One member of Colorado’s second-highest court suggested last month that certain medical terminology deeming a child’s injuries “abusive” or “nonaccidental” may improperly lead jurors to convict defendants of knowingly committing child abuse.

A three-judge panel of the Court of Appeals upheld the El Paso County child abuse convictions of Susan Trahan Bergeron, who is serving 10 years in prison. Bergeron challenged the statements of the pediatrician who examined the child victim, but the panel concluded her testimony was proper.

Judge Sueanna P. Johnson wrote separately to say she agreed with the ultimate outcome, but had concerns about one aspect of the doctor’s testimony. Approximately 20 times, the witness referred to nonaccidental or abusive head trauma, which were her medical diagnoses. But in Johnson’s view, those terms may have led jurors to believe the nonaccidental nature of the injuries necessarily established the criminal intent.

“There is a way to identify a child’s injury with less inflammatory language,” she wrote on July 25.

Bergeron was babysitting an infant when the child became unresponsive. The child was hospitalized with seizures and hemorrhages. Prosecutors subsequently charged Bergeron with felony and misdemeanor counts of child abuse.

The district attorney’s office called as a witness Nicole Wallace, a pediatrician who examined the victim. At a pretrial hearing, Wallace clarified her diagnosis of abusive head trauma meant the injuries were not an accident, but she made no findings about the intent of whoever inflicted them.

“I do not in any way try to determine if a parent or caregiver was angry and frustrated with a baby but didn’t realize that their actions would cause an injury, or perhaps on the other extreme they did know that their actions were going to harm or injure a child,” Wallace said. “I can’t get into the head of an alleged perpetrator. I make no effort to do that. I also don’t make any claims to be able to say who caused a child’s injury.”

At trial, Wallace reiterated the medical focus of her nonaccidental diagnosis. The defense did not object to her characterization of nonaccidental or abusive head trauma. The jury also received an instruction that Wallace’s testimony was “not a binding legal conclusion of child abuse.”

Still, Bergeron argued on appeal that Wallace’s testimony went beyond her medical observations and instead addressed the elements of the criminal charges.

“The evidence was supposed to be used to help inform the jury understand complicated medical information and terminology. Instead, the prosecution used the term nonaccidental to impart guilt to Ms. Bergeron based on the medical diagnosis,” wrote attorney Victor T. Owens.

The Court of Appeals panel’s majority disagreed that Wallace’s testimony directed the jury toward a guilty verdict.

Johnson, in her concurrence, agreed that no obvious error occurred because existing legal precedent cleared the path for Wallace’s testimony. But she suggested the precedent was problematic, permitting prosecution witnesses to improperly influence juries.

Johnson cited a 2011 Colorado Supreme Court decision laying out multiple factors for gauging the propriety of an expert’s statements, including whether the testimony “was clarified on cross-examination.”

“But why have we established a test that puts any burden on the defense to clarify evidence the prosecution seeks to admit?” wondered Johnson. Instead, she believed it should be “the prosecutor’s responsibility to clarify the medical definition for the jury.”

As for the terms themselves, Johnson pointed to a Connecticut court’s recognition of abusive head trauma as an injury “inflicted on a child.” Characterizing it in that way avoids “imparting an intentional component to the human’s conduct,” she observed.

Finally, Johnson noted the Supreme Court’s list of considerations also asks whether the witness has indicated the defendant likely committed the offense. In Bergerson’s case, Wallace had reached her medical diagnosis of nonaccidental head trauma without speaking to Bergeron. Therefore, Johnson raised the possibility the jury heard an erroneous medical diagnosis based on incomplete information.

“Dr. Wallace’s use of the terms ‘nonaccidental’ and ‘abusive head trauma’ should not have been admitted,” she concluded. “The prosecutor was given a leg up in allowing an expert to opine on not just the type of injury, but the (intent) level of the offense under the guise of a medical diagnosis.”

The case is People v. Bergeron.