# State v. Darryl Nieves; State v. Michael Cifelli > Supreme Court of New Jersey · November 20, 2025 URL: https://www.frixlaw.com/law-library/cases/11264339 ## Case - **Court:** Supreme Court of New Jersey - **Decided:** November 20, 2025 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11264339 ## How later opinions describe it (automated extraction) - affirming defendant’s conviction and holding that SBS/AHT testimony was properly admitted at trial because it was sufficiently reliable - reversing the denial of a motion for a new trial and remanding so that “a jury [c]ould be faced with competing credible medical opinions” on the reliability of SBS/AHT evidence - affirming the trial court’s decision to vacate the defendant’s conviction and grant a new trial because advancements in science and medicine constituted newly discovered evidence calling into question the validity of the SBS/AHT diagnosis ## Opinion text SYLLABUS This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion. State v. Darryl Nieves (A-26/27-23) (088683) Argued October 21, 2024 -- Decided November 20, 2025 JUSTICE PIERRE-LOUIS, writing for the Court. In this appeal, the Court considers whether expert testimony regarding Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) is sufficiently reliable to go before a jury in two separate cases -- State v. Nieves and State v. Cifelli. In both matters, 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, reviewed in detail on pages 29-57 of the Court’s opinion, 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 Court granted certification in Nieves and leave to appeal in Cifelli. 256 N.J. 451 (2024). HELD: 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. 1. The Court reviews the history of SBS/AHT over the past six decades (pp. 9-26): • 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 1 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 “[c]urrent 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 “[t]here is no controversy concerning the medical validity of the existence of AHT.” 2 2. 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 particular 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. 234 N.J. 265, 272, 291 (2018). (pp. 78-83) 3. 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. (pp. 83-91) 4. 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. (pp. 92-94) 5. 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 3 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. (pp. 94-107) 6. 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. (p. 108) AFFIRMED. 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. Justice Wainer Apter writes that, 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, Justice Wainer Apter notes, 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. Justice Wainer Apter writes that 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. CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE PIERRE-LOUIS’s opinion. JUSTICE WAINER APTER filed a dissent. 4 SUPREME COURT OF NEW JERSEY A-26/27 September Term 2023 088683 State of New Jersey, Plaintiff-Appellant, v. Darryl Nieves, Defendant-Respondent. State of New Jersey, Plaintiff-Appellant, v. Michael Cifelli, Defendant-Respondent. On certification to and appeal from the Superior Court, Appellate Division, whose opinion is reported at 476 N.J. Super. 609 (App. Div. 2023). Argued Decided October 21, 2024 November 20, 2025 David M. Liston, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Yolanda Ciccone, Middlesex County Prosecutor, attorney; David M. Liston, of counsel and on the briefs). 1 Cody T. Mason, Deputy Public Defender II, argued the cause for respondent Darryl Nieves (Jennifer N. Sellitti, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs). Philip Nettl argued the cause for respondent Michael Cifelli (Benedict Altman and Nettl, attorneys; Philip Nettl, on the briefs). Elizabeth H. Wallace, Deputy Attorney General, argued the cause for amici curiae Attorney General of New Jersey and New Jersey Division of Child Protection and Permanency (Matthew J. Platkin, Attorney General, attorney; Jeremy M. Feigenbaum, Solicitor General, Angela Cai, Deputy Solicitor General, Sookie Bae-Park, Assistant Attorney General, and Steven A. Yomtov, Deputy Attorney General, of counsel, and Elizabeth H. Wallace, Regina M. Oberholzer, Deputy Attorney General, and Christopher Ioannou, Deputy Attorney General, on the brief). T. Gary Mitchell, Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey, Office of Parental Representation (Jennifer N. Sellitti, Public Defender, attorney; T. Gary Mitchell, of counsel and on the brief). Kelly S. Crawford submitted a letter in lieu of a brief on behalf of amici curiae The Innocence Network and Center for Integrity in Forensic Sciences (Riker Danzig, attorneys). Audra J. Soloway (Paul, Weiss, Rifkind, Wharton & Garrison) submitted a brief on behalf of amici curiae Dr. Jacob Andersson, Prof. Anders Eriksson, Dr. John Galaznik, Dr. Patrick Hamel, Dr. Ulf Högberg, Dr. Lawrence Hutchins, Dr. Charles J. Hyman, Prof. Niels Lynøe, Dr. Marvin Miller, Dr. David Ramsay, Dr. Cyrille Rossant, Dr. Robert K. Rothfeder, Dr. Irene Scheimberg, Dr. Joseph Scheller, Dr. Guillaume Sébire, Dr. Waney 2 Squier, Dr. Dale Vaslow, Dr. Knut Wester, and Dr. R.K. Wright (Paul, Weiss, Rifkind, Wharton & Garrison, and Innocence Project, Inc., attorneys; Audra J. Soloway, of counsel and on the brief, and David Cole (Paul, Weiss, Rifkind, Wharton & Garrison) of the Massachusetts bar, admitted pro hac vice, Carter E. Greenbaum (Paul, Weiss, Rifkind, Wharton & Garrison) of the New York and California bars, admitted pro hac vice, and Tania Brief (Innocence Project, Inc.) of the New York bar, admitted pro hac vice, on the brief). Lawrence S. Lustberg submitted a brief on behalf of amici curiae Lindsay “Dutch” Johnson, Ph.D., Ken Monson, Ph.D., Kirk Thibault, Ph.D., D-IBFES, Keith Button, Ph.D., PE, and Johan Ivarsson, Ph.D. (Gibbons, attorneys; Lawrence S. Lustberg and Ruth O’Herron, on the brief). CJ Griffin submitted a brief on behalf of amici curiae Dr. Jeff Kukucka, Ph.D., Keith A. Findley, Esq., Dr. Deborah Davis, Ph.D., and Dan Simon, Esq. (Pashman Stein Walder Hayden, attorneys; CJ Griffin, Claude Caroline Heffron, Christian Martinez, and Dominique Kilmartin, on the brief). Mary Beth Hogan submitted a brief on behalf of amici curiae Family Justice Resource Center, upEND Movement, MJCF Coalition, and Mothers Outreach Network (Debevoise & Plimpton, attorneys; Mary Beth Hogan, on the brief). Alexandra S. Jacobs (Montgomery McCracken Walker & Rhoads) submitted a brief on behalf of amici curiae American Academy of Pediatrics, New Jersey State Chapter of the American Academy of Pediatrics, American Association for Pediatric Ophthalmology and Strabismus, American Society of Pediatric Neurosurgeons, American Society of Pediatric Neuroradiology, American Professional Society on the Abuse of Children, Society for Pediatric Radiology, and 3 The Ray E. Helfer Society (Montgomery McCracken Walker & Rhoads, and Kienbaum Hardy Viviano Pelton & Forrest, attorneys; Alexandra S. Jacobs, of counsel and on the brief, and David Porter (Kienbaum Hardy Viviano Pelton & Forrest) of the Michigan bar, admitted pro hac vice, on the brief). David M. Goodman submitted a brief on behalf of amici curiae Dr. Richard A. Leo, Dr. Hayley Cleary, Dr. Kyle Scherr, Dr. Lucy Guarnera, Dr. Saul Kassin, Dr. Lindsay Malloy, Dr. Christian Meissner, Dr. Allison Redlich, and Dr. Melissa Russano (Simpson Thacher & Bartlett, attorneys; David M. Goodman, and Matthew C. Penny of the New York bar, admitted pro hac vice, on the brief). Richard P. Lomurro submitted a brief on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Lomurro Munson, attorneys; Richard P. Lomurro, and Christina Vassiliou Harvey, of counsel and on the brief, and Andrew B. Broome, on the brief). JUSTICE PIERRE-LOUIS delivered the opinion of the Court. Table of Contents I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. HISTORY OF SBS/AHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 III. FACTS & PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . 26 A. State v. Nieves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1. Facts and Pre-Hearing Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 27 2. The Frye Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. Trial Court Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 B. State v. Cifelli . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 4 C. Consolidated Appellate Division Decision . . . . . . . . . . . . . . . . . . . . . 64 D. Review and Amicus Participation Granted . . . . . . . . . . . . . . . . . . . . . 68 IV. PARTIES’ ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69 A. State of New Jersey and Amici Supporting the State’s Position . . . . . 69 B. Nieves and Cifelli and Amici Supporting Their Position . . . . . . . . . . .72 V. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 B. Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 C. Case Law Addressing SBS/AHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 VI. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 A. The Relevant Scientific Communities . . . . . . . . . . . . . . . . . . . . . . . . 92 B. Application of the Frye Standard of Reliability . . . . . . . . . . . . . . . . . 94 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 I. INTRODUCTION Many crimes grip the hearts and minds of the public due to their cruel and heinous nature. The abuse of children, some of the most vulnerable members of our society, is certainly such a crime. Child abuse is, without question, reprehensible. Regardless of the severity or viciousness of a crime, however, the bedrock foundations and protections embedded within our system of criminal justice must prevail. Under one of those core principles, only evidence that is sufficiently reliable and has probative value not outweighed by the evidence’s 5 prejudicial effect may be presented to the jurors to inform their consideration of the charges against the accused. That requirement extends to expert testimony, which must be properly admitted like all evidence. “[T]he Judiciary must ensure that proceedings are fair to both the accused and the victim. Trial judges partly fulfill that responsibility by serving as a gatekeeper.” State v. J.L.G., 234 N.J. 265, 307 (2018). Pursuant to N.J.R.E. 702, judges “must assess whether expert testimony is sufficiently reliable before it can be presented to a jury.” Id. at 308. “Given an expert witness’s singular status in the courtroom,” State v. J.R., 227 N.J. 393, 411 (2017) -- an expert witness is presented as having been deemed, by the court, sufficiently knowledgeable to offer testimony beyond the specifics of a particular case -- legislatures and courts have developed particular inquiries to assess the admissibility of proposed expert testimony. The standard to admit expert testimony that governed at time of the proceedings in this case was the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 1 Under the Frye standard, such testimony must 1 In Olenowski I, this Court rejected the Frye standard and adopted “principles similar to the standard outlined in Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] to examine the admissibility of expert evidence in criminal and quasi-criminal cases.” State v. Olenowski (Olenowski I), 253 N.J. 133, 139, 155 (2023). Criminal matters that originated and were ruled upon before Olenowski I, such as this one, are nonetheless governed by the Frye standard 6 not only be reliable, but its proponent must establish that the information to which the expert will testify is generally accepted in the relevant community to which the expertise belongs. In this appeal, we are asked to determine whether expert testimony regarding Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) 2 is sufficiently reliable to go before a jury in two separate cases. In both matters, 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, after the children to assess the reliability prong. Id. at 154 (“Nothing in today’s decision disturbs prior rulings that were based on the Frye standard.”). 2 Although Shaken Baby Syndrome “is a term often used by physicians and the public to describe abusive head trauma inflicted on infants and young children,” the American Academy of Pediatrics (AAP), in 2009, changed the name from Shaken Baby Syndrome to Abusive Head Trauma because “advances in the understanding of the mechanisms and clinical spectrum of injury associated with abusive head trauma compel[led the AAP] to modify [its] terminology to keep pace with . . . understanding of pathological mechanisms” of injury. Cindy W. Christian, Robert Block, & Comm. on Child Abuse & Neglect, Abusive Head Trauma in Infants and Children, 123 Pediatrics 1409, 1409 (2009). According to the AAP, it adopted the term AHT “in recognition of the fact that inflicted head injury of children can involve a variety of biomechanical forces, including shaking.” Sandeep K. Narang et al., Abusive Head Trauma in Infants and Children, 145 Pediatrics Apr. 2020, at 1, 1. The AAP noted that it “continues to embrace the ‘shaken baby syndrome’ diagnosis as a valid subset of the AHT diagnosis.” Ibid. As such, throughout this opinion we use the combined term SBS/AHT. In discussing the history of SBS/AHT, we use the terminology in use at the time. 7 were examined by various medical specialists and a series of tests were run, 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, including aggravated assault and child endangerment. The State sought to present the expert testimony of a doctor who opined, based on her findings, 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. That is, the anticipated testimony to the jury would be that, based on the expert’s medical evaluation of the child, the child was abused. The defense in both cases moved to exclude the doctor’s expert 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. Defendants argued that the scientific community no longer accepts that theory. After a Frye hearing, the trial court in one matter granted the defense motion and excluded SBS/AHT testimony from the trial. The second trial court followed suit. The appeals were consolidated and the Appellate Division affirmed. 