Pre-Trial Events and Preparation
excerpted from "Motive, Means, and Opportunity, A Guide
to Fire Investigation."
American Re-Insurance Company, Claims Division, 1996.
The arrest of a suspect in an arson case is only one segment of the investigation.
After the arrest, the investigator should prepare for the upcoming court
proceedings. To do this, the investigator should be prepared to provide
testimony at trial as well as to submit his or her reports. The reports
will be carefully reviewed by countless investigators, lawyers, victims
It's also worth keeping in mind the following:
- In all likelihood the arson case will be tried by a panel of lay people
who have little or no experience with fire causes.
- Photographs, videos, diagrams and other demonstrative and real evidence
must be collected to enhance the prosecution's case.
- Evidence must be presented that is aimed at convincing jurors that
the fire was started intentionally and to educate them at the same time.
- When testifying, investigators should be firm but fair. You compromise
your credibility by embellishing or refusing to concede on minor details.
An aura of impartiality and fairness is more persuasive to a jury than
extreme emotion and exaggeration.
A. Pre-Trial Events*
Various stages of an investigation proceed from the point the case is
presented to the prosecutor for review. Investigators can be frustrated
by misunderstandings about their responsibilities in the pre-charge and
pre-trial phases of a case. The following list of responsibilities should
1. Media Relations
In discussing the case with the media, stay with the facts. Describe
only what you know, not what you suppose. Some guidelines-
A. Explain there are only three causes of fire:
B. Never say a fire is suspicious.
C. Remember that investigators and other witnesses may be held accountable
for statements made to the media during all phases of the investigation,
and while the fire is being suppressed. Realize that prosecutors are ethically
responsible for all statements to the media, regardless who makes them.
D. When dealing with the media-
1. Remember, if you don't want it printed or broadcast, don't say it.
2. If you don't know the answer say so. Don't try to guess!
3. Answer questions in 30 seconds or less, then be quiet.
4. It's safe to expect to be quoted on everything you say, and sometimes
that it maybe out of context.
5. Make a comment. The danger in saying "no comment" is that
a reporter may make up answers for you by speculating.
6. Send a clear message that you're trying to help:
a) Return reporters' phone calls.
b) Allow camera crews access to the scene, if possible. If it's not
possible, explain why (For example, the site is too dangerous, etc.)
7. Never make sarcastic comments. This could influence the reporter
to write a less than favorable story.
8. Avoid the appearance of a cover-up. Be as open as possible, even
if it means saying, "I don't know."
9. Keep in mind that the media are working on a deadline.
10. The interview isn't over until the news crew and reporters leave.
Your actions and words are being observed the entire time.
11. If you are attending a press conference:
a) Wear a suit or a uniform. Never wear sunglasses.
b) Try to schedule the news conference for the morning, preferably 10
a.m. This will allow reporters adequate time to meet their deadlines.
c) Have the conference in a room large enough to comfortably accommodate
reporters, cameras, etc.
d) Be prepared! Have copies of news releases available.
e) Set up chalkboards, diagrams, etc. in advance.
f) Allow only one person to speak at a time.
g) Arrive three minutes late, so that you won't be tempted to "chat"
with reporters before the conference begins.
h) ALWAYS use a written statement. It should take no more than one minute
to read the statement at the beginning of the conference. Do not wing it.
i) End the conference by saying, "I'll take one more question."
Answer it and leave.
2. After Charges Are Filed
A. Keep in mind that the investigation is not over at this point. Still
to be done are:
1. follow-up interviews with witnesses
2. creation and review of documents and records is ongoing
3. criminal histories and alibis must be investigated
3. The Deposition
The Deposition is a key part of the Filing Charges process. There are
two types of depositions. The first is called Discovery.
a. The Discovery process is the process by which parties to a case must
disclose all relevant information in their possession prior to trial. Here
are some key points about discovery:
1. The Defense must have copies of or access to:
(a) Statements and non-confidential reports. (Provide photocopies with
all addresses and phone numbers blacked. You may charge a fee of, for example,
$1.00 per page.)
(1) Copies of photos and videos for a fee. (You may arrange it so that
the Defense must buy all or none.)
(2) Provide only when the Defense asks for them. You don't have to volunteer.
(3) NEVER give them the originals!
2. Do not give the Defense copies of investigator notes.
b. The second type of deposition is called Trial and its purpose is
to replace actual testimony (usually for ill people or people unavailable
for the trial).
- Remember a deposition is testimony under oath, just like a trial.
- Respond to questions, but don't volunteer anything.
- Be prepared! Meet with a lawyer before being deposed.
4. Presenting Cases for the Prosecutor's Review
The manner in which a case is presented for review by the prosecutor
is crucial to the prosecutor's evaluation of the case and decision whether
or not to prosecute.
a. Give the prosecutor an organized, presentable package of:
(2) physical evidence
(3) lab results
(4) witness list
(5) transcribed statements
(7) other investigator work products
(8) criminal histories of suspects and witnesses
b. Probable Cause means that it's more probable than not that the suspect
set the fire. The prosecutor may want a Probable Cause Affidavit. Here
are some suggestions for what to include in a Probable Cause Affidavit:
(1) information about where, when and what occurred.
(2) a paragraph summarizing the fire scene investigation:
(a) who conducted the examination
(b) one or two sentences summarizing how the fire was started (in the
fire investigator's opinion)
(c) a statement that all reasonable accidental causes for the fire have
(d) an estimate of the amount of damage
(3) a paragraph indicating that when interviewed the owner gave no one
permission to burn or otherwise damage the property
(4) a paragraph indicating that on _[Date]_, _[Suspect]__ filed a claim
for $__________ with the _[Name]_ insurance company for this fire loss.
(5) a paragraph summarizing the information learned from each witness,
for example, "During an interview with Jane Smith, she said she observed..."
(6) a closing statement: "All these events took place in ________
(fill in city/county, etc.)"
c. Prosecutors are very busy. Make an appointment. Keep in mind also
that some prosecutors have specific procedures for reviewing/screening
cases. Become familiar with these procedures and accommodate them in presenting
d. Be realistic about the case. Make sure you can link the suspect to
the fire with evidence. Everyone may "know" the suspect started
the fire, but without strong evidence, the case may not be strong enough
to prosecute successfully. Also, don't expect the prosecutor to be enthusiastic
about the case. Prosecutors have a lot on their plates. Remember they are
pursuing all crimes, not just arson. A circumstantial arson case is not
easy to prosecute.
e. Keep the lines of communication open. Build a relationship with the
(1) Try to have lunch together regularly.
(2) Find out about the investigations he or she is interested in working
(3) Ask about the types of demonstrative evidence that can be admitted
in the jurisdiction.
To prepare for the trial, first meet with a lawyer. Discuss the theme
of the case. Explain what evidence has been collected and how it could
Develop a plan together.
Carefully examine the case's weaknesses and anticipate the Defense's
strategy. Prepare exhibits, charts, diagrams, maps, etc. Be certain photos
are processed, enlarged, and organized. Finally, practice what you will
*This section is based upon, and contains excerpts and
quotes from "How to Make Love to a Prosecutor," by Peter S. Beering,
C.F.I. and is used with his permission.
Beering, Peter S.,C.F.I., How to Make Love to a Prosecutor
or How Not to Get Screwed By a Prosecutor, 43rd Annual Seminar of the International
Association of Arson Investigators, January 1992, p. 13-29
Burnette, Guy E., Jr. Expert Testimony in an Arson Case.pages
1-19. Mr. Burnette is a member of the law firm of Butler, Burnette and Pappas
of Tampa, Florida
Reprinted with permission.