frye standard, the evidence lacked the endorsement of even one major scientific association or society, whereas SBS/AHT is endorsed by all of them. Further, every other state admits expert testimony diagnosing SBS/AHT, and every other court that has considered the question has held that such evidence is admissible. The majority has allowed individual biomechanical engineers to veto the consensus perspective of every major medical society in the world — in a case about the admissibility of a medical diagnosis. Justice Wainer Apter would leave it to the jury to weigh the experts’ competing testimony.
The dissent highlights the reasons that New Jersey adopted the Daubert standard for scientific evidence after decades of using the Frye standard. The Frye standard focused almost exclusively on whether the evidence had general acceptance in the scientific community. The problem with that is that if improved testing or evidence develops, it will not be “generally accepted” at first because it is new and has not had the time necessary to gain “general acceptance.” Leaving reliability determinations to juries is problematic when an “expert” has testified because juries will not have the knowledge to meaningfully assess the credibility of an expert’s testimony.
