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Origin and Cause: Legal Standards of Proof

by Guy E. Burnette, Jr., Esquire

Contents


Introduction

Expert testimony on the origin and cause of a fire is an indispensable part of every type of fire litigation. It is a requisite element of proof in criminal and civil arson cases, subrogation actions and fire liability claims. The corpus delecti of the crime of arson is established through expert testimony proving the incendiary origin of the fire. The essential elements of a civil arson case require proof of motive, opportunity and incendiary origin. In subrogation and fire liability cases, proving the actual cause of the fire through expert testimony establishes legal liability. Regardless of the final issue of criminal or civil liability in a case, the origin and cause of the fire will have to be proved to the appropriate legal standard. The level of proof developed by an expert witness in establishing the origin and cause of a fire will directly affect the outcome of a trial. A successful result is dependent upon meeting the particular level of proof required by the case.
It is generally understood criminal cases must be proved "beyond a reasonable doubt" and civil cases must be proved "by the preponderance or greater weight of the evidence" (although some jurisdictions require civil arson cases be proved by "clear and convincing evidence", a higher standard of proof). However, the level of proof necessary to render an expert opinion on the origin and cause of a fire can vary and involves a number of important considerations.

The Admissibility of Expert Testimony

The rules of evidence permit the presentation of expert testimony under established guidelines. The rules may differ somewhat from state to state, but generally follow the standards of the federal rules of evidence applicable to all federal court cases. Rule 702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In order to be qualified as an expert witness, a person must have scientific, technical or other specialized knowledge in the field of his testimony. The source of that knowledge may come from classroom education, self-study, on-the-job experience or any combination of these. In practical effect, experience in the field is considered the best source of knowledge. The level of knowledge required to qualify as an expert witness is not specified under the rules of evidence. Courts have generally required only that the expert witness possess knowledge in the field beyond the level of the ordinary citizen, meaning almost any specialized training and experience will usually qualify a witness as an expert. The true extent of an expert's knowledge is considered a matter which goes to the credibility or "weight" given to the testimony by the jury. Qualifying as an expert witness is a relatively easy process. Convincing the jury to accept the expert's testimony and conclusions about the case may be a much more challenging undertaking.

Basis of Expert Testimony

The basis of an expert's opinion is the foundation of his testimony and the focus of cross-examination by the adverse party. Although a person may be qualified as an expert witness by the court, before any expert opinion or conclusion is actually offered by the witness it must have a legally valid basis. Traditionally, courts required that the expert's opinion be based upon "generally accepted scientific principles." This required a showing that the theories or principles underlying the expert's opinion were widely recognized and acknowledged within the scientific community of the field of expertise. This was designed to prevent untested theories and unproven methods ("junk science") from being advanced in court. At the same time, however, this limited the advancement of new theories which may have had a proper scientific basis, but simply had not yet gained recognition and acceptance in the scientific community.

The United States Supreme Court recently ruled in a landmark case that this standard should be rejected in favor of a more liberal one, recognizing scientific truth is not the product of scientific "consensus" and the advancement of scientific knowledge often precedes its universal acceptance. In the case of Daubert v. Merrell Dow Pharmaceuticals, the Court held that the proper basis for expert testimony is "scientific knowledge based upon scientific methodology" establishing the conclusions beyond mere speculation or subjective belief. It was held that the test for the admissibility of expert testimony should consider several reliability factors, rather than the general acceptance of the scientific community as an exclusive measure of admissibility. Those factors include:

  1. Whether the theory has been reliably tested
  2. Whether the theory has been published or otherwise subjected to "peer review" in the scientific community
  3. Whether the theory has a known or potential rate of error
  4. Whether the opinion is based upon facts reasonably relied upon by experts in the particular field

Under the Daubert rule, the admissibility of an expert's opinions or conclusions will be measured against these indicators of reliability and scientific validity. General acceptance within the scientific community may still be considered as a factor, but may no longer be used as the sole standard of admissibility. The other factors cited by the court in Daubert should be considered in determining admissibility. As a fail-safe, the trial judge still has the discretion to reject expert testimony when it is considered to be too speculative or subjective to be reliable, despite the presence of some of these factors. However, the Daubert rule clearly means expert witnesses will now be given greater latitude in demonstrating the basis for their opinions or conclusions. Certainly, it will more freely admit expert testimony based upon new theories and emerging principles of scientific knowledge. The reliability and validity of an expert's opinions will ultimately be determined by the jury, but the trial judge acting as "gatekeeper" must first evaluate the reliability of the expert's conclusions and methodologies before the jury is ever allowed to hear the testimony.

