Hi folks,

I'm an arson litigator from way back (pre-921 days) and have some recent criminal arson experience. I thought I'd add my two cents to your discussion regarding what is, to me at least, a question of circumstantial evidence and a confusion between standards and expert opinion testimony.

First of all, whatever it says, 921 is nothing more than a standard. We use lots of standards with expert witnesses in courtroom testimony--ASTM, OSHA, engineering and architectural, medical texts and treatises. You're all probably familiar with Daubert standards. In the 921 context, that means, in my opinion anyway, that a fire analysis which conforms with 921 will in all probability meet the Daubert standard and be allowed to go to the jury. This is true even if the standard remains "probable" rather than what we lawyers call "exclusionary," i.e., excluding every other reasonable hypothesis.

In either case, the jury is the factfinder. It is allowed to use your opinion, including your assesment of "probability," as one of the factors to decide the case, along with motive, financial circumstances (if applicable), presence of ignitable liquids, fire load, and all the other pieces of evidence usually amassed in an arson case.

Second, I'd be concerned about trying to define terms you use in your profession to fit terms that are used in mine. I can certainly understand all of your concerns regarding wrongful convictions based on "probabilities," and that is legitimate. But in trying to tailor your standards to some other guidepost (i.e., legal sufficiency of the evidence), you're getting outside your field a little bit. Your assignment is to find and interpret evidence and render the best opinion you can based on the standards provided by the NFPA. Whether that opinion -- and with the best will in the world, that's all it will ever be -- can be one part of the proof in a given case depends on, first, its conformity with legal requirements, and second, whether it "fits" with the other evidence in the case.

I won 10 straight civil arson cases (actually tried) in Louisiana, all before 921, with varying degrees of expert witness support. In every one of those cases, the other evidence, usually of financial motive, was the key to success. One guy had been a "victim" of seven fires in three years, four in which he held the mortgage on a "friend's" house. I could have won that one without producing an expert.

The reason I've joined this discussion is because, as a trial lawyer, it is important to me that my witnesses adhere to real standards, such as 921, and be discouraged from simply giving lip service to 921 in order to support a conclusion they reached before ever starting an investigation. The legal system does a lot of things well, but it's a blunt tool when it comes to making black and white decisions. Individual biases will always be there.

Hope this helps clarify things.

Jim Doyle.