In a court case before Christmas, a father stood accused of causing life-threatening injuries to his son. The prosecution believed he had stuffed and/or hit the head of his three-month-old son. There was a big gap in what the experts thought was the cause of the injuries. Some thought this was the father’s fault, others argued that the injuries were due to an illness. In this trial, a total of 17 experts gave their opinions. The father was acquitted, thus giving new life to the debate about what is sufficient evidence to convict parents. “Battle of experts” The Attorney-General believes that the number of experts must be reduced in such cases and in 2021 guidelines were given around this. At a large conference in Oslo in May, Attorney General Tone Aase repeated the message at the Attorney General’s Office. – This particularly applies to the so-called ragging cases. These experts play a major role in the trials and can often be decisive for the outcome, says Aase to news. In the professional community, this is often called a “battle of experts”. The experts can be engaged both by the court, the prosecution and the defenders. Aase says that the law’s starting point is that one expert is appointed unless the court finds that two or more are needed. – At the same time, the court must be sufficiently informed, so that no innocents are convicted and so that the guilty are convicted where there is sufficient evidence. State Attorney Tone Aase from the Attorney General’s Office says it is important not to drown in discussions about individual topics, but to look at the total evidence picture. Photo: Morten Waagø / news Disagreement in the professional community The professional disagreement is about three characteristic findings in an infant’s head, and whether these can say something about whether an infant has been exposed to violence or not. In a number of cases in recent years, news has reported on the heated professional dispute about how the evidence should be interpreted in racketeering cases. There is division between different expert communities in several countries. There is professional disagreement about the diagnosis of Shaken baby syndrome. The hypothesis has been that the child was shaken so violently, that it could cause acute brain damage due to bleeding in the head. Illustration: TOM BOB PERU ARONSEN / news Disagreement about rag shaking (Shaken baby syndrome) “Shaken baby syndrome” is thought to be the result of mistreatment of infants and toddlers. The hypothesis has been that the child was shaken so violently, that it could cause acute brain damage with subdural and retinal haemorrhages. The shaking of the child is believed to trigger strong forces and correspondingly large head injuries. “Shaken baby syndrome” is characterized by a so-called triad of injuries: Brain haemorrhage outside the brain (subdural haemorrhage), haemorrhages inside the eyes (retinal haemorrhage) and other damage to brain tissue. There is a lack of scientific documentation as to whether this is correct. There is professional disagreement about the diagnosis internationally, but the Norwegian professional community believes the condition is real. A Swedish literature review (SBU report) from 2016 of nearly 3,700 research articles on “Shaken baby syndrome” concludes that there is limited knowledge base (low quality evidence) that the symptom triad can be linked to traumatic shaking, and that there is insufficient knowledge base (very low quality evidence) for the triad’s diagnostic safety in traumatic shaking. The SBU report has received criticism for alleged methodological weaknesses and contrived themes. A so-called consensus report from 2018 asserts that the rag shaking diagnosis is a widely recognized medical diagnosis. There are various theories as to what the bleeding in the head can be due to, if the cause is not rag shaking. It can be due to complications during childbirth or congenital hydrocephalus. Reference is also made to studies which show that a large proportion of children are born with a subdural haemorrhage. This often disappears by itself. Opponents of the term “Shaken baby syndrome” believe that many caregivers have been innocently convicted of having stuffed their child. At the same time, there are undoubtedly cases of child abuse in such cases. The professional community in Norway has gradually moved away from the term “Shaken baby syndrome” as this says more about the mechanism than you want to know in some cases. Instead, the term “inflicted head injury” or “Abusive head trauma” (AHT) is used. AHT takes into account that the injuries can be caused by several factors, such as shaking in combination with blunt force. Since there is doubt and disagreement among medical experts, which in turn has major consequences for the legal process, research has also been done on this in Norway. In 2020 and 2021 respectively, a legal and a medical research report came out which concluded that several parents may have been wrongly convicted. Both reports received strong criticism from the country’s leading forensic pathologists. news knows of at least four convicted parents and carers in so-called ragging cases who have requested their cases be reopened at the Readmission Commission. (Sources: Norsk Helseinformatikk, Store norske lexikon, Statens beredning för medicinsk och social utvalikningen and news) – Does not work in practice In the Attorney General’s guidelines, emphasis is placed on the fact that the person appointed as a medical expert must also shed light on any professional disagreement. One of the defenders of the father who was acquitted in the Borgarting Court of Appeal before Christmas, lawyer Henriette Willix, believes that this does not work in practice. – I think it’s good to see that someone from the “established view” explains different points of view in his statement, says Willix. Defense attorney Henriette Willix urged the experts to be open and humble in their assessments. Photo: Morten Waagø / news In addition, she believes that it is the same experts, from the same side of the debate, who repeat themselves in all these cases. Willix says that this was mentioned in the sentence from Borgarting. – So if there had been a good representation of both views in this medical debate, we would not have been sitting here talking about the number of experts as an isolated question in itself, says Willix. From the judgment in the Borgarting Court of Appeal; “However, the majority agrees with the district court when it appears in the judgment on page 13 that the experts’ general view of the connection between rag shaking and the triad may have influenced their assessments and conclusions in this case. » – Wants to confuse Attorney General Andreas Strand was also on the podium during the conference in Oslo. He was the prosecutor in the aforementioned trial with the defendant’s father in the Borgarting Court of Appeal, where 17 experts gave their opinions. Strand himself had engaged