8 For all the reasons that follow, we agree with the trial courts and Appellate Division that the State has not met its burden in establishing the reliability of SBS/AHT testimony in this case, and we affirm the Appellate Division’s judgment. II. HISTORY OF SBS/AHT Before detailing the facts and procedural history of the matters before us, we provide the following background on the origins and evolution 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.” Ayub K. Ommaya et al., Whiplash Injury & Brain Damage: An Experimental Study, 204 J. Am. Med. Ass’n. 285, 285 (1968). In the study, Dr. Ommaya subjected monkeys to a whiplash event that mimicked rear-end car collisions. Id. at 286. Specifically, anesthetized monkeys were secured to a carriage on roller-skate type wheels, equipped with a braking mechanism, that could move freely along a 20-foot-long track. Ibid. 9 In delivering controlled blows to the rear of the carriage, the sudden impact produced “high accelerations of the carriage and forward-facing monkey so as to mimic a rear-end collision.” Ibid. The carriage was accelerated to a speed of 30 miles per hour. 3 The whiplash that resulted was recorded by “a high- speed, 16-mm movie camera at 1,000 frames/sec.” and the “rotational velocity and acceleration” of the monkeys’ heads were calculated. Ibid. Even though the monkeys did not sustain significant direct head impact during the whiplash event, Dr. Ommaya concluded that whiplash “without direct impact to the head” can cause concussions and “produce consistent brain damage in the monkey as evidenced by subarachnoid and subdural hemorrhage [and] cerebral contusions.” Id. at 285. Dr. Ommaya’s study determined that “it is a matter of crucial importance that we investigate and manage the clinical problems of whiplash injuries” because whiplash injuries “may be of significant importance in producing the effects of closed-head injuries under conditions when the head is free to move.” Id. at 289. 3 Although the acceleration speed was not specifically noted in the 1968 study, Dr. Ommaya clarified in a later study, discussed more fully below, that the energy level of acceleration in the whiplash study “related to speeds at motor vehicle crashes at 30 mph.” A. K. Ommaya et al., Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 Brit. J. of Neurosurgery 220, 221 (2002). 10 In 1971, neurosurgeon Dr. Arthur Norman Guthkelch presented the theory of SBS, partially relying on Dr. Ommaya’s 1968 study. See A.N. Guthkelch, Infantile Subdural Haematoma and its Relationship to Whiplash Injuries, 2 Brit. Med. J. 430, 430 (1971). Dr. Guthkelch hypothesized that an “infant having been shaken rather than struck by its parent” might sustain a subdural hematoma. Ibid. Dr. Guthkelch studied “[t]wenty-three cases of proved or strongly suspected parental assault on children all under the age of 3 years.” Ibid. Subdural bleeding was present in 13, and in five cases no external marks of injury to the head were present. Id. at 430-31. Dr. Guthkelch concluded that “in considering any case of infantile subdural haematoma, even when there are only trivial bruises or indeed no marks of injury at all,” one must inquire as to whether “the baby’s head could have been shaken.” Id. at 431. Dr. Guthkelch stated that the most common cause of subdural hemorrhages in infants is the rupturing of one or more of the bridging veins which run from the cerebral cortex (the outermost layer of gray matter in the brain) to the venous sinuses, id. at 430, which drain deoxygenated blood from the brain. Dr. Guthkelch posited that this rupture could occur as a result of both impact and non-impact events involving the head. Ibid. 11 Dr. Guthkelch did not conduct any scientific studies in support of his hypothesis, save for an experiment using a round-bottomed glass flask filled with fluid and desiccated coconut, which he both shook and struck, in order to observe the movement of the coconut in response to those actions. See id. at 431. Dr. Guthkelch analogized his observations to Dr. Ommaya’s determinations regarding the movement of the brain in monkeys subjected to a whiplash event. Ibid. Dr. Guthkelch further credited Dr. Ommaya’s study with giving him the idea to construct the round-bottomed flask device that informed his study and conclusions. Ibid. In 1972, pediatric radiologist Dr. John Caffey published a paper in which he studied 27 cases believed to involve the shaking of infants or “whiplash-shaking,” as he termed the action. John Caffey, On the Theory and Practice of Shaking Infants: Its Potential Residual Effects of Permanent Brain Damage and Mental Retardation, 124 Am. J. Diseases Child. 161, 161, 164 (1972). Dr. Caffey, citing to four of his own previous papers, noted that “[d]uring the last 25 years, substantial evidence, both manifest and circumstantial, has gradually accumulated which suggests that the whiplash- shaking and jerking of abused infants are common causes of” trauma to the skeleton and brain. Id. at 161. 12 Dr. Caffey did not conduct any biomechanical experiments himself. Instead, to arrive at his conclusions, he reviewed historical cases in which “whiplash-shaking” was suspected. See id. at 163-64. One such case -- for which he cited to an article in Newsweek -- involved a nurse who was “reported to have killed three infants and maimed 12 others . . . largely by shaking and jolting infantile brains and their blood vessels” via whiplash- shaking and “pounding on the back during burping.” Id. at 163. Dr. Caffey also cited Dr. Guthkelch’s 1971 study for examples of admitted shaking by a caregiver where subdural hematoma, retinal hemorrhages, and a broken femur were present. Ibid. Several of the cases Dr. Caffey studied involved shaking with impact, including one child’s head banging against her crib during a shaking incident and another child being “shaken and beaten to death with a stick.” Ibid. Dr. Caffey’s study also cited cases of infant bone fractures and included numerous x-ray images of unexplained fractures of infant femurs, ankles, and arms. Id. at 162-64. In one case, an infant’s unexplained swelling and trauma to his legs was revealed to have resulted from his own brother when the parents saw the eight-year-old brother seize his infant sibling by the legs, “sh[ake] him violently, and sw[i]ng him, and fl[i]ng him onto a bed.” Id. at 164. The study does not explain whether the infant suffered cranial injuries or 13 subdural hematomas as a result and noted only the trauma to the infant’s femurs. Id. at 163-64. In his study, Dr. Caffey also noted that “[t]here are several apparently innocent, accepted, habitual practices, other than intentional shaking and jerking, which whiplash the head and brain, and which could lead to permanent brain damage.” Id. at 165. Dr. Caffey listed a number of activities that can result in subdural hematomas in infants, including “tossing the baby into the air,” spinning an infant around, and flipping an infant so that the infant is somersaulted forward while someone is holding the child’s wrists. Ibid. The study also recommended that certain toys and equipment, such as baby bouncers; infant jumpers; seesaws; play slides; “powered cradles and powered rocking horses; trampolines; skateboards[;] and sled jumping,” should be more carefully assessed for their dangerousness or banned entirely for infants and young children. Ibid. Dr. Caffey posited that whiplash-shaking possibly played a role in other diagnoses including “cerebral palsies and idiopathic epilepsy” and concluded that “[t]here is considerable manifest and much circumstantial evidence which indicates that whiplash-shaking and jolting of infantile heads may be major, unrecognized causes of mental retardation and permanent brain damage.” Id. at 168-69. Dr. Caffey concluded his paper by suggesting that “[t]he wide 14 practice of habitual whiplash-shaking for trivial reasons warrants a massive nationwide educational campaign to alert everyone responsible for the welfare of infants on its potential and actual pathogenicity.” Id. at 169. Again, Dr. Caffey did not conduct any biomechanical experiments of his own in support of that study and relied on the review of cases from other studies, including Dr. Guthkelch’s 1971 study. In 1974, Dr. Caffey authored another study in which he coined the phrase “whiplash shaken infant syndrome.” John Caffey, The Whiplash Shaken Infant Syndrome: Manual Shaking by the Extremities with Whiplash- Induced Intracranial and Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396, 396 (1974). In that study, Dr. Caffey reviewed purported “[d]irect evidence of trauma through admission by the parent-assailant,” but noted that although such evidence, “based on admission by the assailant, is meager, it is valuable because it is reliable.” Id. at 397. With that study, Dr. Caffey identified what he believed were the “essential elements” of whiplash shaken infant syndrome, including subdural and retinal hemorrhages, id. at 396, 402, two of the three symptoms that would later be referred to as the “triad” of symptoms indicative of shaken baby syndrome. 15 Dr. Caffey once again cited to Newsweek’s account of the infant nurse as “[b]y far the most extensive anecdotal proof of pathogenic manual [whiplash shaking]” based on the nurse’s confession to the “savage shakings of dozens of infants.” Id. at 397. Dr. Caffey again referenced an eight-year-old sibling who shook his infant brother. See id. at 398. Because no citation was included for the case, it is unclear whether that is the same case he referred to in his 1972 article. But in that 1974 paper, Dr. Caffey specifically stated that subdural hematoma was not detected in that infant. See ibid. The 1974 study also included incidents not solely related to shaking without impact, including a case of a father who first attempted to strangle his infant child and later shook the child to revive them after the infant passed out. Ibid. In that case, Dr. Caffey concluded that “it is likely that the stresses of strangling as well as those of manual [whiplash shaking] contributed to the [infant’s] intraocular changes and possibly the subdural hematomas.” Ibid. Dr. Caffey further discussed the correlation between retinal hemorrhages and whiplash shaking. Id. at 400. He noted that one study found that, out of 1,238 newborns, 14% had retinal hemorrhages immediately after birth. Ibid. According to Dr. Caffey, however, that percentage dropped significantly to 2.6% between the infant’s third and fifth day after birth, indicating that retinal hemorrhages due to birth disappear rather quickly, as opposed to “retinal 16 hemorrhages in abused infants [that can] persist[] for ten years and in one case for 19 years.” Ibid. Dr. Caffey concluded that “[t]he preponderance of the evidence from several sources indicates that the idiopathic retinal hemorrhages of the newborn infant are not due to trauma at the time of birth and the retinal hemorrhages found in battered and shaken infants are probably caused by postnatal manual shaking.” Ibid. (emphases added). To support his whiplash shaken infant syndrome hypothesis, Dr. Caffey cited Dr. Ommaya’s 1968 whiplash study. He noted that Dr. Ommaya’s study found that concussions could occur “by rotational displacement alone of the head on the neck.” Id. at 402. Dr. Caffey posited that “[r]otation of the head is of course a consistent additional stress in the manual . . . shaking of infants.” Ibid. 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 “[i]t is obvious that although the single manual shake of an infant may be less forceful and pathogenic than the single whiplash in an automobile accident,” manual shaking, when repeated, nevertheless “may be much more harmful to the brain” and “the veins in the eyes.” Ibid. He concluded his paper by stating that “[c]urrent evidence, though manifestly incomplete and largely circumstantial, warrants a nationwide educational 17 campaign” on the potential risks of whiplash shaking of infants. Id. at 403 (emphasis added). Once again, Dr. Caffey did not conduct any scientific experiments in that study and relied on anecdotal reported cases and case studies. 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. 