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NFPA 921: A Double-Edged Sword

by Guy E. Burnette, Jr., Esquire

Contents


Introduction

In the few short years since its introduction, NFPA 921 has become the most controversial and widely discussed publication in the field of fire investigation. NFPA 921 was intended to establish a new standard of professional competence in the investigation of fire incidents. It was designed to create a systematic framework for the investigation of fires using the latest technologies and procedures representing the "state of the art". It has unquestionably accomplished those objectives. The final product prescribes all of the proper procedures and methodologies for the "scientific method" of fire scene investigation. However, it goes on to criticize long-standing myths and improper practices in fire scene investigation, while raising uncertainty about any conclusions which have not been confirmed in the laboratory - even when all of the proper procedures under NFPA 921 have been followed. Conceived as a tool or "guide" for the fire investigator, it turned out to be much more than that. It became a strongly worded criticism of improper methodologies and a ready-made challenge to any conclusions unsupported by convincing scientific proof. Thus, it became a double-edged sword equally adept at supporting the investigative methods established by NFPA 921 while condemning those which are viewed as improper or scientifically unproven. It is a defensive sword to shield those who have followed the mandates of NFPA 921, but an offensive sword to attack those who have failed to meet the standards of NFPA 921.

The use of NFPA 921 as an offensive weapon is the most controversial issue surrounding this document. It is the most often-cited criticism raised by its detractors and it is unquestionably the most common strategy for the use of NFPA 921 in the courtroom. Whenever the subject of NFPA 921 is raised, it is an issue which must be confronted.

The use of NFPA 921 as a sword was both predictable and inevitable. Any document which purports to establish the "right way" is destined to be used to discredit an alternative approach. Almost by definition, proclaiming the "right way" means any other method is the "wrong way". This is common to all textbooks, manuals or guides. In that respect, the problem is nothing new.

What sets apart NFPA 921 from other textbooks, manuals or guides is the tone and language of its content. It seems almost as if it was designed for use as an offensive weapon as much as its professed purpose of a "guide". Much of the document is a lesson in how not to investigate a fire, rather than how to do the job. It is a negative, often derogatory critique of improper investigative practices and serves as a virtual script for cross-examination. It advocates the use of objective, scientifically verifiable methods of analysis to the point of almost disregarding any subjective, experience-based methodologies and conclusions. Even as the document recognizes fire scene investigation is both art and science, it clearly advocates scientific data over professional opinion drawn from experience and training. While few would argue with the concept of seeking scientific confirmation, the absence of such confirming evidence may be due to any number of variables which can arise in a fire scene investigation. Nfpa 921 seems to disregard the possibility of some valid explanation for the lack of scientific confirmation and presumes it to mean the investigation is flawed.

As it prescribes a science-based methodology requiring objective confirmation, it repeatedly challenges, qualifies, limits or even rejects any opinions and conclusions drawn from personal observation and experience alone. Those observations and conclusions are deemed uncertain at best and presumptively erroneous at worst. Information gathered at the fire scene from first-hand observation is viewed as unreliable under NFPA 921 unless and until it has been conclusively confirmed by scientific testing at the laboratory. Anything which has not been scientifically confirmed and validated is inherently suspect. Reasonable doubt is suggested throughout the document.

The use of NFPA 921 as a sword can take several forms. It can arise in any or all of these forms.

A Lack of Awareness of NFPA 921

The use of NFPA 921 as a sword is most effectively and most easily accomplished when the investigator is not fully aware of the document. Awareness means much more than mere knowledge of its existence. The investigator unfamiliar with the specific content of the document and its implications for the field of fire investigation is destined to be slain by the sword. It is the most widely publicized guide to fire scene investigation ever published and represents the collective work of a prestigious group of investigators and scientists. It cannot be dismissed as just another guide to fire scene investigation. It cannot be refuted as merely somebody else's opinion. The committee behind NFPA 921 is a virtual "dream team" of fire investigators, forensic scientists and representatives from both public and private sectors with a vast array of experience and credentials. That NFPA 921 is an authoritative work is beyond dispute. To assume otherwise is to stand defenseless before the sword as it is swung.

