37

A fisherman is heading upstream in his boat, and sees a human corpse float past. Obviously even if it wasn't murder, it still warrants a 911 call because it was a death. The river however, is steadily moving the body away.

Can the fisherman move the body and avoid legal jeopardy because the intent was to preserve it as evidence?

You can make other scenarios I'm sure, but I chose this one as an example. Basically, the concept here is that doing nothing will possibly result in the total destruction of the body/evidence.

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  • 4
    Is there a specific law you think is being broken here?
    – Unfair-Ban
    Jan 6 at 15:23
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    @Studoku Tampering with evidence is the first that comes to mind.
    – Razmode
    Jan 6 at 15:24
  • 2
    The only real issue I can see from my law enforcement perspective is the potential for cross-contamination of trace evidence if the body is excessively moved or manipulated. Things like this are inevitable but can, with skill and luck, be overcome.
    – Rick
    Jan 6 at 15:52
  • 9
    There's a youtube video of a cop threatening to charge a man with tampering with evidence because he moved a motorcycle off of someone. Jan 7 at 4:05
  • 4
    A friend of mine got a licence to man a boat, and she told us that in certain situations (if you are not going to get into port for the next three days, IIRC) you could dump a dead body into the sea (I guess that to avoid health hazards from a decaying body). In Spain.
    – SJuan76
    Jan 7 at 15:13
51

In this specific scenario, not only is it not a crime, failure to do so is a breach of proper maritime protocols and could be illegal.

A person manning a boat and sees a human in water in distress should immediately go to the rescue or recovery of the victim. This is commonly started by the crewman of the vessel who spots the body shouting "Man overboard" once... which triggers every crewman on the deck to also shout the same thing exactly once regardless of if they can see the man who is overboard (The idea is that the call is so all crew on the deck are not announcing the sighting but responding that they know there's an emergency situation in progress... and to muster to the appropriate situations). The boat's helmsman or pilot will then proceed to maneuver to recover the body in the water and bring it onboard the boat, (if traveling by sail, to then as soon as possible transfer to a motor powered vessel or to land which ever is quicker).

Additionally, should the boat have radio communication, the situation should trigger a mayday communication which will alert other vessels, regardless of purpose and local emergency services to the situation, with GPS tracking aiding all responders. Typically while underway at sea or in large bodies of water, all operators of watercraft are required to respond, regardless of actual purpose on the water (recall the famous "Miracle on the Hudson" incident where New York Ferry Operators were the actual first responders to get ALL passengers and crew off the crashed plane to land, where EMS and police services were waiting to deal with the survivors). Most boating licenses these days require a basic understanding of duties with maritime safety and if you come upon a situation while underway, you are a first responder automatically.

Remove the question of water and say that there is person who you are unsure of if they are alive or dead on dry land. Under law, you cannot be held liable for anything you do in the course of saving a life so long as you are acting within your competency to do so, and do not take actions you are not licensed to do as part of training, oversight, and regulations dictate, you cannot be sued for medical injuries inflicted on someone in the course of saving their life (called "Life over Limb"... that if the only way to save an unconscious person from death is to amputate a limb, you're not liable for cutting off the limb in question, so long as you are trained to do this. To a lesser extreme example, if CPR is performed right, you will break the victims ribs... since it's a question of keeping the person alive, the temporary pain and handicap of broken ribs is seen as acceptable).

As a lifeguard (for pools, I wasn't certified for "wilderness lifeguarding" but the differences in this respect were minimum) your first thing to do when getting in the water to fish out a swimmer in distress was to get them back to the pool deck before life efforts could occur (there are a few times where you had to start the life saving efforts in water, but I can count them on one hand, and one of those incidents was only after confirming your victim was conscious and even then you still were moving to get them out of the water asap... it's just asap would be a little bit longer. We also weren't trained to pronounce death. If it was so serious that CPR starts, you do not stop unless another guard or EMS relieve you.).

In these situations, there is proper evidence gathering procedures that will be used to establish what happened. For example, the first responders will be fingerprinted and prints in the areas touched for life saving efforts will be noted as part of the evidence. Additionally, paramedics, EMS and first responders will often alert police to any items of note they saw around the victim that were disturbed in the process of life saving efforts. The police may collect evidence from you to rule you out as a suspect (by showing the evidence on the body was consistent with applied life saving techniques) and to identify evidence not related to you at all (a pink fiber on the body that doesn't match any of your clothes means the body came into contact with the fibers from another source).

This also establishes "Chain of Custody" when you call the body in and stay with it and allow minimum contact with it (many larger ships will store the body in a locked room to keep crew and passenger contact to a minimum). Either way, so long as you tell the police everything you did in rescue and recovery, this isn't tampering with evidence on the face of it. If something that is inconsistent with your story comes up, it's not necessarily incriminating either... in the heat of the moment in a rescue and recovery effort, tunnel vision can form and you aren't expect to recall everything you did. Police should know this and understand that you were cooperating in what for most of the world is an unusual situation.

