§ 4701 Division of Forensic Science established; purpose.
The purpose of this chapter is to establish a Division of Forensic Science to provide leadership and coordination in the exercise of forensic sciences. In furtherance of that purpose, there is created the Division of Forensic Science under the supervision and control of the Director of the Division of Forensic Science. The Division of Forensic Science is established and operational within the Department of Safety and Homeland Security. The Division of Forensic Science shall have all the powers, duties, and functions heretofore vested in the Office of the Chief Medical Examiner, its personnel, and the Forensic Science Laboratory. The Office of the Chief Medical Examiner is hereby abolished.
§ 4701A Definitions.
For purposes of this chapter, "next of kin" means 1 of the following:
(1) A spouse.
(2) If no spouse, the decedent's adult children.
(3) If no spouse or adult children, the decedent's parents.
(4) If no spouse, adult children, or parents of the decedent, the person who is legally entitled to claim the decedent's remains for final disposition.
§ 4702 Rules and regulations.
The Department of Safety and Homeland Security may adopt and promulgate rules and regulations to carry into effect this chapter.
§ 4703 Appointment of professional and other personnel.
(a) The Director of the Division of Forensic Science shall appoint, with the approval of the Secretary of the Department of Safety and Homeland Security, a Chief Medical Examiner, who shall be a board-certified pathologist, with preference given to applicants with training and experience in the field of forensic pathology. The Chief Medical Examiner shall serve at the pleasure of the Director of the Division of Forensic Science and shall be subject to removal with or without cause by the Director of the Division of Forensic Science or the Secretary of the Department of Safety and Homeland Security.
(b) The Director of the Division of Forensic Science may appoint, with the approval of the Department of Safety and Homeland Security Assistant Medical Examiners who shall be physicians with 2 years or more of training or experience in pathology, necessary numbers of Deputy Medical Examiners who shall be practicing physicians and a toxicologist who shall have a Ph.D. degree in toxicology or pharmacology or a master's degree in toxicology or pharmacology with a minimum of 3 years of experience in analytical toxicology, at such compensation as shall be determined by the Department of Safety and Homeland Security. The Director of the Division of Forensic Science may also appoint, in accordance with the state merit system regulations, technical, clerical and other personnel, as may be necessary for proper administration of the Division.
(c) The Director of the Division of Forensic Science may employ, with the approval of the Department of Safety and Homeland Security, physicians on a contract basis for part-time services, as may be required. Except as otherwise provided, all professional, technical and clerical personnel appointed in accordance with this section are directly responsible to the Director of the Division of Forensic Science and are subject to removal by the Director of the Division of Forensic Science or the Secretary of the Department of Safety and Homeland Security for cause, in accordance with any state merit system regulations applicable to the position.
(d) The Director of the Division of Forensic Science or his or her designee may conduct pre-employment drug testing of any contractor or prospective employee accepting a position with the Division, random drug testing of employees, and testing upon reasonable suspicion that an employee is impaired by an illegal drug. The timing, procedures, and specific controlled substances of any drug testing shall be conducted in accordance with policies or regulations adopted by the Division. The Division is further authorized to conduct preemployment criminal background checks of any contractor or prospective employee accepting a position with the Division, and such persons are subject to criminal background checks from time to time while working in or for the Division.
(e) The Director of the Division of Forensic Science and Chief Medical Examiner shall be subject to the same Department of Safety and Homeland Security policies and procedures with respect to overtime, vacation and leave time, and compensatory time as other Department of Safety and Homeland Security division directors. The Director of the Division of Forensic Science, Chief Medical Examiner, Assistant Medical Examiners, Deputy Medical Examiners, forensic toxicologists, and forensic chemists shall not be permitted to maintain or engage in employment, or to work as an independent contractor, outside of the Division of Forensic Science without prior written approval of the Secretary. Such prior written approval must be issued for each employer or contract for private outside employment.
§ 4704 Duties of Medical Examiners.
(a) The Chief Medical Examiner, the Assistant Medical Examiners and the Deputy Medical Examiners shall perform all the medical and other functions formerly devolving upon the coroners, deputy coroners and coroners' physicians in the counties of this State and in the City of Wilmington and duties imposed upon them by this chapter.
(b) The Chief Medical Examiner shall comply with the orders and directions of the Department of Safety and Homeland Security.
§ 4705 Office and equipment.
The Division of Forensic Science shall be maintained in a suitable place or places which shall be designated by the Secretary of the Department of Safety and Homeland Security. The Department of Safety and Homeland Security shall provide or arrange for proper and necessary equipment for use of the staff of the Division of Forensic Science.
§ 4706 Investigation of deaths.
