Has anyone dealt with this issue? We have a murder case where the female defendant killed her husband then put a letter in his coffin. She is claiming battered woman syndrome. I am wanting the letter.
The defendant paid for the funeral and casket so I am unsure if that comes into play.
I don't have any idea how to go about getting the exhumation, but I would think that regardless of who paid for the funeral, a letter in a coffin is pretty much the definition of "abandoned property."
Have a look at Tex. Health & Safety Code sec 711.004.
If you have probable cause there is evidence in the casket get a search warrant.
Who has standing to challenge the search of a grave?
The problem I have with getting a search warrant is the evidence is a letter ie) the personal writings of the defendant.
I would think the defendant has no standing to challenge the search but I cannot find any authority on the issue.
Regarding standing, assume that the defendant paid for the funeral, casket, and presumably, the plot in which the victim was buried. Would she not then have standing? Would she not have a reasonable expectation that no one would ever see it once he was buried?
And what about the issue of it being her personal writing that she expected no one would ever see?
There's no reasonable expectation of privacy in property given to a third person. Whether you count the third person as the corpse or the funeral home, I think this qualifies. I might expect that when I put the trash out at my curb, it will be taken away by an automated garbage truck and not looked at, but that's not considered reasonable. I might expect that if I take my computer to be repaired, the tech will fix the problem and not go looking through my saved files, but that's not considered reasonable. Once you give up control of the property to someone else, you give up the expectation of privacy in it.
From a case involving the body of Lee Harvey Oswald:
Neither Rose Hill Cemetery nor Dr. Charles Petty claim any personal stake in the controversy and stand willing to abide by any decision of the court. Michael Eddowes admittedly has been seeking to have the body of Lee Harvey Oswald exhumed and intends to continue doing so. Eddowes' response to Oswald's charges is that Oswald has no standing to prevent the exhumation since the defendants are acting upon the written consent of the surviving spouse, Marina Porter, who has the statutory right under Tex.Rev.Civ.Stat.Ann. art. 912a-22 (1964) to consent to the exhumation of her deceased spouse's body.
The threshold question is the right of Oswald to maintain this suit.
Tex.Rev.Civ.Stat.Ann. art. 912a-22 (1964) provides in part as follows:
"The remains of a deceased person interred in a plot in a cemetery may be removed therefrom with the consent of the cemetery association and the written consent of the surviving wife or husband, or if there is no surviving husband or wife, then of the children; or if there is no surviving husband or wife nor children, then of the parents of the deceased, or should there be no surviving husband or wife nor children nor parent, then of the brothers and/or sisters of the deceased�."
Tex.Code Crim.Proc.Ann. art. 49.05 sec. 1 (1979) provides in part as follows:
"Consent for a licensed physician to conduct an autopsy of the body of a deceased person shall be deemed sufficient when given by the following: In the case of a married person, the surviving spouse, or if no spouse survive him, by any child of such marriage, or in the event of a minor child of such marriage, the guardian of such child if any there be, or in the absence of such guardian, the court having jurisdiction of the person of such minor; in the event that neither spouse nor child survives such deceased, then permission for an autopsy shall be valid when given by a person who would be allowed to give such permission in the case of an unmarried deceased.
"If the deceased be unmarried, then permission shall be given by the following for such autopsy, in the order stated: parent, guardian, or next of kin, and in the absence of any of the foregoing, by any natural person assuming custody of and responsibility for burial of the body of such deceased. If two or more of the above-named persons assume custody of the body, consent of one of them shall be deemed sufficient�."
Under the above statutes, a surviving brother of a deceased does not have the right to control the remains of his deceased brother's body so long as there is a surviving wife, children, or parents of the deceased. In the present case, the evidence reveals that Lee Harvey Oswald is survived by both a widow and children.
Robert Oswald attempted to show a property interest in the cemetery plot, but was unsuccessful. The records of Rose Hill Cemetery and the county deed records failed to show that Robert Oswald ever had a property interest in the cemetery plot where Oswald is buried.
It is well settled that for a person to maintain an action in court, it must be shown that he has a justiciable interest in the subject matter in litigation, either in his own right or in a representative capacity. Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219 (1954); 44 Tex.Jur.2d "Parties" � 7. Oswald failed to offer any evidence that would show that he had any justiciable interest in the exhumation and reautopsy or come under any possible exception to the provisions of the statutes cited above. Therefore, we conclude that Oswald had no justiciable interest [**7] in the subject matter of this litigation and that he had no authority to institute suit in the trial court.
Andrea, aren't those cases distinguishable, factually?
You expect the trash can to be manipulated, whether its searched or not, and you expect something to be done to your computer or car when you take it to be repaired.
But you definitely do NOT expect the grave of your loved one to be disturbed post-interment. In fact, many funeral homes make representations about how little a chance there is for disturbing the deceased as part of the pitch. This is why there is often discussion of the fact the land does not include any underground water sources or unstable terrain, the upsell of a waterproof and/or airtight coffin, the discussion of proper visiting hours and the willingness to prosecute trespassers and all the similar representations made as part of the sales pitch at such places.
That is not likely the end of the argument but it is an interesting difference from the typical cases on REP.
But I wonder if it also lends strength to the lack of standing argument given that anything put in the grave of another with the understanding that the giver is likely to never get it back is essentially abandonment of property.
The casket is by definition going to be disturbed, handled, and moved from the funeral itself -- where the letter was presumably placed -- to the final resting place. Maybe that argument would have more strength if the letter was tossed into the grave, but then I wouldn't think the letter would be in much condition to get back! But I agree that your examples just give more strength to the argument that it's abandoned and you don't expect to ever get it back.
On CSI, they would have some fancy instrument that could read the letter through the ground.
Contact Texas Ranger Kenny Ray in Midland. He is an expert in this field and great to work with. He teaches a course on exhumations and has personally assisted in many throughout the State.
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