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Documentation of the Fire Scene: A Legal Perspective

by Guy E. Burnette, Jr., Esquire

It goes without saying, every arson case begins at the fire scene. Unfortunately, many arson cases end at the fire scene, as well. Unless the fire scene is properly documented, a case can be lost before it ever starts. A coordinated effort between fire suppression personnel and fire investigators is an essential first step in building an arson case. Proper documentation of a fire scene requires a systematic approach on the part of both firefighters and fire investigators. More importantly, it requires an understanding and recognition of the documentation needed to not only establish the incendiary cause of the fire, but to develop the connecting evidence which will identify and prove the person responsible for setting the fire.

Contents


Documenting the Discovery and Report of the Fire

Some of the most important evidence in an arson case is derived from the circumstances of the fire's discovery and initial report. These facts need to be established and properly documented at the very outset of the investigation.

A. The Fire Report

All of the details of the initial fire report need to be established. If possible, the person calling in the fire report should be identified. The precise time of the initial report must be documented. Whenever possible, a copy of the tape recording of the report should be obtained from the appropriate agency. Care must be taken to ensure that all of the calls reporting the fire are properly documented, not just the first one. Where a fire was reported to several different agencies, information must be obtained from all of those agencies. The most important information to be documented is the call-in time of the fire reports, from the first one to the last one. The dispatch time, arrival time and identity of all responding units should also be documented, including any engine companies called in for support or through mutual aid.

B. Fire Scene Witnesses

Persons who discovered the fire or who were in the immediate vicinity at the time will often remain at the fire scene through extinguishment and overhaul. It is imperative to identify and speak with these individuals while they are still there. Their observations about the conditions at the time the fire was discovered and the progression of the fire as it burned can provide critical information for the fire investigator. Their observations may provide insights into the fire's origin and cause. They may have noticed unusual or suspicious activity immediately preceding the discovery of the fire. Many times these witnesses do not live in the area, but just happened to be passing by or driving through the area. Unless they are identified and interviewed while they are still at the fire scene, they may never be found later. Indeed, the arsonist himself may be there at the fire scene. Some departments have established a standard procedure of recording the tag number and description of every vehicle in the area of the fire incident at the time of initial response. Many fire departments and fire investigation agencies now videotape fire scenes. Witnesses and neighbors may decide to videotape the fire out of their own curiosity. These videotapes can be invaluable evidence for the investigator and should be secured.

Documenting the Conditions at the Fire Scene

A. Officer in charge

The officer in charge of the fire scene must be identified and interviewed. The weather conditions at the time of arrival and throughout the period of suppression should be noted. Fire conditions and the location of areas of active fire involvement from arrival time of the first units through extinguishment of the fire should be carefully recorded in detail.

B. Security at the fire scene

The security of a building, structure or vehicle at the time of first arrival at the fire scene must be precisely documented. This can be a critical piece of evidence in any arson case. The location and condition of all points of entry should be documented. This must be verified with the particular firefighters who actually observed and checked the points of entry, including all doors, windows or other openings, and will be able to provide first-hand testimony at trial. It is not enough to simply speak with the officer in charge about what was reported back to him by the firefighters. Each and every point of entry must be covered with the firefighters having actual knowledge of the conditions of those particular points of entry.

This may be contained in the reports of the responding fire department. However, typically it is not. Contact must be made with the firefighters who have first-hand knowledge of the security of the building while their recollection of events is still fresh. As a practical matter, this must be done within the first forty-eight hours after the fire.

In addition to the testimony of these witnesses, corroborating physical evidence must be documented. Close-up photographs of all doors and windows, and their locking mechanisms, must be taken. They must be closely inspected for any signs of forcible entry or tampering. Glass fragments should be examined for indications of heat crazing, carbon deposits or fracture striations. The location of glass fragments inside or outside the doors and windows must be determined and photographed.

C. Fire suppression and extinguishment

Critical information about a fire can be derived from the circumstances of its extinguishment and suppression. The equipment used during suppression and overhaul should be identified and recorded. The number and size of hose lines used, and the nozzles and patterns utilized, will be important information. The observations of the line firefighters who entered the building will serve to verify the conclusions of the fire investigator. Information about floor level burning, multiple areas of fire origin, the description and locations of the flames and smoke, incidents of "flashback" and "flashover", fire load conditions and the location of furnishings, equipment, inventory, and other items will be invaluable testimony at the time of trial. Once again, this can only be properly documented through the actual firefighters who made these observations and it must be established immediately after the fire.

D. Post-extinguishment conditions at the fire scene

Ideally, the fire investigator will be called out to the scene immediately after extinguishment and prior to overhaul. If not, the fire investigator will have to confirm there have been no significant changes in the fire scene since extinguishment or during overhaul. If there have been any changes to the fire scene, such as the removal of property from inside the building during overhaul, this must be ascertained and noted. Only then can a proper fire scene investigation begin.

Even prior to the analysis of the fire's origin and cause, preliminary observations must be made about the fire scene. Apart from the obvious fire damage conditions, the fire investigator should note the existence and condition of property at the fire scene. In particular, the location and extent of fire and smoke damage (or lack of damage) to major items in the building should be recorded. In a commercial property, the type and amount of equipment and inventory on hand at the time of the fire should be catalogued. It should be closely examined to determine if there are any unusual aspects to the equipment and inventory, such as unexpectedly high or low amounts of inventory on hand at a business, obsolete or outdated inventory and equipment, empty containers or vacant storage areas where property would be expected to be found, disconnected or removed equipment and fixtures, recently delivered merchandise which has not been unpacked or put on display, display items and merchandise (especially food items) left on display which should have been put away at the close of business, and any other such observations. Unusual or unexplained conditions at the time of the fire can be compelling evidence of arson. They should be noted, recorded and documented with photographs whenever they are found at a fire scene.

Documenting the Scene and Evidence

A discussion of fire scene analysis is better left for one trained and qualified in the subject. However, from the legal perspective as a front-row observer of cases won and lost, certain lessons have been learned which bear repeating here in the hope these lessons - good and bad - will be learned in the classroom and not in the courtroom.

A. A systematic and technically sound investigation

It goes without saying, the fire scene investigation should be properly conducted. However, this is more than simply doing a thorough job. It requires an awareness and understanding of the recognized procedures for a fire scene investigation in conformity with scientifically established procedures. More to the point, it requires an adherence to NFPA 921: Guide for Fire and Explosion Investigations.

Since the adoption of NFPA 921 in February of 1992, it has become a controversial document. While it was intended to serve as a "guideline" for the investigation of fire and explosion incidents, it has become much more than a mere guideline. In practical effect, it has become the "national standard" for fire and explosion investigations. It not only outlines the proper steps in an investigation, it challenges many of the long-standing principles of fire scene analysis. The interpretation of spalling, pour patterns, v-patterns, rate of char analysis, flashover and a host of other fire scene phenomena have been subjected to intense scrutiny under objective standards of scientific verification. The fire investigator who fails to follow the "guidelines" of NFPA 921 or is unfamiliar with this document will find himself challenged not only on the results of his investigation, but on his basic methodology and practice. The only way to avoid a confrontation under NFPA 921 is to follow its recommended practice and procedures or be ready to justify any deviation from its methodology. Regardless of whether you agree with this document, you must be prepared to acknowledge it.

B. Examining the entire fire scene

One of the most common mistakes made in the investigation of fire scenes is the failure to examine and document the entire scene. At trial, the fire investigator will always be accused of having jumped to conclusions without considering all of the evidence. Where the entire fire scene has not been thoroughly examined and, more importantly, thoroughly documented with photographs, the investigator is vulnerable to those accusations. Unlike the defendant who is afforded the right to remain silent at trial, the investigator must answer for what he did or did not do. A reasonable doubt can easily be raised from something which was not done or a question which cannot be answered. Certainly, any total loss fire scene should always be investigated from top to bottom, front to back. Even a partial loss fire scene should be thoroughly examined, despite the fact undamaged areas may have no direct bearing on the cause of the fire, if only to be able to show the jury that the investigation was objective and comprehensive. At trial, the investigator will realize it was well worth the effort.

C. Photographic documentation

There has never been a case which has gone to trial with too many photographs. However, there have been many cases which have gone to trial with too few. Cases have been lost because something originally considered insignificant or meaningless was undocumented. Almost by definition, it becomes significant when it is undocumented. Moreover, refuting a challenge to an investigator's theory of the fire takes more than simply saying so. It must be demonstrated and shown to the jury. The most convincing way to do so is with documentary proof in the form of a photograph. For particularly dramatic effect, composite panorama photographs and overhead or aerial photographs should be considered.

D. Fire scene diagrams

A detailed and accurate fire scene diagram is an indispensable component of a proper fire scene investigation. While most fire investigators are not trained draftsmen, a fire scene diagram does not have to resemble an architectural blueprint to be effective. However, it does need to accurately depict the layout and configuration of the structure. It must contain all of the rooms in the structure and the factors which would affect the fire's travel and progression, such as walls, hallways, stairways, attics, crawl spaces and the like. Many computer software programs now offer drafting capabilities and make the job much easier for an investigator. Even without the benefit of a computer program, however, an investigator can draw a fire scene diagram suitable for use at trial with just a little time and effort. It is time well spent, as the fire scene diagram will be one of the most important demonstrative exhibits at trial. The use of overlays and enlarged areas within the diagrams will make them even more effective exhibits for the jury.

Documenting the Fire Scene at Trial

Without proper documentation of the fire scene at the initial stages of the investigation, the case may already be lost. Even a properly documented fire scene must still be properly presented at trial, however, and this requires the effective use of demonstrative evidence to prove the point. The demonstrative evidence used in an arson trial can take several forms.

A. Photographs, slides and videos

Photographic documentation of the fire scene is essential to a proper investigation and an effective trial presentation. The method of photographic documentation may include print photographs, slides, film videos or a combination of these formats.

1. Photographs

Print photographs remain the most widely used form of documentation. They offer the advantage of capturing a critical aspect of the fire scene such as a significant burn pattern or area of origin which can be used as a reference point for extensive testimony at trial. Key photographs can also be used by the attorney in closing argument with dramatic effect. They will be sent in to the jury room during deliberations as well, for review by the jury as they decide their verdict in the case. This can be one of the most important uses of photographic evidence at trial.

To be effectively presented at trial, photographs must be enlarged and mounted, then labeled and numbered in the proper order. Photographs should be enlarged to at least 8x10 or 10x12. Critical photographs can be enlarged to poster size. Making enlargements of photographs is unquestionably expensive. However, regular size 3x5 prints are simply useless at trial. Much of the testimony explaining the photographs will take place in front of the jury box where the entire jury panel will have to see the photographs as the testimony explains them. It is impossible for jurors on the back row or seated at the end of the jury box to see 3x5 photographs with any meaningful understanding of them. More importantly, while a burn pattern may be readily discernable to a trained investigator, the typical juror will have a hard time recognizing a burn pattern in a photograph even as it is pointed out unless the photograph is enlarged so that it clearly shows the burn pattern or whatever else may be important in that picture.

In preparing the photographs for use at trial, they must be properly labeled and numbered in the sequence corresponding to the testimony of the investigator as he explains the fire scene. In order to put the photographs in the proper order, the investigator must have prepared his testimony about the fire scene to track the order of the photographs.

2. Slides

The use of slides at trial can provide an immediate advantage in terms of enlarging the fire scene photographs well beyond the size of ordinary 8x10 or 10x12 print photographs. For the reasons previously stated, this can be used to show the jury the fire scene and all of the important evidence at the scene so that it can be clearly recognized by the jurors. Certainly, this is a far less expensive way of providing a photographic enlargement of the fire scene. However, slides should always be used in conjunction with photographic enlargements and never in place of them. They cannot be used effectively by the trial attorney in closing argument and the jury will be unable to view them during the deliberation process. While slides can be used to demonstrate the fire scene evidence to the jury during the investigator's testimony, they should never be substituted for photographic print enlargements.

3. Videos

The use of videos or film footage of a fire scene can be particularly effective during trial. It is a much more life-like means of showing the fire scene to the jury and gives a much better perspective of the overall fire scene as the video or film moves throughout the scene. However, just as with slides, fire scene videos or films should never take the place of photographs. It is difficult to "freeze" a video or film to demonstrate an important part of the fire scene and it is impractical to use videos or films during closing arguments. Similarly, most trial judges will not permit the jury to take the films into the jury room for viewing during deliberations and even when they are allowed to do so, as a practical matter the jury may not pay as close attention to the video or film as an enlarged photographic print.

Of course, video or film footage of the fire in progress is invaluable evidence. Likewise, video or film footage taken immediately after the fire is extinguished as the investigation begins can have a dramatic impact at trial. Where such video or film is available, it should always be used at trial.