(a) When any person shall die in this State, as a result of violence, by suicide or by casualty if such occurred not longer than 1 year and 1 day prior to death, while under anesthesia, by abortion or suspected abortion, by poison or suspicion of poison, by overdose death as defined at § 4799A of Title 16 or suddenly when in apparent health or when unattended by a physician or in any prison or penal institution or when in police custody or from a disease resulting from employment including disease related to injury or from an undiagnosed cause which may be related to a disease constituting a threat to public health or in any suspicious or unusual manner or if there is any unclaimed body or if anybody is to be cremated, it shall be the duty of the person having knowledge of such death or of the person issuing a permit for cremation under § 3162 of Title 16 immediately to notify the Chief Medical Examiner, an Assistant Medical Examiner or a Deputy Medical Examiner, as the case may be, who in turn shall notify the Attorney General of the known facts concerning the time, place, manner and circumstances of such death. Any person who shall wilfully neglect or refuse to report such death or who shall refuse to make available prior medical or other information pertinent to the death investigation or who, without an order from the Division of Forensic Science, shall wilfully touch, remove or disturb the clothing or any article upon or near the body shall upon conviction be subject to imprisonment for not more than 1 year or pay a fine of not more than $1,000, or both.
(b) Immediately upon receipt of such notification, the Medical Examiner shall take charge of the dead body if either the Medical Examiner or the Attorney General shall deem it necessary. The Division of Forensic Science shall promptly notify a relative or close acquaintance of the deceased, if known, of such action.
(c) The Medical Examiner shall fully investigate the essential facts concerning the medical causes of death and may take the names and addresses of as many witnesses as may be practicable to obtain and shall reduce such facts as the Medical Examiner may deem necessary to writing and file the same in the Division of Forensic Science. The essential facts concerning the medical causes of death of any person who has died from an overdose death as defined at § 4799A of Title 16 shall be communicated to the Delaware Department of Justice.
(d) The Medical Examiner or a duly authorized investigator, in the absence of the next of kin, shall take possession of the personal property found on the deceased and make an exact inventory thereof on the Medical Examiner's report. If necessary an attending police officer may take temporary possession of such property in behalf of the Medical Examiner or an authorized investigator.
(e) The Medical Examiner shall take possession of any object or articles which, in the Medical Examiner's opinion, may be useful in establishing the identity of the deceased person or the cause of death and deliver them to the Attorney General. The balance of the personal property of the deceased remaining in the possession of the Medical Examiner shall be released to the next of kin of the deceased or the personal representative of the deceased.
29 Del. C. 1953, § 4710; 50 Del. Laws, c. 502, § 1; 53 Del. Laws, c. 175, §§ 5-7; 57 Del. Laws, c. 140, § 1; 58 Del. Laws, c. 58, § 1; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 265, § 1; 80 Del. Laws, c. 220, § 2.;
§ 4707 Postmortem examination; autopsy reports.
(a) When the cause of death shall have been established within reasonable medical certainty by a Medical Examiner, the Medical Examiner shall prepare a written report and file it in the Division of Forensic Science within 90 days after an investigation of such death.
(b) If, however, in the opinion of the Medical Examiner an autopsy is necessary in the public interest or as shall be requested by the Attorney General, the same shall be performed by the Chief Medical Examiner, an Assistant Medical Examiner or by such other competent pathologists as may be designated by the Chief Medical Examiner. No person who authorizes or performs an autopsy pursuant to this chapter shall be liable in any civil action for damages.
(c) A detailed report of the findings written during the progress of the autopsy, related laboratory analysis and the conclusions drawn therefrom shall be filed in the Division of Forensic Science.
(d) Promptly upon the conclusion of the postmortem examination, the body of the decedent shall be released to such person as shall be designated by a member of the decedent's immediate family, preferably the next of kin or by an appropriate representative of the decedent's estate.
(e) Upon written request the next of kin of the deceased shall receive a copy of the postmortem examination report, the autopsy report and the laboratory reports, unless there shall be a criminal prosecution pending in which case no such reports shall be released until the criminal prosecution shall have been finally concluded. The charge for completion of an insurance form for proof of death shall be $5.00.
29 Del. C. 1953, § 4711; 50 Del. Laws, c. 502, § 1; 53 Del. Laws, c. 175, § 8; 57 Del. Laws, c. 140, § 1; 57 Del. Laws, c. 591, § 55; 58 Del. Laws, c. 58, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 79 Del. Laws, c. 265, § 1; 81 Del. Laws, c. 358, § 2.;
§ 4708 Forensic Sciences Laboratory.
The Forensic Sciences Laboratory is established and operational within the Division of Forensic Science. The Director of the Division of Forensic Science functions as the Director of the Forensic Sciences Laboratory.
§ 4709 Power to administer oaths and issue subpoenas.
