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NFPA 921 Sections 5-1, 5-2.1, and 5-2.2
Legal Considerations: Introduction, Authority to Conduct the Investigation, and Right of Entry

[interFIRE VR Note: Tables and Figures have not been reproduced.]

5-1* Introduction. Legal considerations impact on every phase of a fire investigation. Whatever the capacity in which a fire investigator functions (public or private), it is important that the investigator be informed regarding all relevant legal restrictions, requirements, obligations, standards, and duties. Failure to do so could jeopardize the reliability of any investigation and could subject the investigator to civil liability or criminal prosecution.

It is the purpose of this chapter to alert the investigator to those areas that usually require legal advice, knowledge, or information. The legal considerations contained in this chapter and elsewhere in this guide pertain to the law in the United States. This chapter does not attempt to state the law as it is applied in each country or other jurisdiction. Such a task exceeds the scope of this guide. To the extent that statutes or case law are referred to, they are referred to by way of example only, and the user of this guide is reminded that "the law" is in a constant state of flux. Analogized to a living thing, both case law and statutory law are constantly subject to creation (by new enactment or decision), change (by modification or amendment), and death (by being repealed, overruled, or vacated). It is recommended that the investigator seek legal counsel to assist in understanding and complying with the legal requirements of any particular jurisdiction. Recognition of applicable legal requirements and considerations will help to ensure the reliability and admissibility of the investigator's records, data, and opinions.

5-2 Preliminary Legal Considerations.

5-2.1 Authority to Conduct the Investigation. The investigator should ascertain the basis and extent of his or her authority to conduct the investigation. Normally, the authority is public or governmental (i.e., police department, fire department, office of the fire marshal); contractual (e.g., insurance); or otherwise private (e.g., in the event of investigation conducted in anticipation of litigation). Proper identification of the basis of authority will assist the investigator in complying with applicable legal requirements and limitations.

The scope of authority granted to investigators from the public or governmental sector is usually specified within the codified laws of each jurisdiction, as supplemented by applicable local, agency, and department rules and regulations. Many states and local jurisdictions (i.e., cities, towns, or counties) have licensing or certification requirements for investigators. If such requirements are not followed, the results of the investigation may not be admissible and the investigator may face sanctions.

5-2.2 Right of Entry. The fact that an investigator has authority to conduct an investigation does not necessarily mean that he or she has the legal right to enter the property that was involved in the fire. Rights of entry are frequently enumerated by statutes, rules, and regulations. Illegal entry on the property could result in charges against the investigator (i.e., trespassing; breaking and entering; or obstructing, impeding, or hampering a criminal investigation).

Once a legal right of entry onto the property has been established, the investigator should notify the officer or authority in charge of the scene of his or her entry. An otherwise legal right of entry does not authorize entry onto a crime scene investigation. Further authorization by the specific agency or officer in charge is required. Once on the property, extreme caution should be exercised to preserve the scene and protect the evidence.

Frequently, code provisions designed to protect public safety mandate that a building involved in a fire be promptly demolished to avoid danger to the public. This act can deny an investigator the only opportunity to examine the scene of a fire. When it is important to do so, court ordered relief prohibiting the demolition until some later and specified date may be obtained, most typically by way of injunction, to allow for the investigator's presence at the scene. This may prove costly, however, as the party seeking the delay may be required to post a bond, procure guards, and secure the property during the intervening time period. Legal counsel should be able to anticipate needs in this regard and promptly respond to such needs.

The investigator should remain aware that he or she may be required to produce evidence by order of court or pursuant to a subpoena. The investigator should exercise caution and not destroy, dispose of, or remove any evidence unless clearly and legally entitled to do so. Regarding investigations of major or catastrophic fires, courts are becoming increasingly more willing to enter orders designed to preserve the fire scene, thereby preserving the rights of all interested parties and entities to be aware of and examine all available evidence.

In the event that destruction, disposal, or removal is authorized or necessary, the investigator should engage in such acts only after the scene has been properly recorded and the record has been verified as to accuracy and completeness.


* A-5-1 While many of the basic rules and concepts are similar in Canada, important differences also exist. An investigator should be cautious about applying the legal rules outlined in this chapter to investigations governed by Canadian law. For an explanation of the relevant Canadian legal, procedural, and evidentiary rules addressed in this chapter, see Hewitt, Fire Loss Litigation in Canada: A Practical Guide.


For more information, contact:
The NFPA Library at (617) 984-7445 or e-mail library@nfpa.org

Taken from NFPA 921Guide for Fire and Explosion Investigations 1998 Edition, copyright © National Fire Protection Association, 1998. This material is not the complete and official position of the NFPA on the referenced subject, which is represented only by the standard in its entirety.

Used by permission.

 
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