B. Scale models

The construction of scale models represents one of the most persuasive ways of documenting the fire scene for use at trial. A scale model is a dramatic means of taking the jury to the fire scene right there in the courtroom. It demonstrates the construction and layout of the structure before the fire in a way no photograph or diagram can possibly do. It enables the investigator to supplement his testimony with a graphic representation of the conditions and fire load which contributed to the fire's path and progression. It is a costly and time-consuming project to construct a scale model. It can cost thousands of dollars to have one built by a consulting expert. However, where the resources are available to have a scale model constructed for use at trial, it can provide invaluable benefit to the investigator testifying about the fire's origin and cause.

C. Computer graphic simulations

As computer technology has continued to evolve, new applications have been developed for use in a number of areas, including the courtroom. The computer graphic simulation represents the most advanced form of demonstrative evidence ever conceived and its value as a trial exhibit has been increasingly recognized. In the courtroom, this is truly the state-of-the-art.

A computer graphic simulation is essentially a computer-generated animation which can recreate any event in animated form. It can also be used to illustrate hypothetical events by modifying the actual facts and circumstances in any situation to predict and demonstrate what would have happened under those circumstances. In the context of arson cases, a computer graphic simulation can recreate the complete progression of a fire from ignition through overhaul in a highly realistic animated format similar to a hollywood special effects production. A jury can watch as testimony about a fire's origin and cause literally comes to life through a computer graphic simulation, just as if the entire fire incident had been captured on film. At the same time, opposing theories of the fire's origin and cause can be tested through a computer graphic simulation to disprove those theories convincingly. As you might imagine, the impact of such evidence on a jury is powerful and persuasive.

A computer graphic simulation is an expensive proposition. The cost of creating one can easily exceed twenty thousand dollars ($20,000) or more. It is cost prohibitive for all but the most well-funded party willing to make the financial investment in the case. For those who can afford it, a computer graphic simulation represents the ultimate form of demonstrative evidence.

4. Computer modeling

Another use of computer technology is in the field of computer modeling of fires. This has become an increasingly common tool used in the investigation of fires and can have significant impact as demonstrative evidence at trial.

Computer modeling is essentially a series of mathematical calculations using formulas developed from research in this area. All of the known data about a particular fire will be used in making the calculations. The available fire load, heat release rate of all combustible and flammable materials, the volume of the room or compartment where the fire originated, the construction materials and composition of the structure, the volume of air and air exchange rate, relevant time frames and all other factors about the fire will be included in the calculations. When all of this data is applied to the formulas and the calculations are made, it will provide information about how the fire should have initiated, developed and spread under those circumstances. This information will be compared to the actual effects of the fire to see if it is consistent with the way the fire should have burned. Variables can be introduced to the calculations to test the effect of other factors which may be suspected to have been present, such as accelerants used to set the fire. When those variables are included in the calculations, the results will again be compared to the actual evidence of the fire to see if those variables make the actual damage more consistent with the calculated damage using the variables. Stated another way, it will show if the fire can only be explained by the presence of other factors such as accelerants which are suspected to have been used in the fire. In the end, it can show if there is a "mathematical impossibility" the fire occurred as reported or claimed by the other side of the case. This information can provide compelling support for the conclusions of the investigator who determined the origin and cause of the fire from the examination of the fire scene.

It should be noted there are inherent limitations on the use of computer modeling. To be considered reliable and admissible at trial, it must be shown all of the data used to make the calculations were accurate and based upon the actual conditions of the fire scene. If the reliability can be established so that the computer modeling evidence is admissible, it can have a dramatic effect at trial.

Conclusion

Proper documentation of the fire scene is essential to a proper investigation. It demonstrates the investigator's methodology in analyzing the fire scene and establishes his expertise as a fire investigator. It brings credibility to the expert conclusions of the fire investigator when they are presented at trial.

More importantly, the use of demonstrative evidence at trial is a critical tool in effectively presenting a case to the jury. It captures their attention, focuses them on the evidence referenced in the investigator's testimony and highlights the testimony and evidence presented at trial. It brings a scientific and objective perspective to the testimony and evidence which the jury must consider in reaching its verdict. It can be timely and costly to prepare the demonstrative evidence needed to effectively present an arson case. However, measured against the time and energy spent in developing a case for trial it is a small price to pay.

Reprinted with permission from the author.

 
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