Court-Martial Trial Practice Blog
Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009.
So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering.
There are several cases worth reading in this area, Warner, in particular is useful because the holdings of Warner are useful for any case in which the defense and prosecution need to have expert assistance. Warner was itself a shaken-baby case. In Warner the prosecution had obtained one of the best experts possible for itself and then tried to foist an unqualified "expert" on the defense. The bottom line from Warner is what I refer to as a rule of approximate parity in experts, in situations where the prosecution has experts. Of course this remains a troubling aspect of the trial counsel being an entry point and key to the defense access to witnesses in general, not just experts. See United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005). Lest the prosecution resort to United States v. Short, as justifying them having a really good expert and the defense not, the court in Warner points out that: