Request By:
Mr. Carroll M. Redford, Jr.
Commonwealth Attorney
Forty-third Judicial District
202 East Washington Street
Glasgow, Kentucky 42141
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise a question, for our opinion, concerning who is to collect evidence at death scenes. Apparently the Kentucky State Police at Bowling Green believe that only a coroner, not the state police, can obtain death scene evidence and store it.
KRS 72.020, as amended in 1982 (Ch. 195, § 2, eff. July 15, 1982) reads:
"(1) Any person, hospital or institution, finding or having possession of the body of any person whose death occurred under any of the circumstances defined in subsections (1) through (12) of KRS 72.025 shall immediately notify the coroner, or his deputy and a law enforcement agency, which shall report to the scene within a reasonable time. No person shall remove the body or remove anything from the body until directed to do so by the coroner or his deputy, after the law enforcement agency is present or has failed, within a reasonable period of time, to respond.
"(2) The coroner shall take possession of any objects, medical specimens or articles which, in his opinion, may be helpful in establishing the cause of death, and he can make or cause to be made such tests and examinations of said objects as may be necessary or useful in determining the cause of death. In the event that a criminal prosecution arises, all such objects and articles together with reports of any examinations made upon them, shall be retained by the coroner until their production in evidence is required by the prosecuting authority, unless otherwise directed by written order of the court in which such prosecution is pending.
"(3) Upon final disposition of each criminal prosecution under this section, the court shall by appropriate written order dispose of all objects retained under the provisions of this section.
"(4) If the law enforcement officer at the scene has probable cause to believe that one of the conditions in subsection (1) of this section exists and the coroner refuses to require a postmortem examination, the officer shall immediately notify the county or Commonwealth attorney who may proceed pursuant to KRS 72.445.
"(5) In all cases listed under KRS 72.025 in which a licensed embalmer, funeral director or ambulance service is notified and is the first person at the scene of death other than private citizens, he shall notify the coroner and if the death appears to fall within the categories established in subsections (1) through (12) of KRS 72.025, he shall notify a local law enforcement agency. "
Your specific question is: Who has the authority to collect and store evidence found on and near a body in a death situation requiring postmortem examination to be performed by the coroner or a medical examiner?
You are referring to KRS 72.025, requiring, in seventeen (17) different death situations, a postmortem examination by the coroner. A "postmortem examination" is defined in KRS 72.405(4) as a physical examination of the body by a medical examiner or by a coroner or deputy coroner who has been certified by the Department of Justice and may include an autopsy performed by a pathologist or other appropriate scientific tests administered to determine the cause of death. A "coroner's case", however, is a case in which the coroner has reasonable cause for believing that the death of a human being in his county was caused by any of the conditions set forth in KRS 72.025.
Under subsection (1) of KRS 72.020, any person, hospital or institution, finding or having possession of the body of any person whose death occurred under any of the circumstances defined in KRS 72.025 ((1) through (12)), must immediately notify the coroner, or his deputy, and a law enforcement agency, which shall report to the scene within a reasonable time. No person shall remove the body or remove anything from the body until directed to do so by the coroner or his deputy, after the law enforcement agency is present or has failed, within a reasonable period of time, to respond.
KRS 72.025, referred to in KRS 72.020(1), lists seventeen (17) different death situations requiring a postmortem examination to be performed by the coroner or medical examiner.
Assuming the situation is one of the twelve (12) postmortem situations to be conducted by the coroner, subsection (2) of KRS 72.020 literally requires the coroner, or deputy, to take possession of any objects, medical specimens or articles which, in his opinion, may be helpful in establishing the cause of death, and he can make or cause to be made such tests and examinations of the objects as may be necessary or useful in determining the cause of death. In the event of a criminal prosecution, all of the objects and articles collected by the coroner, together with any reports about them, shall be retained by the coroner until their production in evidence is required by the prosecutor, or unless otherwise directed by written order of the court in which the prosecution is pending.
Prior to the 1982 amendment to KRS 72.020, subsection (2) read in part: "The coroner, or his deputy or designee, shall take possession of any objects, medical specimens . . ." (Emphasis added). The 1982 amendment eliminates the words "or designee. " (Emphasis added).
You believe that a defendant's counsel might have evidence (involving the scene of the death) suppressed on the ground that only the coroner could collect and store the death scene objects of evidence and that the coroner simply did not take charge or possession of such evidence.
Your coroners realize that the state police and local police and detectives are especially trained to gather such evidence, and the coroners do not want to deal with such death scene evidence except in conjunction with trained criminal investigators. Also the coroners contend they do not have a place to store and secure such evidence as do the state or local police agencies.
Judge Cullen, in City of Ashland v. Miller, Ky., 283 S.W.2d 195 (1955) 196, pointed out that "Historically, the function of the coroner always has been to aid in the administration of criminal justice by inquiring into the circumstances of violent or suspicious deaths, and the object of an inquest has been to obtain information as to whether death was caused by some criminal act." Thus the coroner was not intended to exercise his function except where the circumstances indicate death might be from other than natural causes. Recent amendments of the coroner law indicate no fundamental departure from the coroner's historic role.
It is our opinion that, under the literal language of KRS 72.020(1) and (2) in those death cases requiring a postmortem examination under subsections (1) through (12) of KRS 72.025, the coroner or his deputy, if they report to the death scene as required upon notification, has at that time and place the sole authority to collect and store the death scene evidence. Implicit, however, in KRS 72.020(2), is the concept that the coroner, if he is to really aid in the administration of criminal justice, must cooperate with the local prosecutor in displaying to and discussing with the prosecutor the death scene evidence in the custody of the coroner. A statute need not expressly state what is necessarily implied.
National Surety Co. v. Commonwealth ex rel. Coleman, 253 Ky. 607, 69 S.W.2d 1007 (1934). In addition, where the coroner or deputy was present at the death scene and collected and stored the death scene evidence, the coroner or deputy, as the case might have been, is the logical party to retain the evidence until called upon to give testimony about the evidence in a prosecutorial proceeding, unless otherwise directed by written order of the court in which such prosecution is pending.
Now suppose that neither the coroner nor his deputy appeared at the death scene, as required by KRS 72.020(1), in such sitution it is our opinion that any local peace officer (see KRS 446.010(24)) who is called and is present at the death scene may collect and store the death scene evidence. Here again such peace officer must cooperate with the local prosecutor, as aforementioned.
The point is that KRS 72.020 must, because of the complexity and ambiguity presented, be given a practical interpretation in order to carry out its manifest purpose, otherwise, the statute as literally drawn could lead to the absurd situation of either the coroner collects the evidence and makes it viable or no one will collect it, which could make it useless.