Murder, Medicine and Motherhood by Emma Cunliffe (review)

Murder, Medicine and Motherhood presents Emma Cunliffe’s study of the trial of Kathleen Folbigg, an Australian woman found guilty of the separate deaths of her four infant children. Like many who write about wrongful convictions, Cunliffe offers insights on the rules of evidence and their truth-seeking limitations. More than that, however, she provides a careful interdisciplinary analysis that reveals how medicine, law, and media play a game of hot potato, shaped by normative conceptions of motherhood, to cope with, mask, and manipulate uncertainty in such cases. Through this creative use of the wrongful convictions frame, Cunliffe’s work charts a course between traditional scholarship on the law of evidence and the frontiers of the field.

Uncertainty is the book’s unifying theme. Folbigg’s children were found dead with no visible signs of suffocation, so experts situated their opinions about whether each child died naturally within the medical classification of Sudden Infant Death Syndrome (SIDS). To paint Folbigg as a bad mother, the prosecution relied on Folbigg’s husband’s testimony and her own diaries. Together, the evidence secured a conviction.

Cunliffe deconstructs and reframes the elements of Folbigg’s conviction by tracing and probing the sources in play, which include court transcripts, case law, news reports, Folbigg’s diaries, medical research, and policy statements. For example, experts were precluded from opining about the improbability of four natural infant deaths in one family on the basis that this opinion called for common sense rather than expertise. Yet these experts relied on an American Academy of Pediatrics (AAP) policy—which was subsequently revisited—to justify treating a second unexplained infant death within a single family with suspicion. The same document was further relied upon to discredit defence experts who disagreed with its thrust. Cunliffe places the questionable medical consensus represented by the policy statement in its socio-legal context, revealing how shift s in criminality discourse from social welfare approaches toward punitive, retributive models grounded in individual responsibility penetrated the ostensibly objective, scientific understanding of SIDS. She shows how this ideology was then re-inscribed within the criminal process through expert testimony in the Folbigg case, just as the medical community’s stance was at its most punitive.

Normative conceptions of good motherhood resolved any lingering uncertainty about Folbigg’s guilt. The prosecution deployed motherhood stereotypes—for example, that a good mother will always sacrifice her independent interests for those of her children—to cast Folbigg as the sort of person who would kill her children. Folbigg’s diary entries, in which she expressed guilt and responsibility, were viewed as unmediated truth. Cunliffe’s careful qualitative and quantitative analysis of newspaper coverage demonstrates how selective media reporting left the false impression of an open-and-shut case.

Cunliffe’s characteristic circumspection—her caution and commitment to a thorough interrogation of multiple and interacting sources of truth production—makes her book a compelling contribution to what was once called the “new evidence scholarship.” This interdisciplinary approach to evidence is no longer new, but many of its implications for theories of evidence law remain undetermined. Can the law of evidence continue to be fundamentally about rectitude given its inherent subjectivities and social contingencies, and those of the cognate disciplines on which it relies? If our law merely obscures the impossibility of knowing, does interdisciplinary analysis recommend a shift away from traditional criminal processes and toward alternative approaches that might better allow us to come to terms with the difficult unknowns of what we call crime?

Cunliffe’s book is a fine exemplification of the evolution of new evidence scholarship, but the author wisely refrains from answering these questions directly. Instead, she leaves her readers to struggle with them, equipping her audience with key insights from theories of law, science, media, and feminism, all carefully annotated. Throughout her analysis of how criminal, scientific, and social processes conspire to come to terms with and manage uncertainty in this case, Cunliffe never lapses into epistemological solipsism. Instead, she includes concrete and useful doctrinal suggestions with careful...