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State high court considers admissibility of 'abusive head trauma' testimony in Hsu appeal
Summary
At oral argument in Commonwealth v. Shu Feng Hsu, defense counsel urged the Supreme Judicial Court to bar or limit expert testimony framed as "abusive head trauma," arguing it usurped the jury and lacked scientific foundation; the Commonwealth defended the testimony as helpful and limited by instructions.
The Massachusetts Supreme Judicial Court heard arguments over whether expert testimony described as "abusive head trauma" (AHT) should have been admitted at trial in the involuntary manslaughter conviction of Shu Feng Hsu, who was convicted in the death of her 11‑month‑old niece, Chloe Chen.
Christopher DeMayo, counsel for Hsu, told the justices that AHT testimony in this case was not merely explanatory medical evidence but functionally a diagnosis of criminal conduct that risked usurping the jury. "She took everything the jury heard, she kind of regurgitated it," DeMayo argued, saying Dr. Schwartz’s opinion was derivative of treating physicians’ accounts and sometimes embellished those accounts in a way that prejudiced the jury. DeMayo urged the court either to exclude such testimony or find that Judge Wilkins abused his discretion in admitting it.
DeMayo pressed two related points: first, that the medical evidence was equivocal about timing (noting the presence of neomembranes and the possibility of re‑bleeds), and second, that AHT as presented went beyond permissible expert testimony because it characterized findings as "abuse," a term he said implies intent and guilt rather than a medical mechanism.
The court asked whether DeMayo sought categorical exclusion of AHT under Daubert‑Lanigan or a record‑specific error; DeMayo said he advanced both lines but emphasized the "Tanner‑Canty" argument that experts should not be permitted to make the ultimate determination of guilt. He also relied on out‑of‑state biomechanical criticism (citing Nieves) to contend that some shaking‑based theories lack a sufficient scientific foundation and that eliminating alternative causes does not necessarily permit an expert to "rule in" abuse.
Assistant District Attorney Meagan Monahan countered that the trial record supports admission. She said the Commonwealth’s theory never limited the mechanism to "bashing a child against the wall 11 times," as the defense suggested; rather, the prosecutor relied on impacts from a hard surface such as a bed frame and on a combination of swinging/shaking plus blunt impact. Monahan told the court that Judge Wilkins considered alternative phrasings (including "inflicted" or "non‑accidental head trauma") and tailored testimony with limiting language such as "consistent with," and that the judge’s instructions informed the jury that it decides the facts.
Monahan further argued biomechanical studies cited by defense focus on pure shaking and do not address combined shaking plus impact scenarios, and she framed experts’ testimony as complementary: treating doctors described observed injuries while forensic experts explained mechanisms (acceleration‑deceleration, rotational forces, impact) that could produce severe internal injuries with limited external signs.
The justices questioned whether the phrase "abusive head trauma" carries prejudicial weight that limiting language cannot cure and whether other courts have used a "consistent with" formulation in this context. Monahan pointed the court to the Choudhary consensus statement in the record and said that clinicians commonly use AHT to encompass several mechanisms. The argument concluded with Monahan saying the evidence and limiting instructions avoided undue prejudice.
The court heard extended argument on whether AHT testimony is admissible under the rule governing expert testimony and whether, in this record, permitting it required reversal. The justices did not announce a decision at argument.
