NFPA 921 Section 5-3 through 5-3.3
Evidence

[interFIRE VR Note: Tables and Figures have not been reproduced.]

5-3. Evidence. Rules of evidence regulate the admissibility of proof at a trial. The purpose of rules of evidence is to ensure that the proof offered is reliable. A goal of every fire investigation is to produce reliable documents, samples, statements, information, data, and conclusions.

It is not necessary that every fire investigator become an expert on rules of evidence. If the practices and procedures recommended within this guide are complied with, the results of the investigation should be admissible.

5-3.1. Federal Rules of Evidence. Evidentiary requirements, standards, and rules vary greatly from jurisdiction to jurisdiction. For this reason, those rules of evidence that are in effect in individual states, territories, provinces, and international jurisdictions should be consulted. The United States Federal Rules of Evidence have been relied on throughout this guide for guidance in promoting their general criteria of relevance and identification.

The Federal Rules of Evidence became effective on July 1, 1975. The federal rules are applicable in all civil and criminal cases in all United States courts of appeal, district courts, courts of claims, and before United States magistrates. The federal rules are recognized as having essentially codified the well-established rules of evidence, and many states have adopted, in whole or in part, the federal rules.

5-3.2. Types of Evidence. There are basically three types of evidence, all of which in some manner relate to fire investigations. They are demonstrative evidence, documentary evidence, and testimonial evidence. They are described in detail below.

5-3.2.1. Demonstrative Evidence. This is a type of evidence that consists of tangible items as distinguished from testimony of witnesses about the items. It is evidence from which one can derive a relevant firsthand impression by seeing, touching, smelling, or hearing the evidence.

Demonstrative evidence should be authenticated. Evidence is authenticated in one of two ways: through witness identification (i.e., recognition testimony) or by establishing a chain of custody (an unbroken chain of possession from the taking of the item from the fire scene to the exhibiting of the item).

5-3.2.1.1 Photographs/Illustrative Forms of Evidence. Among the most frequently utilized types of illustrative demonstrative evidence are maps, sketches, diagrams, and models. They are generally admissible on the basis of testimony that they are substantially accurate representations of what the witness is endeavoring to describe.

Photographs and movies are viewed as a graphic portrayal of oral testimony and become admissible when a witness has testified that they are correct and accurate representations of relevant facts personally observed by the witness. The witness often need not be the photographer but should know about the facts represented or the scene or objects photographed. Once this knowledge is shown, the witness can state whether a photograph correctly and accurately portrays those facts.

5-3.2.1.2 Samples. Chain of custody is especially important regarding samples. To ensure admissibility of a sample an unbroken chain of possession should be established.

5-3.2.2. Documentary Evidence. Documentary evidence is any evidence in written form. It may include business records such as sales receipts, inventory lists, invoices, bank records, including checks and deposit slips; insurance policies; personal items such as diaries, calendars, telephone records; fire department records such as the fire investigator's report, the investigator's notes, the fire incident report, witness statement reduced to writing; or any law enforcement agency reports, including investigation reports, police officer operational reports, fire or police department dispatcher logs; division of motor vehicle records; written transcripts of audio- or videotape recordings. Any information in a written form related to the fire or explosion incident is considered documentary evidence. Documentary evidence is generally admissible if the documents are maintained in the normal course of business.

All witness statements should be properly signed by the witness, dated, and witnessed by a third party when possible. It is important to obtain the full name, address, and telephone number of the witness. Any additional identifying information (e.g., date of birth, social security number, and automobile license number) may prove helpful in the event that difficulties are later encountered in locating the witness. Statements actually written by the witness may be required in certain jurisdictions.

5-3.2.3. Testimonial Evidence. Testimonial evidence is that given by a competent live witness speaking under oath or affirmation. Investigators are frequently called on to give testimonial evidence regarding the nature, scope, conduct, and results of their investigation. It is incumbent on all witnesses to respond completely and honestly to all questions.

5-3.3. Post-fire Interviews and Witness Statements. Post-fire interviews of witnesses and the taking of witness statements are an important aspect of the fire investigation process. For specific procedures and techniques to be utilized when conducting interviews, see Section 7-3.

* A-5-1 While many of the basic rules and concepts are similar in Canada, important differences also exist. An investigator should be cautious about applying the legal rules outlined in this chapter to investigations governed by Canadian law. For an explanation of the relevant Canadian legal, procedural, and evidentiary rules addressed in this chapter, see Hewitt, Fire Loss Litigation in Canada: A Practical Guide.

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Taken from NFPA 921Guide for Fire and Explosion Investigations 1998 Edition, copyright © National Fire Protection Association, 1998. This material is not the complete and official position of the NFPA on the referenced subject, which is represented only by the standard in its entirety.

Used by permission.