4 That acceptance was based almost entirely on Dr. Guthkelch and Dr. Caffey’s case studies, both of which relied on Dr. Ommaya’s scientific study as the sole source of experimental scientific 4 There was little research regarding SBS/AHT following Dr. Caffey’s 1974 study until Dr. Duhaime’s in 1987. See Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Wash. U. L. Rev. 1, 12 (2009) (discussing the “new ‘evidence-based medicine’” standards that led to heightened scrutiny and a resurgence of SBS/AHT related literature “in the mid- to late-1990s”); Jack R. Shepard et al., Child Abuse and Exploitation: Investigative Techniques 26-29 (2d ed. 1992) (describing SBS/AHT); Julie Jonas, Unequal Funding Compounds Tragedy: Failures in Defending Against Shaken Baby Syndrome Charges, 96 Temp. L. Rev. 135, 148 (2024) (discussing the history of SBS/AHT’s acceptance and noting that its acceptance was “[b]ased only on the case studies by Dr. Guthkelch and Dr. Caffey” and Dr. Ommaya’s research); Christian, Block, & Comm. on Child Abuse & Neglect, 123 Pediatrics at 1409 (explaining the history of SBS/AHT’s acceptance); Wajd N. Al-Holou et al., Nonaccidental Head Injury in Children: Historical Vignette, 3 J. Neurosurgery Pediatrics 474, 480-81 (2009) (discussing Dr. Guthkelch’s and Dr. Caffey’s work as the foundation of SBS/AHT’s acceptance). But see Stephen Ludwig & Matt Warman, Shaken Baby Syndrome: A Review of 20 Cases, 13 Annals Emergency Med. 104, 104-07 (1984) (reviewing 20 incidents of SBS/AHT). 18 data behind the theory, notwithstanding the fact that Dr. Ommaya’s study had nothing to do with the shaking of infants. See Sissoko v. State, 182 A.3d 874, 899 (Md. Ct. Spec. App. 2018) (discussing the history of SBS/AHT); see also Commonwealth v. Martin, 290 S.W.3d 59, 62-63 (Ky. Ct. App. 2008) (describing testimony that discussed the history of SBS/AHT). In 1987, Dr. Ann-Christine Duhaime conducted the first biomechanical study testing shaken baby syndrome and the effects of shaking without impact. Ann-Christine Duhaime et al., The Shaken Baby Syndrome: A Clinical, Pathological, & Biomechanical Study, 66 J. Neurosurgery 409, 409 (1987). The study authors reviewed all cases of SBS at the Children’s Hospital of Philadelphia (CHOP) from January 1978 to March 1985. Id. at 409-10. Out of the 48 cases for which clinical data was available, only one involved shaking without impact, and 15 cases -- the largest percentage -- were cases of accidental blunt trauma, usually from a fall. Id. at 410. After reviewing the cases, Dr. Duhaime determined that pathological examinations revealed that “all of the children who died had evidence of blunt head trauma.” Id. at 411. Those findings of impact, however, were visible only at the time of autopsy in seven of the thirteen cases resulting in death because the trauma was not apparent prior to the children’s deaths. Ibid. 19 Importantly, after conducting a biomechanical study using infant models, Dr. Duhaime concluded that “shaking alone does not produce the shaken baby syndrome.” Id. at 409. Dr. Duhaime used infant models and implanted “an accelerometer to measure the results of shaking or impact manipulations.” Id. at 411. Dr. Duhaime sought to determine what level of force, both acceleration and deceleration, is generated by shaking alone and, separately, by impact to the head. See id. at 413. The models were shaken violently and repetitively. Ibid. The back of models’ heads were then struck against a metal bar or a padded surface. Ibid. According to Dr. Duhaime, the results showed that the acceleration and velocity levels for shaking fell well below the threshold at which injuries, such as concussions and subdural hematomas, occurred in previous studies using primates. Id. at 414. The results further showed that the forces generated as a result of impact fell within the acceleration and velocity ranges expected in cases in which concussions, subdural hematomas, and diffuse axonal injury, a type of traumatic brain injury, were present. 5 Ibid. In short, Dr. Duhaime’s study was not able to 5 Specifically, Dr. Duhaime determined that the average peak acceleration for the shaking episodes was 9.29 g, whereas the average peak acceleration for the impact events was 428.18 g, over 50 times more. Id. at 413. A “g” is the “force of gravity or acceleration on the body.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/g-force (last visited Oct 31, 2025). 20 generate, in the infant models, the forces necessary to result in the relevant brain injuries by shaking alone. See id. at 413-14. Based on her biomechanical experiment and review of SBS cases at CHOP, Dr. Duhaime concluded that “shaken baby syndrome, at least in its most severe acute form, is not usually caused by shaking alone.” Id. at 414. Dr. Duhaime added that “[a]lthough shaking may, in fact, be a part of the process, it is more likely that such infants suffer blunt impact. The most common scenario may be a child who is shaken, then thrown into or against a crib or other surface, striking the back of the head.” Ibid. (emphasis added). In 1993, the American Academy of Pediatrics (AAP) released its first statement on the theory of SBS. Citing in part to both Drs. Guthkelch and Caffey, the AAP’s statement noted that “data regarding the nature and frequency of head trauma consistently support a medical presumption of child abuse when a child younger than 1 year of age has intracranial injury.” Am. Acad. of Pediatrics, Comm. on Child Abuse & Neglect, Shaken Baby Syndrome: Inflicted Cerebral Trauma, 92 Pediatrics 872, 872 (1993) (emphasis added). The AAP’s statement mentioned Dr. Duhaime’s experimental study, simply noting that “a challenge to the presumption that the shaking alone is the sole source of the trauma” arose from Dr. Duhaime’s study. Ibid. The AAP statement related to children believed to have been 21 shaken, with or without impact. Ibid. The statement advised medical professionals on the clinical features of SBS and the role of specialized disciplines in recognizing SBS. Id. at 873-74. The statement further suggested that a diagnostic team of specialists be formed, with medical professionals in pediatrics, radiology, neurology, neurosurgery, and ophthalmology. Id. at 874. The AAP’s statement did not discuss the Guthkelch and Caffey studies in depth and did not mention or cite to Dr. Ommaya’s 1968 study. 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.K. Ommaya et al., Biomechanics and Neuropathology of Adult and Paediatric Head Injury, 16 Brit. J. Neurosurgery 220 (2002). Dr. Ommaya cautioned that “[i]t is improbable that the high speed and severity of the single whiplash produced in our animal model could be achieved by a single manual shake or even a short series of manual shaking of an infant in one episode.” Id. at 221. Dr. Ommaya further noted that Dr. Caffey, Dr. Guthkelch, and others referenced by analogy his 1968 study “not realizing that the energy level of acceleration in [his] work related to speeds at 22 motor vehicle crashes at 30 mph.” Ibid. Dr. Ommaya acknowledged that “it is possible that continued repetitive shaking over a period of time, or shaking repeated at intervals can produce significant cerebral as well as cervical spinal cord trauma in an infant.” Id. at 225 (emphasis added). Regarding the biomechanics of retinal hemorrhages, Dr. Ommaya opined that “the levels of force required for retinal bleeding by shaking to damage the eye directly is biomechanically improbable,” given that small masses like the eye require levels of force even higher than larger masses like the brain. Id. at 233. Significantly, Dr. Ommaya critiqued the assumptions upon which theories about mechanisms of pediatric retinal and brain injuries in literature have been based. Id. at 227. Those assumptions included the following: short falls cannot cause subdural hematomas; retinal hemorrhages result from shaking; and the time interval between the onset of symptoms as a result of SBS is always brief. Ibid. Dr. Ommaya stated that “[t]hese assumptions individually and in concert are ambiguous or incorrect” even though those very assumptions had been used as the bases for the differential diagnoses of SBS, “usually without reference to available biomechanical analysis.” Ibid. A decade after Dr. Ommaya signaled that SBS lacked an underlying scientific foundation, Dr. Guthkelch, whose study relied on Dr. Ommaya’s whiplash experiment and was in turn cited by Dr. Caffey, also questioned the 23 science behind SBS. A.N. Guthkelch, Problems of Infant Retino-Dural Hemorrhage with Minimal External Injury, 12 Hous. J. Health L. & Pol’y 201, 201 (2012). In his article, Dr. Guthkelch noted that the controversy surrounding SBS/AHT had risen to a level of emotion and divisiveness “that has interfered with our commitment to pursue the truth.” Ibid. According to Dr. Guthkelch, his 2012 article, which was not a study, was “a call for civility in scientific discourse.” Ibid. Dr. Guthkelch identified several problems with the SBS/AHT theory and concluded that given the science, it does not follow that “one can infer shaking (or any other form of abuse) from a finding of retino-dural hemorrhage in infancy.” Id. at 203. Dr. Guthkelch pointed out that there “seem to have been instances in which both medical science and the law have gone too far in hypothesizing and criminalizing alleged acts of violence” when the only evidence was the presence of the triad of symptoms or just one or two symptoms of the triad. Id. at 203-04. Dr. Guthkelch further stated that “SBS and AHT are hypotheses that have been advanced to explain findings that are not yet fully understood.” Id. at 207. In acknowledging that there is nothing wrong with advancing hypotheses, Dr. Guthkelch noted that “[i]t is wrong, however, to fail to advise parents and courts when these are simply hypotheses, not proven medical or 24 scientific facts, or to attack those who point out problems with these hypotheses or who advance alternatives. Often, ‘getting it right’ simply means saying, clearly and unequivocally, ‘we don’t know.’” Ibid. In 2018, while the SBS/AHT debate continued, a group of physicians and pediatric radiologists published a consensus statement on AHT (the Consensus Statement) which the AAP later endorsed. The Consensus Statement purports to “address[] significant misconceptions and misrepresentations about the diagnosis of [AHT] in infants and young children,” noting that, “[r]ecently, denialism of child abuse has become a significant medical, legal and public health problem.” Arabinda Kumar Choudhary et al., Consensus Statement on Abusive Head Trauma in Infants and Young Children, 48 Pediatric Radiology 1048, 1050 (2018). The Consensus Statement further noted that “the courtroom has become a forum for speculative theories” regarding SBS/AHT, despite the fact, according to the Consensus Statement, that “[SBS/]AHT is a scientifically non-controversial medical diagnosis.” Id. at 1048-49. As a result of what the authors deemed SBS/AHT “denialists” and the sensationalized critique of SBS/AHT in the media, the Consensus Statement authors stated that they hoped the document would reduce confusion and help courts “recognize unsubstantiated medical expert testimony.” Id. at 1049, 1060. 25 The Consensus Statement cited to the studies by Dr. Caffey and noted Dr. Caffey’s citation to Dr. Ommaya and Dr. Guthkelch. Id. at 1051. Among other conclusions, the authors of the Consensus Statement discounted short- distance falls as a possible cause of subdural hematomas and retinal hemorrhages. Id. at 1052. They 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. Id. at 1051. The Consensus Statement also noted that SBS/AHT is a medical diagnosis, not a legal finding of murder, contrary to the arguments of defense attorneys. Id. at 1059. The Consensus Statement declared quite definitively that “[t]here is no controversy concerning the medical validity of the existence of AHT.” Id. at 1048. III. FACTS & PROCEDURAL HISTORY We next turn to the facts and procedural history of the two cases that gave rise to this appeal. 26 A. State v. Nieves 6 1. Facts and Pre-Hearing Proceedings Respondent Darryl Nieves is the father of D.J., who was born prematurely at 25 weeks due to complications his mother experienced during her pregnancy. After his birth in March 2016, D.J. remained at Saint Peter’s University Hospital through October 2016, aside from two hospital stays at CHOP for cardiac surgery in May and July 2016. After being discharged, D.J. resided with his mother and Nieves, who were his primary caregivers. In February 2017, D.J. -- 11 months old at the time -- had three episodes of seizure-like behavior over the course of two weeks. During the first episode, Nieves was home alone with D.J. and was changing his diaper when D.J. went limp and passed out. Nieves attempted to revive D.J. by blowing in his mouth, and he called D.J.’s mother and 9-1-1. By the time paramedics arrived, D.J. was alert. The parents took D.J. to the pediatrician to follow up and he was diagnosed with acid reflux. A few days later, the second seizure episode occurred. While Nieves was changing D.J.’s diaper, the child passed out and went limp again. Nieves applied oxygen with a nasal cannula, a device that delivers supplementary oxygen to someone in need of respiratory 6 The facts in this section are derived from D.J.’s medical records and testimony elicited at the Frye hearing. 