In cases involving injury to children, we often face the difficult task of deciding what mental state can be proven. Did the defendant intend to commit the injury or was this a reckless or even criminally negligent act?

Absent a clear confession or witnesses, we are often left with a medical description of the injuries and a medical examiner's opinion as to how such injuries could have occurred. When it comes to baby shaking injuries, we are still seeing a split in how to assign a mental state to the person causing such injuries.

So, how do you convince a jury that the injury must have been intentional or knowing? What visual aid or expert opinion seems to matter?

We use knowingly in the indictment, instead of intentionally and knowingly. Since injury to a child and capital murder are result crimes, if we allege intentional, we would have to prove that it was the actor's conscious intention or desire to cause the result. With knowing, we would have to prove that the actor knew that his actions were reasonably certain to cause the result.

In addition to the medical examiner, I have used as experts pediatricians who specialize in child abuse. They tend to have an easier time with knowing as a mental state, as opposed to intentional, when asked whether in their opinion a person who caused these injuries knew that his actions were reasonably certain to cause serious bodily injury or death.

There is a good computer presentation created by a forensic pathologist in Minnesota, Dan Davis. I have used it several times to explain the mechanism of injury in shaking cases.