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Demonstrative aids, usually presented during the
court testimony of an expert witness, can greatly assist the jury in
understanding the case and the facts as presented and interpreted by
the expert. If a demonstrative aid is an actual piece of evidence
("demonstrative evidence"), NFPA 921 recommends that
it be authenticated through either witness identification or chain of
custody.
To help investigators understand and visualize the
strong demonstrative aids they can create, this article reviews the
most common types of demonstrative aids and presents sample fictional
exhibits based on the facts of the interFIRE VR case at 5 Canal
Street.
Scene Diagrams
The most basic scene diagram is the floor plan. At
minimum, this scale diagram shows the rooms in the structure,
significant furnishings and features of the structure, and location
of victims. Notation of important investigative features. Many other
different types of diagrams are possible: elevation sketches,
pre-fire contents drawings, exploded room diagram showing
investigative information such as patterns and charring, evidence
sampling location sketches, canine alert location sketches, photo
location diagrams, and witness perspective locations. Each case
dictates what sketches are appropriate beyond the basic "floor
plan." All diagrams should be labeled with the name of the case,
the name and address of the structure, a key of symbols, a notation
of North directional, and the name of the investigator or schematic
artist who created the diagram. Below, on the left, is a basic
diagram of the floor plan of the house at 5 Canal Street in interFIRE
VR. On the right is an example of a second, specialty diagram, with
dimensions overlayed.
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For interFIRE VR, Robert Corry1, Principal
Investigator for Forensic Investigation & Technical Services LLC
and former Assistant Vice President and Fire Investigation Specialist
at American Re-Insurance Company, suggests, "Your grounds
diagram could be on a scale that would permit the witness who found
the tire track on the edge of the road to mark the location so jurors
could see its relationship to the house. The same could be done by
the investigator for the location of the water bottle in the
woods." In preparing sketches for courtroom presentation,
consider how they will be used, by what witnesses, and what scale and
features should be chosen so the diagram can be effectively used by
them.
Photographs and Annotated Photographs
Photos depicting critical information or evidence
can be blown up to poster-size and used during testimony. Examples of
situations to depict with large photographs include:
- unusually shaped burn patterns
- remains of trailers
- evidence items
- heat and burning indicators like
distorted lightbulbs
- damage patterns on victims
Sequential photos and photo mosaics can also
demonstrate important scene features.
 In the interFIRE VR case, a photograph
showing the locations of canine alerts can assist the jury in
understanding the pour pattern. On the right is an example of how
this demonstrative aid might be prepared.
Aerial photographs can assist the jury in
understanding the structure, its relationship to other buildings, and
accurately placing important locations in a geographic context.
Joseph Toscano2, Fire Investigation
& Litigation Support Consultant for Chilworth Technology and
former Vice President Fire Investigation Specialist for American
Re-Insurance Company, and frequent instructor on demonstrative aids,
recommends, "Take several aerial photographs, and depending on
the circumstances, use as many as possible. In a city environment I
recommend that one of the photos include the victim property and the
location of the nearest firehouse. This photo is utilized by the
firefighter witnesses who will begin the process of bringing the jury
back to the fire scene. Certainly one for utilization by any
eyewitnesses, path of flight, location of evidence away from fire
scene, and the like."
In the interFIRE VR case, the expert witness might
use an aerial photograph comprising the property, the woods behind
it, and the road beyond those woods to illustrate the proximity of
the house to the woods, the location of the water bottle in the
woods, the location where the tire print was found, and the location
where Meghan Branigan saw the car parked on the road. Ms. Branigan
can also point out this location on the same photograph. A wider
aerial photograph could be plotted with Meghan Branigan's paper route
and Daniel Mezzi's jogging route to help the jury understand the
movements they detail and how their observations figured into the
investigator's analysis. Aerial photographs can also be used at sites
where the roofing is burned away, exposing the building interior, and
providing an overhead view of where evidence items were found,
patterns exposed, or features noted.
Timelines
Timelines help a jury understand the sequence of
events surrounding a fire. The more complex the movements, the more
critical a timeline is to helping jurors keep the facts straight. The
timeline also helps illustrate inconsistencies in a suspect's
statements, gaps of time unaccounted for by a suspect's statements,
and the physical time limits of movements (i.e., how long it takes to
get from one place to the next). Depending on the case, multiple
timelines may be necessary.