27 assistance. The third episode began several days later. Nieves picked up D.J. to change his diaper and D.J. went stiff and his jaw locked. Nieves brought D.J. upstairs to his mother, and they called an ambulance. She took a video of D.J. that showed him not responding to stimulation, with one arm stiff and the other flexed, and eyes deviated to the left. The ambulance transported D.J. to Saint Peter’s where he was admitted. Those events triggered a child abuse investigation. Dr. Gladibel Medina, a child abuse pediatrician and the medical director at the Dorothy B. Hersh Regional Child Protection Center at Saint Peter’s, prepared a report after reviewing D.J.’s medical history and interviewing Nieves and D.J.’s mother. While at the hospital, medical staff discovered that D.J. had bilateral retinal hemorrhages -- described as extensive, too numerous to count, involving multiple layers of the retina and extending to the periphery -- and bilateral subdural bleeding with both new and old blood present. Dr. Medina noted in her report that D.J. “had a detailed review of his neonatal course and comprehensive medical workup and follow-up by pediatricians and pediatric subspecialists,” which included doctors with expertise in neurology, genetics, hematology, neuroradiology, and pediatric ophthalmology, as well as a retinal specialist. 28 That comprehensive medical evaluation did not reveal any pathology to account for D.J.’s bilateral subdural bleeds, extensive bilateral retinal hemorrhages, or neurological symptoms observed in early February 2017. Dr. Medina noted in her report that D.J. did not sustain any reported accidental injuries in February 2017. Thus, based on D.J.’s history and symptoms when he was admitted, Dr. Medina diagnosed D.J. with SBS/AHT, with or without impact, “within a reasonable degree of medical certainty.” In the wake of Dr. Medina’s diagnosis, on June 30, 2017, a Middlesex County grand jury indicted Nieves, charging him with second-degree aggravated assault and second-degree endangering the welfare of a child. Judge Pedro J. Jimenez, Jr., presided over the matter. 2. The Frye Hearing In July 2018, Nieves moved before the trial court for a Frye hearing to challenge the scientific reliability of the SBS/AHT hypothesis and to preclude Dr. Medina’s SBS/AHT testimony at trial. Nieves argued that SBS/AHT was no longer accepted in the scientific community. The court initially granted Nieves’s request for a Frye hearing. Thereafter, the State filed a motion for reconsideration. Based in part on Judge Benjamin S. Bucca, Jr.’s denial of a Frye hearing in State v. Cifelli, which we discuss later, the court granted the State’s motion and reversed its prior order, effectively denying Nieves a Frye 29 hearing. The Appellate Division granted Nieves’s motion for leave to appeal and remanded for a Frye hearing. Judge Jimenez conducted that hearing over the course of five days. The State presented one witness, Dr. Medina. Nieves presented three expert witnesses: (1) Dr. Joseph Scheller, who testified as an expert in the fields of pediatric neurology and neuroimaging; (2) Dr. Julie Mack, who testified as an expert in the fields of radiology and pediatric radiology; and (3) Dr. Chris Alan Van Ee, who testified as an expert in biomechanics. Additionally, the parties introduced into evidence and discussed numerous scientific studies and articles during the hearing. a. Dr. Gladibel Medina According to Dr. Medina, the evaluation of a child when SBS/AHT is suspected involves consultation with specialists including geneticists, hematologists, radiologists, and ophthalmologists to determine whether there is a possible disease, medical issue, or pathology that might be contributing to the child’s symptoms. Dr. Medina testified that such specialists work together to provide child abuse pediatricians with a full history of the child’s health. Dr. Medina testified that the SBS/AHT diagnosis is widely accepted within the medical community and accepted by all the pediatric subspecialties involving intracranial injury. On cross-examination, Dr. Medina agreed that there are no 30 specific diagnostic criteria to define SBS/AHT; there are only symptoms a child may exhibit when doctors are looking to see whether to diagnose SBS/AHT. Dr. Medina testified about the history and origins of SBS/AHT. Dr. Medina stated that “the field of abusive head trauma or the recognition of inflicted head injury in medicine is about 160 years” old. Dr. Medina discussed medical literature from the mid-19th century that identified injuries in children believed to be “associated with maltreatment by care givers.” Dr. Medina then noted that approximately 80 years later, Dr. Guthkelch identified subdural hematomas in children with no external signs of trauma -- which was strongly associated with physical abuse. She further testified that in the 1970s, Dr. Caffey began using terminology that referred to inflicted trauma in infants caused by shaking-type injury. Dr. Medina also testified about the study Dr. Ommaya conducted in 1968. She explained that “what we know about shaking, and the established thresholds for intracranial injury comes from that study” and that “everything else in biomechanics is based on those injury thresholds” from that study. Dr. Medina stated that the validity of SBS/AHT as a diagnosis has not changed in the medical community but has been challenged in terms of the mechanism of shaking as the cause of injury in the scientific community studying 31 biomechanics. She submitted that the controversy about SBS/AHT in biomechanics is focused on whether shaking can cause the forces needed to generate intracranial injury in infants. Regarding other biomechanical studies inspired by Dr. Ommaya, Dr. Medina acknowledged that Dr. Duhaime’s study found that shaking alone did not generate enough rotational forces but shaking with impact did. Dr. Medina agreed that, since Dr. Duhaime’s 1987 study, there is debate about whether shaking alone can reach the force that would cause retinal hemorrhages and subdural hematomas. Dr. Medina explained that the Duhaime study was confirmed by Dr. Michael T. Prange, 7 who, in 2003, used a different wooden mass body-type surrogate to conclude that the threshold for intracranial injury by shaking must produce force like that involved in a short (or higher) distance fall, and that one could not reach the minimum established threshold by shaking alone. Regarding biomechanics, when defense counsel asked, “when we talk about biomechanics, your opinion is based on acceleration and deceleration of a baby,” Dr. Medina answered affirmatively, and added “[o]f the baby’s head.” When asked whether she could explain acceleration and deceleration forces 7 Michael T. Prange et al., Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants, 99 J. Neurosurgery 143 (2003). 32 beyond her answer that “[i]t’s just movement of the head in different planes inside the intracranial cavity,” Dr. Medina stated that she could not. Dr. Medina further testified about two 2016 studies -- one conducted by Carole A. Jenny 8 and another conducted by C.Z. Cory 9 -- that used different models and changed the pattern of the shaking. Dr. Medina testified that the researchers varied the biomechanics of the dolls, which allowed for chin-to- chest impact and impact between the very back of the skull and the back. Dr. Medina noted that those studies, which as she testified included shaking with some impact, “actually surpassed the injury thresholds produced by the original Ommaya study.” When asked about studies conducted by Dr. John W. Finnie, in which anesthetized lambs were shaken, Dr. Medina agreed that all the lambs had spinal injuries and two out of seven in the first study had retinal hemorrhages. In Finnie’s 2010 and 2012 studies, the lambs were vigorously shaken 10 times for 30 seconds over the course of 30 minutes without head impact to determine what injuries would occur with shaking alone. J.W. Finnie et al., 8 Carole A. Jenny et al., Biomechanical Response of the Infant Head to Shaking: An Experimental Investigation, 34 J. Neurotrauma 1579 (2017). 9 C.Z. Cory & M.D. Jones, Can Shaking Alone Cause Fatal Brain Injury? A Biomechanical Assessment of the Duhaime Shaken Baby Syndrome Model, 43 Med. Sci. L. 317 (2003). 33 Neuropathological Changes in a Lamb Model of Non-accidental Head Injury (the Shaken Baby Syndrome), 19 J. Clinical Neurosci. 1159 (2012); John W. Finnie et al., Diffuse Neuronal Perikaryal Amyloid Precursor Protein Immunoreactivity in an Ovine Model of Non-accidental Head Injury (the Shaken Baby Syndrome), 17 J. Clinical Neurosci. 237 (2010). The 2010 study noted that a “small subdural haemorrhage was found in two shaken lambs” out of the seven lambs tested, and “retinal haemorrhages were minimal and only seen in two” lambs. Finnie et al., 17 J. Clinical Neurosci. at 239. In the 2012 Finnie study that used nine lambs of varying weights, the study noted that three of the nine lambs, the lower-weight lambs, died before the six-hour mark at which the researchers planned to kill and then study the lambs. Finnie et al., 19 J. Clinical Neurosci. at 1160. Although the 2012 study mentions that “retinal damage” was found in the shaken lambs, “retinal hemorrhages” were not specifically noted as they were in the 2010 study, and in 2012 the authors stated that “no [retinal] haemorrhage was found in the serial histological sections of the retina.” Id. at 1159, 1162-64. Dr. Finnie’s 2012 study further 34 noted observed injury to the brainstem 10 and craniocervical junction. 11 Id. at 1159, 1161. Although the authors of Finnie’s 2012 study concluded that shaking alone resulted in the death of the three lower-weight lambs and that the lack of evidence of impact does not negate the occurrence of non- accidental head injury if the head is impacted on a soft surface, the authors nevertheless advised that a “diagnosis of [non-accidental head injury] should be concluded with caution, unless there is other corroborating evidence of abuse or a convincing admission by the perpetrator.” 12 Id. at 1164. 10 The brainstem is “[t]he part of the brain that is connected to the spinal cord. The brain stem is in the lowest part of the brain (just above the back of the neck) and is made up of the midbrain, pons, and medulla oblongata.” Nat’l Cancer Inst., Brain Stem, https://www.cancer.gov/publications/dictionaries/ cancer-terms/def/brain-stem (last visited Oct. 30, 2025). 11 “The craniocervical junction forms the bridge between the skull and the spine, a highly mobile group of joints that allows the mobility of the head in every direction. [It] plays a major role in protecting the inferior brainstem and spinal cord.” Juliette Raoul-Duval et al., Geometric Growth of the Normal Human Craniocervical Junction from 0 to 18 Years Old, 245 J. Anatomy 842 (2024) (parentheticals omitted). 12 Finnie’s lamb studies suffer from the same limitations of other studies in attempting to replicate an infant model. Finnie himself recently acknowledged the difficulties in the use of animal and mechanical models in noting that “[d]ue largely to irreconcilable anatomic species differences between animal brains and human infants, and a lack of resemblance of the shaking induced by mechanical devices to real-world human neurotrauma, no animal model has been able to reliably reproduce the full range of neuropathologic AHT changes.” John W. Finnie & Peter C. Blumbergs, Animal Models of Pediatric Abusive Head Trauma, 38 Child’s Nervous Sys. 2317 (2022). Finnie further 35 Dr. Medina also discussed benign enlargement of the subarachnoid space (BESS). She described BESS as a medical diagnosis that puts infants at an increased risk for subdural trauma, which she described as trauma to the bridging veins that come from the brain to the dura (the sinus drainage). Dr. Medina explained that BESS is associated with trauma to the bridging veins with minimal movement involved, which causes subdural bleeding, predisposes the infant to trauma, and is called benign because it does not cause outward signs of trauma. Dr. Medina stated that to differentiate between BESS and SBS/AHT, doctors must look at the whole clinical picture and should never make a diagnosis of SBS/AHT based on one finding. Dr. Medina noted that doctors rely on the “triad” of symptoms to flag concern for SBS/AHT and to conduct further investigation. She stated that the triad of symptoms presents as the following: (1) subdural hemorrhages (bleeding in the brain); (2) severe retinal hemorrhages (bleeding in the retina/eye); and (3) any neurological presentation known as encephalopathy, which presents as unresponsiveness, apnea, seizures, or altered mental states. stated that “it is unlikely that any animal model will be able to precisely replicate the complete range of brain and ocular lesions to support a diagnosis of AHT in human infants.” Id. at 2322. 