The Director of the Division of Forensic Science, the Chief Medical Examiner, the Assistant Medical Examiners and the Deputy Medical Examiners, in the course of investigation of a death, may administer oaths and affirmations and take affidavits and make examinations as to any matter within the jurisdiction of their respective offices, but the Chief Medical Examiner, the Assistant Medical Examiners and the Deputy Medical Examiners may not summon a jury of inquisition. The Chief Medical Examiner, or in the Chief Medical Examiner's absence, Assistant Medical Examiners or Deputy Medical Examiners, shall have the power to issue subpoenas.
§ 4710 Records and reports; evidence.
(a) The Chief Medical Examiner is to keep full and complete records of the Division of Forensic Science pertaining to the investigation of deaths and postmortem examinations. Such records shall be properly indexed, giving the name, if known, of every deceased person investigated, the place where the body was found, the date and the cause of death and all other available information relating thereto. The original report of Medical Examiners and the detailed findings of the autopsy and subsequent laboratory examinations, if any, shall be attached to the record of each case.
(b) The Chief Medical Examiner shall deliver to the Attorney General copies of all records relating to every death in which, in the judgment of the investigating Medical Examiner, further investigation may be deemed advisable.
(c) The Attorney General may obtain from the Division of Forensic Science copies of all records or other information which the Attorney General may deem necessary.
(d) The records of the Division of Forensic Science prepared by the Director of the Division of Forensic Science or by anyone under the Director's direction or supervision or a true copy thereof certified by the Director or the Chief Medical Examiner shall be received as competent evidence in any court in this State of the matters and facts therein contained.
§ 4711 Disposition of unclaimed body or remains of indigent person.
(a) In any case where there is an unclaimed body or there are remains of indigent persons and it is incumbent on the State or any political subdivision thereof to bury such person found dead, the Chief Medical Examiner or a duly authorized representative shall notify the Division of Social Services of the Department of Health and Social Services to arrange for the burial unless the case falls within the category described in subsection (b) of this section.
(b) When there is a written consent of the next of kin or other legally responsible party, the remains of an indigent person may be cremated or donated for scientific research.
§ 4712 Authority to provide corneas to eye banks.
(a) Upon request of an approved eye bank on behalf of a patient in need of corneal tissue for a transplant, a Medical Examiner is authorized to provide the cornea under the following conditions:
(1) A decedent who may provide a suitable cornea for transplant is under the jurisdiction of the Medical Examiner;
(2) An autopsy will be required;
(3) No objection by the decedent or next of kin is known by the Medical Examiner prior to the removal of the cornea by a representative of an approved eye bank; and
(4) Removal of the cornea for transplant will not interfere with the subsequent course of a postmortem examination or alter the postmortem facial appearance.
(b) For the purposes of this section, "approved eye bank" includes the Medical Eye Bank of Delaware and the Eye Foundation of Delaware Valley.
(c) The Medical Examiner or an approved eye bank, while acting in compliance with this section, shall not be liable to the next of kin of a decedent, whose corneal tissue is removed and donated pursuant to this section, for any civil damages.
§ 4713 DNA analysis and data bank.
(a) In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique, and the evidence of a DNA profile comparison shall be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the person as shall be admissible in evidence.
(b)(1) Any person convicted on or after June 16, 1994, of any offense or attempted offense defined in subchapter II, subpart D or subchapter V of Chapter 5, Title 11 or who is in the custody of the Department of Correction after June 16, 1994, as a result of a conviction on one of the above offenses shall have a biological sample taken by the Department of Correction for DNA (deoxyribonucleic acid) law-enforcement identification purposes and inclusion in law-enforcement identification databases. Any person convicted on or after June 16, 1994, who is not sentenced to a term of confinement shall provide a biological sample as a condition of such sentence at a time and place specified by the sentencing court.
(2) Any person convicted after July 1, 2003, of any offense that is defined and classified as a felony under Title 11 shall have a biological sample taken by the Department of Correction for DNA (deoxyribonucleic acid) law-enforcement identification purposes and inclusion in law-enforcement identification databases. Any person convicted after July 1, 2003, of such felony offense and who is not sentenced to a term of confinement shall provide a biological sample as a condition of such sentence at a time and place specified by the sentencing court.
(c) The biological samples shall be obtained in a medically approved manner by a physician, registered nurse, licensed practical nurse, phlebotomist, medical technologist or other qualified personnel approved by the Director of the Division of Forensic Science, and packaged and submitted in containers provided or approved by the Division of Forensic Science in accordance with administrative regulations promulgated by the Division of Forensic Science. No civil liability shall attach to any person authorized to obtain a biological sample as provided by this section as a result of obtaining a biological sample from any person, provided the biological sample was obtained according to generally accepted medical procedures.
