We are again beginning to report occasionally on decisions made by operators of funeral homes, cemeteries and crematories that seem to be so ill conceived, outrageous or just stupid that other members of the industry should be aware of them. Most of the situations that are being reviewed occurred recently, but sometimes a similar situation that occurred before will be reviewed again.
It seems that the readers of this column reacted favorably to these reports as the author had received telephone calls, emails and letters about some of the situations that were reported. Accordingly, it is the author’s intention to continue to provide readers with information from time to time about incidents of this type in the industry.
The author has given presentations at national, state and local association seminars on the subject of avoiding liability. At every presentation suggestions and warning are given about the implications of not dealing with problems as they occur. Recently, the author reviewed a court opinion on a Motion to Suppress in the case of State of Connecticut v. Rivera, 2012 WL 1139122 (Conn. Super) that illustrates why it is very important to be careful when dealing with the information supplied by participants in funeral services that celebrate the life of a deceased. In this case the author believes the funeral home acted properly and the author’s title of “What Were They Thinking?” actually applies to a relative of the deceased. According, to the opinion a funeral home in Bridgeport, CT was in charge of the funeral arrangements for the Rivera’s father. The services were to include a memorial slide show. On July 16, 2010, the Rivera’s sister came to the funeral home and handed a USB thumb drive to an employee of the funeral home. The employee was instructed to retrieve pictures from the thumb drive in order to assemble the memorial slide show.
When the employee inserted the thumb drive into a computer at the funeral home, he checked the prompt to view all files. The computer then displayed all of the pictures stored in the thumb drive in a gallery format. When employee examined the photos, he saw some pictures of the deceased but also pictures that he believed were child pornography. More specifically, some pictures showed children performing sex acts on children and other pictures showed adults performing sex acts on children. One of the pictures depicted a niece of the Rivera. The employee informed the director of the funeral home of what he had seen on the thumb drive. The director took the thumb drive and inserted it into his Apple computer. Upon examining the picture folder, the only pictures displayed were family photos suitable for a funeral memorial. The director then inserted the thumb drive into the employee’s computer that used a Windows operating system that displayed the pictures on the entire thumb drive including those stored in the recycle bin. The director estimated that the thumb drive contained ten to twelve pictures depicting child pornography. After seeing the material, the director told the employee to call the police.
A Policeman reviewed the pictures on the thumb drive and concluded that the thumb drive contained child pornography. He took custody of the thumb drive and turned it into the property room at the Police Department. A technician at the Police Department did a preliminary test on the thumb drive and determined some of the pictures met the legal definition of child pornography. The Police also interviewed the funeral home employee and director. At that point the Police obtained a search warrant to review everything on the thumb drive. Subsequently, Rivera was arrested for Possession of Child Pornography in violation of the Connecticut laws. The issue before the Court was whether the thumb drive evidence had been obtained through an illegal warrantless search and whether additional evidence obtained with other warrants should be suppressed because based on the first illegal search.
Two hearings were held to consider the Motion to Suppress. The Judge then issued his opinion in which the analysis of detailed steps taken by the Police in the preliminary review of the thumb drive led to the obtaining of a warrant to have an extensive review of the thumb drive. On that basis the Judge denied the Motion to Suppress.
Obviously, Rivera had engaged in illegal activities and he was not too smart when he provided the evidence to a third party on the thumb drive. The question for industry members is what would you do if you discovered illegal material in the personal information provided by a family in connection with a celebration of life ceremony? Several other approaches could have been taken when the employee discovered the pictures. One approach was just to ignore the situation and proceed. However, this could have serious ramifications if one or more of the pictures accidently surfaced during the services. Another approach would be to contact the sister about the problem and let her resolve it within the family. This also might end up with adverse ramifications if the situation became public and the funeral home became subject to consequences for a cover-up of a crime. While others may disagree the author thinks the funeral home proceeded in a prudent manner. The case does illustrate, however, the importance of carefully checking any material provided by a family to be used in a service. It would be a disaster to have pictures of this kind surface during a celebration of life service.
This column is going to end in a similar way every time this topic is covered because these statements still apply. When you make a mistake deal with it then. Do not cover it up, because the situation is usually discovered. Contact the family when necessary. Examine the alternatives before proceeding. Sometimes the cost of a lawsuit or responding to a complaint is more than it costs to deal with a situation even if you feel the consumer is being unreasonable. Monitor your employees and make sure they understand it is important to deal with problems, not cover them up. Monitor other members of the industry that you deal with and if you see something that is questionable do something about it. Report it to the authorities or a licensing board and make sure that appropriate action is taken. Unfortunately, when an industry member acts improperly, adverse publicity tends to affect other members of the industry.