36 She explained that there are different types of subdural hemorrhages based on the cause of the hemorrhage. Most of the time, she stated, subdural hemorrhages are caused by trauma; among young children, the most common trauma is birth, and birth-related subdural hemorrhages usually resolve four to six weeks after birth. Dr. Medina testified that subdural hematomas can be associated with retinal hemorrhages and stated that those observed in inflicted injury cases have a distinct pattern that differs from hemorrhages caused by disease, illness, or accidental trauma aside from motor vehicle roll-overs or other certain medical conditions. She testified that when subdural hematomas coexist or are identified in a child with severe retinal hemorrhages -- meaning hemorrhages that are multilayered and too numerous to count -- it raises even more of a concern for SBS/AHT. According to Dr. Medina, if the symptoms of the triad remain unexplained after a thorough review, then medical literature confirms the symptoms “to be more specific for inflicted head injury.” Dr. Medina testified that the SBS/AHT diagnosis thus requires an elimination of other possible causes of the infant’s symptoms. Dr. Medina stated that the diagnosis is a multidisciplinary process and noted that the diagnostic process and diagnosis 37 itself are well-established and widely accepted in the medical community, and are reliable. Regarding D.J., the child in Nieves, Dr. Medina testified that she evaluated him on February 15, 2017, five days after he was admitted to Saint Peter’s. Dr. Medina stated that after D.J. arrived at the hospital, doctors evaluated him, looking for any other potential abnormalities. D.J. had an ophthalmological examination that revealed severe multilayered retinal hemorrhages in both eyes. Following that examination, the hospital contacted the Division of Child Protection and Permanency (DCPP), and enlisted the assistance of the Dorothy B. Hersh Child Protection Center in its evaluation of D.J. Dr. Medina explained that a neuroradiologist diagnosed D.J. with subdural bleeds and a pediatric ophthalmologist diagnosed him with severe retinal hemorrhages, which the ophthalmologist documented was “consistent with nonaccidental trauma.” Dr. Medina confirmed that after obtaining the findings of the subspecialists, she met with D.J.’s parents, who explained that between February 3 and February 10, 2017, D.J. experienced three different episodes while Nieves was the primary caregiver. Noting that D.J. had heart defects, Dr. Medina described D.J.’s birth history as very complicated because he was born extremely premature. She testified that D.J. had mild retinopathy, or 38 abnormally growing blood vessels, in the back of his eye when he was born, but he was reevaluated at six months and was found to have healthy mature retinas without any abnormalities. Regarding his altered mental state, Dr. Medina noted that D.J. was a healthy baby and that there were no concerns in terms of seizure-like activity until the events in February 2017. On cross- examination, however, Dr. Medina conceded that when a baby is born at 25 weeks as D.J. was, there would be medical problems present at birth. She further stated that although the cause is unknown, male premature babies are especially prone to subdural hematomas at birth and that “there are problems that can present months later.” Dr. Medina found that D.J., then 11 months old, was developmentally delayed, was at the developmental stage of a three or four-month-old infant, and was starting to roll over but could not do much else. Though D.J. was able to babble and smile, he did not have good head control and had decreased muscle tone for his age, which, Dr. Medina explained, is not unusual when it comes to children born as prematurely as D.J. Dr. Medina stated that D.J.’s parents denied any history of accidental trauma. Both parents mentioned that D.J.’s half-brother had been jumping in the crib with him the month prior, a few days before the first incident, but the parents reported that D.J. was smiling at the time and did not appear injured. 39 Dr. Medina stated that she diagnosed D.J. with “abusive head trauma through shaking” within a reasonable degree of medical certainty. Dr. Medina testified that she reached that diagnosis because D.J. presented to the hospital with “altered mental status, subdural hemorrhages, and retinal hemorrhages in the pattern that is severe and usually associated with very specific circumstances,” but did not have evidence of hyperacute increase in intracranial pressure, an aneurysm, or potential accidental trauma. Dr. Medina testified that D.J.’s symptoms were not accounted for by a metabolic disorder or accident; and every other possible explanation was ruled out by the treating providers. Regarding her report, in which she wrote that the tearing of the bridging vein in D.J.’s brain caused his subdural hematomas, Dr. Medina conceded that no studies show a relation between tearing of a bridging vein and subdural hematomas. 13 Dr. Medina further testified that she made an assumption in coming to that conclusion. Dr. Medina confirmed that her physical 13 The dissent appears to argue that Dr. Medina’s concession that she is unaware of any studies that show a relation between the tearing of the bridging vein and subdural hematomas is of no consequence and cites the Consensus Statement to support that argument. Post at ___ (slip op. at 11 n.3.) To the contrary, the fact that the State’s expert witness is unaware of purportedly well-documented information regarding a factor considered in the medical diagnosis she made in this case supports the unreliability of her testimony, particularly since Dr. Medina wrote in her report that D.J.’s subdural hematoma was caused by the tearing of the bridging vein. 40 examination of D.J. did not reveal any bruises on his arms, neck, or rib cage, or any spinal injuries. Although Dr. Medina’s report stated a diagnosis of “abusive head trauma, as it occurs with a shaking event with or without impact,” during her testimony on cross-examination, Dr. Medina agreed that “with impact” would mean “D.J. was shaken and hit against something,” and Dr. Medina confirmed that there was no indication that D.J.’s head hit against anything. 14 The trial court also asked Dr. Medina some clarifying questions. [The court]: These diagnoses that you make to conclude [SBS/AHT], you used the word probabilities. Is that really all they’re pretty much based on? An elimination of factors, and what’s left is a probable result? [Dr. Medina]: Elimination of things that can account for the findings. .... [The court]: [W]e can agree that we’re talking about possibilities, or probabilities[?] [Dr. Medina]: Yes. [The court]: Not anything certain[], okay? And you reached these probabilities and possibilities by way of process of elimination[?] 14 Dr. Medina later testified in response to questions from the trial court that D.J. did not “have any external signs of impact.” 41 [Dr. Medina]: And what’s been documented in the literature. In further response to the trial judge’s questions, Dr. Medina explained that there was no way to specifically test for the exact cause of D.J.’s retinal hemorrhages. However, she stated that the patterns of retinal hemorrhages he presented are known to be associated with inflicted and traumatic injuries, and that the cases involving confessions confirmed this. The court then asked, “even the literature reaches all conclusions by way of process of elimination, right? Based on testing done?” Dr. Medina answered, “[b]ased on what is seen with accidents and not.” The court asked Dr. Medina whether “the best [she] can do is say that there was some kind of inflicted trauma?,” to which she responded “yes.” b. Dr. Joseph Scheller Dr. Joseph Scheller is a pediatric neurologist currently employed in private practice who testified for the defense. Dr. Scheller noted that he has been involved with studying and reviewing SBS/AHT for approximately 20 years and that he is aware of the modern debate about SBS/AHT. Regarding biomechanics, Dr. Scheller noted that biomechanical studies are ways to measure forces. He stated that the first biomechanical study of shaking alone was conducted by Dr. Duhaime in 1987. He stated that Dr. 42 Duhaime’s experiment could not create forces inside the head that were powerful enough to create a subdural hematoma. On cross-examination, Dr. Scheller agreed that Dr. Duhaime’s ultimate conclusion was only that SBS/AHT in its most severe acute form, meaning fatality, could not usually be caused by shaking alone. Dr. Scheller further testified that there have not been any subsequent biomechanical studies that have been able to produce the amount of force needed to cause a baby to suffer a subdural hematoma with shaking alone. Dr. Scheller acknowledged that he did not know what happens when an adult shakes an infant six-months or younger but noted that he was sure that violent shaking is “not a good thing.” Dr. Scheller further noted that nobody knows for sure what happens because there have been no reports of witnessed shaking where the result was subdural hematomas, retinal hemorrhages, or neck injury. 15 He explained that for almost any other disease 15 In their briefing, both the State and the defense cite to a study involving witnessed shaking that was published after Dr. Scheller testified at the Frye hearing. See Kenneth W. Feldman et al., Abusive Head Trauma Follows Witnessed Infant Shaking, 31 Child Abuse Rev., 2022, at 1, 1. The State argues that the Feldman study supports the theory that shaking alone causes the symptoms associated with SBS/AHT. The defense argues that the study’s results do not support that proposition given the small percentage of children studied that experienced symptoms associated with SBS/AHT and the limitations of the study. In the Feldman study, researchers examined 23 cases of witnessed shaking without impact and described 10 in greater detail. Id. at 3. Of those 23 cases, five children experienced subdural hemorrhages, retinal hemorrhages, and neurological symptoms; another five experienced 43 or medical problem, there is quite good scientific data, but for SBS/AHT, the scientific data is sorely lacking. Regarding confessions, Dr. Scheller contrasted confessions, which he characterized as unreliable due to coercion and inaccuracies, and medical history, freely provided by a patient or caregiver to a doctor when asked why they are seeing a doctor. In terms of specific symptoms and their relationship to SBS/AHT, Dr. Scheller explained that although subdural hematomas and retinal hemorrhages can be symptoms of SBS/AHT, a child can be diagnosed with SBS/AHT absent those symptoms. Further, he noted that the same was true of seizures, bruising, broken ribs or bones, neck injuries, or other external signs of trauma. Dr. Scheller then described the report he wrote regarding D.J. He stated that he reviewed D.J.’s birth and nursery records, pediatric visits, his Saint Peter’s hospitalization in 2017, and all of the radiology images -- X-rays, neurological symptoms but no subdural or retinal hemorrhaging. Id. at 3-6. Of the five children that experienced the three symptoms associated with SBS/AHT, two had other signs of abuse, including multiple femur and tibia fractures as well as healing rib fractures. Id. at 6. The study noted that “[a]lthough shaking is rarely witnessed, these cases support that shaking alone can cause typical AHT injuries.” Id. at 1. The authors, however, identified limitations of the study in noting that “[w]itness statements might be inaccurate or modified by self-interest. Problems with witness observations, recollection and completeness of their statements could hamper some results.” Id. at 8. 44 ultrasound scans, CAT scans, and MRI scans. In his report, Dr. Scheller constructed a timeline of what happened medically to D.J. and concluded that there was no evidence at all that D.J. was a victim of abuse. Dr. Scheller then testified about D.J.’s MRI images taken in February 2017. In certain images he pointed out what he described as a subdural hygroma, which is fluid that collects in the space between the brain and the skull that the body does not know how to get rid of. He testified that a subdural hygroma is caused by a minor trauma. He noted that subdural hygromas are a common finding in children born prematurely. Dr. Scheller stated that he believed D.J.’s subdural hygroma was caused by his prematurity. He reminded the trial court that D.J. was born extremely prematurely and weighed only 600 grams (approximately 1.3 pounds) at birth. He explained that sometimes there can be no symptoms associated with hygromas and at other times there can be poor feeding and poor weight gain because there is pressure from that fluid on the brain, which causes irritation and can cause seizures and sometimes delays in development. Dr. Scheller explained that a bridging vein is a big vein usually found near the top of the brain that collects blood and brings it back to the larger blood vessels that deliver it to the heart. He stated that if a bridging vein ruptured, it would cause a large blood clot. Dr. Scheller testified that a blood 45 clot found in D.J.’s MRI was not large and was just a sliver of a blood clot. Furthermore, he believed D.J. had a subdural hygroma and that he had a seizure on or around February 10 that certainly could have been caused by the large fluid collection that was irritating his brain. He explained that such a fluid collection could cause neurological symptoms because it squeezes the brain a little and the brain can become irritated. Defense counsel asked Dr. Scheller about what conditions were known to cause retinal hemorrhages, to which he replied that the number one condition in the world that causes them is “being born normal.” He explained that one-fifth to one-third of perfectly normal babies in the nursery have retinal hemorrhages. He then testified regarding a study performed by Dr. Natalia Callaway 16 on retinal and optic nerve hemorrhages in newborn infants in 2016. He explained that in the study, researchers looked at more than 200 perfectly normal newborns shortly after they were born to examine their eyes and determine if they had retinal hemorrhages. He stated that researchers found that 20 percent had retinal hemorrhages and that out of that 20 percent, about 70 percent had multilayer retinal hemorrhages. Dr. Scheller further expressed on cross-examination that pediatric ophthalmologists are experts in describing, 16 Natalia F. Calloway et al., Retinal and Optic Nerve Hemorrhages in the Newborn Infant: One-Year Results of the Newborn Eye Screen Test Study, 123 Ophthalmology 1043 (2016). 