The following example is a sample timeline for the
major events in the 5 Canal Street case from interFIRE VR (NOTE: This
sample timeline does not necessarily reflect the actual events and
responsible parties in interFIRE VR):
Key Physical Evidence
Above: Example of Demonstrative Evidence from interFIRE
VR
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Above: Example of Physical Indicators from interFIRE
VR
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Above: Example 1 of Document Evidence from interFIRE
VR
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Above: Example 2 of Document Evidence from interFIRE
VR
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Toscano notes "Perhaps the most dynamic piece of
demonstrative evidence that I recommend investigators consider is a
section of floor that has a burn pattern the investigator is
utilizing in part to form an opinion. Aside from the traditional
methods of documenting the scene—photos, diagrams,
video—the best evidence is always the evidence itself."
Corry succinctly concurs, "If a piece of furniture or section of
flooring has a burn pattern of interest—cut it out, mount it and
bring it to court." Allowing the jury to see the burn pattern as
the investigator describes how it could have been caused is
invaluable. This piece of demonstrative evidence can also be used by
forensic examiners who will offer testimony regarding the results of
samples collected from the pattern.
Key physical evidence can also include potential
accidental causes that were eliminated. These can be especially
important if a suspect attempted to make the fire look like an
accidental fire caused by mechanical or electrical malfunction, and
the investigator anticipates that this possible cause will be raised
by the defense at trial. For example, in the interFIRE VR case, the
investigator could collect the space heater (represented here in
photographs, but would be presented in court in real life) and the
electrical outlet behind the couch. At trial, while discussing how
these causes were eliminated, the investigator could actually show
the jury the factors he/she used to make their determination: for
example, the absence of spark marks on the back of the outlet. It is
very powerful for the jury to see this with their own eyes on the
actual piece of equipment.
Physical Evidence of Indicators
Collecting key indicators of fire origin and/or
spread can provide the jury with a firsthand look at what the
investigator saw and allow them to explain their interpretations of
the evidence. As an example of the use of physical evidence of
indicators at trial, Toscano suggests, "In the case of interFIRE
I use the example of the left and right front legs of the couch. They
clearly show patterns that, when explained, provide practical and
tangible information—depth of char—on how an expert's
opinion is formulated." These two legs of the couch clearly show
that the fire was more intense at the western end of the couch near
the "right" (as you face the couch). This allows the
investigator to show some of the information on which they based
their opinion as to the fire origin.
Forensic Comparisons
The presentation of key forensic evidence often
requires demonstrative aids like photographs and/or the actual piece
of evidence. For example, in the interFIRE VR case, the investigator
or forensic examiner could bring in a blown-up photograph of the tire
track impression, the case of the tire impression, and a photograph
of the suspect's tire. The photographs of the impression and the
suspect's tire could be annotated with arrows pointing to the unique
features that caused the examiner to determine that tire caused the
impression. Then, the witness could easily and graphically show the
jury how they made the determination.
Blow-Ups of Document Evidence
Document evidence in a fire case often includes
financial records and insurance records. These records can be
complicated and "red flags" are often buried in other data.
To assist the jury in following the explanation of financial records,
blowing up and mounting certain areas of a document may be
helpful.
Bob Corry sees a definite advantage to this
demonstrative aid, "Insurance records can be hard for the jury
to follow because they often involve unfamiliar terms. Blow ups of
insurance policies, bank statements, and the like can be used by the
investigator to graphically illustrate a liquity problem or false
statements made to the insurance company. There's no substitute for 3
inch high letters in a sworn document that directly contradicts the
suspect's statement."
In the interFIRE VR case, two examples of document
evidence that could be mounted for jury presentation are the
insurance note on coverage knowledge that contradict's Steven
Roberts' signed statement and Roberts' bank records showing numerous
overdrafts and negative balances.
Visual Investigative Analysis Charts, Link
Analysis Charts, and Telephone Toll Analysis Charts
These types of crime analysis charts can help the
investigator understand the events in the case, and make those
events, and their relationships, clear to a jury. Visual
Investigative Analysis (VIA) was first designed in the mid-1960s by
the Los Angeles Police Department as a way for investigators to
understand the sequence of events in a case, how those events
interacted, and identify gaps that required further investigation.
The value of VIA charts at trial has now been recognized because they
help the jury quickly understand the case. In the interFIRE case, a
VIA chart would plot the activities of all the people connected to 5
Canal Street on that morning: Steven Roberts (landlord), Paul and
Ruth Thomas (tenants), Meghan Branigan (papergirl), Daniel Mezzi
(jogger), Mary and Tasha Gilbert (neighbors), Martin Wakiza
(neighbor), Lily McCray (daughter of tenants), and Doron Ingram
(boyfriend of Tasha Gilbert).
Link Analysis Charts are diagrams that show the
relationships between people, businesses, and organizations. In cases
where there are complex business relationships, family bonds, or
criminal associates, Link Analysis can help the jury keep track of
who's who, who knows who, how they are related to each other, and
what the nature of this relationship is, and the degree of certainty
with which these people are connected.