Levels of Proof

The first hurdle in presenting expert testimony is qualifying as an expert witness. The second hurdle is showing the expert's opinions or conclusions are based upon reliable scientific principles and data. The final hurdle is demonstrating the level of certainty behind the expert's opinions or conclusions.

In most fields of expert testimony, courts have required the expert witness to establish his opinions or conclusions "to a reasonable degree of scientific certainty." In fire litigation cases, several courts have considered the level of "certainty" required by a fire investigator to establish the origin and cause of a fire. In Lanza v. Poretti, a federal court in Pennsylvania held the fire investigator could not testify to the fire being caused by careless smoking of a cigar because he could not present evidence supporting his opinion "to a reasonable degree of scientific certainty", based upon the absence of direct physical evidence of the cigar as the cause of the fire and the elimination of all other possible causes. Although the investigator testified the cigar was a "likely" cause of the fire, he acknowledged he could not preclude arson as a likely cause, as well. He did eliminate all other potential causes, however. The fire investigator's testimony was rejected as mere speculation and conjecture in the absence of evidence eliminating the possibility of arson.

Another Pennsylvania case, Breidor v. Sears, Roebuck & Co., Subsequently held that "where a fire investigator identifies the cause of fire in terms of probabilities (as opposed to mere possibilities) by eliminating all but one reasonable potential cause, such testimony is highly probative" and is admissible. Even though the investigator based his opinion on probabilities rather than scientific certainty, this was legally sufficient in the context of that case. This case cited with approval the Lanza case, noting the result could be distinguished because the investigator in Breidor had eliminated all potential causes of the fire but one, even though he found no direct evidence of that cause.

In an Illinois case, Commercial Union Insurance Co. v. Basfield, it was argued that a fire investigator's opinion that the careless use of smoking materials was the most likely cause of the fire should be excluded because it was not based upon "a reasonable degree of scientific certainty." The court rejected this argument, noting "because all direct evidence is often destroyed, fire experts often must rely on circumstantial evidence in determining the cause of a fire." The fire investigator had ruled out other possible causes of the fire, even though he found no direct evidence of smoking as the cause. He determined smoking was the "most possible cause" with a probability of over 50 percent. This was deemed sufficient proof in a civil subrogation case. In a criminal case, it would not have been adequate proof. The methodology is appropriate to both criminal and civil cases, but a criminal case will require a conclusive determination of the fire's cause. However, a conclusive determination does not necessarily require direct evidence.

This issue has been addressed by NFPA 921, although it has recently undergone a significant revision. The original 1992 version of NFPA 921 stated:

12-6 certainty of opinions. When forming opinions or hypotheses about fires or explosions, the investigator must set a minimum standard for the proof of those opinions. Use of the scientific method dictates that any hypothesis formed from an analysis of the data collected in an investigation must stand the challenge of reasonable examination (proof).
(a) a reasonable degree of scientific (engineering) certainty. This degree of challenge corresponds to the degree of proof applied in criminal legal proceedings, beyond a reasonable doubt. At this level of proof, all reasonable alternatives to the hypothesis are considered and eliminated.
(b) probably true. This level of challenge corresponds to the degree of proof applied in civil legal proceedings; more probably true than not. At this level of proof, the chance of the data or hypothesis being true is more than 50 percent.
(c) possibly true. This level of challenge corresponds to the degree of proof in which other data or hypothesis may be equally or as nearly possible as others.
(d) suspected to be true. This level of challenge corresponds to a perception that the data or hypothesis may be true, but there are insufficient data to draw a conclusion to the exclusion of any other reasonable conclusion.

Ultimately, the decision as to the truth of data collected in the investigation or any hypothesis drawn from an analysis of the data rests with the investigator. However, the scientific method precludes the use of "possibly true" or "suspected to be true" data. Only data that are true to a reasonable degree of scientific certainty or that are probably true should be used in an analysis or hypothesis. If the data collected are only possibly true or suspected, those data, or the cause should be listed as unknown, undetermined, or under investigation.