46 detailing, and making sure that retinal hemorrhages do not affect the vision and can perform surgery, if needed, to repair the eye, but they are not experts in determining the cause of retinal hemorrhages. Dr. Scheller testified that babies develop retinal hemorrhages at birth because their heads are squeezed during the birthing process, creating circulation problems in the brain, and because of the dramatic change from fetal circulation to normal circulation. Dr. Scheller opined that he believed D.J.’s retinal hemorrhages were caused by an accumulation of too much fluid and too much pressure in between the brain and the inside of his skull. He explained that children who are abused often have indicia such as fractured bones, neck injury, bruises, or internal organ injuries, but D.J. did not. He stated that he believed D.J. has another condition, hygroma, that mimics SBS/AHT that Dr. Medina did not consider. Dr. Scheller noted that nowhere in Dr. Medina’s report did she rule out chronic hygroma as a diagnosis. Dr. Scheller also said that he did not rule out SBS/AHT in D.J.’s case, but he noted that there are no specific criteria in the diagnosis of SBS/AHT, and that there were very few findings consistent with an SBS/AHT diagnosis in D.J.’s case. Dr. Scheller confirmed that in his medical opinion, to a reasonable degree of scientific certainty, D.J. was not the victim of SBS/AHT. 47 On redirect, defense counsel asked Dr. Scheller one question: whether there was “a study that shows a human can shake a baby causing the triad of injuries,” to which Dr. Scheller responded that “[t]here is not.” c. Dr. Julie Mack Dr. Julie Mack, M.D., an assistant professor of radiology at the Penn State College of Medicine at the Penn State Milton S. Hershey Medical Center in Hershey, Pennsylvania, was qualified as an expert in the field of radiology and pediatric radiology. Dr. Mack testified about subdural collections around the brain and stated that such collections can occur without trauma and without predisposing conditions. Dr. Mack stated that the term subdural is used to refer to anything that disrupts the connection between the arachnoid and the dura -- it can be fluid, old blood, new blood, or a combination of blood plus fluid. She explained that sometimes subdural hemorrhage is used as a catch-all phrase. Next, Dr. Mack explained that BESS is an anatomic variation that is poorly understood and occurs when there is more fluid than is typically seen around the brain -- sometimes in the subarachnoid space, sometimes in the subdural space. She stated that some infants who have BESS may have seizures, or changes in the eyes such as a downward gaze and lethargy. Dr. Mack further noted that it is unknown how many patients have BESS but do 48 not present with symptoms. Dr. Mack agreed with counsel that an infant could present with BESS subdural collections with very little trauma. Dr. Mack explained that it is not understood why some infants get BESS and others do not, or why it is more common in males. She stated that BESS is sometimes associated with a large head and is more common in premature infants. Dr. Mack also described a network of blood vessels and cells in certain areas of the brain, called the plexus, which can bleed without trauma. She testified that it is not known why the dural plexus can bleed without trauma, and that doctors do not even understand why those vessels are there. Dr. Mack testified that confirmatory tests are critically important because doctors cannot perform experiments, and that there is no confirmatory test for SBS/AHT. She stated that the lack of a confirmatory test affects the accuracy of the scientific literature, and that the literature on SBS/AHT is flawed because of a built-in confirmatory bias. She discounted data in the literature interpreted to show a 96 percent accuracy rate of retinal hemorrhages in diagnosed SBS/AHT cases. Regarding D.J., Dr. Mack testified that there were no signs of trauma in D.J.’s scans: no soft tissue swelling, no skull fracture, and no abnormality within the brain itself. She described the importance of D.J.’s medical history as showing the subarachnoid space slowly expanding over time. She further 49 explained her opinion that D.J. had benign external hydrocephalus (BEH) -- subdural fluid collections in the context of enlarged subarachnoid spaces -- which are typically diagnosed only after children present with symptoms that often include seizures, lethargy or sleepiness, or not eating well. In discussing D.J.’s retinal hemorrhages, Dr. Mack testified that retinal hemorrhages have been associated with BEH, sometimes being severe. Dr. Mack stated that if a pediatrician showed her scans like D.J.’s and claimed that retinal hemorrhages meant abuse, she would caution that the other relevant data -- no brain injury, enlarging subarachnoid space over time, and fluid collection -- cannot be ignored. She explained that assigning a label of abuse in a case like this one would be a circular argument that ignores the data on the imaging and sequence of films. With regard to D.J.’s imaging, Dr. Mack explained that she would have called the emergency room to say that he had subdural hemorrhages and asked about any history to understand why. She further stated that it was appropriate that D.J.’s initial evaluation phase was reported as a potential abuse case. She agreed on cross-examination that shaking is dangerous and said that it could particularly cause injuries to the neck. Regarding D.J.’s February 13, 2017 image, Dr. Mack explained that she could not tell whether what occurred there was accidental or inflicted. She testified that there has not been good evidence 50 that shaking can cause bridging vein rupture, although there has been literature that presumes that it does. On cross-examination, Dr. Mack agreed that she had never conducted a child abuse evaluation and that radiologists do not treat patients. In discussing BESS, the State contended that the scans prior to February 13, 2017, were normal. Dr. Mack disagreed, stating that the subarachnoid space slowly enlarged over time, so she would not call the scans normal, but they could reasonably be characterized as what can be seen among infants, and that the scans reflected BESS, a finding that was left untreated. Dr. Mack testified that the premise that shaking alone could cause the injuries described in Dr. Medina’s report was a heated controversy and that she did not think a finding of SBS/AHT could be made based on D.J.’s images. d. Dr. Chris Alan Van Ee Dr. Chris Alan Van Ee, an engineer who focuses on impact biomechanics and mechanical engineering, defined biomechanics as the application of mechanical principles to biological structures. He explained that impact biomechanics looks at the human body from a mechanical perspective to try to understand what forces or accelerations give rise to injury. 51 He testified that the forensic aspect involves looking at whether an injury could be identified as trauma and what acts could have produced it. In discussing angular acceleration, Dr. Van Ee stated that angular acceleration -- which is how quickly the spin of something changes, here, the spin of the head -- could give rise to things like subdural hematoma or intracranial hemorrhage, i.e., hemorrhage inside of the skull around the brain. Dr. Van Ee explained that, for example, if a merry-go-round stopped abruptly, how quickly the stop occurred would be angular acceleration. He testified that the faster the stop occurs, the greater the angular acceleration, and the slower the stop occurs, the slower the angular acceleration. Dr. Van Ee testified about how SBS/AHT relates to biomechanics. He stated that SBS/AHT is a hypothesis whereby if someone holds a child by the torso and shakes the child, the child’s head would go back and forth, creating “angular accelerations of the head that are sufficient to rip bridging veins and cause injury to a child.” Dr. Van Ee explained that if a biomechanics analysis were conducted, it would determine what those angular accelerations are and whether those angular accelerations are consistent or inconsistent with what we know causes injury in a car crash or in a fall. When asked whether biomechanics provides a way to test the hypothesis of shaking, he answered that science can be used to test it, but there is no perfect test. 52 Dr. Van Ee explained the distinction between a whiplash event and a shaking event, stating that Dr. Ommaya’s 1968 study used a sled that “accelerate[d] th[e] chair with the primate in it at speeds representative of a 30-mile-per-hour crash” -- which was a whiplash event. He explained that in some whiplash events, for example if someone sitting at a red light was rear- ended by a vehicle traveling at five miles per hour, he could look at the head acceleration and compare it to a shaking event. He continued that in a low- speed incident like that, the accelerations could be five to 10 g, which does not compare to a 30-mile-per-hour crash. Dr. Van Ee noted that subdural hematomas in a five to 10 g whiplash event are typically not present, although he noted that there is always an exception to the rule, specifically if someone is particularly vulnerable. He provided the example of riding a roller coaster and explained that some people have developed subdural hematomas due to roller coasters, but that it was very rare that someone would suffer a traumatic injury from those types of exposures. Dr. Van Ee testified that the hypothesis that shaking alone can result in damage to the bridging vein without simultaneously injuring the neck or torso cannot be scientifically supported. He stated that because the neck is very weak and vulnerable to injury, the first place to look for injury after a shaking motion, from a biomechanics standpoint, is the neck. He further noted that the 53 idea that a subdural hemorrhage could be caused by ripping a bridging vein without injuring the neck is unsupported by the data because the angular accelerations that are created in shaking are less than what is seen in even a one-foot fall. Dr. Van Ee testified that if a baby fell over and hit their head on the carpet, such a fall would not be associated with a subdural hemorrhage or a massive traumatic brain injury, and that the angular accelerations of such a fall that have been measured and published are greater than what is seen in shaking. He explained that the data that exists in biomechanics shows that if someone shakes a child, the neck should be where injuries would start, and the levels of angular acceleration are well below the levels associated with head injury. Thus, he testified that it is not known whether the triad of symptoms and injuries can be produced by shaking alone, but neck injuries can be. Addressing the Prange study published in the Journal of Neurosurgery, Dr. Van Ee stated that the authors developed a crash-test device that represented the weight and relative size of a six-week-old infant. He stated that researchers shook the test device, slammed it onto a piece of foam that represented a crib mattress, dropped it on the floor or the crib mattress from varying heights (one foot, three feet, and five feet), and slammed it against a wooden bench and also against a wooden bench with carpet on it. Dr. Van Ee 54 testified that the authors were trying to understand the head acceleration in each setting. Dr. Van Ee explained the findings of the study, noting that the one-foot fall onto the floor gave rise to greater angular acceleration than acceleration resulting from shaking. He explained that the authors of the Prange study wrote that there was no data to indicate that shaking alone can give rise to the injuries associated with SBS/AHT. Defense counsel asked how those findings would change if an infant was larger, and Dr. Van Ee replied that the heavier the child is, the harder the child is to shake, so less overall head acceleration, angular velocity, and angular acceleration would be created. Dr. Van Ee testified that the evidence is weak that shaking alone can actually cause the injuries associated with SBS/AHT. However, he explained that studies have shown that impact can cause those injuries. He stated that there are studies where children have died as a result of abuse and the autopsies reveal signs of impact that include subtle skull fracture or bleeding, bleeding of the scalp, swelling of the scalp, or other injuries. Dr. Van Ee stated that he has not seen a biomechanical study that definitively concluded that shaking can cause the injuries associated with SBS/AHT. He stated that there has been no study conducted with dummies or animals that proved that subdural hematomas and retinal hemorrhages can be 55 caused by shaking alone. However, he acknowledged that there are confession articles in which people have confessed to shaking a child and the child had the injuries associated with SBS/AHT. On cross-examination, Dr. Van Ee conceded that he is not a medical doctor, does not have any medical degrees, has not diagnosed or treated patients, has not been taught what a forensic examination for child abuse entails, has never been trained in diagnosing SBS/AHT, has never conducted