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    A nice answer, but how much of it applies if it is obvious that the person is not in distress but already dead? For example the body is face down and has been for many minutes, or perhaps the head is detached. Jan 6 at 17:10
  • 19
    For the body being face down in the water, proceed as if they are not dead (having no pulse and no breath does not mean death... but you don't have a large enough window to be truly certain.). For an obvious "no kill like overkill" situation such as decapitation, it's still prudent to remove the body from the water is also prudent as water, especially in a large natural body like a river, has a tendency to destroy evidence faster, and could even send the body further down river before investigators arrive (they are coming to where you said you'd be, not where flowing water goes).
    – hszmv
    Jan 6 at 17:58
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    To put it another way, treating an apparently dead person as if they might still be revived/treated/rescued and attempting to rescue them or provide aid would never be illegal even if they really were dead, while not doing so may occasionally be illegal (ie if you are in a position where you would be responsible for providing assistance). In extreme cases where it is fairly obvious a body must be dead, it's still the case that a human corpse is not something which a person should feel should be left untouched and unreported.
    – tomr
    Jan 7 at 7:02
  • 3
    @hszmv I might have phrased that poorly, plus maybe the laws differ. But here (not USA) I'm pretty sure the prosecution wouldn't just need to show that you did it wrong, but also that you definitely should have known better - so a doctor of course can't do it wrong, but the usual sports coach, who does maybe 2 hours of CPR training per year, certainly would not be sued. And even less so a random passerby even if that person happened to have accredited CPR training at a similar level.
    – Nobody
    Jan 7 at 12:39
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    Is the paragraph beginning "Remove the question" missing something? It ends with "so long as you are acting within your competency to do so, and no" then a long parenthetical. The sentence doesn't seem to be complete, and doesn't continue after the parenthetical statement.
    – Chris H
    Jan 7 at 14:17
32

Using Florida as an example, this would be fine.

Tampering with evidence requires the intent to destroy, alter, or conceal it to impair its usefulness. The intent here was the exact opposite- there is no mens rea here and no crime has been committed.

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  • 1
    Not saying you're wrong (and IANAL), but what a person intended is impossible to know, so we are forced to infer intent from the circumstances. So while in theory, sure, if your intent was to preserve evidence, you should be fine. But I suspect in many circumstances, "lack of intent" is more akin to an affirmative defense in practice. My point being merely that laypeople (including myself) should understand that "no intent = no crime" is a very simplistic way of looking at the issue. Jan 9 at 1:34
15

Based on what we were taught when I was an EMT in New York State, there would not be a problem. Seeing a body float by, you can't tell for certain that they are truly dead, so you would be perfectly justified in pulling them onboard/getting them to shore/rendering aid regardless of your level of training.

Face up/face down would not apply because, especially in cold water drowning, the brain can survive for 30+ minutes, if I recall correctly. If there was obvious decomposition, or obvious non-survivable trauma, e.g., missing head, then there is nothing that says you cannot act to preserve the body as evidence. As mentioned by @Studoku, regarding Florida, there is no criminal intent.

5

Probably the fisherman would prevail legally in the end, but he might get entangled in a very undesirable legal situation by recovering a corpse.

There was a real world case around a team of deep divers where the team even refused direct orders by the Coast Guard to recover a body. [Shadow Divers: The True Adventure of Two Americans Who Risked Everything to Solve One of the Last Mysteries of World War II, Robert Kurson]:

"Bring the body on board," ordered the dispatcher.
"Absolutely not," Kohler responded.
Kohler knew that by taking a body on his boad, he would be involved in a 
prolonged investigation, and he had no time for that. Instead, he chose to 
stay with the body and wait for the Coast Guard.
...
When the Coast Guard boat arrived, it radioed to Kohler.
"Pull the body onto your swim platform and follow us in."
"No way, " Kohler replied. "I'm going to let the body go unless you come and 
take it."

Google Books Link

At some point, they had a corpse floating next to the boat (maybe from their team, I don't remember). They called the US Coast Guard, who tried to order them to load the corpse onto their boat.

The divers refused, because they expected the Coast Guard to order them to bring the corpse back to coast to a port of the Coast Guard's choice, then treat their boat as a crime scene etc., just because the Coast Guard wanted to avoid getting the corpse themselves. A very heated radio exchange ensued, with the Coast Guard trying to force them to recover the body, while the divers refused. In the end, the Coast Guard had to recover the body on their own.

I would not recover a body from the water if it was 100% certain the person was dead, e.g. from injuries not compatible with life.

  • you would probably eventually prevail in court under good Samaritan statutes, but you could be charged with obstruction, destruction of evidence etc.

  • it would turn your boat into a crime scene, you might be held up for a long time

  • you might be required to keep yourself available for questioning. A foreign jurisdiction might very well take your passport and jail you till you have been cleared

  • your DNA, fingerprints etc. might be taken, and your data will end up in police databases forever

  • it might be a biohazard situation. what if the corpse falls apart on your boat and the entrails spill out?

  • it could be traumatizing to be on a boat with a corpse, potentially for an extended time

Instead, you could mark the corpse with a buoy, maybe a GPS tracker, AIS (fishermen do use these to keep track of nets). Then get out of the way.

5
  • That unfortunately... matches my expectation for this scenario lol. Surely had they followed the Coast Guard's directive though, they wouldn't be legally liable in anyway though, correct? If anything, it should just be the inconvenience of having their ship effectively impounded for a time.
    – Razmode
    Jan 7 at 13:12
  • 3
    I don't think they would have been liable. If I remember the story correctly, they had a heated radio exchange and the CG didn't just nicely ask for a favor, but tried to force them to do the recovery. Not for liability, just so they didn't need to mess up their nice CG boat.
    – diver
    Jan 7 at 14:15
  • Any random passerby suddenly noticing you near a corpse, might also be mistaking you for a murderer. How would you convince the random police passing by, that you were just pulling a corpse that was randomly floating over there?
    – Clockwork
    Jan 8 at 17:36
  • 2
    Wouldn't such a refusal qualify as failure to comply with a lawful order?
    – A C
    Jan 8 at 17:37
  • 1
    @AC: Ah the rare third amendment case. The order is not necessarily lawful.
    – Joshua
    Jan 8 at 20:56

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