one of them. Strand nevertheless believes that this creates a difficult situation for the judges in court. – It is clear that at some point we must try to reduce the number of experts used a little. Here, there will probably be a lot for the court to deal with, Strand explains to news. State Attorney Andreas Strand spoke in particular about the ragging cases in his presentation during the conference which brought together 175 participants from the police, child protection, health, forensic medicine and the judiciary. Photo: Morten Waagø / news Strand believes that stricter requirements must be placed on the experts. – They must be clear about whether the view they present is based on theories or generally accepted medical knowledge, says Strand. Strand says that he has seen several examples of such statements that the Forensic Medicine Commission has criticized. – Another recurring objection is that the declarations under-communicate that hypotheses are promoted rather than knowledge, says Strand. During the conference, Strand called the defenders’ strategy in such cases an “oversimplification in combination with confusion”. – An injustice may have occurred Henriette Willix says she is surprised by State Attorney Strand’s views. – I think I really want to turn that claim straight back to both the police and the prosecution. As a defender, you have to find out whether there could be other reasons for the medical findings in a child, other than violence. Willix is working on several reopening cases. She believes that judicial murder may have been committed in this field in recent years. During the conference, she warned against excessive confidence from the experts. She believes that in some cases it has been established too quickly that a child has been exposed to violence. And that it is therefore the prosecution and the experts who have been guilty of an oversimplification. – This applies especially in slightly old cases. We are keen to present this criticism against the somewhat simplified medical diagnostics that many of these, let’s call them traditional, experts have presented, says Willix. – Need more voices Willix believes that the disagreement in the professional circles means that you need more voices in the courtroom. In addition, she believes that it is often absolutely necessary to have different professional expertise in order to be able to interpret different findings in a young child. – So there must be a concrete assessment in each individual case based on the individual child, the findings in the case and the circumstances in general that provide an answer to the question of whether there should be one or more experts, says Willix. Hello! Do you have any thoughts on this matter? Or perhaps you have tips that we should take a closer look at? Feel free to get in touch. We are a group of journalists at news who have been reporting on this topic since 2018, and we are working to uncover possible miscarriages of justice in this field in the judiciary. Telephone: +47 905 04 257 The Attorney General’s guidelines regarding ragging cases The Attorney General has issued some guidelines to handle the expert debate within the ragging cases. Regarding the need for the appointment of more experts, this is stated: “The professional disagreement that has come to light raises the question of whether there is a need to appoint other or more experts. As is well known, this is an issue that can be raised in all types of cases where there is a need for expertise. There is reason to recall the starting point of the law that the court appoints one expert unless the court finds that two or more are needed, cf. Criminal Procedure Act § 139. In cases that raise demanding questions about the causes of damage of the kind that are central to the current debate , it is a question of whether more experts should be appointed and so that the different views in the professional environment are represented. As appears below, however, the experts must explain any professional disagreement. Furthermore, it is not necessarily in the best interests of the case’s disclosure that (even) more experts are appointed. Academic disagreement should therefore, as a general rule, not in itself lead to the appointment of more experts. The need for expertise must be assessed concretely on a case-by-case basis. Although efforts should be made to limit the number of experts, it is important that experts with the right expertise in the various specialist areas are appointed. Expert knowledge from various professional environments can be obtained by an appointed forensic pathologist, who will also shed light on any professional disagreement. In complicated cases, there may still be a need to appoint experts from various medical professions. Ideally, the prosecuting authority should try to avoid that it is the same persons who are appointed in most of these types of cases. At the same time, it must be recognized that the professional environment is relatively small, so that it can be difficult to avoid this. The decisive factor for the appointment should be the subject’s professional competence, as well as whether the expert has sufficient and up-to-date experience in the field.” Facts about experts in criminal cases Doctors’ medical expertise and assessments are often in demand in cases before the courts. They may be asked to be a witness, expert witness or court-appointed expert. Court-appointed expert: Appointed by the court to give an expert opinion on a matter in a case of which the members of the court cannot otherwise be expected to have sufficient knowledge. The court is responsible for ensuring that the case is fully disclosed. Anyone appointed by the court to serve as an expert is obliged to undertake the position. Before the court appoints someone as an expert, it should usually ask him if he is willing. If he declares his unwillingness, he should not be appointed if there is an opportunity to appoint someone else, cf. strpl. § 138 The prosecuting authority can request the court’s appointment of experts for use in the investigation, cf. strpl. § 237 Experts must assist the court, the statements are indicative and do not bind the court in its decision on the case. Expert witness: An expert witness stands in an intermediate position between witnesses and experts. An expert witness is appointed by one of the parties, and contributes both with the actual course of events and professional assessments. Appointed by the party, gives an account of experiences, observations and makes professional assessments The rules for witnesses apply In civil cases, expert witnesses can follow the negotiations in their entirety and ask questions unless they have to explain the course of events Remuneration must be agreed with the client (Source: Legeforeningen)
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The Attorney General wants fewer experts in cases of violence against children – news Innlandet – Local news, TV and radio