an examination for abuse or been consulted when an examination for abuse occurred, and has never examined an infant before. Dr. Van Ee explained that as of now “there is not a mechanistic explanation that allows one to go from shaking to those injuries” that makes sense. In discussing Dr. Duhaime’s study, Dr. Van Ee noted that approximately 15 children had died, and some had been thought to have been killed by shaking alone, but examiners who performed autopsies found evidence of impact in each child who died, so it was clear that the deaths did not result from shaking alone. Moreover, he testified that in the Duhaime study, football players shook a device that represented a one-month-old, and the accelerations measured were very low and below the level of what researchers thought would cause injury. Dr. Van Ee further explained that if someone violently shakes an infant, that action is going to cause serious injury 56 and maybe even death, but the question at issue is would the shaking result in the triad of symptoms at issue here and nothing else. 3. Trial Court Opinion Following the hearing, on January 7, 2022, the trial judge issued a 75- page written decision and accompanying order granting Nieves’s motion and barring Dr. Medina’s expert testimony regarding SBS/AHT at trial. The trial court concluded that SBS/AHT evidence was not reliable. The court explained that the diagnosis of SBS/AHT and the triad of symptoms associated with it are subject matters outside of the knowledge of the average juror, which “necessarily requires expert testimony to explain how an AHT diagnosis could be concluded without actual evidence of child abuse.” The trial court ruled that it was clear from the literature and testimony that SBS/AHT “has never been medically [or] scientifically validated as a diagnosis because it has never been developed through scientific/medical techniques or procedures which, in turn, would make it a diagnosis that is scientifically or medically reliable.” The trial court further explained that the evidence presented, especially through the testimony of Dr. Medina, showed that SBS/AHT “is more conjecture than a diagnosis because it is an option embraced once a diagnostician runs out of diagnostic options.” The court underscored that there 57 was no test cited by Dr. Medina or referenced in the literature that could support a finding that humans can produce the physical force necessary to cause the symptoms associated with SBS/AHT in an infant. It further noted that the State did not provide any evidence that Nieves inflicted any trauma upon D.J. and determined that SBS/AHT was a flawed diagnosis because it originates from a theory based upon speculation and extrapolation instead of being anchored in facts developed through reliable testing. The trial court stated that the literature and testimony showed that SBS/AHT is an “assumption packaged as a medical diagnosis, unsupported by any medical or scientific testing, based upon scaled down versions of testing done on monkeys, wooden dolls, or other anthropomorphic surrogates.” The court noted that this assumption has been proffered in cases like this one as proof beyond a reasonable doubt as to the cause of an infant’s injuries. However, it found that there was no support to permit that type of proffer to stand because there has been no study that has ever validated the hypothesis that shaking a child can cause the triad of symptoms associated with SBS/AHT. The trial court stated that when used in a criminal courtroom to prove causation, SBS/AHT “can be highly prejudicial and far less probative . . . when no one has ever tested the capacity of an individual to shake a baby in an effort to cause the triad of symptoms defining” SBS/AHT. 58 The trial court observed that human babies are very different from the monkeys, wooden dolls, or other anthropomorphic surrogates utilized in the studies referenced and reviewed concerning the effects of force and impact. The court held that because of that, and as noted in Dr. Medina’s testimony, we do not know, and will likely never know, what minimum force is necessary to cause subdural hematomas or the other triad of symptoms because the studies all reached diverse conclusions and, moreover, relied on models that cannot be deemed reliable mirrors of the infant brain. The court explained that defendant’s right to a fair trial includes the right to have only evidence that is sufficiently established as reliable under State v. Harvey, 151 N.J. 117 (1997), and Frye presented to a jury. The court noted that, on the strength of its name alone, SBS/AHT “evokes a sense of horror that affects the sensibilities of any competent juror, compromising their ability to follow the instructions of the court concerning the weighing of evidence fairly and impartially,” but that there is no scientific technique or procedure to confirm SBS/AHT as a reliable diagnosis. The trial court concluded that accordingly, SBS/AHT “cannot become part of a case unless coupled with physical evidence that an accused subjected an infant-victim to some impact of physical trauma that would support holding the accused criminally liable.” Without such accompanying physical evidence, 59 the court determined, SBS/AHT “remains exactly what it is . . . a final option lacking a reliable diagnostic criteria masking as a diagnosis” and “a hypothesis based upon extrapolation of data, coupled with a ‘process of elimination’ engaged in by diagnosticians in an effort to reach a ‘conclusive diagnosis’ which, in the end, cannot be treated medically.” The court explained the danger of experts influencing jurors who hear the phrase “medical certainty” coming from an expert as suggesting a high degree of value and reliability concerning SBS/AHT as a proven diagnosis for causation. Therefore, the court concluded that testimony concerning SBS/AHT could not be permitted in this case because it is not reliable evidence and was far more prejudicial than it was probative. The court explained that permitting such testimony in this case would be “the perfect recipe for a conviction not borne of a fair and unbiased decision-making process but, instead, one which would compromise the integrity of this prosecution and our criminal justice system.” The court determined that the State failed to provide evidence that Nieves inflicted force upon D.J. resulting in injuries symptomatic of an SBS/AHT diagnosis and failed to prove that the science behind SBS/AHT is sufficiently reliable to be used to implicate Nieves in abusive conduct and hold him criminally liable for causing D.J.’s injuries. Thus, the court granted Nieves’s motion to bar the admissibility of testimony concerning SBS/AHT. 60 Based on its decision barring SBS/AHT testimony, the trial court granted Nieves’s motion to dismiss the indictment on January 28, 2022. The court held that “the State has insufficient evidence to prove causation in this case given the suppression of the testimony concerning [SBS/AHT].” B. State v. Cifelli Respondent Michael Cifelli is the father of J.C., who was born prematurely in November 2016. In late December 2016, when J.C. was 10 weeks old, Cifelli was caring for J.C. when he began to vomit excessively and exhibit fatigue and fever symptoms. Cifelli brought J.C. to the pediatrician and then ultimately to the hospital for treatment. J.C. was diagnosed with a viral illness and discharged the same day. The parents were told to follow up with the pediatrician and that J.C. might have a gastrointestinal illness. 17 In early January 2017, while Cifelli was again caring for J.C., J.C. experienced seizure-like symptoms. J.C. was subsequently admitted to the hospital. While in the hospital, J.C. appeared again to be suffering from seizure-like symptoms, unaware of his surroundings, and not easily consolable. At the hospital, doctors determined that J.C. had fluid and blood around his 17 J.C.’s medical records are not in the record on appeal. The facts in this section are derived largely from Dr. Medina’s testimony at a hearing regarding the DCPP proceedings in this matter, as well as the grand jury testimony. 61 brain and retinal hemorrhages in his left eye. Those findings triggered a child abuse investigation against Cifelli. During J.C.’s hospitalization, his symptoms included the following: fluid around the brain that required surgery to drain; old and new brain bleeds; intraretinal and submacular retinal hemorrhages, meaning blood in multiple layers of his eyes; an apparent macular hole in his right eye, which was later diagnosed as “foveal vitreoretinal traction” -- marked by the gel-like substance, between the lens of the eye and the retina, pulling away from the retina; and a sudden increase in head circumference. J.C. underwent testing at the hospital. Dr. Medina reviewed his medical records and test results. Dr. Medina diagnosed J.C. with SBS/AHT with or without impact because she found “that there was no other medical diagnosis that could explain his symptoms.” On November 1, 2017, a Middlesex County grand jury indicted Cifelli on charges of aggravated assault and endangering the welfare of a child. Shortly thereafter, DCPP filed a Title 9 complaint against Cifelli, alleging that he caused J.C. to be an abused or neglected child. DCPP also filed an order to show cause seeking care and supervision of J.C. The complaint was dismissed 62 in August 2017, and Cifelli moved to dismiss the indictment. 18 The trial court denied the motion. On December 31, 2018, Cifelli moved for a Frye hearing to determine the admissibility of Dr. Medina’s testimony regarding SBS/AHT, arguing that a diagnosis of SBS/AHT is scientifically unreliable. Judge Bucca denied Cifelli’s motion, finding that SBS/AHT was generally accepted by the scientific community and was therefore reliable. After the Appellate Division granted Nieves’s motion for leave to appeal and remanded the matter for a Frye hearing, Cifelli moved for reconsideration of the denial in his case. Judge Bucca did not issue a written order, but the parties agreed to hold the matter in abeyance pending the outcome of the Frye hearing in the Nieves matter. After the Frye hearing and Judge Jimenez’s ruling barring expert SBS/AHT testimony in Nieves, Cifelli moved to dismiss his indictment, claiming the parties agreed to be bound by the Frye ruling in Nieves. The State opposed Cifelli’s motion, arguing that while it agreed to await the outcome of the Frye ruling, it never agreed to be bound by the ruling. 18 Subsequently, on October 20, 2021, a second indictment was returned against Cifelli and J.C.’s mother, charging them with additional acts of child endangerment against both J.C. and his sibling. That indictment is not the subject of this appeal. 63 Judge Bucca determined that both sides had agreed to be bound by the ruling in Nieves. Pursuant to that agreement, Judge Bucca adopted Judge Jimenez’s Frye ruling in Nieves and barred Dr. Medina’s testimony regarding SBS/AHT in Cifelli’s case. Judge Bucca, however, did not dismiss the indictment against Cifelli. C. Consolidated Appellate Division Decision The State moved for leave to appeal in both Nieves and Cifelli, arguing that it had established SBS/AHT’s acceptance in the medical community and that trial judges therefore should not have barred its proposed expert testimony. State v. Nieves, 476 N.J. Super. 609, 617 (App. Div. 2023). The State also appealed the trial court’s order barring testimony in Cifelli, arguing that it did not agree to be bound by the Nieves decision and that the Nieves decision was incorrect. Ibid. The Appellate Division granted leave to appeal in both matters, consolidated the appeals, and affirmed both trial court decisions. Id. at 617-18. The Appellate Division held that “[t]he evidence supports the finding that there is a real dispute in the larger medical and scientific community about the validity of shaking only SBS/AHT theory, despite its seeming acceptance in the pediatric medical community.” Ibid. The appellate court determined that the experts who testified at the Frye hearing all agreed that “there was 64 controversy surrounding the theory that the biomechanical principles underlying SBS/AHT actually supported the conclusion that shaking only can cause the injuries associated with SBS/AHT.” Id. at 618. Further, the court held that “[w]here the underlying theory integrates multiple scientific disciplines, as here, the proponent must establish cross-disciplinary validation to establish reliability,” which the State failed to do. Ibid. The Appellate Division noted that there is a dearth of recent New Jersey cases challenging the admissibility of SBS/AHT testimony. Id. at 649. The court addressed several out-of-state SBS/AHT cases cited by the State, id. at 649-50, as well as the cases Nieves advanced, id. at 650-51. It noted that none of the cases cited by Nieves and only a limited number of the State’s cases expressly determined the admissibility of SBS/AHT evidence under Frye, and that others determined its admissibility under a different standard, or did not actually decide the question of the admissibility of SBS/AHT as a theory. Id. at 649-51. The court explained that although some of the cases cited by the State confirmed the reliability of SBS/AHT based on a prior court’s acceptance of SBS/AHT, a reliance on such cases would be “a type of circularity that is inappropriate given Nieves’s position that the medical and scientific community’s view about SBS/AHT has evolved over time, warranting a new review of the issue.” Id. at 651. 