The 1995 edition of NFPA 921 revised the language in the four "degrees of challenge", changed them to "degrees of confidence" and made the four levels a recommended, rather than mandatory practice. The 1995 edition states:

12-6 opinions. When forming opinions or hypotheses about fires or explosions, the investigator should set standards for the degree of confidence in those opinions. Use of the scientific method dictates that any hypothesis formed from an analysis of the data collected in an investigation must stand the challenge of reasonable examination.
There are four levels of confidence that can be regularly applied to such opinions.
(a) conclusive. At this level of confidence, the hypotheses has been tested and withstood all appropriate challenges while all reasonable alternatives to the hypothesis have been considered and eliminated due to their failure to withstand a valid challenge, leaving only that hypothesis under consideration as true.
(b) probable. This level of confidence corresponds to being more likely true than not. At this level of confidence, the chance of the hypothesis being true is more than 50 percent.
(c) possible. At this level of confidence, the hypothesis can be demonstrated to be feasible but cannot be declared probable.
(d) suspected. This level of confidence corresponds to a perception that the hypothesis may be true, but there are insufficient data to draw a conclusion to the exclusion of any other reasonable conclusion.

Ultimately, the decision as to the level of confidence in data collected in the investigation or any hypothesis drawn from an analysis of the data rests with the investigator. The final opinion is only as good as the quality of the data used in reaching that opinion. If the confidence level of the opinion is only "possible" or "suspected", the cause should be listed as unknown, undetermined, or under investigation.

The 1995 edition deleted the references to criminal and civil legal proceedings, unlike the 1992 edition. However, the 1998 edition of NFPA 921 contained a far more extensive revision of this section, eliminating the categories for levels of confidence. The 1998 edition states:

12-6 opinions. When forming opinions from hypotheses about fires or explosions, the investigator should set standards for the degree of confidence in those opinions. Use of the scientific method dictates that any hypothesis formed from an analysis of the data collected in an investigation must stand the challenge of reasonable examination. (see chapter 2.) [see daubert v. Merrell dow pharmaceuticals, inc., 509 u.s. 579, 113 s.ct. 2786 (1993).]

Ultimately, the decision as to the level of confidence in data collected in the investigation or any hypothesis drawn from an analysis of the data rests with the investigator. The final opinion is only as good as the quality of the data used in reaching that opinion. If the confidence level of the opinion is only "possible" or "suspected," the cause should be listed as undermined.

Thus, NFPA 921 now essentially leaves it up to the investigator to find an appropriate level of confidence in the findings and conclusions of the investigator. However, the legal sufficiency of an opinion will remain an issue for the judge to decide.

In reaching the necessary level of confidence or proof, the investigator faces an inevitable challenge to his findings where they are based upon indirect or circumstantial evidence, rather than direct proof. The nature of fire investigation makes this an inherent problem, a point which finds support in sources such as section 2-3.5 of NFPA 921 requiring an investigator's conclusions to be solely based upon "empirical data." Fire investigation is not a strictly empirical process, it is in large part a deductive process. The courts have recognized this fact and have upheld the deductive approach using circumstantial evidence as satisfying the legal requirement of proof. A "reasonable degree of scientific certainty" does not mean absolute empirical certainty. It is a common tactic in cross-examination to suggest the absence of direct proof (i.e., physical evidence) of a fire's cause means the investigator's opinion cannot be considered reliable. As the cases previously referenced show, this is not true. Where two or more potential causes of a fire are equally likely, as in the lanza case, it is true. However, where all other potential causes of a fire have been eliminated but one, that cause can be considered to have been conclusively established. Where two or more potential causes exist which are not equally likely, the most probable cause can still be presented to satisfy the civil burden of proof. The elimination method of origin and cause determination has long been accepted as proper fire investigation methodology and it is proper, procedurally and legally. But it will always be vulnerable to this line of attack. In responding to this challenge to his findings, the investigator must convincingly demonstrate the reliability and scientific validity of the basis of his opinion. Only then can the necessary level of proof be established to convince the jury.

Conclusion

The fire investigator faces three hurdles in presenting expert testimony on the origin and cause of a fire. The investigator must be qualified as an expert witness, he must base his opinions or conclusions upon reliable scientific principles or data, and he must reach the appropriate "level of confidence" in support of his findings. The failure to clear any one of these hurdles will be fatal to a case. With an awareness of the legal standards required to prove the case, the job can be done properly and professionally.

Reprinted with permission from the author.

 
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