‘Witch Test’ Sending Women to Prison for Murder

As a criminal defense attorney, I was alarmed to read this recent investigative report by ProPublica about the lung float test being used to prosecute and imprison women for murder after experiencing stillbirths or pregnancy complications.

The lung float test dates to the seventeenth century. It rests on the idea that lungs containing air will float, while lungs that have not been inflated will sink. But that distinction cannot establish, by itself, whether a baby was born alive. Even a study that reported favorable results found that lungs from some babies known to have been born alive sank.

Resuscitation can introduce air into a stillborn infant’s lungs, while decomposition can produce gases that make the lungs float. These problems can lead to a false finding of live birth. A floating lung also does not establish how a baby died or whether anyone committed a crime.

In a Florida criminal case, expert testimony must meet the requirements of section 90.702, Florida Statutes. The opinion must rest on enough facts or data and reliable methods applied reliably to the case. A defense challenge should examine how the lung float test was performed, what could have affected the result, and whether the expert’s conclusion goes beyond what the findings support.

ProPublica’s 2023 investigation identified 11 prosecutions involving the test; nine women had been jailed. In a murder prosecution, the distinction between evidence of breathing and proof of an unlawful killing is crucial.

Expectant mothers already face higher risks of pregnancy complications, stillbirths, and maternal mortality if they are low-income or women of color. This test disproportionately targets and punishes marginalized women who may react with shock or denial to an unexpected stillbirth. Grieving mothers suffer horrific trauma during these crisis deliveries. Their behavior should not be criminalized.

Determining whether a baby was born alive can be difficult after an unattended delivery. Pathologists must assess the full findings and the circumstances of the birth; the lung float test cannot settle the question on its own. At trial, the prosecution bears the burden of proving every element of the charge beyond a reasonable doubt. A disputed test result should never be treated as conclusive proof of murder.