65 The court determined that SBS/AHT is a multidisciplinary diagnosis, and the question of whether it is accepted within the medical and scientific community “requires evaluation of two considerations: (1) whether the theory is generally accepted by the biomechanical community and supported by biomechanical testing; and (2) whether the theory is generally accepted by the pediatric medical community and supported by the clinical data connecting the constellation of symptoms with SBS/AHT.” Id. at 652. The court held that the State “demonstrated general acceptance in the pediatric community,” but it agreed with the trial court that “the State [did] not demonstrate[] general acceptance of the SBS/AHT hypothesis to justify its admission in a criminal trial.” Ibid. To the contrary, the court found the evidence showed that there was “no general acceptance from the biomechanical community, and [that] biomechanical testing has never proven the premise of SBS/AHT, despite the hypothesis being grounded in biomechanical principles.” Id. at 652-53. Accordingly, the court affirmed the trial court’s decision precluding SBS/AHT testimony at trial. Id. at 654. The court next addressed the State’s challenge to the trial court’s dismissal of Nieves’s indictment. Ibid. The court determined that “without SBS/AHT testimony, there was insufficient evidence to support the indictment against Nieves” because the State would not be able to prove the element of 66 causation under either the aggravated assault or endangering the welfare of a child charges. Id. at 655. The court explained that “[a]lthough the State could present testimony that D.J. was in Nieves’s care when D.J. had his episodes of limpness” and “was found to have retinal hemorrhages and subdural hematomas, the State would not be able to explain how Nieves harmed D.J., leaving the question for the jury to determine.” Ibid. The court noted that “a jury may draw a reasonable inference from the facts presented” but reasoned that permitting the State to rely on jury inference here would impermissibly “shift or lighten the burden of proof, or become a bootstrap to reduce the State’s burden of establishing the essential elements of the offense charged beyond a reasonable doubt.” Ibid. (quoting State v. Brown, 80 N.J. 587, 592 (1979)). The court explained that speculation cannot be disguised as a rational inference and that “[r]equiring the jury to infer that Nieves harmed D.J. would require the jury to make such a leap.” Ibid. As to the Cifelli appeal, the court explained that because its decision resolved the admissibility of SBS/AHT testimony under Frye, and must be given conclusive weight, the decision of the trial judge in Cifelli to defer to the trial court’s Frye ruling in Nieves was moot. Id. at 657. 67 D. Review and Amicus Participation Granted This Court granted the State’s petition for certification in Nieves and motion for leave to appeal in Cifelli. 256 N.J. 451 (2024). Additionally, we granted the applications of the following individuals and entities to participate as amici curiae: the Attorney General of New Jersey and DCPP (jointly); the Public Defender of New Jersey, Office of Parental Representation; the Innocence Network and Center for Integrity in Forensic Sciences (jointly); a group of Medical Doctors writing in support of respondents; 19 a group of biomechanical engineers; 20 a group of scholars whose work addresses cognitive bias; 21 the Family Justice Resource Center, upEND Movement, MJCF Coalition, and Mothers Outreach Network (collectively); the American Academy of Pediatrics, collectively with seven 19 Dr. Jacob Andersson, Prof. Anders Eriksson, Dr. John Galaznik, Dr. Patrick Hamel, Dr. Ulf Högberg, Dr. Lawrence Hutchins, Dr. Charles J. Hyman, Prof. Niels Lynøe, Dr. Marvin Miller, Dr. David Ramsay, Dr. Cyrille Rossant, Dr. Robert K. Rothfeder, Dr. Irene Scheimberg, Dr. Joseph Scheller, Dr. Guillaume Sébire, Dr. Waney Squier, Dr. Dale Vaslow, Dr. Knut Wester, and Dr. R.K. Wright. 20 Lindsay “Dutch” Johnson, Ph.D.; Ken Monson, Ph.D.; Kirk Thibault, Ph.D., D-IBFES; Keith Button, Ph.D., PE; and Johan Ivarsson, Ph.D. 21 Dr. Jeff Kukucka, Ph.D.; Keith A. Findley, Esq.; Dr. Deborah Davis, Ph.D.; and Dan Simon, Esq. 68 additional medical societies; 22 a group of law and psychology professors who have studied false confessions; 23 and the Association of Criminal Defense Lawyers of New Jersey (ACDL). IV. PARTIES’ ARGUMENTS A. State of New Jersey and Amici Supporting the State’s Position The State argues that Dr. Medina’s diagnosis of D.J. was sufficiently reliable to be the subject of expert testimony under N.J.R.E. 702 and should have been admitted. The State submits that it established SBS/AHT’s general acceptance in the medical community, which is the relevant scientific community under Frye. Accordingly, it contends that controversy in the field of biomechanics does not justify the exclusion of a medical expert’s testimony on SBS/AHT. The State submits that the Appellate Division erred in requiring general acceptance within both the pediatric medical community and the 22 New Jersey State Chapter of the American Academy of Pediatrics; American Association for Pediatric Ophthalmology and Strabismus; American Society of Pediatric Neurosurgeons; American Society of Pediatric Neuroradiology; American Professional Society on the Abuse of Children; Society for Pediatric Radiology; and The Ray E. Helfer Society. 23 Dr. Richard A. Leo, Ph.D., J.D.; Dr. Hayley Cleary, M.P.P., Ph.D.; Dr. Kyle Scherr, Ph.D.; Dr. Lucy Guarnera, Ph.D.; Dr. Saul Kassin, Ph.D.; Dr. Lindsay Malloy, Ph.D.; Dr. Christian Meissner, Ph.D.; Dr. Allison Redlich, Ph.D.; and Dr. Melissa Russano, Ph.D. 69 biomechanical community because biomechanics is not of equal importance to pediatric medicine regarding the diagnosis of SBS/AHT and because Dr. Medina’s diagnosis took relevant biomechanical research into account. The State submits that “the lack of general consensus on [SBS/]AHT in the biomechanical community is a result of biomechanical engineers’ inability to replicate in a laboratory a phenomenon that clinicians have repeatedly observed in the real world.” The State asserts that “[t]he fact that there exists some disagreement among biomechanical engineers generally regarding shaking alone as a mechanism of [SBS/AHT] should not render a diagnosis of [SBS/AHT] unreliable in a particular case” because “absolute scientific certainty is not the standard for the admissibility of expert testimony.” The State further submits that biomechanical studies have failed to disprove that shaking alone can cause the intracranial injuries associated with SBS/AHT. Moreover, the State argues that it established SBS/AHT’s general acceptance in the medical community through the expert testimony of Dr. Medina, by offering authoritative scientific writings that establish the general acceptance of the SBS/AHT diagnosis and its underlying methodology in the medical community, and by offering numerous judicial opinions that have accepted SBS/AHT as a reliable scientific premise. 70 Additionally, the State asserts that Dr. Medina did not opine that shaking alone was the mechanism that caused D.J.’s injuries, but rather that D.J. suffered from SBS/AHT “that occurs with a shaking event with or without impact.” In the alternative, the State argues that the Court should remand these matters to a Special Adjudicator to conduct a comprehensive evidentiary hearing on the reliability of the SBS/AHT diagnosis under the standard announced in Olenowski I. Several amici support the State’s position. The New Jersey Attorney General and DCPP argue that SBS/AHT is a generally accepted medical diagnosis long recognized by a host of national and international medical organizations. They maintain that the Appellate Division’s decision means the State may lose the ability to prosecute certain cases of child endangerment and the decision would also hamper DCPP’s ability to fulfill its Title 9 responsibilities. Amici echo the State’s argument that SBS/AHT satisfies the general-acceptance standard based on the presented expert testimony, scientific writings, and judicial opinions. They contend that biomechanics does not cut in either direction or resolve the dispute in anyone’s favor because it has not disproven the theory of SBS/AHT. They further argue that the Appellate Division’s reliance on State v. Pickett, 466 N.J. Super. 270 (App. Div. 2021), to support a finding of the need to consider more than one 71 scientific community is misplaced because it did not establish a bright-line rule. The American Academy of Pediatrics and its joint participants (collectively, AAP) argue that the relevant scientific community for the diagnosis of abusive head trauma is the interdisciplinary specialties involved in the actual clinical evaluation, diagnosis, and treatment of patients. The AAP contends that SBS/AHT is a clinical medical diagnosis made by a clinician based on the signs, symptoms, and history of the patient. The AAP argues that because biomechanical engineers are not consulted as part of the diagnostic process, biomechanical engineering is not its own relevant scientific community regarding the clinical diagnosis of SBS/AHT. Moreover, the AAP argues that the medical community does not recognize a genuine debate of the validity of SBS/AHT. B. Nieves and Cifelli and Amici Supporting Their Position Respondent Nieves urges this Court to affirm the exclusion of expert testimony about SBS/AHT without impact injuries because the State failed to prove that the diagnosis is accepted within the relevant scientific communities of biomechanics and medicine. He argues that the State was required to prove the reliability of SBS/AHT (or SBS/AHT with no impact, and as distinguishable from AHT generally), which it failed to do. He contends that 72 SBS/AHT covers a wide range of injuries and symptoms and does not employ a specific diagnostic criterion; instead, doctors engage in a process of elimination to determine whether there are other explanations for the symptoms. Nieves submits that because SBS/AHT is a differential diagnosis that integrates multiple scientific disciplines, a finding of reliability must consider all fields used to render such a diagnosis. Nieves contends that because it was the biomechanical understanding of angular acceleration that led to the development of the SBS/AHT theory and the theory remains rooted in biomechanical principles, the relevant scientific community for purposes of a reliability analysis must include biomechanics. Nieves argues that the State failed to prove that SBS/AHT is generally accepted as reliable in the field of biomechanics. He asserts that the State conceded and the record shows that SBS/AHT has never been validated in the field of biomechanics because no study has shown that humans can shake a child with enough force to cause the triad of symptoms associated with the SBS/AHT diagnosis. Additionally, he submits that research has shown that violent shaking would damage a child’s neck before causing the triad of symptoms, which undermines the reliability of the SBS/AHT diagnosis. Moreover, he contends that the State failed to prove that SBS/AHT is generally accepted as reliable in the field of medicine because it did not prove 73 that there is a generally accepted and reliable medical basis to believe that shaking can cause the triad without causing any other injuries. Instead, he asserts, the “general acceptance” the State proffered in the medical community relies on unsupported theories and unreliable confession studies. He also contends that the State failed to prove that SBS/AHT is generally accepted as reliable based on judicial authority. Finally, Nieves argues that remand is unnecessary because appointing a Special Adjudicator will not affect whether the reliability of SBS/AHT is litigated in other cases, and an adequate record already exists because there was a Frye hearing below. Respondent Cifelli generally relies on the arguments made by Nieves and contends that the judgments below should be affirmed. Cifelli also argues that the State has not established any error in the trial court’s ruling and should be barred by principles of judicial and equitable estoppel from challenging its own prior position on appeal. He maintains that the trial court found that the State agreed to be bound by the Nieves court’s Frye decision and that, to protect the integrity of the judicial process, the State should be barred under principles of estoppel from advocating a contrary position. Several amici argue in support of respondents. The Office of the Public Defender argues that SBS/AHT is a medicolegal diagnosis for a child’s 74 pathology rooted in the kind of speculation and conjecture that this Court has long held to have no place in New Jersey’s child welfare jurisprudence as the cause of harm or injury to a child. The ACDL argues that admitting SBS/AHT diagnoses in criminal court would lower New Jersey’s high standards for the reliability of evidence. The ACDL contends that the biomechanical scientific community’s rejection of SBS/AHT as a diagnosis undermines the reliability of the testimony at issue here. The biomechanical engineers argue that experts in biomechanics are members of the relevant sc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11264339. Public record. Not legal advice.