Defending a Client Accused of Homicide by Drowning

Prosecutors attempting to obtain a murder conviction against an individual accused of deliberately drowning the victim will often rely on forensic evidence. If a Massachusetts criminal defense lawyer is going to successfully defend his client he must grasp how forensic experts differentiate between victims who: 1) experienced a fatal or near fatal episode that resulted into a fall into water; 2) were murdered and later placed into the water to make it appear that the individual drowned; 3) drowned as the result of an accident or as a means of committing suicide; and, 4) were forcibly held beneath the water by an assailant.

How Drowning Occurs

Drowning occurs when liquid enters the breathing passages, preventing air from getting to the lungs. This can take place in deep water, such as an ocean, or in water as shallow as six inches. Although drowning is sometimes used as method of homicide, it is very difficult to determine the manner of death when a victim is found in the water.

When a person is submerged under water, obviously he holds his breath. Carbon dioxide increases, and oxygen decreases, until a breaking point is reached. The person involuntarily inhales, and takes in water. Some is swallowed, and the person may vomit. The involuntary gasping for air continues for several minutes. Cerebral hypoxia continues until it becomes irreversible, and death occurs.

The irreversibility begins after three to ten minutes in warm water. However, children and infants who are in cold water can be resuscitated after as long as 66 minutes. Whatever the temperature of the water, all humans usually lose consciousness within three minutes. Hyperventilating causes a decrease in carbon dioxide, which leads to cerebral hypoxia. Therefore, the person may lose consciousness before reaching the breaking point. A person is considered a victim of “near drowning” if, after being rescued from he survives for 24 hours after being submerged in water, even if he dies shortly after or suffers brain damage.

Surprisingly, 10-15% of all drownings are considered “dry drownings.” This takes place when a small amount of water enters the larynx or trachea and causes a spasm of the larynx. The larynx becomes clogged by mucous, foam, and froth, and water never even enters the lungs. The concept of dry drownings is only a hypothesis, however, and cannot be seen through an autopsy.

After death occurs, the body sinks. It will not move far unless it is carried by strong currents. The body decomposes and gas forms, causing it to rise to the surface, where it is usually found. In very cold water, decomposition is delayed, and the body may stay submerged for months.

Cambridge Criminal Lawyer Explains: Tests to Determine a Drowning

The diagnosis of drowning is based more on the circumstances of the death than on tests. A complete autopsy is done, and if the person is found in water and no other causes of death are discovered, the examiner presumes the victim has drowned.

Chemical tests are non-specific and unreliable. A test that traditionally was used is the Gettler Chloride Test, where the amounts of chloride on each side of the heart were compared to determine if the person drowned in fresh or salt water. Another test uses the gravity of blood on the right and left atrias to determine if the person drowned. Neither test yields reliable results.

Examiners also look for the presence of diatoms, which are microscopic algae found in all types of water. This test too is unreliable as diatoms can be found throughout the environment. It is not uncommon for medical examiners to find diatoms in the organs of individuals who had not drowned. One can obtain diatoms by inhaling or digesting them, or by aspiration of water containing them. A forensic botantist will be able to analyze the prosecution’s forensic evidence and assist the criminal defense lawyer in formulating an effective defense strategy.

Problems with Diagnosing a Drowning

Aside from the unreliability of tests, it is hard to diagnose a drowning based on the circumstances of the death alone. People sometimes die of other causes, such as a drug overdose, heart attack, or epileptic seizure, then fall into water. Also, people can dispose of already dead bodies in water, making it difficult to know how the person actually died. Occasionally, there are suicides by drowning as well.

Symptoms such as hemorrhages, pulmonary edema, “washerwoman” appearance of the hands and feet, and goose flesh may indicate a drowning. However, heart attacks, drug overdoses, and other causes of death can also cause the same symptoms. Wounds that do not bleed also do not help distinguish the manner of death because they could have been inflicted post or antemortem. A good indicator that the person was alive while submerged is the presence of vegetation and stones from the bottom of the water in the hands of the victim. So difficult is it to determine the cause of death, an innocent person could be prosecuted for murder for an accidental drowning or a suicide.


DiMaio, Vincent J. and Dominick. Forensic Pathology, Second Edition, CRC Press, New York, 2001.

Geberth, Vernon J. Practical Homicide Investigation, Third Edition, CRC Press, New York, 1996.

Contact a Massachusetts Criminal Defense Lawyer

If you have been accused of murder or manslaughter, we urge you to retain qualified counsel. Kevin J. Mahoney is a highly regarded Cambridge, Massachusetts criminal defense lawyer, author of Relentless Criminal Cross-Examination, and on-air legal analyst.