Improper Methodologies Under NFPA 921

NFPA 921 is the most comprehensive work ever produced on the procedures and methodologies of fire investigation. Virtually every step of the investigative process is included in NFPA 921, from the pre-scene planning through post-scene latent investigation. Every step includes specific instructions on how it should be carried out. Where an investigator has failed to follow the methodologies of NFPA 921, he is sure to come under fire. Far worse, the investigator who employs investigative methodologies which are challenged by NFPA 921 as scientifically unsound or unsubstantiated "misconceptions" will experience NFPA 921 as a sword in a way never to be forgotten. This is not to say that every step of NFPA 921 must be followed in every fire investigation, as the document itself acknowledges. However, the investigator who deviates from the procedures of NFPA 921 must be prepared to defend his actions and justify his failure to strictly follow NFPA 921. The investigator who feels a particular step is not necessary or appropriate to the investigation must be prepared to explain precisely why it was not necessary or appropriate. More to the point, there must be a "scientific basis" for the failure to do so. This is a challenge to be faced in almost every fire scene investigation. It is the most common use of NFPA 921 as a sword in the courtroom.

Improper/Unsubstantiated Conclusions Under NFPA 921

The culmination of every fire scene investigation is the determination of a fire's origin and cause. The fire investigator who is unable to reach a conclusion will never get his case to court. In cross-examination, the investigator will be challenged on his findings and conclusions. An adverse expert may be called to testify that the conclusions reached by the original fire scene investigator were improper, even when the adverse expert has no opinion or conclusion of his own. Indeed, NFPA 921 is filled with disclaimers and cautionary language about reaching any conclusions in a fire scene investigation without confirming them through scientific proof from laboratory analysis. Nfpa 921 is ideally suited for use as a sword in this respect. Observations at the fire scene which lack confirming scientific proof in the laboratory are inherently suspect. Apparent "low burn areas" may be the product of post-flashover conditions. Apparent "trailers" may be the effect of contents and furnishings in the structure or wear patterns on the floor. Apparent "pour patterns" may be the result of fall-down. No conclusion is safe based solely upon the investigator's observations of the evidence at the fire scene, no matter how extensive his training and experience may be. There is always an alternative explanation for what may be considered evidence of an incendiary cause of the fire. The cautionary language of NFPA 921 and the skepticism shown for an investigator's conclusions based upon his observations at the fire scene provide ample ammunition for challenging those observations and conclusions. Even when the investigator has followed the practices and procedures of NFPA 921, his observations and conclusions still remain vulnerable to the challenge of the double-edged sword when they have not been confirmed in the laboratory.

The use of NFPA 921 as a sword cannot be prevented. It is inherent in the document. There is no easy answer to the problem, short of a fundamental revision to the text. The investigator who has followed every step of NFPA 921 and confirmed his findings with laboratory analysis may not have to contend with NFPA 921 as a sword, but those cases are few and far between. Indeed, such cases will likely never go to court in the first place. If they do, the challenge will not be directed at the fire's origin and cause, but the evidence implicating the accused. Where the evidence is something less than conclusive, as most cases will be, the investigator must be prepared to face NFPA 921 as a sword wielded against him.

In those cases, the investigator must be prepared on three fronts. First, he must be familiar with the document and its content. He must recognize it as an authoritative work in the field of fire investigation, even as he may take issue with its content. He must be ready to highlight the provisions which recognize the unique nature of every fire scene investigation and the role of the fire scene investigator in evaluating the evidence.

Second, the investigator must be ready to show he has followed the recommended practices and procedures of NFPA 921 or be prepared to show why he has not done so due to the circumstances of that specific fire incident. Where a particular step under NFPA 921 has not been followed, it is not enough to simply say it was considered unnecessary or inappropriate. The investigator must be prepared to show why it was inappropriate or unnecessary in a scientific context.

Third, the investigator must be prepared to defend his conclusions and opinions about the evidence at the fire scene. He must anticipate the challenges to those conclusions and the alternative explanations suggested by NFPA 921, with scientifically based justification for the conclusions reached. He must be prepared to refute the alternative theories of the fire under the same standard of scientifically based justification.

There is little doubt NFPA 921 is the most comprehensive and scientifically accurate work in the history of fire investigation. It will certainly lead to higher standards of fire scene investigation, as it has already done. It is an ironic and unfortunate by-product of this process that NFPA 921 lends itself so readily to use as a sword of cross-examination and challenge. For the unprepared investigator, NFPA 921 will be a deadly weapon. For the investigator properly prepared to confront it and justify his findings, the sword can be fought with the greatest weapon of all - the truth.

Reprinted with permission from the author.

 
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