Let me say I spend my time in the public sector starting back in 1972. I understand the requirements of the public sector to get a conviction. Yes, confessions make it easier to get a conviction, but over the years I have found there have been more convictions without confessions.

NFPA 921 was not the first or the only thing that changed what was required to get a conviction without a confession. Requirement as to your testimony have been there for years prior to Daubert. This was Rule 702 – Testimony by Expert Witnesses. A big change came about from a court decision in 1978. This addressed the investigators entry to conduct a scene investigation. This was Michigan v Tylor. This took away the ability of the investigator to enter the scene under certain conditions. Then in 1983 the NFPA produced a manual as to how to investigate a scene to determine if the fire was caused by or not caused by an electrical failure. Then in 1984 came Michigan v Clifford, which further restrict the conditions for entry into a fire scene. It was not until all these events that 921 came to be. NFPA 921 was not the last event that had an influence on fire investigation. In 1999 there was the case Kumho Tire Company v Carmichael. This case addressed non-scientific testimony. All of these had an influence on fire investigations.

In 1985, it was coming to light we were convicting people on what I call witchcraft. The evidence being suggested by the investigators was not correct. The question became should something be done to put a stop to what was taking place or just let it continue. I was one that expressed my opinion to the NFPA that something needed to be done to confront this issue. I was not the only person with that opinion and after NFPA did some poling on this issued that agreed to the development of this document. Do not say it was NFPA that come up with the document, they only responded to a large number both public and private fire investigators.

Now to address the term in criminal investigation that states beyond a reason doubt. Beyond a reasonable doubt is the legal burden of proof required to affirm a conviction in a criminal case. In a criminal case, the prosecution bears the burden of proving that the defendant is guilty beyond all reasonable doubt. This means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial.

Let’s compare criminal requirement to the scientific method. The goal of the scientific method is to produce a conclusion that leaves no other reasonable explanation as to the event. This directly corresponds to the burden of proof required in a criminal case.

As to your question about the scientific method only allows one to disprove a hypothesis and does not confirm the hypothesis. How does this affect the burden of proof needed in criminal cases?

Generally, describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established. In criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact beyond a reasonable doubt. The burden of proof is often said to consist of two distinct but related concepts: the burden of production, and the burden of persuasion.

In the burden of production, a party's obligation to come forward with sufficient evidence to support a particular proposition of fact. Satisfying the burden of production may also be referred to as establishing a prima facie case. Determining whether a party has satisfied its burden of production is not an issue of fact for the jury; it is an issue of law.

When it comes to the burden of persuasion it is the obligation of a party to introduce evidence that persuades the factfinder (judge or jury), to a requisite degree of belief, that a particular proposition of fact is true. The burden of persuasion is comprised of two elements: the facts a party must plead and prove in order to prevail on a particular issue; and how persuasively the party must prove those facts.

These are task that have always been there when it comes to criminal prosecution.

You would agree that is you are to testify at a trial the prosecution will want you to testify as an expert so you can render an opinion.

Your testimony has always been required to meet the Rule 702 requirements. This rule requires a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

The key here is (c). You must agree that your testimony has always been required to meet the requirement that the testimony is the product of reliable principles and methods. My question is, before 921 what were your reliable principle and methods? The truth is there was none that would have been accepted through any known methodology.

Many have tried to say that fire investigation was not science to get around Daubert. This question was handled by the US Supreme Court in 1999. The question was does a federal trial judge's "gatekeeping" obligation, under the Federal Rules of Evidence (Rule 702), apply to testimony based on skill or experience as it does to testimony based on scientific knowledge? In an opinion delivered by Justice Stephen G. Breyer, the Court held that a federal trial judge's "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Justice Breyer wrote for the Court that Federal Rule of Evidence 702 "makes no relevant distinction between 'scientific' knowledge and 'technical' or 'other specialized knowledge. It makes clear that any such knowledge might become the subject of expert testimony." The Court concluded that this interpretation of Rule 702 would ensure that an expert witness's testimony rests on a reliable foundation and is relevant to the task at hand.

After this there was no question that there must be a reliable foundation for the conclusion you reached. Can you tell me prior to 921 what was the reliable foundation accepted for fire investigation?

As to all fire causes needing to be classified as being undetermined since one can only prove a hypothesis false is a misconception. Here you are talking about the burden of proof. The burden of persuasion it is the obligation of a party to introduce evidence that persuades the factfinder (judge or jury), to a requisite degree of belief, that a particular proposition of fact is true. If one were to display to the trier of fact that these are all the potential causes, and that each was evaluated and discounted for specific reasons and that there was only one remaining you have met the burden by a process of elimination.
As to always there being an opening for new evidence, are you willing to say, even with you having a confession, that is new evidence is presented you would not be willing to evaluate this evidence as it compares to your conclusion.
The whole purpose behind the first fuel ignited and the heat source was that persons were identifying a fuel that could not be ignites by the source of heat they claimed started the fire. What 921 is doing is making the investigator evaluate the fuels present and the sources of heat present to determine if the heat source was capable of igniting any of the fuels present. Where you say there is no hard evidence present, there must be some physical evidence or evidence from another source. 921 specifically states, “Sometimes the source of ignition will remain at the point of origin in recognizable form, whereas other times the source may be altered, destroyed, consumed, moved, or removed. Nevertheless, the source should be identified in order for the cause to be proven. There are, however, occasions when there is no physical evidence of the ignition source, but an ignition sequence can be hypothesized based on other data.” This is answering your problem. You can use other data to hypothesize a heat source.

What do you have to substantiate your opinion that a solid confession is necessary to prove your case? I would say most are some cases are being successfully prosecuted without a confession. This is my opinion based upon the cases I’ve watched over the years. I do not have statistics to back this up. I can tell you this there was a study back in 1984 not found we’re only 19% of the earths in cases nationally were being cleared by arrest that some research showed that once an arson case is accepted for prosecution and conviction rate is at least as high as other felonies. This research showed that more than 1/3 of the convictions were the results of circumstantial arson cases. I cannot see where the introduction of 921 would have resulted in fewer cases being successfully prosecuted. Again, like with any other profession it depends on the quality of the prosecutor and the prosecutor’s knowledge about fire.

921 by striking the chapter on classifications is not doing away with classifications. What they have said is that the idea of classifications can be found in other areas such as in NIFRS. Because classifications involved intent of the person and intent is not covered in 921 it should not be a chapter that does not have guidelines for a psychological evaluation of a person’s intent. It does not say you cannot classify a fire. You just need to be able to justify their classification. There are other documents which will allow you to reach those conclusions.

Hope this helps.

Jim Mazerat
Forensic Investigations Group