Telephone Toll Analysis charts telephone call
records as a pattern of activity between entities (persons,
organizations, and locations). Most commonly, telephone toll charts
are an investigative tool to help law enforcement understand the
criminal activity around the target. However, they may be of
assistance at trial to help the jury understand the communications
between parties involved in the case.
The process of creating these resources is beyond
the scope of this article, but for more information on how to create
VIA Charts, Link Charts, and Telephone Toll Analysis Charts, consult
the resource Crime Analysis Charting by Jack Morris (The
Palmer Press, ISBN 0-912479-01-9).
Video
Video can assist the jury in understanding the
scene. Video taken by investigators is another way of recording the
scene and can help the jury "walk through" the scene. Other
videos, as dictated by the case, may help make specific points. In
some cases, as allowed by the rules of evidence, reenactment videos
can show the jury how the investigator put the facts of the case
together into a scenario and demonstrate how that scenario
occurred.
One example of a type of video that may be helpful
at trial is a video made of the home pre-fire, such as a family
Christmas or birthday video. A tape like this can help establish the
pre-fire location of contents in the room of origin, which is an
issue in the 5 Canal Street fire. Some items in the living room are
not where the tenants remember leaving them, raising the question of
how they got moved, why, and by whom. Click here to see a video made by the Thomas
family before the fire for insurance purposes. At trial, the
investigator might play the video, then use an investigative
post-fire video of the home to show where the items were found after
the fire.
Architectural Models
Scale models can help the jury understand the
physical layout of scene in three dimensions, assisting them in
spatially relating events, evidence, and indicators. Joseph Toscano
notes "These models can get quite elaborate, especially in
complex investigations involving loss of life or large monetary loss.
They are a very effective tool to educate a jury about the entire
investigative process." These models can also be referred to by
other witnesses in the case and gives the jury a common frame of
reference as they evaluate the evidence and testimony. In the
interFIRE VR case, an architectural model would help the jury see how
the investigator "plotted" the route the perpetrator took
into and out of the scene by linking the evidence he left behind
(tireprint, water bottle, bag, moved items) and the accelerant residue
samples collected.
Fire Modeling and Test Burns
In some cases, fire modeling and video of test
burns may be appropriate. Although these types of items may be judged
to have too wide a margin of error to be admissible at trial, the
investigator should consult the prosecutor about their potential and
whether or not they apply to the case.
Conclusion
Demonstrative aids help the jury and the judge
understand the physical evidence and testimonial statements the
investigator evaluated. Work with the prosecutor to determine how to
best illustrate the evidence in your testimony. Then, to the best of
your ability, create demonstrative aids that provide a clear picture
of the case. And, don't get caught up in thinking demonstrative aids
have to be elaborate. What matters is that they illustrate the point
and get it across to the jury effectively. Toscano recalls, "I
have watched Dr. Henry Lee, who I consider one of the best expert
witnesses in the business, captivate a jury using a glass of water
spilled on a table and then slapping it with his hand and telling the
jury 'now let me explain what just happened.' He was explaining blood
spatter evidence using only a glass of water."
Acknowledgements
The author gratefully acknowledges the substantial
contributions Joesph Toscano and Robert A. Corry made to this
article.
1Robert A. Corry:
Biography
Robert Corry is the principal
investigator for Forensic Investigation & Technical Services LLC,
a private investigation firm licensed in Massachusetts and
Connecticut specializing in fire and arson investigation, large loss
fire investigations and investigation skill training.
He was an Assistant Vice President
and Fire Investigation Specialist at American Re-Insurance Company
from 1997 to 2002. His responsibilities there included consulting
with primary property insurance carriers on large loss fire, arson
and explosion claims and providing educational programs on fraud and
arson investigation & defense.
Bob was on the Massachusetts State
Police from 1974 until his retirement in 1997. In 1981, he was
assigned to the Massachusetts State Fire Marshal’s Office
assisting 26 urban, suburban and rural communities perform fire and
explosion investigations. He was among the first Accelerant Detection
Canine handlers in the United States.
From 1992 to his retirement he was
Detective Lieutenant and Commanding Officer of the Mass State Fire
Marshal’s statewide Fire and Explosion Investigation Unit –
the largest unit in the state police.
Noted for helping to solve hundreds
of fire investigations, Bob has taught in national FBI, ATF and U.S.
Fire Administration programs as well as in many state and
international fire investigation training programs. In 1993, the U.S.
Fire Administration designated the Lawrence, (MA) Arson Task Force
which he commanded as the national model. The National Fire
Academy’s 2-week residential program, Management for Arson
Prevention and Control, is based on this unit.