(d) Any person who tampers or attempts to tamper with any biological sample or the container collected pursuant to subsection (b) or (c) without lawful authority shall be guilty of a Class D felony.
(e) A centralized database of DNA (deoxyribonucleic acid) identification records for convicted criminals shall be established in the Division of Forensic Science. The established system shall be compatible with the procedures set forth in a national DNA identification index to ensure data exchange on a national level.
(f) The purpose of the centralized DNA database is to assist federal, state and local criminal justice and law enforcement agencies within and outside the State in the identification, detection or exclusion of individuals who are subjects of the investigation or prosecution of sex-related crimes, violent crimes or other crimes and the identification of missing and unidentified persons.
(g) The Division of Forensic Science shall receive, analyze and classify biological samples in compliance with subsections (b) and (c) of this section, and shall record the DNA results in a centralized database for identification and statistical purposes. Except as specifically provided in this section, the results of the analysis shall be securely stored and shall remain confidential.
(h) Records produced from the biological samples shall be used only for law enforcement purposes and shall be exempt from the provisions of the Freedom of Information Act [Chapter 100 of this title].
(i) A person whose DNA profile has been included in the data bank pursuant to this section may petition Superior Court for expungement on the grounds that the conviction on which the authority for including the DNA profile was based has been reversed or the case dismissed. The Division of Forensic Science, shall expunge all identifiable information in the data bank pertaining to the person and destroy all biological samples from the person upon receipt of a certified court order.
(j) The Division of Forensic Science shall promulgate administrative regulations necessary to carry out the provisions of the DNA database identification system to include procedures for the collection of biological samples and the database system usage and integrity.
(k) Upon completion of the analysis required by this section, the Division of Forensic Science, shall forward to the State Bureau of Identification the name and other identifying information required by the State Bureau of Identification of each individual for whom a DNA identification record is developed. Upon receipt of such information the State Bureau of Identification shall make a notation of the existence of such DNA identification record in the criminal history record information file for such individual maintained pursuant to Chapter 85 of Title 11. Such information shall be available to all requesting criminal justice agencies in the same manner and under the same conditions as all other criminal record information maintained by the State Bureau of Identification.
(l ) Any person who disseminates, receives or otherwise uses or attempts to use information in the database, knowing that such dissemination, receipt or use is for a purpose other than authorized by law, shall be guilty of a Class A misdemeanor.
(m) For purposes of this section "biological sample" shall mean any evidence collected for the purpose of identifying DNA.
§ 4714 Commission on Forensic Science.
(a) The Commission on Forensic Science, hereinafter in this chapter referred to as the "Commission", is hereby established. The Commission shall provide oversight and guidance to foster professionalism within, and the development and growth of, the Division of Forensic Science. The Commission shall consist of 10 members. The Commissioners shall be the Secretary of the Department of Health and Social Service, the Secretary of the Department of Safety and Homeland Security, the Attorney General, or the Attorney General's designee, the Chief Defender or the Chief Defender's designee, a member of the Delaware State Senate appointed by the President Pro Tempore, a member of the Delaware House of Representatives appointed by the Speaker, a member appointed by the Delaware Police Chiefs Council, a member of the Delaware State Troopers Association or the Fraternal Order of Police with formal training in forensic science appointed by the Secretary of the Department of Safety and Homeland Security with the concurrence of the Governor, and 2 members, appointed by the Governor, who have expertise in forensic science.
(b) For administrative and budgetary purposes, the Commission will be placed within the Department of Safety and Homeland Security, Office of the Secretary.
(c) The Director of the Division of Forensic Science shall create an audit process to include evidence accountability, requisite certifications, and security. The Director of the Division of Forensic Science shall file a report on this audit to the Commission and Governor once a year.
(d) The Commission shall undertake the following tasks:
(1) Evaluate and monitor the needs of the Division to ensure that it is able to provide accurate, timely, and responsive forensic sciences services to all members of the criminal justice community;
(2) Evaluate and monitor the needs of the Division as may help preserve the independence of judgment and the integrity of all scientific undertakings by the Division and its personnel;
(3) Evaluate and monitor the human resources needs and the personnel and hiring practices of the Division;
(4) Receive and consider input from all stakeholders in the criminal justice community, including, without limitation, prosecutors, defense attorneys, the courts, law enforcement, victims' advocates, the Domestic Violence Coordinating Council, the Child Death Review Commission, the Child Protection Accountability Commission, and other interested persons or parties;
(5) Evaluate and monitor the quality assurance structure and processes, including chain of custody practices for drug evidence;
(6) Evaluate and monitor professional competency and accreditation requirements and staff management policies;
(7) Review and comment upon all rules and regulations promulgated pursuant to § 4702 of this title; and
(8) Suggest and support the implementation of improvements to the operations of the Division or its communications and cooperation with other agencies of state and local government.