He was the principal writer for
A Pocket Guide to Accelerant Evidence Collection, recommended
as a reference in all editions of the Guide for Fire and Explosion
Investigations, NFPA 921 and Kirk’s Fire Investigation
5th Edition. He was a member of the principal development teams
for several national level fire/arson investigation training programs
including interFIRE VR and Motive, Means and
Opportunity.
A Life Member of the Massachusetts
Chapter, IAAI he served as the organization’s President from
1988 until 1990 and is currently on the Board of Directors. He is a
member of the NFPA. Bob earned a BS in Criminology from Northeastern
University and a MS in Criminal Justice Studies from American
International College.
He served in the U.S. Army from
1966 through 1970, where his last assignment was Captain, 173rd
Airborne Brigade in Vietnam. He has been married for 30 years and has
three children.
2Joseph Toscano:
Biography
Joseph Toscano has been involved in
all aspects of the field of fire investigation and case management
for the past twenty-five years. He is an internationally known
lecturer and author on effective investigative techniques and
solutions for the Insurance Industry, Law Enforcement, Fire Service
and Legal professions. His expertise includes Fire Origin and Cause,
Large Loss Investigation Management, Curriculum Development, Claim
Division and SIU Training, Subrogation and Fraud Investigation.
Toscano also pioneered the utilization of K-9’s as a tool in the
investigation of fires.
Toscano begin his career as an
appointed police officer in East Haven, CT, and was promoted through
the ranks to Police Inspector, Arson Control and Assistance Program,
Division of Criminal Justice, State of Connecticut assigned to the
States Attorneys Office New Haven. In 1993, after a long career in
law enforcement, Toscano moved to American Re-Insurance as Appointed
Director, Claims Division, Fire Investigation Specialist, American
Re-Insurance. Throughout his ten years with American Re, he was
promoted to Assistant Vice President and then Vice President of the
same division. Currently, Toscano is a Consultant, Fire Investigation
Specialist, Fire Investigation & Litigation Support, for
Chilworth Technology.
Toscano holds many professional
distinctions. He is a longtime member of NFPA's Fire and Explosion
Technical Committee (NFPA 921), a past member of the Board of
Directors for the Insurance Committee for Arson Control, and Past
President of the Connecticut Chapter International Association of
Arson Investigators. Toscano is a member of NFPA, IAAI, the
Connecticut Fire Marshals Association, and the International
Association of Special Investigation Units.
Toscano is a course developer and
instructor in all four State and Local Fire Investigation Training
programs developed and delivered by the Bureau of Alcohol Tobacco and
Firearms at The Federal Law Enforcement Training Center in Brunswick,
GA since 1980. He is also an instructor at the Trial Advocacy Center
in Columbia, SC for the National District Attorneys
Association/National College of District Attorneys Arson
Investigation Training Program. Toscano has been an adjunct professor
or guest lecturer at the following: University of New Haven, Fire
Science Program and the Yale University School of Law, prosecution
intern program. Toscano has lectured regularly throughout the United
States since 1980 to the following Organizations: ICAC, IAAI, IASIU,
PLRB, NCDA, ABA, CPCU, ATF, NDAA, USFA, IFM, NYFD, NICB, and Police
Foundation National Institute of Justice. Toscano developed and
produced "Motive Means & Opportunity" a comprehensive
fire investigation training program in English and Spanish for
worldwide distribution, and interFIRE VR, an interactive CD-ROM fire
investigation training program in a partnership with The United
States Fire Administration, Bureau Of Alcohol Tobacco and Firearms
and The National Fire Protection Association. Toscano also developed
"Abandoned Building Project Tool Box" in partnership with
The United States Fire Administration, International Association of
Arson Investigators and The Insurance Committee for Arson Control.
Toscano has developed and delivered a broad spectrum of educational
programs on various fire investigation topics in the following
countries: Australia, Taiwan, Great Britain, South Korea, New
Zealand, Panama, Chile, France Holland, Belgium, Canada and
Spain.
Toscano has been honored with
Investigator of the Year Award (IAAI, 1990), "Lecturer of Merit
Award" (National College of District Attorneys), "Arnold
Markle, Distinguished Service Award" (University of New Haven),
"Hammer Award" presented by Vice President Al Gore for
efficient use of government funds in the development of interFIRE VR
(1999), Honor Award (Bureau of Alcohol Tobacco and Firearms, 2001),
Distinguished Service Award (New York City Fire Department, 2000),
and numerous awards and commendations for meritorious police
service.
Toscano holds a B.S. from Southern
Connecticut State University, New Haven, CT. He is a Certified Fire
Investigator (CFI), International Association of Arson Investigators,
and recognized as an "expert witness" in both State and
Federal courts.
This article appears courtesy of Munich Re America, Inc. formerly American Re-Insurance Company.
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